Case: Husainbhai Nabibux Kunjada Vs. Modhia Chhotalal Mansukhlal &amp; Others

cultivating the suit land personally during the relevant period. They further did not appear to have paid any rent to the defendants from the year 1942 onwards and the relationship of landlord and tenant did not subsist between them. There was undoubtedly a dispute about the suit land between the defendants and some others but the defendants title was established in suit no. 2/42. In that suit these plaintiffs, though impleaded as parties, had not cared to lead any evidence and indeed. they had allowed the suit to proceed against them ex parte. After considering the scheme of the Bombay Tenancy Act, 1939, the Court also concluded that the Act did not bar the jurisdiction of the trial Judge in Suit No. 2/42, to pass a decree for possession, as indeed the decree for partition and possession could only be made by the civil court. That decree was thus held not to be violative of any provision of the Bombay Tenancy Act, l939, the plaintiffs having never admitted or accepted the defendants as their landlords. The suit was accordingly dismissed. An appeal preferred by the plaintiffs to the High Court of Gujarat was dismissed by a Division Bench in limine on March 26, 1969. Leave to appeal to this Court was declined by the High Court on August 14, 1969.7. In this Court, Shri Shukla tried to show that the appellants were tenants of the suit land and were in its cultivating possession, with the result that they were entitled to the benefit of the Bombay Tenancy Act, 1939. He contended that they could not be deprived of their holding as tenants, adding, that in fact no actual possession of the land in dispute was ever taken from them. According to his submission, in execution of the decree in Suit No. 2/42, only symbolical possession could be given and no steps were in fact ever taken, in accordance with law, for delivery of actual physical possession of the land in question. Shri Shukla also submitted with some emphasis that against the appellants only attornment was claimed in Chhotalals suit (No. 2/42), with the result that their status as tenants and their possession of the land in dispute in that capacity remained unchallenged and undisturbed. Having been in continuous possession since 1929, they actually became owners under S. 32 of the Bombay Tenancy and Agricultural Lands Act, 1948.8. In our view, both appeals are without merit. As already observed, the trial Court (Civil Judge S. D. Godhra) in Suit No. 8/67 in a well considered judgment came to the conclusion that the plaintiffs (appellants in this Court) had. never recognized the defendants as their landlords and for this reason the decree in Suit No. 2/42 did not violate any provision of the Bombay . Tenancy Act, 1929. Suit No. 2/42, being for partition and recovery of possession involving title, could only be dealt with by Civil Judge and not by Mamlatdar. The decree in that suit was, therefore not a nullity and actual physical possession in execution of the decree made in that suit could be delivered. The plaintiffs (appellants in this Court) were not entitled to the declaration that they had become owners of the suit land under Sec. 32 of the Bombay Tenancy and Agricultural Lands Act, 1948. This Act came into force after the institution of Suit No. 2/42 with the result that the execution of that decree by the ordinary civil courts was permissible. This conclusion has not been shown to be erroneous, and certainly not so grossly erroneous as to justify interference by this Court on appeal by special leave. According to the settled practice of this Court, in appeals by special leave, ordinarily, this Court does not embark upon an inquiry into the correctness or otherwise of all conclusions of fact or even of law arrived at by the High Court and re-appraise the evidence for itself. This Court may examine the evidence in those rare cases where there in misreading of evidence or where the effect of evidence has been seriously misunderstood or where important evidence making a fundamental difference in the ultimate conclusion has been completely ignored and it has led to injustice. Such is clearly not the case here.9. A faint attempt was made by Shri Shukla to show that the appellants had throughout remained in actual physical cultivating possession of the suit land which is stated to be 47 acres of agricultural land in the town of Godhra and for that purpose he referred us to the evidence on the question by submitting that this evidence had been ignored by the courts below. Reference to the entries in the revenue papers to which our attention was drawn, however, does not support the appellants case. There is no clear evidence to that effect. Once it is held that the conclusion of the courts below that the appellants had not been in possession of the suit land as tenants, as alleged is not open to challenge, their claim must fail. The decree in Suit No. 2/42 being a lawful decree and not being a nullity as contended on behalf of the appellants, it is difficult to appreciate their claim to protection against dispossession. The order granting delivery of actual possession to the respondents decreeholder is, in the circumstances of the case, fully justified.10. On the conclusions of the Courts below, it is not possible to hold that the impugned judgments suffer from any serious legal infirmity which can be said to have resulted in grave in justice.11. Both the appeals must, therefore be held to be without merit. However, keeping in view the peculiar facts and circumstances of this case and particularly the fact that the appellants were originally tenants and they have lost their right by reason of their own ill-advised action in not participating in Suit No. 2/42, we consider it to be proper to direct that the parties should bear their own costs both here and in the High Court.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]8. In our view, both appeals are without merit. As already observed, the trial Court (Civil Judge S. D. Godhra) in Suit No. 8/67 in a well considered judgment came to the conclusion that the plaintiffs (appellants in this Court) had. never recognized the defendants as their landlords and for this reason the decree in Suit No. 2/42 did not violate any provision of the Bombay . Tenancy Act, 1929. Suit No. 2/42, being for partition and recovery of possession involving title, could only be dealt with by Civil Judge and not by Mamlatdar. The decree in that suit was, therefore not a nullity and actual physical possession in execution of the decree made in that suit could be delivered. The plaintiffs (appellants in this Court) were not entitled to the declaration that they had become owners of the suit land under Sec. 32 of the Bombay Tenancy and Agricultural Lands Act, 1948. This Act came into force after the institution of Suit No. 2/42 with the result that the execution of that decree by the ordinary civil courts was permissible. This conclusion has not been shown to be erroneous, and certainly not so grossly erroneous as to justify interference by this Court on appeal by special leave. According to the settled practice of this Court, in appeals by special leave, ordinarily, this Court does not embark upon an inquiry into the correctness or otherwise of all conclusions of fact or even of law arrived at by the High Court andthe evidence for itself. This Court may examine the evidence in those rare cases where there in misreading of evidence or where the effect of evidence has been seriously misunderstood or where important evidence making a fundamental difference in the ultimate conclusion has been completely ignored and it has led to injustice. Such is clearly not the case here.9. A faint attempt was made by Shri Shukla to show that the appellants had throughout remained in actual physical cultivating possession of the suit land which is stated to be 47 acres of agricultural land in the town of Godhra and for that purpose he referred us to the evidence on the question by submitting that this evidence had been ignored by the courts below. Reference to the entries in the revenue papers to which our attention was drawn, however, does not support the appellants case. There is no clear evidence to that effect. Once it is held that the conclusion of the courts below that the appellants had not been in possession of the suit land as tenants, as alleged is not open to challenge, their claim must fail. The decree in Suit No. 2/42 being a lawful decree and not being a nullity as contended on behalf of the appellants, it is difficult to appreciate their claim to protection against dispossession. The order granting delivery of actual possession to the respondents decreeholder is, in the circumstances of the case, fully justified.10. On the conclusions of the Courts below, it is not possible to hold that the impugned judgments suffer from any serious legal infirmity which can be said to have resulted in grave in justice.11. Both the appeals must, therefore be held to be without merit. However, keeping in view the peculiar facts and circumstances of this case and particularly the fact that the appellants were originally tenants and they have lost their right by reason of their ownaction in not participating in Suit No. 2/42, we consider it to be proper to direct that the parties should bear their own costs both here and in the High Court.