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.
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][789F-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][790B]
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]
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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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