Case: Krishnabai Anaji Ghule and Others Vs. Nivrutti Ramchandra Raykar and Another

Two decades have elapsed since the commencement of the proceedings involving a simple issue whether the first respondent designated as certificated landlord is entitled to recover possession of land bearing Survey No. 14/A/2 admeasuring. 7 acres and 13 gunthas situated at Village Manjari Badruk Taluka Haveli Distt. Poona in Maharashtra State from the appellants 1 to 3 who are heirs of excluded tenant Shri Ghule and appellant No. 4 who is also an excludedbrief resume of the various proceedings leading to the present appeal may shed some light on a simple issue involved in thisRamchandra Gopal Raykar, father of the first respondent landlord leased land included in Survey No. 14/A/2 to two different persons. Land admeasuring 4 acres out of total area of 7 acres and 13 gunthas; was leased to Shri Anaji Maruti Ghule. Appellants No. 1 to 3 are the heirs and legal representatives of Sh. Ghule. The remaining 3 acres and 13 gunthas of land was leased to Vishnu Maruti Tilekar Appellant No. 4 in thisa partition in the family of the landlord, the Land involved in this appeal fell to the share of the first respondent landlord. He moved an application under sec. 88-C ofthe Bombay Tenancy and Agricultural Lands Act, 1948 (Tenancy Act, for short) praying for a certificate therein envisaged on the allegation that his holding does not exceed the economic holding and total annual income of the landlord including the rent of such land does not exceed Rs. 1, 500. After an enquiry made by the Mamlatdar as contemplated by sec. 88-C (iii) and (iv) an exemption certificate was granted to the landlord. The order of the Mamlatdar was challenged by the tenants upto the High Court of Judicature at Bombay, but the order of the Mamlatdar granting exemption certificate withstood the challenge. And that order has become final. The effect of the granting of an exemption certificate is that, amongst others, provisions contained in secs. 32 to 32R shall not apply to the land leas ed by such certificated landlord. In other words, the excluded tenants of such certificated landlord shall not become the owners of the land on the Tillers day i.e. 1st April, 1957.Sec. 33-B confers a right on the certificated landlord to terminate the tenancy of the land in respect of which exemption certificate is granted, and to make an application to the Mamlatdar for obtaining possession if such certificated landlord bonafide requires such Land for cultivating it personally. Accordingly the respondent landlord made an application on March 29, 1962 to the Mamlatdar having jurisdiction in the area praying for an order for possession of the land in respect of which certificate was granted. This application was resisted by both the tenants raising various contentions, one such worth noticing being that appellants No. 1 to 3 were not served with the statutory notice as required by Sec. 33-B. In the meantime it, appears that the land bearing Survey No. 14/A/2 was put to auction to recover arrears of irrigation dues and the same was purchased for a consideration of Re. 1 by the Government. Taking note of this fact, the Mamlatdar rejected the application of the landlord observing that he had n o title to the land. In an appeal by the landlord, the order of the Mamlatdar was set aside and the matter was remanded to the Mamlatdar for disposal according to law. A revision petition by the appellants was dismissed by the Maharashtra Revenue Tribunal. Mamlatdar designated as Tehsildar, on remand held an enquiry, recorded a finding that notice terminating the tenancy was served on present appellant No. 4, but it was not served on Appellants No. 1 to 3, the heirs of Anaji Ghule. He accordingly allowed the application of the landlord for possession against Appellant No. 4 Tilekar but dismissed the same against Appellants No. 1 to 3, the heirs ofseparate appeals came to be filed against the decision of the Tehsildar, two by two sons of Anaji, Appellants No. 2 and 3 herein, one by the landlord against the dismissal of his application against the heirs of Shri Ghule and one by Shri Tilekar against that part of the order by which he was directed to hand over possession of the land to the landlord. All the four appeals were disposed of by the Sub Divisional officer with appellate powers by a common judgment. He held that there was effective service of notice on the heirs of Shri Anaji Ghule. All other contentions of tenants were rejected with the result that appeal by the respondent landlord was allowed and appeal by tenant Tilekar was dismissed. As a result, an order was made directing both the tenants to hand over possession of land comprised in Survey No, 14/A/2.Four separate revision applications were filed against the order of the Sub Divisional officer before the Maharashtra Revenue Tribunal. By a common judgment, a learned member of the Tribunal held that the Sub Divisional officer, while disposing of the appeals wrongly declined to admit an important piece of evidence which was sought to be produced before him by the tenants and that piece of evidence has a direct bearing on the bona fides of the la ndlord and therefore, the appellate court was not justified in shutting out the evidence. In accordance with this finding, the Maharashtra Revenue Tribunal allowed the two revision applications filed by the tenants and set aside the order of the Sub Divisional officer as well as of the Tehsildar and remanded the matter to the Tehsildar for decision afresh. The judgment of the Maharashtra Revenue Tribunal was challenged by the landlord in a petition under Art. 227 of the Constitution being Special Civil Application No. 1794 oflearned Single Judge of the Bombay High Court, who heard the petition was of the opinion that the partition in the joint family of the landlord had taken place before 30th March, 1960 and the bonafides of the partition having been agitated inter-partes in the proceedings under sec. 88-C initiated by the landlord for obtaining the exemption certificate upto the High Court and decided in favour A of the landlord, the same cannot be re- opened and re-considered in a subsequent proceeding under Sec. 33-B under which a certificated landlord may sue for obtaining possession from the excluded tenant, the land in respect of which certificate is granted. Having reached this conclusion and after examining other contentions, it was held that the Maharashtra Revenue Tribunal was in error in holding that the Sub Divisional officer hearing the appeal committed error in not allowing fresh evidence to be led at the appellate stage be cause a party has no right to adduce additional evidence in an appeal and there was no discretion in the appellate authority either to accept or reject the additional evidence. The learned judge also observed that the Sub Divisional officer has given reason for rejecting the evidence. Approaching the matter from this angle, the learned judge held that the Maharashtra Revenue Tribunal had no justification to remand the matter for a further fresh enquiry when the parties had already taken opportunity to make out their respective cases. Accordingly, the High Court set aside the decision of the Maharashtra Revenue Tribunal remanding the matter to the Tehsildar and directed the Tribunal to decide the revision applications filed by the tenants in accordance with law.Pursuant to this direction, the matter went back to the Maharashtra Revenue Tribunal. It was heard by a learned member of the Revenue Tribunal. The learned member formulated the point for decision as to whether the certificated landlord has been able to establish that he bonafide requires the land for personal cultivation. While examining this contention, the Tribunal observed that bonafide requirement for personal cultivation as contemplated by Sec. 33-B envisages both the compelling need to cultivate personally as well as genuine intention to do so. The learned member took note of the fact that the certificated landlord had told the land under sugarcane crop ad measuring 20 gunthas on August 11, 1960 to Bhiru Bahu Ghule and that the sale was effected 1-1/2 years before the certificated landlord approached the Tehsildar for obtaining possession of the land from the excluded tenant. This sale, according to the learned member, raised considerable doubt about the bonafides of the landlord because if he had a compelling necessity or need to cultivate the land personally, he atleast would not have sold the land which was in his actual possession. The learned member took note of the fact that landlord owns a house property in Poona City and that once upon a time, the family was the owner of extensive land holding. For these reasons, the learned member held that he was not satisfied t hat the certificated landlord bonafide required the land involved in the dispute for personal cultivation. He accordingly allowed the revision applications of the tenants and dismissed the application of the landlord for obtaining possession of thecertificated landlord moved Special Civil Application No. 107 of 1977 in the Bombay High Court under Art. 227 of the Constitution questioning the correctness of the decision of the Maharashtra Revenue Tribunal. A l earned single judge of the High Court, who heard the petition held that there was an error apparent on the face of the record when the learned member of the Tribunal held that in order to obtain possession of land by a certificated landlord from an ex cluded tenant under Sec. 33-B it is obligatory upon such landlord to prove the compelling necessity to cultivate the land. It was observed that that element may be relevant and valid in an application under Sec. 31 of the Tenancy Act, wherein the landlord has to prove that the land of which he seeks possession is the principal source of income for his maintenance. The learned judge was of the view that the sale of the land admeasuring 20 gunthas prior to the commencement of the present proceedings was for a small price and cannot have an adverse impact on the bonafides of the landlord. Accordingly the learned judge allowed the application of the landlord and set aside the decision of the Maharashtra Revenue Tribunal and re stored the decision of the Sub Divisional officer directing handing over of possession of the land to the landlord. It is this decision of the High Court which is questioned in this appeal.Sec. 32 of the Tenancy Act ushered in an era of revolutionary change in the life of the tiller of the soil. It provided that every tenant of agricultural land shall be deemed to have purchased from his landlord on the Tillers day, the land held by him as tenant free from all encumbrance s subsisting on the said day subject to the various conditions therein provided which we consider unnecessary to refer here. The far-reaching change introduced by Sec. 32 was noticed by a Constitution Bench of this Court in Sri Ram Ram Narain Medhi v. State of Bombay(1) wherein it was held that the title of the landlord to the land passes immediately to the tenant on the Tillers day and there is a complete purchase or sale thereby as between the landlord and the tenant. But the Legislature was aware that there was a class of landlords who if, by the operation of law, were deprived of the ownership of land would be worse of than the tillers for whose benefit the provision was made. With a view to saving such petty landlords Part II-A was introduced in Chapter III of the Tenancy Act in 1961. Simultaneously, Sec. 88-C was amended by introducing a non-obstante clause which would have the effect of excluding the land of such petty landlords who would be covered by Part II-A from the operation of Sec. 32 providing for compulsory purchase of land by the tenant. Sec. 88-C provides that save as provided by Sec. 33-A. 33-B and 33-C nothing in Sec. 32 to 32R (both inclusive) shall apply to lands leased by any person if such land does not exceed an economic holding and the total annual income of such person including the rent of such land does not exceed Rs. 1, 500. In other words, petty or small landlords wose holding does not exceed an economic holding as specified in Sec. 6 and whose total annual income does not exceed Rs. 1, 500 where sought to be exempted from the operation of Sec. 32. Such petty or small landlords in order to save their land from becoming subject matter of compulsory sale by the operation of law were required to obtain a certificate from the Mamlatdar as envisaged in Sec. 88-C. In order to obtain the exemption certificate the landlord had to make an application to the Mamlatdar and the Mamlatdar after holding an enquiry after giving notice to the tenant had to decide whether (1) the holding of such landlord did not exceed economic holding; and (2) his total annual income including the rent of such land did not exceed Rs. 1, 500. If both the conditions were cumulatively satisfied, the Mamlatdar had to give a certificate in the prescribed form showing that the land of such landlord is exempt from the operation of Sec. 32. The effect would be that a tenant of such landlord would not become a deemed purchaser on the Tillers day. Sec. 33-B provides that such landlord is to be designated as certificated landlord and the tenant of such land exempted from the operation of Sec. 32 was to be designated as excluded tenant. Sec. 33-B conferred a special right on the certificated landlord to terminate the tenancy of the excluded tenant in respect of the exempted land and obtain possession if landlord bonafide required the possession of such land for cultivating it personally.Respondent landlord is a certificated landlord. The tenants-appellants had challenged the proceedings initiated by the respondent landlord for obtaining exemption certificate under Sec. 88-C inter-alia contending that the partition in the family of the landlord was not bonafide and that it was so contrieved that the landlord may obtain advantage of sec. 88-C. This contention was negatived by the Mamlatdar hearing the application u/s 88-C and the appeal against the decision by the tenants to the Collector and a revision petition to the Maharashtra Revenue Tribunal and a petition under Art. 227 of the Constitution to the Bombay High Court at the instance of tenants successively filed, all failed. The net outcome is that the partition was held to be bonafide and genuine. The proceedings between the landlord and the tenant for exemption certificate under Sec. 88-C came to an end with the decision of the High Court and the grant of the certificate became final and not questionable in the present proceedings which could have been commenced only by a landlord who has obtained a certificate of exemption.

Reasoning:
One aspect which, frankly has dominated out thinking is the relative economic position of tenants and landlord in this case. Anaji Ghule was a tenant of 4 acres out of 7 acres and 13 gunthas of land comprising in Survey No. 14/A/2. Tilekar was a tenant of the remaining 3 acres and 13 gunthas. Anaji Ghule died leaving behind him two sons and a widow, who are appellants No. 1 to 3. Appellant " Krishnabai the widow holds excluding the leased land 16 acres and 17 gunthas of land; first son Shivaji 8 acres and 9 gunthas, and Bala the second son 8 acres and 10 gunthas of land. Presumably all the three inherited the land from Shri Ghule and therefore the total holding would be 32 acres and 36 gunthas of land. And it is interesting to no te some features of the partition effected by tenants heirs amongst themselves. The widow is allotted double the share of each son. There is nothing to show that the mother and two sons have separated. And their total holding is 32 acres an d 36 gunthas. As against the holding of first set of tenants of 32 acres and 36 gunthas, the landlord seeks possession of 4 acres of land. In the case of Tilekar he holds 8 acres and 4 gunthas and the landlords 3 acres and 13 gundhas. Would it be fair to deny this very reasonable request in appeal under Art. 136 when all authorities including High Court have held in favour of this petty small landlord. We decline tothe view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the contention raised by Mr. Tarkunde becomes aand it will also dispose of his supplementary contention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine nor bonafide. And in our opinion in the facts of this case it is no morethus appears that High Court committed an error apparent on record while observing that the validity of partition was questioned for the first time at the revisional stage. But having said this it must also be pointed out that the contention raised by the tenant about the bonafides of partition in the proceedings under Sec.has been rightly negatived on the short ground that the bona fides, genuineness and validity of the partition was directly and substantially in issue in the proceedings under Sec.and concurrently held in favour of the landlord upto the High Court and the same must be held to be concluded between the parties and on this short ground, the decision of the High Court setting aside the order of remand can be confirmed.Inthe view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the contention raised by Mr. Tarkunde becomes aand it will also dispose of his supplementary contention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine nor bonafide. And in our opinion in the facts of this case it is no more