CHANDRAKANT BABAN MOTKARI & ORS. versus GOTIRAM LAXMAN MOTKARI (D) BY LRS. & ORS.
[2019] 11 S.C.R. 780, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Body
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SUPREME COURT REPORTS
[2019] 11 S.C.R.
CHANDRAKANT BABAN MOTKARI & ORS.
v.
GOTIRAM LAXMAN MOTKARI (D) BY LRS. & ORS.
(Civil Appeal No. 2390 of 2011)
AUGUST 27, 2019
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Bombay Tenancy and Agricultural Lands Act, 1948: ss. 32
and 85 – Rights of the tillers – Dispute between the legal heirs of
two deceased brothers, N and L – N and his two uncles took land
on lease for cultivation by execution of Kabuliyatnama, in 1944 –
L was an attesting witness to the Kabuliyatnama, and prior to
execution he had obtained a Government job as a peon – Thereafter,
Act of 1948 was passed and in terms thereof, from 1.4.1957, tenants
who were tilling the land were deemed to have purchased the land
from the owners – Execution of agreement to sell by landowners
and 1/3rd share of this land was agreed to be sold to L and N –
Registration of agreement to sell but it never culminated in a sale
deed – In terms thereof, case of the legal heirs of L that they derived
rights in pursuant to the said document, and payments were made
by N out of the joint family funds – Initiation of proceedings u/s.
32G by the Deputy Collector, wherein certificate was issued in favour
of N and his uncles, and on mutation, N was recognized as individual
owner – Challenge to, by legal heirs of L, however, the claim was
rejected – Thereafter, the legal heirs of N tried to transact the land,
whereas legal heirs of L again claimed rights in the property –
Dismissal of
the suit as also first appeal – On appeal, held: Once a
certification has been issued u/s. 32M, there was no need to refer
the matter to the Mamlatdar merely because the plaint alleges that
it was a joint family property – There are concurrent findings of the
trial court and the first appellate court, the latter being the final
court as a court of fact – Findings arrived at are the correct findings
– There is no uncertainty on the issue before the trial court as the
certificate u/s. 32M is final and exists – Provision of s. 85 itself
states that such a certificate, once issued, is final and can only be
assailed in appeal – Thus, there was no occasion for the trial court
to remit the issue to the Mamlatdar.
   [2019] 11 S.C.R. 780
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Dismissing the appeal, the Court
HELD: 1.1 Insofar as the main plea is concerned, i.e., the
ouster of jurisdiction of the civil court and the requirement
pleaded for reference to the Mamlatdar, it is pleaded that such a
situation would arise when there was an ambiguity or a
determination required as to whether a tenant is a protected tenant
or not. Once a certification has been issued under Section 32M
of the Bombay Tenancy and Agricultural Lands Act, 1948, there
can be no doubt, and there was no need to refer the matter to the
Mamlatdar merely because the plaint alleges that it was a joint
family property. [Para 14, 18][789-A-B]
1.2 There are concurrent findings of the trial court and the
first appellate court, the latter being the final court as a court of
fact. Even if the reasoning of the two courts is examined, there is
no doubt that the findings arrived at are the correct findings since
the Kabuliyatnama itself, from which the rights of the tenants
were claimed, was never in the name of ‘L’, the elder brother.
That is the reason that the certificate under Section 32M of the
said Act was granted in favour of ‘G’, ‘S’ and ‘N’. Similarly, on
partition of the land, again a mutation was made in favour of ‘N’
alone. In fact, the wife and sons of ‘L’ did contest the partition,
albeit unsuccessfully. The appeal and the revision petition were
dismissed. They chose to remain silent after that. [Para 22][789-
F-G; 790-A]
1.3 The present proceedings in question
are what has been
labeled as “side wind”, to re-open the chapter which could not
have been directly challenged, i.e., by challenging the certificate
issued under Section 32M of the said Act. Thus, the ruse of filing
a suit was used by the grandsons of ‘L’, impleading the father as
a supporting party as ‘L’s ‘ wife had since passed away. It is this
endeavour, which is not proved to be successful. [Para 23][790-
B]
1.4 The Agreement to Sell never matured into a sale deed
and the Kabuliyatnama did not record the name of ‘L’. The result
was that the certificate issued under Section 32M of the said Act
also did not include the name of ‘L’, and the subsequent
proceedings to challenge the same resulted in abject failure. [Para
24][790-C-D]
CHANDRAKANT BABAN MOTKARI v. GOTIRAM LAXMAN
MOTKARI (D) BY LRS.
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1.5 The issue that the civil court fell into an error in not
staying the suit proceedings and remitting the matter to the
Mamlatdar on the issue of tenancy rights, was not even raised in
the suit proceedings, even though the suit was filed by the
appellants. It was sought to be raised at the appellate stage on
the plea that, being a jurisdictional issue, it can be raised at that
stage. Firstly, this is not purely a jurisdictional issue, but a mixed
question of fact and law, which would arise. Secondly, even
assuming if this is considered as raised before the appellate court
and as canvassed, the findings of the appellate court that this was
not a case where a suit was required to be stayed and the question
of tenancy remitted to the Mamlatdar, is concurred with. [Paras
25, 26][790-D-F]
1.6 There is no uncertainty on the issue before the trial
court as the certificate under Section 32M of the said Act is final
and exists. The provision of Section 85 of the said Act itself states
that such a certificate, once issued, is final and can only be assailed
in appeal. Thus, there was no occasion for the trial court to stay
its hand to remit this issue to the Mamlatdar. Thus, these long
drawn out proceedings initiated by the grandsons of ‘L’ were
proceedings by “side wind”, which have dragged on since the
year 2003, for the last 16 years. [Paras 27, 28][791-A-C]
Bhimaji Shankar Kulkarni v. D.V. Udapudi & Anr. AIR
1966 SC 166 :
[1966] SCR 145; Gundaji Satwaji
Shinde v. R.B. Joshi (1979) 2 SCC 495 : [1979] 2 SCR
586; Jagu Tukaram Waghamale v. Dynandeo Bala
Waghamale
2003 (2) Mh.L.J. 475;
Randhi
Appalaswami v. Randhi Suryanarayanmurti & Ors. AIR
(34) 1947 PC 189; Adam Mohmad Darwajkar & Ors.
v. Appa Daud Darwajkar 2007(2) Mh.L.J. 340;
Yeshwant Hari Patil v. Shripati Hari Patil & Ors. 2018
SCC Online Bom 2775; Ambu v. Vellachi & Ors. (1994)
1 KLJ 627; Mudakappa v. Rudrappa & Ors. (1994) 2
SCC 57 – referred to.
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Case Law Reference
[1966] SCR 145
referred to
Para 15
[1979] 2 SCR 586
referred to
Para 15
2003 (2) Mh.L.J. 475
referred to
Para 17
AIR (34) 1947 PC 189
referred to
Para 17
2007 (2) Mh.L.J. 340
referred to
Para 19
(1994) 1 KLJ 627
referred to
Para 19
(1994) 2 SCC 57
referred to
Para 27
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2390
of 2011
From the Judgment and Order dated  08.06.2009  of the  High
Court  of  Judicature of Bombay in First Appeal No. 598 of 2009
B. H. Marlapalle, Sr. Adv., Shivaji M. Jadhav, Anish R. Shah,
Nicholas Choudhury,  Aditya Khanna,  Aaryan P., Ajit W., Advs. for the
Appellants.
Huzefa Ahmadi, Sr. Adv., Ninad Laud, Aditya Pratap Swain, Rohan
Sharma, Dilip Annasaheb Taur, Advs. for the Respondents.
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
1. The legal heirs of two deceased brothers Laxman and Nivrutti
are the contesting parties in the present proceedings, the subject matter
being an open land measuring eight acres now falling within the Municipal
Council of Nasik (since 1987).  The family traces itself from the common
ancestor, Bhimaji, who had three sons – Govind, Sadashiv and Yashwant.
It appears that Yashwant passed away early some time, in the year
1936. Yashwant is survived by Nivrutti and Laxman.
2. The land located at Survey Nos.789, 791 and 786 was owned
by one Raghunath Hari Phadake. The land was taken on lease for
cultivation by Govind, Sadashiv and Nivrutti (the younger son of
Yashwant) by
execution of a Kabuliyatnama, on 16.5.1944. It appears
that Laxman (the elder son of Yashwant) was an attesting witness to
this Kabuliyatnama.  It is of some relevance to also note that Laxman
CHANDRAKANT BABAN MOTKARI v. GOTIRAM LAXMAN
MOTKARI (D) BY LRS.
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had obtained a Government job in the Office of the Sub Registrar as a
peon; prior to the execution of the Kabuliyatnama.
3. Post independence, various laws were enacted to protect the
tenancy rights of the tenants in agricultural lands and the Bombay
Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as
the ‘said Act’) was one such legislation.  In terms of Section 32 of the
said Act, from 1.4.1957, tenants who were tilling the land were deemed
to have purchased the land from the owners as per the procedure
prescribed under the said Section (the Section was brought in by the
Amendment Act 15 of 1957).
4. An Agreement to Sell was executed by Shri Phadake on
7.5.1956, i.e., prior to the cut-off date, when Section 32 of the said Act
came into force, in terms whereof; three parcels of land were agreed to
be sold to seven purchasers. 1/3rd share of this land was agreed to be
sold to Laxman and Nivrutti. This Agreement to Sell was duly registered
but never culminated in a sale deed.  In terms of the Agreement to Sell
Laxman and Nivrutti along with five other parties are stated to have
paid a sum of Rs.6,000/- out of the total consideration of Rs.22,000/-.
The remaining amount had to be paid in installments.
5. The case sought to be set up subsequently by the legal heirs of
Laxman is that rights were derived in pursuance of this document, and
payments were made by Nivrutti out of the joint family funds.
6.
The next development was the proceedings which commenced
for the rights of the tillers in pursuance of Section 32 of the said Act.
The Deputy Collector initiated proceedings under Section 32G of the
said Act to determine the price of the land to be paid by the tenants,
which resulted in the order dated 9.8.1961. The benefit of this order,
from the array of parties was to the tenants – Govind, Sadashiv and
Nivrutti.  The payments were made, and a certificate was issued under
Section 32M of the said Act in 1967 in favour of the said three parties.
7. The three owners sought partition amongst themselves of the
said land, which resulted in a Mutation entry No.23330, in terms whereof
Nivrutti was recognized as the individual owner of Survey Nos.789/3
and 791/3. However, some part of the land which fell in Survey Nos.789/
4 and 791/4 was still held by the owners jointly.
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8. It appears that the wife of Laxman and his children sought to
assail the mutation solely in the name of Nivrutti, on the ground that the
payments for the land were made out of joint family funds and, thus,
they were also liable to be included in the certificate issued under Section
32M of the said Act. These proceedings, however, were not successful
and the revision application filed against the same also met the same
fate vide order dated 18.11.1991, noticing that since the certificate under
Section 32M of the said Act has been issued in favour of Nivrutti and
the other co-owners, vide entry No.12378, on partition, the land was
mutated in the name of Nivrutti Mutation No.23330. The matter was not
carried further.
9. There appears to have been a silence on the part of the legal
heirs of Laxman till the institution of a plaint, as Special Civil Suit No.148/
2003 before the Civil Judge, Senior Division, Nashik. The alleged cause
of action for the same is stated to be the notices issued by the legal heirs
of Nivrutti. The public notices brought to light the endeavours of the
legal heirs of Nivrutti to transact the land in question. The case set up in
the plaint is that the parties constituted a Joint Hindu Family, and the
properties belonged to the same. Thus, the grandsons of Laxman claimed
rights in the property. These grandsons sued as plaintiffs, arraying the
two sons of Laxman as the first two defendants while the legal heirs of
Nivrutti were arrayed
as the remaining defendants. This appears to have
been so done because defendant Nos.1 & 2, being the sons of Laxman,
along with their mother, had already instituted proceedings against the
mutation of the land in favour of Nivrutti alone, but those proceedings
ended in the year 1991. The first two defendants were really in the
nature of supporting parties.
10. The suit was contested by the legal heirs of Nivrutti (Nivrutti
having passed away in the year 1999). The plea of the land being ancestral
was contested on the ground that the name of Laxman was never entered
as a tenant of the property as he was not a signatory to the
Kabuliyatnama, but, in fact, a witness to the Kabuliyatnama. Thus, no
rights could have been created in his favour by Section 32 of the said
Act coming into force, apart from the fact that being a Government
Servant he could not have been the tiller cultivating the land. Payments
for the issuance of certificate were stated to have been made by Nivrutti
in his personal capacity, and thus, the plea raised was that apparently, a
colour was sought to be given to the holding of the land as being purchased
CHANDRAKANT BABAN MOTKARI v. GOTIRAM LAXMAN
MOTKARI (D) BY LRS. [SANJAY KISHAN KAUL, J.]
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on behalf of the Joint Hindu Family. It may be noticed that interestingly,
though Nivrutti was the younger of the two brothers, it was sought to be
pleaded on behalf of the legal heirs of Laxman that he, i.e., Nivrutti, was
holding the property as a Manager/Karta on behalf of the family.
11. The suit was tried and was dismissed, vide judgment dated
4.2.2009.  The first appeal, filed before the High Court was also dismissed
vide impugned order dated 8.6.2009.
12. It may be noticed that in order to establish their case, the
appellants sought to bring in various documents to substantiate their plea,
the main one being the Agreement to Sell dated 7.5.1956. However,
since no sale deed had been executed in pursuance thereto, the courts
below refused to rely on the same.
13. The main contention of the appellants, which was raised for
the first time before the appellate court, and was also sought to be
canvassed before us, was that it was not within the jurisdiction of the
Civil Court to have opined on the matter in issue, and the proper course
of action for the civil court was to stay its hand, and refer the matter to
the Mamlatdar for determination of the tenancy rights.  In this behalf,
learned counsel had relied upon Section 85 of the said Act, which reads
as under:
“Section 85 Bar of jurisdiction
(1) No Civil Court shall have jurisdiction to settle, decide or deal
with any question [(including a question whether a
person is or
was at any time in the past a tenant and whether any such tenant
is or should be deemed to have purchased from his landlord the
land held by him) which is by or under this Act required to be
settled, decide or dealt with by the Mamlatdar or Tribunal, a
Manager, the Collector or the [Maharashtra Revenue Tribunal] in
appeal or revision or the [State] Government in exercise of their
powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the
[Maharashtra Revenue Tribunal] or the [State] Government made
under this Act shall be questioned in any Civil or Criminal Court.
Explanation. – For the purposes of this section a Civil Court shall
include a Mamlatdar’s Court constituted under the Mamlatdars’
Courts Act, 1906.”
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14. The duties of the Mamlatdar are specified in Section 70 and
clause (b) of the said Section specifies one of the duties as to the
determination of the question as to whether a tenant is a protected tenant
or not. It is also relevant to note that in terms of Section 85A of the said
Act such determination would become final. The said Section reads as
under:
“Section 85A Suits involving issues required to be decided
under this Act
(1) If any suit instituted in any Civil Court involves any issues
which are required to be settled, decided or dealt with by any
authority competent to settle, decide or deal with such issues under
this Act (hereinafter referred to as the “competent authority”)
the Civil Court shall stay the suit and refer such issues to such
competent authority for determination.
(2) On receipt of such reference from the Civil Court, the
competent authority shall deal with and decide such issues in
accordance with the provisions of this Act and shall communicate
its decision to the Civil Court and such Court shall thereupon
dispose of the suit in accordance with the procedure applicable
thereto.
Explanation. – For the purposes of this section a Civil Court shall
include a Mamlatdar’s Court constituted under the Mamlatdars’
Courts Act, 1906.”
15. To buttress his arguments, learned counsel for the appellants
relied upon the judgment in Bhimaji Shankar Kulkarni v. D.V. Udapudi
& Anr.1 and Gundaji Satwaji Shinde v. R.B. Joshi2. The two judgments
considered the scheme of the said Act, to opine that where there were
uncertainties on the issue as to whether a tenant is or is not a protected
tenant, the civil court must stay its hand and refer the issue to the
Mamlatdar and once such determination takes place (which is final as
per Section 85A of the said Act) then the suit can proceed further.
16. On the other hand, learned counsel for respondent Nos. 3 to
18 representing the family of Nivrutti sought to rebut the aforesaid pleas.
Our attention was sought to be invited to the Kabuliyatnama to contend
1 AIR 1966 SC 166
2 (1979) 2 SCC 495
CHANDRAKANT BABAN MOTKARI v. GOTIRAM LAXMAN
MOTKARI (D) BY LRS. [SANJAY KISHAN KAUL, J.]
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that if Laxman was a tenant, he would not have been a witness to the
document. The Kabuliyatnama was signed by only three persons. It
was pleaded that there was no material to show that Nivrutti, the younger
brother was holding the land on behalf of the family and acting as the
Manager/Karta. Insofar as the Agreement to Sell was concerned, it
was stated that it never culminated in a sale deed and thus, could not
have been relied upon as rightly held by the courts below.  Our attention
was also invited to a Sale Deed dated 29.8.1948, in respect of Survey
No.877, in which Nivrutti had 50 per cent undivided share and he released
the same by a subsequent deed dated 12.10.1949, to contend that the
release deed of 1949 defines the property as having been acquired by
Laxman, for Nivrutti, “as head of the joint family.” This would, thus, go
contrary to the plea of the plaintiffs in the suit that Nivrutti was acting as
the Manager/Karta. The Agreement to Sell is said not to have been
signed by Nivrutti or other vendees, and it shows that Laxman was
serving as a peon in the same office of the Sub Registrar, the imputation
is of some kind of a motivated/collusive action.
17. It was the submission of the learned counsel for the respondents
that the certificate under Section 32M of the said Act is a conclusive
proof of the purchase, and can only be set aside in appeal against the
certificate. In fact, an endeavour was made by the
wife and sons of
Laxman to challenge the same in appeal and revision petition thereafter
unsuccessfully, and the matter was given up by them. The suit proceedings
in question, were thus, an oblique nature of proceedings; to raise this
issue again, without assailing the certificate directly under Section 32M
of the said Act knowing fully well that they would not be able to do so, as
they trace their ancestry through the very appellants/revisionists, being
their grandmother and their fathers. Such endeavour was labeled as
impermissible, as an endeavour to assail a certificate through “side wind”.
This is an expression borrowed from the judgment in Jagu Tukaram
Waghamale v. Dynandeo Bala Waghamale3.  In the judgment of the
Privy Council in Randhi Appalaswami v. Randhi Suryanarayanmurti
& Ors.4 it was elaborated that the proof of the existence of a joint
family does not lead to the presumption that the property held by any
member of the family is joint, and the burden rests upon anyone asserting
that any item of property is joint to establish the fact.
3 2003 (2) Mh.L.J. 475
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18. Insofar as the main plea is concerned, i.e., the ouster of
jurisdiction of the civil court and the requirement pleaded for reference
to the Mamlatdar, it is pleaded that such a situation would arise when
there was an ambiguity or a determination required as to whether a
tenant is a protected tenant or not. Once a certification has been issued
under Section 32M of the said Act, there can be no doubt, and there was
no need to refer the matter to the Mamlatdar merely because the plaint
alleges that it was a joint family property.
19. Learned counsel for the respondents seeks to rely upon the
judicial pronouncements in Adam Mohmad Darwajkar & Ors. v. Appa
Daud Darwajkar5 and Yeshwant Hari Patil v. Shripati Hari Patil &
Ors.6, both of the Bombay High Court. The judgments enunciated the
principle that in a suit for partition of tenanted land, it is not necessary to
refer the issue in question before the civil court to a Mamlatdar if the
material on record is sufficient to show that the particular party or parties
are tenants or deemed purchasers. In fact, it was submitted, that the
same view was taken even by the Kerala High Court in Ambu v. Vellachi
& Ors.7
20. Learned counsel for the respondents also stated that there
were properties, which were inherited by Laxman and the legal heirs
and were sold for their benefit.
21. We have examined the aforesaid submissions in the contours
of facts, which, though may appear a little complicated, but are not so.
22.
We must note at the inception that there are concurrent findings
of the trial court and the first appellate court, the latter being the final
court as a court of fact. Even if we examine the reasoning of these two
courts, we have no doubt that the findings arrived at are the correct
findings since the Kabuliyatnama itself, from which the rights of the
tenants were claimed, was never in the name of Laxman, the elder
brother. That is the reason that the certificate under Section 32M of the
said Act was granted in favour of Govind, Sadashiv and Nivrutti. Similarly,
on partition of the land, again a mutation was made in favour of Nivrutti
alone. In fact, the wife and sons of Laxman did contest the partition,
5 2007(2) Mh.L.J. 340
6 2018 SCC OnLine Bom 2775
7 (1994) 1 KLJ 627
CHANDRAKANT BABAN MOTKARI v. GOTIRAM LAXMAN
MOTKARI (D) BY LRS. [SANJAY KISHAN KAUL, J.]
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albeit unsuccessfully.  The appeal and the revision petition were dismissed.
They chose to remain silent after that.
23. We have no doubt that the present proceedings in question
are what has been labeled as “side wind”, to re-open the chapter which
could not have been directly challenged, i.e., by challenging the certificate
issued under Section 32M of the said Act. Thus, the ruse of filing a suit
was used by the grandsons of Laxman, impleading the father as a
supporting party as Laxman’s wife had since passed away. It is this
endeavour, which is not proved to be successful.
24. We do not consider it necessary to once again, go into the
documentary aspects and as to how they should be read at this third
stage of scrutiny.  Suffice to say that the Agreement to Sell never matured
into a sale deed and the Kabuliyatnama did not record the name of
Laxman. The result was that the certificate issued under Section 32M
of the said Act also did not include the name of Laxman, and the
subsequent proceedings to challenge the same resulted in abject failure.
25. Now turning to the only issue which is really debated before
us at some length and on which a lot of emphasis was laid, that the civil
court fell into an error in not staying the suit proceedings and remitting
the matter to the Mamlatdar on the issue of tenancy rights. This plea
was not even raised in the suit proceedings, even though the suit was
filed by the
appellants.  It was sought to be raised at the appellate stage
on the plea that, being a jurisdictional issue, it can be raised at that stage.
26. Firstly, this is not purely a jurisdictional issue, but a mixed
question of fact and law, which would arise. Secondly, even assuming if
this is considered as raised before the appellate court and as canvassed
before us, we are in complete agreement with the findings of the appellate
court that this was not a case where a suit was required to be stayed
and the question of tenancy remitted to the Mamlatdar.
27. The judgments relied upon by the appellants in Mudakappa
v. Rudrappa & Ors.8 does not lay down a proposition as sought to be
canvassed by the learned counsel for the appellants, but seeks to deal
with a factual situation where there is no certainty about whether a
particular tenant is a protected tenant or not or who is a protected tenant.
In that case, in view of the bar of jurisdiction of the civil court under
8 (1994) 2 SCC 57
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Section 85 of the said Act, the recourse to Section 85A of the said Act
was required to be made. There is no uncertainty on this issue before
the trial court as the certificate under Section 32M of the said Act is
final and exists. The provision of Section 85 of the said Act itself states
that such a certificate, once issued, is final and can only be assailed in
appeal. Thus, there was no occasion for the trial court to stay its hand to
remit this issue to the Mamlatdar.
28. We are, thus, unequivocally of the view that these long drawn
out proceedings initiated by the grandsons of Laxman were proceedings
by “side wind”, which have dragged on since the year 2003, for the last
16 years.
29. The appeal is completely without merit and is, thus, dismissed.
Nidhi Jain
Appeal dismissed.
CHANDRAKANT BABAN MOTKARI v. GOTIRAM LAXMAN
MOTKARI (D) BY LRS. [SANJAY KISHAN KAUL, J.]