High Court
Legal Reasoning
50-wp-788-2003 grp judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 788 OF 2003Baheru S/o Ganpat JamaleAge: 49 years Occ : Agri.R/o Kasbe-Tadwale,Tq. & Dist. Osmanabad...PetitionerVersus1. Vishwanath Keshav Jamale (Died)Through his legal heirs.1/1. Bhamabai w/o Vishwanath Jamale (Died)deleted as per order below Exh.38 dated 30.09.2002.1/2. Prabhakar s/o Vishwanath JamaleAge: 56 years, Occ: Agri., & Service,R/o Tadwale (K) Tq. & Dist. Osmanabad.1/3. Sudam S/o Vishwanath JamaleAge: 50, Occ: AgriR/o Tadwale (K) Tq. & Dist. Osmanabad.1/4. Ankush s/o Vishwanath JamaleAge: 46, Occ: Agri..R/0 Tadwale (K) Tq. & Dist. Osmanabad.1/5. Tanaji S/o Vishwanath JamaleAge: 40 Occ: Agri..R/o Tadwale (K) Tq. & Dist. Osmanabad.1/6. Nilawati w/o Tukaram AuteAge: 61, Occ: Household,R/o Tadwale (K) Tq. & Dist. Osmanabad.1/7. Suman w/o Rangath VeerAge: 59, Occ: Household,R/o Khed, Tq. & Dist. Osmanabad.1/8. Sau. Sarada w/o Dnyandeo RohiteAge: 42, Occ: Household,R/o Khamaswadi, Tq. Kallam, Dist. Osmanabad. 50-wp-788-2003 grp judg.odt(2)2. Sau. Surekha Baheru JamaleAge: 42 years, Occ: Hosehold,R/o Kasbe Tadwa, Tq. & Dist. Osmanabad.3. Ranganath Ganpati JamaleAge: 45 years, Occ: Agri..R/o As above.4. Sau. Chhya Ranganath JamaleAge: 40 years, Occ: Agri..As above.5. Vaijanath Ganpati Jamale (died)Through his legal heirs.5/1. Salan Vaijanath JamaleAge: 27 years, Occ: Labourer,R/o As above.5/2. Amol Vaijanath JamaleAge : 6 years Miner, Under Gardianceof Salan Vaijath Jamale5/3. Moni Vaijanath JamaleAge : 4 years Miner, Under Gardianceof Salan Vaijath Jamale...RespondentsWITHWRIT PETITION NO. 992 OF 20071) Vishwanath S/o Keshav Jamale,died, through his L.Rs.1-a) Prabhakar S/o Vishwanath Jamale,Age: 59 years, Occu. Agri. & Service,1-b) Sudam s/o Vishwanath Jamale,Age: 54 years, Occu. Agri.1-c) Ankush S/o Vishwanath Jamale,Age: 50 years, Occu. Agri.1-d) Tanaji S/o Vishwanath Jamale,Age: 44 years, Occu. Agri.All R/o Kasbe-Tadwale, 50-wp-788-2003 grp judg.odt(3)Tq. & Dist. Osmanabad.1-e) Sou. Nilavati W/o Tukaram Aute,Age: 64 years, Occu. Agril. & Household,R/o Kolhegaon, Tq. & Dist. Osmanabad.1-f) Sou. Suman W/o Rangnath Veer,Age: 46 years, Occu. Household,R/o Khed, Tq. & Dist. Osmanabad.1-g) Sou. Sharda W/o Dnyandeo Rohile,Age: 34 years, Occu. HouseholdR/o Khamaswadi, Tq. Kallamb, District- Osmanabad.1-h) Satyabhamabai W/o Vishwanath Jamaledied, L.Rs. are already on record...PetitionersVersus1. Bhairu S/o Ganpati JamaleAge: 52 years, Occu.Agril.2. Sou. Surekha W/o Bhairu JamaleAge: 41 years, Occu. Household,3. Rangnath S/o Ganpati Jamale,Age: 44 years, Occu. Agri.4. Sou. Chhaya W/o Rangnath JamaleAge: 34 years, Occu. Household,All R/o Village Kasbe - TadwaleTq. & Dist. Osmanabad.5. Vaijnath S/o Ganpati Jamale,died through Legal representatives.5-a) Shalanbai W/o Vaijnath Jamale,Age: 29 years, Occu. Household,5-b) Amol S/o Vaijnath Jamale,Age: 8 years, minor, underguardian of Respondent No. 5-a)5-c) Moni D/o Vaijnath Jamale,Age: 7 years, minor, under 50-wp-788-2003 grp judg.odt(4)guardian of Respondent No. 5-a)No. 5-a to 5-c R/o Kasbe- Tadwale,Tq. & Dist. Osmanabad.6) The Divisional Commissioner,Aurangabad Division, Aurangabad..RespondentsWITHWRIT PETITION NO. 1008 OF 2007WITHCIVIL APPLICATION NO. 1250 OF 2008 IN WP/1008/20071) Vishwanath S/o Keshav Jamale,died, through his L.Rs.1-a) Prabhakar S/o Vishwanath Jamale,Age: 59 years, Occu. Agri. & Service,1-b) Sudam s/o Vishwanath Jamale,Age: 54 years, Occu. Agri.1-c) Ankush S/o Vishwanath Jamale,Age: 50 years, Occu. Agri.1-d) Tanaji S/o Vishwanath Jamale,Age: 44 years, Occu. Agri.All R/o Kasbe-Tadwale,Tq. & Dist. Osmanabad.1-e) Sou. Nilavati W/o Tukaram Aute,Age: 64 years, Occu. Agril. & Household,R/o Kolhegaon, Tq. & Dist. Osmanabad.1-f) Sou. Suman W/o Rangnath Veer,Age: 46 years, Occu. Household,R/o Khed, Tq. & Dist. Osmanabad.1-g) Sou. Sharda W/o Dnyandeo Rohile,Age: 34 years, Occu. HouseholdR/o Khamaswadi, Tq. Kallamb, District- Osmanabad.1-h) Satyabhamabai W/o Vishwanath Jamaledied, L.Rs. are already on record...Petitioners
Legal Reasoning
50-wp-788-2003 grp judg.odt(5)Versus1. Bhairu S/o Ganpati JamaleAge: 52 years, Occu.Agril.2. Sou. Surekha W/o Bhairu JamaleAge: 41 years, Occu. Household,3. Rangnath S/o Ganpati Jamale,Age: 44 years, Occu. Agri.4. Sou. Chhaya W/o Rangnath JamaleAge: 34 years, Occu. Household,All R/o Village Kasbe - TadwaleTq. & Dist. Osmanabad.5. Vaijnath S/o Ganpati Jamale,died through Legal representatives.5-a) Shalanbai W/o Vaijnath Jamale,Age: 29 years, Occu. Household,5-b) Amol S/o Vaijnath Jamale,Age: 8 years, minor, underguardian of Respondent No. 5-a)5-c) Moni D/o Vaijnath Jamale,Age: 7 years, minor, underguardian of Respondent No. 5-a)No. 5-a to 5-c R/o Kasbe- Tadwale,Tq. & Dist. Osmanabad.6) The Divisional Commissioner,Aurangabad Division, Aurangabad..Respondents...Mrs. M.A. Kulkarni, Advocate for petitioner in WP/788/2003 & respondent no.1 in WP/992/2007 & WP/1008/2007.Mr. V.G. Mete, Advocate for respondent nos.1/2, 1/4, 1/6 & 2/7 and petitioners in WP/992/2007 & WP/1008/2007.Mr. G.R. Jadhav h/f Mr. Avishkar S. Shelke, Advocate for respondent nos.2 to 5/1 in WP/788/2003. 50-wp-788-2003 grp judg.odt(6)... CORAM : S.G. MEHARE, J. DATED : FEBRUARY 20, 2024ORAL JUDGMENT :-1.Heard respective counsels at length.2. The issues involved in these two petitions are aconsequence of the order passed in Regular Civil Suit No.71/1994.3.One Vishwanath Keshav Jamale had filed a Regular CivilSuit No.71/1994 before the Civil Court for an injunction against thedefendants/ present petitioners. The suit was based on the title. Hehad a case that he is the owner of the suit land as the sale certificateunder Section 32(G) of the Bombay Tenancy and Agricultural LandsAct, 1948 (for short ‘Act of 1948’) was granted to him. The saidcertificate was duly registered and attained the finality. However, thefather of the petitioners/defendants was the owner of the suit landGat No.711. When he went to his field on 21.02.1994 to harvest thegrains, the defendants disturbed him and tried to obstruct hispeaceful possession. In the said suit, the present petitioner had filed awritten statement. The defendants had filed an application belowExhibit-30 to frame an additional issue about who the tenant in thesuit property is. The plaintiff, Vishwanath, gave no objection; hence,the issue had been framed. After the death of Vishwanath, his legalheirs filed an application Exhibit-44 to delete Issue No.3-A framed asper the order dated 24.01.1992. He had contended that nobody had a 50-wp-788-2003 grp judg.odt(7)case of tenancy. The tenancy issue was not involved. Hence, that issueshould be deleted. He also argued that the reference of the tenancyissue to the tenancy Tribunal was also unsustainable. The Court of thefirst instance allowed his application, deleted issue No.3A, and thereference under Section 99-A of the Hyderabad Tenancy andAgricultural Lands Act, 1950 (for short ‘Act of 1950’) was dropped.4.In view of the reference under Section 99-A, the Tahsildarproceeded to determine the tenancy issue. The Tahsildar registeredFile No.2000/TNC/WS/117, arraigning the plaintiff Vishwanath as anapplicant through legal heirs. By order dated 12.03.2001, theTahasildar by order declared that there is no tenant in the suitproperty. The legal heirs of Vishwanath and non-applicant No.1Bhairu had impugned the said order by two separate appeals beforethe Deputy Collector, Osmanabad. The Deputy Collector, Osmanabad,passed separate orders in those appeals. Both orders are replicas ofeach other. He passed the order on 07.02.2002, allowed the appealpartly, set aside the Tahsildar order dated 12.03.2001, and remittedthe matter to the Trial Court for fresh enquiry. The order of the Sub-Divisional Officer was also challenged by two revisions before theDivisional Commissioner, Aurangabad. The Divisional Commissioneralso passed two separate orders on the same dates i.e. 30.11.2006. Heallowed both petitions and passed a stereotyped order. He set asidethe order of the Tahsildar and the Sub-Divisional Officer and remitted 50-wp-788-2003 grp judg.odt(8)the matter to the Tahsildar with a direction to get the issue of tenancyframed afresh from the Civil Court as per the provisions of BombayTenancy and Agricultural Lands Act, 1948 and may pass the orderwithin three months by giving an opportunity to both the parties.These two orders have been impugned by two separate writ petitionsbearing Nos.992 of 2007 and 1008 of 2007 by the legal heirs ofVishwanath.5.Learned counsel for the petitioner in Writ Petition No.788of 2003 has argued that the Revenue Authorities held that thedefendant was not the tenant in the suit land. The sale certificateunder Section 32-G was issued under the Bombay Tenancy Act, 1948.Thereafter, there was a bifurcation of Latur District, and the village inwhich the suit land is situated has been attached to OsmanabadDistrict, which was in Marathwada. In the Marathwada, theHyderabad Tenancy Act was applied. Therefore, the RevenueAuthority has correctly held the enquiry. Her tone of argument wasthat the certificate issued under the Bombay Tenancy Act 1948 wasineffective since the villages were brought under the jurisdiction ofthe Marathwada, where the Hyderabad Tenancy Act was applied. 6.Another limb of her arguments was that the Court, underOrder 14 Rule 5 of the Civil Procedure Code, cannot strike once theissue has been framed. Therefore, the impugned order is illegal. Shehas also argued that once the issue of tenancy arose in the civil suit, 50-wp-788-2003 grp judg.odt(9)the jurisdiction of the Civil Court was ousted under Section 85 of theBombay Tenancy Act, 1948. The only remedy in such a suit is to referthe issue to the tenancy Tribunal. Since the issue of tenancy came upbefore the Court, the Court had correctly referred the issue to thetenancy Tribunal. The tenancy Tribunal has acted as per the directionsof the Civil Court. She also argued that there is a variance in thedescription of the fields in the plaint and the sale certificate issued tothe original plaintiff. The documents which the learned counsel forthe respondents has referred are brought for the first time before theCourt. The description of the suit properties was amended after IssueNo.3(b) was framed. Therefore, the Court was right in framing theissue and referring the matter to the tenancy Tribunal. She added thatthe matter may be remitted, directing the Civil Court to examine thelegality and validity of the sale certificate issued under Section 32-Gof the Tenancy Act, 1948. Her anxiety is the Civil Court should decidethe issue of the tenancy. The matter is old and unnecessarily kept inabeyance. Therefore, the petition may be allowed.7.Per contra, learned counsel Mr. Mete for therespondents/original plaintiff vehemently argued that the suit was asimpliciter for the injunction. Therefore, Section 85 of the TenancyAct does not apply. To bolster his arguments, he relied on the case ofMaruti Sambha Surve Vs. Parshuram Krishna Koratkar and another,1984 MH LR 54. He also argued that Ganpati, the father of the 50-wp-788-2003 grp judg.odt(10)defendants, had contested the tenancy proceeding. He had knowledgeabout the tenancy proceeding and granting the sale certificate underSection 32-G of the Tenancy Act, 1948. The sale certificate was actedupon. The mutation entries were taken, and the plaintiffs’ names wereinserted in the 7/12 extract. The proceedings under the Tenancy Acthave attained finality. Therefore, it could not be reopened by a CivilCourt. Before the Civil Court, none of the parties has a pleading aboutthe tenancy dispute. Therefore, the Court of the First Instance hascorrectly deleted the issue and dropped the order of reference. Sincethe order of reference to the tenancy Court was dropped, all theproceedings before the tenancy Court were infructuous. The issueframed as per the order below Exhibit-30 was vague. Therefore, theTenancy Court was also confused. None of the Revenue Authorityhas the power to ask for the Civil Court to re-frame the issue.Therefore, the order of the Divisional Commissioner, Aurangabad,issuing such directions to the Tahsildar is illegal and against the law.He also argued that initially, the villagers were under the Bombayprovince and governed under the Act of 1948. Merely bifurcating thevillages and bringing them under the Hyderabad Tenancy Act, thecertificate granted under Section 32-G would not be invalid.Therefore, there is no force in the submission of the learned counselfor the petitioner that the purchase certificate under Section 32-G hasbeen ineffective, and the Civil Court should examine the validity of 50-wp-788-2003 grp judg.odt(11)the said certificate fresh. He also assailed the orders of the Tahsildar,Sub-Divisional Officer and Additional Commissioner and argued thatsince the order direction to decide the tenancy was dropped, theentire order became infructuous and ineffective. Hence, Writ PetitionNos.992 of 2007 and 1008 of 2007 may be allowed, and Writ PetitionNo.788 of 2003 be dismissed.8.It is not disputed that Vishwanath fought against Ganpati,the father of the defendants of a tenancy dispute under the Act of1948. It also appears that Ganpati took every opportunity to opposethe tenancy claimed by Vishwanath. After hearing the parties andverifying the facts, a certificate under Section 32-G was finallygranted to Vishwanath. Pursuant to the said certificate, the revenuerecord was also changed. The certificate under Section 32-G grants orconfers a title to the holder. Hence, on the basis of that title, he hadfiled a simple suit for injunction restraining the defendants from notdisturbing his peaceful possession of the suit land. The plaint andwritten statement were silent, raising any dispute about the tenancy.However, the defendants applied to frame the issue of who is atenant. This issue itself was vague. The issues are not framed like this.The issues are framed under Order 14 Rule 4 of the Civil ProcedureCode when one party asserts, and another denies. As discussedabove, the plaint and written statement were silent about assertingand denying the tenancy. The suit was based on the title. The 50-wp-788-2003 grp judg.odt(12)arguments of the learned counsel, Ms. Kulkarni, that once the issuehas been framed, it cannot be struck down are exactly against Order14 Rule 5 of the Civil Procedure Code. The said rule confers thepower on the Court either to amend the issues or frame additionalissues at any time before passing the decree. It also empowers theCourt to strike out any issue that appears to be wrongly framed orintroduced at any time before passing the decree. It seems that afterhearing the respective parties, the Court has considered that IssueNo.3-A, which was wrongly framed, has no relevance to the facts indispute, there was no assertion and denial of the tenancy right, andthat order was correctly deleted. 9.In view of the deletion of Issue No.3-A, the consequentialorder dropping the enquiry of the tenancy has also been passed.Learned counsel Mrs. Kulkarni is right in arguing that the Civil Courthas no jurisdiction to decide the rights under the tenancy. TheTenancy Act 1948 applies to the Bombay province region, and theTenancy Act 1950 applies to the Marathwada region. In both Acts asimilar provision for referring the issue to the tenancy Court has beeninserted. In the circumstances where, in any suit in a civil court, theissue involves that required to be settled, decided, or dealt with byany authority competent to settle, decide, or deal with such issue, itshould be referred to the tenancy Tribunal. In short, where any issueabout the tenancy has been involved in a suit since the jurisdiction of 50-wp-788-2003 grp judg.odt(13)the Civil Court has been barred, the only option that lies with the CivilCourt is to refer the issue to the Tenancy Court. Both sections, whichare similar, indicate that there should be an issue involved in a suitabout the tenancy right. Whether such an issue has been involvedwould be seen from the plaint and the written statement. Barelyraising a point or raising a defence is not sufficient. The Court thatframes the issue has to consider the allegations made in the plaint andthe contents of the documents placed on record by either party. 10. A perusal of the plaint and written statement indicatesnowhere that the issue of tenancy was involved. The plaintiff/Vishwanath had filed a simple suit for injunction claiming the titleon the basis of the certificate under Section 32-G of the Act of 1948.The issue of tenancy was set at rest in previous litigation between thesame parties. Therefore, this Court is of the view that though anydispute about tenancy has been raised by the defendant/originalowner of the suit land, the Court could not refer the issue to thetenancy Tribunal. Apart from that, the Division Bench of this Court, inthe case of Maruti (supra) has laid down the law that in a suitsimpliciter for injunction based on the possession reference underSection 85, becomes completely without jurisdiction because the issueof tenancy cannot said to be involved in the suit and that mustprevent the Court from exercising its jurisdiction under the sectionwhich was conditional upon an issue and being involved in the suit. 50-wp-788-2003 grp judg.odt(14)11.In view of the above facts and the prepositions of law,this Court is of the view that framing the issue of who is a tenant wasvague and wrong. The party to the suit has a right to apply forstriking down this issue at any time before passing the decree. Thelegal heir of Vishwanath has correctly applied to the Court for strikingoff or deleting that issue. The Court of first instance has correctlyapplied the mind and passed the legal and proper impugned order. 12.The submission of Mrs. Kulkarni that she has anxiety thatthe Civil Court should examine the legality and validity of thecertificate under Section 32-G also appears as an argument forargument. When the Special Court finally decided the issue, no otherCourt had jurisdiction to re-examine those issues. Obviously, such re-examination is barred under Section 11 of the Civil Procedure Code.Hence, this Court did not find any water in her argument. Thearguments of Mrs. Kulkarni that there is a discrepancy in the landdescribed in the plaint and the certificate is also unfounded. 13. The Tahsildar has observed that there is no tenant in thesuit land. Prima facie, his findings were correct. He has acted upon asper the issue framed and directions issued. Since the plaintiffs werethe owners of the suit land, there was no question of having any otherperson tenant in the said land. However, the appellate and revisionalauthority have, without applying the mind as usual, remitted thematter. Remittance of the suit is not a formality. There should be some 50-wp-788-2003 grp judg.odt(15)material before the appellate or revisional authority that has not beendealt with or considered by the Court below. In such circumstancesonly, there shall be a remittance. The law is crystallized on the powerof the appellate and revisional Court to remit the matter. It is a settledlaw that where the material before the appellate and revisional Courtis sufficient to decide the matter on merit, the remittance of thematter shall be avoided. 14.The Divisional Commissioner went a step ahead directingthe Tahsildar to ask the Civil Court to re-frame the issue and thendecide the matter afresh. Learned counsel for the plaintiff is right thatthe Divisional Commissioner has no jurisdiction as such.15.The Court held that Issue No.3-A framed by the Courtwas incorrect, wrong and improper. Therefore, the reference in viewof that order becomes redundant. Whatsoever the revenue authoritiesrecorded the findings does not affect the right of the plaintiff norcreate the right in favour of the defendants. Those proceedings oughtto have been dropped, but it did not happen.16.In view of the law laid down by this Court in the case ofMaruti (supra), the reference to the tenancy Tribunal itself was notgood in law and out of the jurisdiction of the Civil Court. In view ofthat matter, the orders impugned in these two writ petitions must bequashed and set aside. Hence, the following order : 50-wp-788-2003 grp judg.odt(16)ORDER(i)Writ Petition No.788 of 2003 stands dismissed.(ii)Rule stands discharged.(iii)Writ Petitions Nos.992 of 2007 and 1008 of 2007 standallowed.(iv)The impugned orders of the Tahsildar, Osmanabad passed inFile No.2000/TNC/WS/117 dated 12.03.2001, Deputy Collector(L.R.), Osmanabad in File No.2001/TNC/99-A/A/3 dated 07.02.2002and Divisional Commissioner, Aurangabad Division, Aurangabad inRevision No. 53/B/2002/Osmanabad and Revision No.16/B/2002/Osmanabad dated 30.11.2006 stand quashed and setaside.(v)No order as to costs.(vi)Rule is made absolute in the above terms. (S.G. MEHARE, J.)Mujaheed//