High Court
Legal Reasoning
(1) AO-4-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPEAL FROM ORDER NO.4 OF 2025WITHCIVIL APPLICATION NO.475 OF 20251.Prakash s/o Kisanlal Lodha,Age- 75 years,Occupation-Agriculture and Business.2.Subhashchandra s/o Kisanlal Lodha,Age- 77 years,Occupation – Agriculture and BusinessThrough his power of attorney holder,The petitioner No.1.Both r/o. Kallam, at PresentPrabhat road, Galli No.07, Erandwane,Pune, Dist. Pune...Appellants(Original Plaintiffs)Versus1.Dagadu Sopan Kore,Age – 65 years,Occupation – Agriculture,2.Jyotiram Dagadu Kore,Age – 41 years,Occupation – AgricultureBoth r/oShelka Dhanora, Tq. Kallam,District – Dharashiv...Respondents (Original defendants and counter claimants)…Mr. D. A. Mane h/f Mr. M. M. Patil, Advocate for Appellants.Mr. A. N. Nagargoje, Advocate for Respondent No.1-Caveator.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 04th FEBRUARY, 2025.JUDGMENT:-1.The appellants take exception to common judgment andorder dated 08.05.2024 passed by District Judge-1, Kallam inRegular Civil Appeal Nos.03/2024 and 04/2024, thereby quashing (2) AO-4-2025.odtand setting aside judgment and decree dated 03.02.2024 passed byCivil Judge, Senior Division, Kallam in Regular Civil SuitNo.1145/2019 and remanding proceeding to the Trial Court forframing issue of tenancy with further direction to refer the same toTenancy Authority for final disposal. (Hereinafter, parties arereferred to by their original status for the sake of convenience andbrevity).2.The appellants are original plaintiffs in Regular Civil SuitNo.1145/2019. They filed suit seeking relief of perpetual injunctionagainst respondents in respect of land bearing Gut No.72admeasuring 7H 80R situated at Shelka Dhanora, Tal. Kallam,Dist. Osmanabad.3.It is the case of plaintiffs that they are sons of Kisanlal andMadanbai Lodha. They inherited the suit property. The defendantno.1 has been declared as protected tenant to the extent of 3H 40Rout of Gut No.72. On 01.06.2019, the defendants causedobstruction to plaintiffs cultivation over the suit property. Thedefendants filed written statement as well as counter claimcontending that Gut No.72 is formed out of Survey Nos.34, 35, 39and 43 during the consolidation. Kisanlal Lodha was originalowner of all four survey numbers. Late Sopan Maruti Kore (Mali)(father of defendant no.1) was cultivating Survey Nos.35 and 43 asprotected tenant. After his death, defendant no.1 acquired (3) AO-4-2025.odtpossession. Late Sopan Kore was already declared as restrictedowner of Survey No.43. Although there is no declaration asregards to the Survey No.35, he never surrendered tenancy rightsin respect of said land and continued in the possession.Accordingly, defendants sought dismissal of suit of the plaintiffsand decree of perpetual injunction against plaintiffs from causingobstruction over part of land from Survey No.35.4.In written statement to the counter claim, plaintiffscontended that on 04.07.1980, Sopan Kore declared as protectedtenant to Survey No.43 admeasuring 3H 30R and made oralsurrender of his tenancy right in respect of Survey No.35.Thereafter, late Sopan Kore never raised his claim as to thetenancy right or possession over Survey No.35. The plaintiffs areowners and possessors of land Survey No.35. 5.The Trial Court framed issues based on the pleadings of theparties and finally observed that the questions as to whether SopanKore was a tenant of Survey No.35 and whether his tenancy wasvalidly terminated fall under the jurisdiction of the CompetentAuthority under the Hyderabad Tenancy and Agricultural LandsAct, 1950 (for short, “HT & AL Act”). However, considering natureof claim and counter claim in this suit, decision has to be based onevidence of actual possession of the parties. Consequently, the suitof the plaintiffs was decreed, and the counterclaim was dismissed. (4) AO-4-2025.odt6.Aggrieved defendants filed Regular Civil Appeal Nos.03/2024and 04/2024 against decree in the suit as well as counter claim.The Appellate Court observed that although plaintiffs as well asdefendants are claiming decree of perpetual injunction againsteach other, the issue as to the tenancy of Sopan Kore over disputedSurvey No.35 needs reference to the Competent Authority underSection 99 of the HT & AL Act. Consequently, partly allowed theAppeals and remanded the proceedings to the Trial Court withfollowing directions:“1.The judgment and decree passed by Ld. Trial Court inRCS No.1145/2019 is quashed and set aside and the matter isremanded to the Ld. Trial Court with following directions-i) Readmit the RCS No.1145/2019 under it's originalnumber along with counter claim. ii) The evidence recorded during the original trial shall bethe evidence during the trial after remand. The parties arenot at liberty to adduce any oral or documentary evidenceafter remand. lii) The parties shall appear before the Trial Court on12.06.2024. iv) The Ld. Trial Court in terms of pleading of the partiesshall frame necessary tenancy issue/s and refer it to theTenancy Court in terms of provisions of Sec.99(A) ofHyderabad Tenancy and Agricultural Land Act, 1950. v) After such reference is made the Trial Court shall directthe parties to the suit to appear before the tenancy authorityon particular date. vi) The tenancy authority shall decided the said referencewithin period of 6 months after appearance of the partiesbefore it. (5) AO-4-2025.odtVii) On receipt of the decision of Tenancy Court on suchreference, the Trial Court shall dispose of suit in accordancewith law as expediently as possible, preferably withinperiod of 3 months thereafter. 2) Decree be drawn up accordingly. 3) R & P send to Ld. Trial Court”7.Mr. Mane, learned Advocate appearing for the appellantssubmits that appellants/plaintiffs filed simplicitor suit forperpetual injunction. Even counter claim filed by the respondentssought simple relief of perpetual injunction. The issue can bedecided ascertaining actual possession of parties. The issue oftenancy would not be germane to such proceedings. The decree forperpetual injunction can be passed without calling decision ofCompetent Authority. Mr. Mane would further point out that LateSopan Kore never raised any claim of his tenancy in respect of landSurvey No.35 during his lifetime. In the year 1976-77, SurveyNos.34, 35, 39 and 43 consolidated together to form Gut No.72.Late Sopan Kore got declaration of his tenancy right on 04.07.1980in respect of Survey No.43 admeasuring 3H 30R by order ofCompetent Authority. His name never appeared as possessor ofland Survey No.35, either before or after consolidation. Theplaintiffs are absolute owners and possessors. The Trial Courtappreciated aforesaid evidence and decreed the suit of theplaintiffs. However, Appellate Court without framing necessarypoints for consideration and dealing with findings recorded by the (6) AO-4-2025.odtTrial Court, mechanically remanded matter back with direction toframe and refer issue as to the tenancy to the Competent Authorityunder Section 99(A) of the HT & AL Act.8.Per contra, Mr. Nagargoje, learned Advocate appearing forthe respondents submits that in written statement to the counterclaim, plaintiffs have admitted that Sopan Kore was tenant overSurvey Nos.43 as well as 35, however, they contend that Sopansurrendered his tenancy right in respect of Survey No.35 andretained the tenancy right in respect of Survey No.43 only.According to Mr. Nagargoje, there is no provision for oral surrenderof the tenancy right. Whether tenancy of Sopan exists or it hasbeen extinguished are the issues to be dealt with by the CompetentAuthority under HT & AL Act. As such, reference under Section99(A) was necessary. The Appellate Court has rightly remandedthe matter with direction to refer the issue to the CompetentAuthority. He would, therefore, urge to maintain the judgmentand decree passed by the Appellate Court.9.Having considered submissions advanced, certain admittedfacts can be referred before delving into the controversy in thisAppeal:(i)Admittedly, lands were owned by plaintiffs’ father. Nowthey inherited the same. (7) AO-4-2025.odt(ii)The land Survey Nos.34, 35, 39 and 43 has been mergedin Gut No.72 during consolidation scheme implemented in theyear 1976-77. The father of the defendants i.e. Sopan Korewas tenant over Survey Nos.35 and 43. However, he has beendeclared as protected tenant over land Survey No.43admeasuring 3H 30R by order of CompetentAuthority/Tahsildar.(iii)The revenue record before and after consolidationdepicts ownership and possession of the plaintiffs over GutNo.72, except portion of land Survey No.43. There is norecord as to the surrender of tenancy right by Sopan Kore inrespect of Survey No.35, but his possession is not discernibleafter 1955-56.(iv)Now, plaintiffs are claiming their exclusive possessionover Gut No.72. Admittedly, land Survey No.35 is part of GutNo.72 and defendants are claiming their tenancy rightsderived from Sopan and also assert their possession on thebasis of such right. The plaintiffs and defendants both areclaiming for decree of perpetual injunction against each other.10.It is true that, in a suit seeking decree of simplicitorinjunction the issue of possession would germane for consideration.However, cursorily, right of enjoyment of property and legality ofpossession also requires consideration. There may be cases where (8) AO-4-2025.odtmerely on the basis of evidence as to the possession, the disputebetween the parties can be resolved by passing decree of simplicitorperpetual injunction. However, when possession is asserted basedon a certain right, an inquiry into the title or such right becomesessential and indispensable. In present case, Trial Court foundplaintiffs to be in possession of the suit property without enteringinto the claim as to the tenancy rights asserted by defendants. It istrite that, if defendant establish his tenancy right over suitproperty, he cannot be clamped with decree of perpetual injunction.The person who holds tenancy right cannot be evicted withoutfollowing due process of law. In absence of valid surrender of suchtenancy, the tenant would continue to enjoy right to be inpossession even against true owner. Section 99 of the HT & AL Actmakes further provision for protection of possession of tenantagainst illegal dispossession. Section 98 provides for summaryeviction of any person unauthorisedly occupying or wrongfully inpossession of the land by the Collector. Section 99 prescribes bar ofjurisdiction of Civil Court to settle, decide or deal with anyquestion, particularly as to the tenancy right. Section 99(A)provides that if any issue that required to be decided under Section99 arises in the suit, Civil Court is under obligation to stay the suitand refer such issue to the Competent Authority for determinationand on receipt of such reference to proceed to decide the suit inaccordance with law. (9) AO-4-2025.odt11.The aforesaid scheme of the HT & AL Act clearly bars thejurisdiction of the Civil Court from deciding issues related to theextent, conditions, or termination of a person's tenancy rights ifthey are, or shall be, considered a tenant, protected tenant, ordeemed full owner of the land at the relevant time. In presentcase, defendants asserted their possession on the basis of tenancyrights of Sopan. The admission of plaintiffs in written statement tothe counter claim as to the tenancy of Sopan over Survey No.35with caveat that such tenancy does not exist, prima facie, showsthat tenancy right of the Sopan as regards to the Survey No.35requires to be adjudicated by Competent Authority throughreference under Section 99(A). Hence, decision of the AppellateCourt regarding need of framing issue of tenancy cannot be faulted.12.Eventually, issue that falls for consideration is whether caseis made out for remand of the matter under the scheme of theOrder XLI Rules 23, 24 and 25 of the Code of Civil Procedure. Rule23 of the Order XLI empowers Appellate Court to remand the caseand direct what issue or issues shall be tried in the case, soremanded with direction to re-admit the suit under its originalnumber. Rule 23(A) further prescribes that where the court fromwhose decree an appeal is preferred has disposed of the caseotherwise than on a preliminary point, and the decree is reversedin appeal and a retrial is considered necessary, the appellate court (10) AO-4-2025.odtshall have the same powers as it has under Rule 23. However,Rules 24 and 25 are in the nature of explanation or in the nature ofproviso to the powers of remand. Rule 24 prescribes that where theevidence upon the record is sufficient to enable the Appellate Courtto pronounce judgment, the Appellate Court may, after resettlingthe issues, if necessary, finally determine the suit, notwithstandingthat the judgment of the Court from whose decree the appeal ispreferred has proceeded wholly upon some ground other than thaton which Appellate Court proceeds. Rule 25 further prescribes thathere the Court from whose decree the appeal is preferred hasomitted to frame or try any issue, or to determine any question offact, which appears to the Appellate Court essential to the rightdecision of the suit upon the merits the Appellate Court may, ifnecessary, frame issues, and refer the same for trial to the Courtfrom whose decree the appeal is preferred, and in such case shalldirect such Court to take the additional evidence required. 13.The Supreme Court of India in case of Shivkumar & Ors.Vs. Sharanabasappa and Ors.1 intangibly discussed scheme ofOrder XLI Rules 23 to 26 and summarized legal position inparagraph no.26, which reads as under:“26.3A comprehension of the scheme of the provisions forremand as contained in Rules 23 and 23A of Order XLI isnot complete without reference to the provision contained inRule 24 of Order XLI that enables the Appellate Court todispose of a case finally without a remand if the evidence on12021 (11) SCC 277. (11) AO-4-2025.odtrecord is sufficient; notwithstanding that the Appellate Courtproceeds on a ground entirely different from that on whichthe Trial Court had proceeded.26.4A conjoint reading of Rules 23, 23A and 24 of OrderXLI brings forth the scope as also contours of the powers ofremand that when the available evidence is sufficient todispose of the matter, the proper course for an AppellateCourt is to follow the mandate of Rule 24 of Order XLI CPCand to determine the suit finally. It is only in such caseswhere the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shalladopt the course of remanding the case. It remains trite thatorder of remand is not to be passed in a routine mannerbecause an unwarranted order of remand merely elongatesthe life of the litigation without serving the cause of justice.An order of remand only on the ground that the pointstouching the appreciation of evidence were not dealt with bythe Trial Court may not be considered proper in a given casebecause the First Appellate Court itself is possessed ofjurisdiction to enter into facts and appreciate the evidence.There could, of course, be several eventualities which mayjustify an order of remand or where remand would be rathernecessary depending on the facts and the given set ofcircumstances of a case.”14.In yet another judgment the Supreme Court of India in caseof Syeda Rahimunnisa vs Malan Bi (Dead) By Lrs. & Anr.Etc2 observed in paragraph no.36 as under:“It is a settled principle of law that in order to claim remandof the case to the trial court, it is necessary for the appellantto first raise such plea and then make out a case of remandon facts. The power of the appellate court to remand the caseto subordinate court is contained in order XLI Rule 23, 23-Aand 25 of CPC. It is, therefore, obligatory upon the appellantto bring the case under any of these provisions beforeclaiming a remand. The appellate court is required to recordreasons as to why it has taken recourse to any one out of thethree Rules of Order XLI of CPC for remanding the case tothe trial court. In the absence of any ground taken by therespondents (appellants before the first appellate court andHigh Court) before the first appellate court and the HighCourt as to why the remand order in these cases is called for2(2016) 10 SCC 315. (12) AO-4-2025.odtand if so under which Rule of Order XLI of CPC and furtherin the absence of any finding, there was no justification onthe part of the High Court to remand the case to the trialcourt. The High Court instead should have decided theappeals on merits. We, however, do not consider proper toremand the case to High Court for deciding the appeals onmerits and instead examine the merits of the case in theseappeals.”15.In a wake of aforesaid exposition of law, when AppellateCourt recorded that no further evidence is required to be recordedby the parties and issue as to the tenancy is required to be framedand referred to the Competent authority under HT & AL Act, theAppellate Court itself could have framed the issue and referred thesame to the Tenancy Authority. There is absolutely no justificationfor remanding matter for that purpose to the Trial Court only forthe purpose of framing the issue of tenancy. When right of theparties to record further evidence was foreclosed, even otherwiseparties have not claimed that they wish to bring on record anyadditional material than what has been already on record andrelied by them, order of remand cannot be justified. 16.In result, Appeal partly succeeds. Hence, following order:ORDERa.Appeal from Order is partly allowed.b.The impugned common judgment and order dated 08.05.2024passed by District Judge-1, Kallam in Regular Civil AppealNos.03/2024 and 04/2024, is hereby quashed and set aside.
Decision
(13) AO-4-2025.odtc.The Regular Civil Appeal Nos.3/2024 and 4/2024 berestored/re-admitted before the District Judge, Kallam, Dist.Osmanabad.d.Parties shall appear before the District Judge, Kallam on28.02.2025.e.The learned District Judge, in terms of pleadings of theparties shall frame necessary tenancy issue/s and refer it to theCompetent Authority in terms of Section 99(A) of the HT & AL Act,1950. f.In case such an issue is already framed and referred by TrialCourt in pursuance of the impugned judgment and order dated08.05.2024, the Competent Authority shall decide it expeditiouslyas directed in Clause No.(vi) of the impugned order andcommunicate its decision to the learned District Judge at Kallam,who shall dispose of Appeals as expeditiously as possible andpreferably within a period of six months from the date of receipt ofdecision on tenancy issue from the Competent Authority. 17.In view of the above, nothing survives in the CivilApplication and the same is accordingly disposed of.(S. G. CHAPALGAONKAR)JUDGEDevendra/February-2025