CHANDRAKANT BABAN MOTKARI & ORS. versus GOTIRAM LAXMAN MOTKARI (D) BY LRS. & ORS. on 27 August 2019

780

SUPREME COURT REPORTS

[2019] 11 S.C.R.

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CHANDRAKANT BABAN MOTKARI & ORS.

v.

GOTIRAM LAXMAN MOTKARI (D) BY LRS. & ORS.

(Civil Appeal No. 2390 of 2011)

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AUGUST 27, 2019

[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]

Bombay Tenancy and Agricultural Lands Act, 1948: ss. 32and 85 – Rights of the tillers – Dispute between the legal heirs oftwo deceased brothers, N and L – N and his two uncles took landCon lease for cultivation by execution of Kabuliyatnama, in 1944 –L was an attesting witness to the Kabuliyatnama, and prior toexecution he had obtained a Government job as a peon – Thereafter,Act of 1948 was passed and in terms thereof, from 1.4.1957, tenantswho were tilling the land were deemed to have purchased the landDfrom the owners – Execution of agreement to sell by landownersand 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 saledeed – In terms thereof, case of the legal heirs of L that they derivedrights in pursuant to the said document, and payments were madeby N out of the joint family funds – Initiation of proceedings u/s.E32G by the Deputy Collector, wherein certificate was issued in favourof N and his uncles, and on mutation, N was recognized as individualowner – Challenge to, by legal heirs of L, however, the claim wasrejected – Thereafter, the legal heirs of N tried to transact the land,whereas legal heirs of L again claimed rights in the property –FDismissal of the suit as also first appeal – On appeal, held: Once acertification has been issued u/s. 32M, there was no need to referthe matter to the Mamlatdar merely because the plaint alleges thatit was a joint family property – There are concurrent findings of thetrial court and the first appellate court, the latter being the finalcourt as a court of fact – Findings arrived at are the correct findingsG– There is no uncertainty on the issue before the trial court as thecertificate u/s. 32M is final and exists – Provision of s. 85 itselfstates that such a certificate, once issued, is final and can only beassailed in appeal – Thus, there was no occasion for the trial courtto remit the issue to the Mamlatdar.H

Dismissing the appeal, the Court

HELD: 1.1 Insofar as the main plea is concerned, i.e., theouster of jurisdiction of the civil court and the requirementpleaded for reference to the Mamlatdar, it is pleaded that such asituation would arise when there was an ambiguity or adetermination required as to whether a tenant is a protected tenantor not. Once a certification has been issued under Section 32Mof the Bombay Tenancy and Agricultural Lands Act, 1948, therecan be no doubt, and there was no need to refer the matter to theMamlatdar merely because the plaint alleges that it was a jointfamily property. [Para 14, 18][789-A-B]

1.2 There are concurrent findings of the trial court and thefirst appellate court, the latter being the final court as a court offact. Even if the reasoning of the two courts is examined, there isno doubt that the findings arrived at are the correct findings sincethe Kabuliyatnama itself, from which the rights of the tenantswere claimed, was never in the name of ‘L’, the elder brother.That is the reason that the certificate under Section 32M of thesaid Act was granted in favour of ‘G’, ‘S’ and ‘N’. Similarly, onpartition 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 weredismissed. They chose to remain silent after that. [Para 22][789-F-G; 790-A]

1.3 The present proceedings in question are what has beenlabeled as “side wind”, to re-open the chapter which could nothave been directly challenged, i.e., by challenging the certificateissued under Section 32M of the said Act. Thus, the ruse of filinga suit was used by the grandsons of ‘L’, impleading the father asa supporting party as ‘L’s ‘ wife had since passed away. It is thisendeavour, which is not proved to be successful. [Para 23][790-B]

1.4 The Agreement to Sell never matured into a sale deedand the Kabuliyatnama did not record the name of ‘L’. The resultwas that the certificate issued under Section 32M of the said Actalso did not include the name of ‘L’, and the subsequentproceedings to challenge the same resulted in abject failure. [Para24][790-C-D]

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A1.5 The issue that the civil court fell into an error in notstaying the suit proceedings and remitting the matter to theMamlatdar on the issue of tenancy rights, was not even raised inthe suit proceedings, even though the suit was filed by theappellants. It was sought to be raised at the appellate stage onBthe plea that, being a jurisdictional issue, it can be raised at thatstage. Firstly, this is not purely a jurisdictional issue, but a mixedquestion of fact and law, which would arise. Secondly, evenassuming if this is considered as raised before the appellate courtand as canvassed, the findings of the appellate court that this wasCnot a case where a suit was required to be stayed and the questionof tenancy remitted to the Mamlatdar, is concurred with. [Paras25, 26][790-D-F]

1.6 There is no uncertainty on the issue before the trialcourt as the certificate under Section 32M of the said Act is finalDand exists. The provision of Section 85 of the said Act itself statesthat such a certificate, once issued, is final and can only be assailedin appeal. Thus, there was no occasion for the trial court to stayits hand to remit this issue to the Mamlatdar. Thus, these longdrawn out proceedings initiated by the grandsons of ‘L’ wereEproceedings by “side wind”, which have dragged on since theyear 2003, for the last 16 years. [Paras 27, 28][791-A-C]

Bhimaji Shankar Kulkarni v. D.V. Udapudi & Anr. AIR1966 SC 166 : [1966] SCR 145; Gundaji SatwajiShinde v. R.B. Joshi (1979) 2 SCC 495 : [1979] 2 SCRF586; Jagu Tukaram Waghamale v. Dynandeo BalaWaghamale2003 (2) Mh.L.J. 475;RandhiAppalaswami v. Randhi Suryanarayanmurti & Ors. AIR(34) 1947 PC 189; Adam Mohmad Darwajkar & Ors.v. Appa Daud Darwajkar 2007(2) Mh.L.J. 340;GYeshwant Hari Patil v. Shripati Hari Patil & Ors. 2018SCC Online Bom 2775; Ambu v. Vellachi & Ors. (1994)1 KLJ 627; Mudakappa v. Rudrappa & Ors. (1994) 2SCC 57 – referred to.

CHANDRAKANT BABAN MOTKARI v. GOTIRAM LAXMANMOTKARI (D) BY LRS.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2390of 2011

From the Judgment and Order dated 08.06.2009 of the HighCourt 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 theAppellants.

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Huzefa Ahmadi, Sr. Adv., Ninad Laud, Aditya Pratap Swain, RohanSharma, Dilip Annasaheb Taur, Advs. for the Respondents.

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The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

1. The legal heirs of two deceased brothers Laxman and Nivruttiare the contesting parties in the present proceedings, the subject matterbeing an open land measuring eight acres now falling within the MunicipalCouncil of Nasik (since 1987). The family traces itself from the commonancestor, Bhimaji, who had three sons – Govind, Sadashiv and Yashwant.It appears that Yashwant passed away early some time, in the year1936. Yashwant is survived by Nivrutti and Laxman.

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2. The land located at Survey Nos.789, 791 and 786 was ownedby one Raghunath Hari Phadake. The land was taken on lease forcultivation by Govind, Sadashiv and Nivrutti (the younger son ofYashwant) by execution of a Kabuliyatnama, on 16.5.1944. It appearsthat Laxman (the elder son of Yashwant) was an attesting witness tothis Kabuliyatnama. It is of some relevance to also note that Laxman G

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Ahad obtained a Government job in the Office of the Sub Registrar as apeon; prior to the execution of the Kabuliyatnama.

3. Post independence, various laws were enacted to protect thetenancy rights of the tenants in agricultural lands and the BombayTenancy and Agricultural Lands Act, 1948 (hereinafter referred to asBthe ‘said Act’) was one such legislation. In terms of Section 32 of thesaid Act, from 1.4.1957, tenants who were tilling the land were deemedto have purchased the land from the owners as per the procedureprescribed under the said Section (the Section was brought in by theAmendment Act 15 of 1957).

C4. An Agreement to Sell was executed by Shri Phadake on7.5.1956, i.e., prior to the cut-off date, when Section 32 of the said Actcame into force, in terms whereof; three parcels of land were agreed tobe sold to seven purchasers. 1/3[rd] share of this land was agreed to besold to Laxman and Nivrutti. This Agreement to Sell was duly registeredbut never culminated in a sale deed. In terms of the Agreement to SellDLaxman and Nivrutti along with five other parties are stated to havepaid 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 ofLaxman is that rights were derived in pursuance of this document, andEpayments were made by Nivrutti out of the joint family funds.

6. The next development was the proceedings which commencedfor the rights of the tillers in pursuance of Section 32 of the said Act.The Deputy Collector initiated proceedings under Section 32G of thesaid Act to determine the price of the land to be paid by the tenants,Fwhich resulted in the order dated 9.8.1961. The benefit of this order,from the array of parties was to the tenants – Govind, Sadashiv andNivrutti. The payments were made, and a certificate was issued underSection 32M of the said Act in 1967 in favour of the said three parties.

7. The three owners sought partition amongst themselves of theGsaid land, which resulted in a Mutation entry No.23330, in terms whereofNivrutti was recognized as the individual owner of Survey Nos.789/3and 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 toassail the mutation solely in the name of Nivrutti, on the ground that thepayments for the land were made out of joint family funds and, thus,they were also liable to be included in the certificate issued under Section32M of the said Act. These proceedings, however, were not successfuland the revision application filed against the same also met the samefate vide order dated 18.11.1991, noticing that since the certificate underSection 32M of the said Act has been issued in favour of Nivrutti andthe other co-owners, vide entry No.12378, on partition, the land wasmutated in the name of Nivrutti Mutation No.23330. The matter was notcarried further.

9. There appears to have been a silence on the part of the legalheirs of Laxman till the institution of a plaint, as Special Civil Suit No.148/2003 before the Civil Judge, Senior Division, Nashik. The alleged causeof action for the same is stated to be the notices issued by the legal heirsof Nivrutti. The public notices brought to light the endeavours of thelegal heirs of Nivrutti to transact the land in question. The case set up inthe plaint is that the parties constituted a Joint Hindu Family, and theproperties belonged to the same. Thus, the grandsons of Laxman claimedrights in the property. These grandsons sued as plaintiffs, arraying thetwo sons of Laxman as the first two defendants while the legal heirs ofNivrutti were arrayed as the remaining defendants. This appears to havebeen so done because defendant Nos.1 & 2, being the sons of Laxman,along with their mother, had already instituted proceedings against themutation of the land in favour of Nivrutti alone, but those proceedingsended in the year 1991. The first two defendants were really in thenature of supporting parties.

10. The suit was contested by the legal heirs of Nivrutti (Nivruttihaving passed away in the year 1999). The plea of the land being ancestralwas contested on the ground that the name of Laxman was never enteredas a tenant of the property as he was not a signatory to theKabuliyatnama, but, in fact, a witness to the Kabuliyatnama. Thus, norights could have been created in his favour by Section 32 of the saidAct coming into force, apart from the fact that being a GovernmentServant he could not have been the tiller cultivating the land. Paymentsfor the issuance of certificate were stated to have been made by Nivruttiin his personal capacity, and thus, the plea raised was that apparently, acolour was sought to be given to the holding of the land as being purchased A

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Aon 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 bepleaded on behalf of the legal heirs of Laxman that he, i.e., Nivrutti, washolding the property as a Manager/Karta on behalf of the family.

11. The suit was tried and was dismissed, vide judgment datedB4.2.2009. The first appeal, filed before the High Court was also dismissedvide impugned order dated 8.6.2009.

12. It may be noticed that in order to establish their case, theappellants sought to bring in various documents to substantiate their plea,the main one being the Agreement to Sell dated 7.5.1956. However,Csince no sale deed had been executed in pursuance thereto, the courtsbelow refused to rely on the same.

13. The main contention of the appellants, which was raised forthe first time before the appellate court, and was also sought to becanvassed before us, was that it was not within the jurisdiction of theDCivil Court to have opined on the matter in issue, and the proper courseof action for the civil court was to stay its hand, and refer the matter tothe Mamlatdar for determination of the tenancy rights. In this behalf,learned counsel had relied upon Section 85 of the said Act, which readsas under:

E“Section 85 Bar of jurisdiction

(1) No Civil Court shall have jurisdiction to settle, decide or dealwith any question [(including a question whether a person is orwas at any time in the past a tenant and whether any such tenantis or should be deemed to have purchased from his landlord theland held by him) which is by or under this Act required to beFsettled, decide or dealt with by the Mamlatdar or Tribunal, aManager, the Collector or the [Maharashtra Revenue Tribunal] inappeal or revision or the [State] Government in exercise of theirpowers of control.

(2) No order of the Mamlatdar, the Tribunal, the Collector or theG[Maharashtra Revenue Tribunal] or the [State] Government madeunder this Act shall be questioned in any Civil or Criminal Court.

Explanation. – For the purposes of this section a Civil Court shallinclude 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 andclause (b) of the said Section specifies one of the duties as to thedetermination of the question as to whether a tenant is a protected tenantor not. It is also relevant to note that in terms of Section 85A of the saidAct such determination would become final. The said Section reads asunder:

“Section 85A Suits involving issues required to be decidedunder this Act

(1) If any suit instituted in any Civil Court involves any issueswhich are required to be settled, decided or dealt with by anyauthority competent to settle, decide or deal with such issues underthis Act (hereinafter referred to as the “competent authority”)the Civil Court shall stay the suit and refer such issues to suchcompetent authority for determination.

(2) On receipt of such reference from the Civil Court, thecompetent authority shall deal with and decide such issues inaccordance with the provisions of this Act and shall communicateits decision to the Civil Court and such Court shall thereupondispose of the suit in accordance with the procedure applicablethereto.

Explanation. – For the purposes of this section a Civil Court shallinclude a Mamlatdar’s Court constituted under the Mamlatdars’Courts Act, 1906.”

15. To buttress his arguments, learned counsel for the appellantsrelied upon the judgment in Bhimaji Shankar Kulkarni v. D.V. Udapudi& Anr.[1] and Gundaji Satwaji Shinde v. R.B. Joshi[2]. The two judgmentsconsidered the scheme of the said Act, to opine that where there wereuncertainties on the issue as to whether a tenant is or is not a protectedtenant, the civil court must stay its hand and refer the issue to theMamlatdar and once such determination takes place (which is final asper Section 85A of the said Act) then the suit can proceed further.

16. On the other hand, learned counsel for respondent Nos. 3 to18 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

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Athat if Laxman was a tenant, he would not have been a witness to thedocument. The Kabuliyatnama was signed by only three persons. Itwas pleaded that there was no material to show that Nivrutti, the youngerbrother was holding the land on behalf of the family and acting as theManager/Karta. Insofar as the Agreement to Sell was concerned, itwas stated that it never culminated in a sale deed and thus, could notBhave been relied upon as rightly held by the courts below. Our attentionwas also invited to a Sale Deed dated 29.8.1948, in respect of SurveyNo.877, in which Nivrutti had 50 per cent undivided share and he releasedthe same by a subsequent deed dated 12.10.1949, to contend that therelease deed of 1949 defines the property as having been acquired byCLaxman, for Nivrutti, “as head of the joint family.” This would, thus, gocontrary to the plea of the plaintiffs in the suit that Nivrutti was acting asthe Manager/Karta. The Agreement to Sell is said not to have beensigned by Nivrutti or other vendees, and it shows that Laxman wasserving as a peon in the same office of the Sub Registrar, the imputationis of some kind of a motivated/collusive action.D

17. It was the submission of the learned counsel for the respondentsthat the certificate under Section 32M of the said Act is a conclusiveproof of the purchase, and can only be set aside in appeal against thecertificate. In fact, an endeavour was made by the wife and sons ofLaxman to challenge the same in appeal and revision petition thereafterEunsuccessfully, and the matter was given up by them. The suit proceedingsin question, were thus, an oblique nature of proceedings; to raise thisissue again, without assailing the certificate directly under Section 32Mof the said Act knowing fully well that they would not be able to do so, asthey trace their ancestry through the very appellants/revisionists, being Ftheir grandmother and their fathers. Such endeavour was labeled asimpermissible, as an endeavour to assail a certificate through “side wind”.This is an expression borrowed from the judgment in Jagu TukaramWaghamale v. Dynandeo Bala Waghamale[3]. In the judgment of thePrivy Council in Randhi Appalaswami v. Randhi Suryanarayanmurti & Ors.[4] it was elaborated that the proof of the existence of a jointGfamily does not lead to the presumption that the property held by anymember of the family is joint, and the burden rests upon anyone assertingthat any item of property is joint to establish the fact.

3 2003 (2) Mh.L.J. 475H

18. Insofar as the main plea is concerned, i.e., the ouster ofjurisdiction of the civil court and the requirement pleaded for referenceto the Mamlatdar, it is pleaded that such a situation would arise whenthere was an ambiguity or a determination required as to whether atenant is a protected tenant or not. Once a certification has been issuedunder Section 32M of the said Act, there can be no doubt, and there wasno need to refer the matter to the Mamlatdar merely because the plaintalleges that it was a joint family property.

19. Learned counsel for the respondents seeks to rely upon thejudicial pronouncements in Adam Mohmad Darwajkar & Ors. v. AppaDaud Darwajkar[5] and Yeshwant Hari Patil v. Shripati Hari Patil &Ors.[6], both of the Bombay High Court. The judgments enunciated theprinciple that in a suit for partition of tenanted land, it is not necessary torefer the issue in question before the civil court to a Mamlatdar if thematerial on record is sufficient to show that the particular party or partiesare tenants or deemed purchasers. In fact, it was submitted, that thesame view was taken even by the Kerala High Court in Ambu v. Vellachi& Ors.[7]

20. Learned counsel for the respondents also stated that therewere properties, which were inherited by Laxman and the legal heirsand were sold for their benefit.

21. We have examined the aforesaid submissions in the contoursof facts, which, though may appear a little complicated, but are not so.

22. We must note at the inception that there are concurrent findingsof the trial court and the first appellate court, the latter being the finalcourt as a court of fact. Even if we examine the reasoning of these twocourts, we have no doubt that the findings arrived at are the correctfindings since the Kabuliyatnama itself, from which the rights of thetenants were claimed, was never in the name of Laxman, the elderbrother. That is the reason that the certificate under Section 32M of thesaid Act was granted in favour of Govind, Sadashiv and Nivrutti. Similarly,on partition of the land, again a mutation was made in favour of Nivruttialone. 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

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Aalbeit 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 questionare what has been labeled as “side wind”, to re-open the chapter whichcould not have been directly challenged, i.e., by challenging the certificateBissued under Section 32M of the said Act. Thus, the ruse of filing a suitwas used by the grandsons of Laxman, impleading the father as asupporting party as Laxman’s wife had since passed away. It is thisendeavour, which is not proved to be successful.

24. We do not consider it necessary to once again, go into theCdocumentary aspects and as to how they should be read at this thirdstage of scrutiny. Suffice to say that the Agreement to Sell never maturedinto a sale deed and the Kabuliyatnama did not record the name ofLaxman. The result was that the certificate issued under Section 32Mof the said Act also did not include the name of Laxman, and thesubsequent proceedings to challenge the same resulted in abject failure.D

25. Now turning to the only issue which is really debated beforeus at some length and on which a lot of emphasis was laid, that the civilcourt fell into an error in not staying the suit proceedings and remittingthe matter to the Mamlatdar on the issue of tenancy rights. This pleawas not even raised in the suit proceedings, even though the suit wasEfiled by the appellants. It was sought to be raised at the appellate stageon 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 mixedquestion of fact and law, which would arise. Secondly, even assuming ifthis is considered as raised before the appellate court and as canvassedFbefore us, we are in complete agreement with the findings of the appellatecourt that this was not a case where a suit was required to be stayedand the question of tenancy remitted to the Mamlatdar.

27. The judgments relied upon by the appellants in Mudakappav. Rudrappa & Ors.[8] does not lay down a proposition as sought to beGcanvassed by the learned counsel for the appellants, but seeks to dealwith a factual situation where there is no certainty about whether aparticular 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

Section 85 of the said Act, the recourse to Section 85A of the said Actwas required to be made. There is no uncertainty on this issue beforethe trial court as the certificate under Section 32M of the said Act isfinal and exists. The provision of Section 85 of the said Act itself statesthat such a certificate, once issued, is final and can only be assailed inappeal. Thus, there was no occasion for the trial court to stay its hand toremit this issue to the Mamlatdar.

28. We are, thus, unequivocally of the view that these long drawnout proceedings initiated by the grandsons of Laxman were proceedingsby “side wind”, which have dragged on since the year 2003, for the last16 years.

29. The appeal is completely without merit and is, thus, dismissed.

Nidhi Jain

Appeal dismissed.

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