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PETITIONER:

PUNDLIK KRISHNA JI AND ORS.

Vs.

RESPONDENT:

TRIMBAK BHIKAJI PATIL AND ORS.

DATE OF JUDGMENT23/04/1992

BENCH:

KULDIP SINGH (J)

BENCH:

KULDIP SINGH (J)

FATHIMA BEEVI, M. (J)

CITATION:

1992 AIR 1338 1992 SCR (2) 749

1992 SCC Supl. (2) 290 JT 1992 (3) 110

1992 SCALE (1)908

ACT:

Berar regulation of Agricultural Leases Act, 1951-

section 8(1)(c)(f)-tenancy-termination-Applications by Karta

of family-Legality of.

Bombay Tenancy and agricultural lands (Vidarbha region

)Act,1958-proceedings under-Non-compliance of prior notice-

Effect.

Constitution of India, 1950-Article136-Appeal by spe-

cial leave-appreciation of High Court's finding-Lease deed

dated 30-04-1951, whether genuine.

HEADNOTE:

Respondent No.1 was the owner of the disputed land. The

land was in cultivating possession of the appellant-tenants

since 1951. They acquired the status of protected lessees

under the Berar Regulation of Agricultural Leases Act,1951

and the Bombay Tenancy and Agricultural Lands (Vidarbha

Region) Act, 1958.

The respondent filing two separate applications against

the appellants. Initiated Proceedings before the Sub Divi-

sional Officer for ejectment of the appellants on the ground

that Predecessor of the appellant No1 created sub-leases in

favour of appellant No.2 and another and as such their

tenancy was liable to be terminated in term of section

8(1)(c)(f)of the Berar Act.

The appellants resisted the applications contending

that all the three persons were independent lessees in their

own rights and as such there was no question of appellant

No.1 having created sub-leases in favour of the other two.

The respondent No.1 produced a lease deed dated April

30,1951to prove that all the three tracts of land were

leased to appellant No.1and no part of the land was ever

leased to appellant No.2 and another; and that the original

lessee, appellant No.1, sub-leased part of the land to the

other two occupants.

750

The Sub- Divisional Officer allowed the applications of the

respondent No.1.

The appellants filed appeals before the Sub-Deputy

Collector against the order of the Sub-Divisonal

Officer,which were dismissed.

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The appellants-tenants went in revision before the

Revenue Tribunal. The Tribunal allowed the revision peti-

tions of the appellants.

The respondent challenged the order of the tribunal

dated 25.03.1970 in the High Court on 4.8.1971. In order to

get over the delay in filing the writ petition the land-

owner filed an affidavit stating that the papers in his

office remained unattended due to oversight and pressure of

work and as such the filing of the petitions was delayed.

The High Court allowed the petitions of the land-owner.

These appeals were filed by the tenants by way of special

leave petitions against the judgment of the High court.

Allowing the appeals of the tenants,this court,

HELD :1There is no infirmity in the finding of the High

court that the respndent No.1 being the Karta of the family

could file the applications for termination of the tenancy

without associating his brother [755H-756A].

2 The High court was also right in rejecting the con-

tention of the tenant that the proceedings under the Bombay

Act were illegal as the requirement of prior notice under

the said Act was not complied with [756-A].

3.0.1. The High Court erred in holding that the lease

deed dated April 30,1951 was a genuine document. No enquiry

was held at any stage regarding the genuine of the lease

deed. the sub-Divisional Officer refused to go into the

question on the ground that there were no pleadings on the

point. The Sub-Divisional Officer was obviously wrong be-

cause the lease deed was filed by the respondent-land -owner

after the pleadings were completed. The Appellate Court was

wholly unjustified in observing that the appellants-tenants

had admitted the execution of the lease deed. The appel-

lants'case throughout had been that the lease deed was a

forged document.(756 B-C)

751

3.02.The High Court should have remanded the case to

Trial Court for determining the genuineness of the lease

deed dated April 30,1951 specially when the case of the

respondent-land-owner was wholly based on the doucment. the

High court had no material before it to come to the conclu-

sion that the lease deed was a genuine document.(756 D-E)

JUDGMENT:

CIVIL APPELLATE JURISDICTION :Civil Appeal No. 349-50

of 1978

From the Judgement and Order dated 10.8.1977 of the

Bombay High Court in Special Civil Application Nos. 230 and

235 of 1972.

Udai U. Lalit and C.K. Ratnaparkhi for the Appellants.

P.K. Goswami, P.H. Parekh and Sunil Dogra for the Re-

spondents.

The Judgement of the Court was delivered by

KULDIP SINGH,J. These appeals are directed against the

judgement of the Nagpur Bench of Bombay High Court directing

the ejectment of the appellants from three tracts of agri-

cultural-land which the appellants are in cultivating pos-

session since 1951.

Respondent Bhikaji is the owner of about 20 acres of

land subject-matter of the dispute. The said land is in

cultivating possession of the appellants since 1951 and

according to them, they have acquired the status of protect-

ed lessees under the Berar Regulation of Agricultural Leases

Act, 1951(hereinafter called `the Berar Act') and the Bombay

Tenancy and agricultural Lands (Vidarbha Region)Act, 1958

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(hereinafter called `the Bombay Act')

The respondent Bhikaji initiated proceedings before the

Sub-Divisional Officer Buldana for ejectment of the appel-

lants on the ground that predecessor of the first appellants

created sub-leases infavour of second appellant and one

Zipra Wanchu and as such their tenancy was liable to be

terminated in terms of Section 8(1)(c)(f) of the Berar Act.

Bhikaji filed two seperate applications against the appel-

lants. The applications were resisted by the appellants

inter alia on the ground that all the three persons, namely,

Pundlik Krishna, Kashao Krishna and Zipra Wanchhu were inde-

pendent lessees in their own rights and as such there was no

question of Pundlik Krishnaji having created sub-leases

infavour

752

of the other two. Before the Sub-Divisional Officer, the

respondent Bhikaji produced a lease deed dated April 30,

1951 to prove that all the three tracts of land were leased

to late Pundlik Krishnaji and no part of the land was ever

leased to Keshao Krishnaji and Zipra Wanchhu. It was sought

to be shown from the lease deed that the original lessee

Pundlik Krishnaji sub-leased part of the land to the other

two occupants. The Sub-Divisional Officer accepted the

contention of the respondent and ordered the ejectment of

the appellants. The Sub-Divisional Officer proceeded on the

following reasoning:-

``The contention of the defendant Nos.1 and 2

that the lease of the remaining half share of

the suit land was created by the plaintiff's

brother Keshav Bhikaji with the defendant

Nos.2 and 3 has no force......

The defendant Nos.1 and 2 contend that the

original lease deed dated 30.4.51 is a forged

one, but they have failed to mention this fact

in all their written statements or to show any

reason when questioned by the plaintiff's

counsel.....

Pundlik Krishnaji and Keshao Krishnaji went in appeal

before the Sub-Deputy Collector against the order of the

Sub-Divisional Officer. The Collector dismissed the appeals.

Regarding the lease deed relied upon by the respondent

Bhikaji, the Collector observed as under:-

``The very fact that the appellant Pundlik

executed a lease deed of all these fields in

favour of respondent Trimbak goes to prove

that he was the Karta of the family and his

brother Keshao had no hand in the management

on leasing out the property......

The execution of lease deed dated 30.4.51 by

appellant Pundlik in favour of the respondent

Trimbak has been admitted by the

appellants......

On the other hand there is document ``Lease

Deed'' dated 30.4.51 which clearly shows that

appellant Pundlik was the sole lessee of the

fields in question. I, therefore, agree with

the finding of the lower court that appellant

Pundlik was a tenant of the fields in ques-

tion.''

The tenants further went in revision before the Revenue

Tribunal.

753

The Tribunal set aside the orders of the Sub-Divisional

Officer and of the Sub-Collector and dismissed the ejectment

applications of the respondent-landlord. The Tribunal no-

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ticed the arguments of the appellants-tenants in the follow-

ing words:-

``Feeling aggrieved by this order, applicants filed

two separate appeals. In their appeals, they urged

that neither Keshao nor Zipra Wanchhu was the sub-

tenant of the fields in question. Pundlik had not

sublet the fields to them. The alleged lease deed

dated 30.4.51 was a forged document and adverse

inference against them should not have been drawn

for their failure to plead that the document dated

30.4.51 was a forged one as the same was produced

after written statements by the applicants were

already filed. Zipra Wanchhu was colluding with

landholder Trimbak Bhikaji and the story put up, by

him should have been discarded....

The Tribunal finally held as under:-

``It has been contended by the applicants that

the lease deed of 30.4.51 was a forgery. This

contention of the applicants had not been inquired

into upon the short ground that it was not made in

the written statements of the applicants. The

applicants say that the lease deed dated 30.4.51

was filed after their written statements. It is

true that they could have amended their written

statements so as to allege forgery of the lease

deed dated 30.4.51 when the same was filed. None-

the-less, it appears to me that the contention of

forgery should have been inquired into when the

same was made by the applicants. It has been the

case of applicants that Pundlik was the lessee of

half of the share in the fields survey numbers,

whereas applicant No.2 keshao Krishnaji and Zipra

Wanchhu cultivated as the lessee of the other half

of the fields. They never said that they were the

lessees under any lease-deed. It was, therefore,

necessary to find out as to whether the lease deed

dated 30.4.51 was genuine or forged document.

In the result, applications made by Trimbak Bhikaji

alone without joining keshao Bhikaji, who was a

necessary party to the applications, are

rejected.''

754

The tenant challenged the order of the Tribunal by way

of two petitions under Article 227 of the Constitution of

India before the Nagpur Bench of the Bombay High Court. The

order of the Tribunal dated March 25,1970 was challenged in

the High Court on August 4, 1971. In order to get over the

delay in filing the writ petition counsel for the land-owner

filed an affidavit stating that the papers in his office

remained unattended due to oversight and pressure of work

and as such the filing of the petitions was delayed.The High

Court allowed the petitions on the following grounds:-

(1) The reasons for not filing the writ petitions dili-

gently having been explained by the petitioner's advocate by

filing an affidavit the petition could not be dismissed on

the ground of delay and latches.

(2) The Tribunal rejected the claim of the tenant-

petitioner on the only ground that the original applications

were bad as petitioner's brother was not joined as a party.

The High Court held that ``Trimbak Bhikaji Patil being the

Karta of the family could file the applications for eject-

ment in that capacity.''

(3) Regarding the lease deed April 30, 1951 the High

Court held as under:-

``There is one more circumstance. The lease

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deed that was executed in respect of the suit lands

was in favour of the petitioner. It is dated

30.4.51. The lessee is respondent No.1. Thus, the

relationship of the landlord and tenant came into

existence between the petitioner and respondent

No.1. It will not be normally open for respondent

No.1 to urge that the petitioner alone is not his

landlord. To get over this difficulty, it was

suggested at the time of the arguments that this

lease deed is forged one. The M.R.T. has considered

this question in a slip-shod-manner. The point as

to the alleged forgery of lease deed was not taken

in the written statement by any of the respondents.

In spite of that the M.R.T. has stated that the

contention of forgery should have been enquired

into. I am not able to accept this reasoning par-

ticularly when the Niab Tahsildar and the S.D.O.

have accepted the lease deed as genuine one.''

755

(4) Under the Berar Act, before initiating ejectment

proceedings, no notice was required to be sent to the tenant

but under the Bombay Act there is requirement of the notice.

It was argued on behalf of the tenant that since in the year

1958. The Bombay Act had come into force repealing the Berar

Act and the proceedings, though initiated under the Berar

Act, were deemed to be under the Bombay Act, and because no

prior notice as required by the Bombay Act was given, the

proceedings were bad in law. The High Court rejected the

argument on the ground that the proceedings having already

been initiated under the Berar Act no notice was necessary

and the proceedings were rightly taken to be under the

Bombay Act.

The High Court allowed the petition and set aside the

order of the Tribunal. It is these circumstances that these

in appeals by the tenants by way of special leave petitions

are before us.

We have heard learned counsel for the parties at

length. We are of the view of that the High Court was not

justified in reaching the conclusion that the lease deed

dated April 30, 1951 was a genuine document.

The Tribunal allowed the tenant's revision on the fol-

lowing grounds:-

(1) The land in question belonged to the two brothers

jointly. The applications for ejectment were filed only by

Trimbak Bhikaji. The other brother had not made the applica-

tions for terminating the tenancy either separately or by

joining his brother. The Tribunal came to the conclusion

that the applications by Trimbak Bhikaji alone were not

competent and on this ground the Tribunal rejected the

applications.

(2) The Tribunal after examining the pleadings and the

evidence on the record came to the conclusion that the

Courts below should have enquired into the genuineness of

the lease deed. The Tribunal reached the finding ``it was,

therefore, necessary to find out as to whether the lease

deed dated 30.4.51 was genuine or forged document.''

A bare reading of the Tribunal's order shows that the

Tribunal granted relief to the appellant-tenant on the above

two grounds. We are of the view that the High Court was

justified in setting aside the Tribunbal's finding on the

first point mentioned above. The High Court found that

Trimbak Bhikaji being the Karta of the family could file the

applications for termination of the tenancy without associ-

ating his brother. We see no

756

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infirmity in the said finding of the High Court. The High

Court was also right in rejecting the contention of the

tenant that the proceedings under the Bombay Act were ille-

gal as the requirement of prior notice under the said Act

was not complied with. We are, however, of the view that the

High Court erred in holding that the lease deed dated April

30, 1951 was a genuine document. No enquiry was held at any

stage regarding the genuineness of the lease deed. The Sub-

Divisional Officer refused to go into the question on the

ground that there were no pleadings on the point. The Sub-

Divisional Officer was obviously wrong because the lease

deed was filed by the respondent-land-owner after the plead-

ings were completed. The Appellate Court was wholly unjusti-

fied in observing that the appellants-tenants had admitted

the execution of the lease deed. The appellant's case

throughout had been that the lease deed was a forged docu-

ment.

The Tribunal could not remand the case for enquiry into

the genuineness of the lease deed because it had allowed the

revisions on two grounds. The High Court, having reversed

the finding of the Tribunal on the first point, should have

remanded the case to the Trial Court for determining the

genuineness of the lease deed dated April 30, 1951 specially

when the case of the respondent-land-owner was wholly based

on the said document. The High Court had no material before

it to come to the conclusion that the lease deed was a

genuine document.

We, therefore, set aside the High Court judgement and

also of the Courts below and remand the case to the con-

cerned trial court for deciding the ejectment applications

filed by the respondent-land-owner afresh after affording

opportunity to the parties in accordance with law. The trial

court shall afford full opportunity to the parties to pro-

duce evidence on the issue of the genuineness or otherwise

of the lease deed dated April 30, 1951.

The appeals are allowed in the above terms with no order

as to costs.

V.P.R. Appeals allowed.

757