Laxman Dhanu Laman And Ors. vs Maharashtra Revenue Tribunal And ...
2001 Latest Caselaw 274 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Perused the records.

2. The petitioners challenge the judgment and order dated 17.7.1985 passed by the Maharashtra Revenue Tribunal, Aurangabad in File No. 170/B/of 1983 - Latur.

3. In a suit bearing R.C.S. No. 164/1972 filed by the respondents, an issue of tenancy was referred to the Revenue Officer in terms of the provisions contained in the Hyderabad Tenancy and Agricultural Lands Act, 1950 for the decisions on the said issue. The Revenue Officer empowered to decide such issues under the said Act by its decision dated 30.3.1981 answered the said issue in affirmative and the petitioners were declared to be the tenant of the suit premises. Being aggrieved, the respondents preferred appeal against the same before the Deputy Collector at Latur being Appeal No. 6/1982/Tenancy without any success as the same was dismissed by the Deputy Collector on 19.8.1983. The matter was taken up in revision application before the Maharashtra Revenue Tribunal, Aurangabad and the Tribunal by the impugned order, set aside the orders passed by both the lower authorities namely, by the Naib Tahsildar and the Deputy Collector and held that considering the pleadings in the civil suit, there was no scope for framing an issue of tenancy and, therefore, the issue ought to have been answered in negative and accordingly, direction was issued to the concerned Tahsildar to return the issue along with the impugned decision. Hence, the present petition.

4. Placing reliance in the decision of the learned Single Judge of this Court in Bapu Sitaram Adsule v. Appa Mhadgonda Patil , of the Division Bench of this Court in Mohanlal Chandanmal Surana v. Maharashtra Revenue Tribunal Nagpur , as well as of the learned Single Judge of this Court in an unreported judgment dated 19th March, 1990 in Writ Petition No. 525/1985, the learned Advocate for the petitioner has submitted that the Tribunal had no jurisdiction even to comment upon the competency of the Civil Court or the scope for framing of the issue in the civil suit and once, the issue of tenancy was referred for decision of the Revenue Court, the matter could have been decided only on the point as to whether the party raising the issue has been able to prove his claim regarding tenancy or not. The Revenue Courts having jurisdiction to decide the issue and having answered the issue in negative merely on the ground that the pleadings in the suit were not sufficient to give rise for framing of issue of tenancy and reference thereof to the Revenue Court, ignoring the two concurrent decisions of the fact finding authorities, the Tribunal has acted arbitrarily and, therefore, the impugned judgment is bad in law and is liable to be quashed and set aside. On the other hand, the learned Advocate for the respondents has submitted that considering the fact that the petitioners were claiming to be in possession of the property by virtue of agreement for sale, no fault can be found with the impugned order and the Tribunal having answered the issue of tenancy in negative and, therefore, there is no scope for interference in writ jurisdiction.

5. Perusal of the impugned judgment discloses that the Tribunal referring to the pleadings in the written statement of the petitioners in the civil suit, has observed that there are no details of the tenancy pleaded by the petitioners therein and, therefore, there was no scope for reference of issue of tenancy by the Civil Court for adjudication of the Revenue Court. Reliance is sought to be placed in that regard in the decision of the learned Single Judge of this Court in the matter of Pandu Dhondi Yerudkar v. Ananda Krishna Patil 1974 Mh.L.J. 548 : 1974 Bom. L.R. 368. The Tribunal has further directed the concerned Tahsildar to send back the reference to the Civil Court by enclosing copy of its judgment so as to enable the Civil Court to proceed with the suit as it deems fit.

6. In terms of Section 8 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, if any question arises whether any person is or was at any time in the past a tenant, the Tahsildar shall, after holding an inquiry, decide such question. Section 99-A(1) of the said Act provides that if any suit instituted in any Civil Court, involves any issue which is required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issue under the said Act, the Civil Court shall stay the suit and refer such issue to such Competent Authority for determination. Sub-section (2) thereof provided that on receipt of such reference from the Civil Court, the Competent Authority shall deal with and decide such issue in accordance with the provisions of the said Act and shall communicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto. In other words, whenever an issue of tenancy is raised before the Civil Court, the Court had no option but to stay the suit and to refer such an issue to the Competent Authority under the said Act for its determination. When such reference to decide the issue is made to the Competent Authority by the Civil Court in terms of Sub-section (2) of Section 99-A of the Tenancy Act, the Competent Authority has to decide such issue in accordance with the provisions of the said Act. Sub-section (2) of Section 99A of the said Act, therefore, leaves no scope to avoid the decision on the issue referred to the authority. The statutory provisions as regards the jurisdiction of the Competent Authority on reference of issue of tenancy, to it by the Civil Court, make it amply clear that the Competent Authority, on receipt of reference of such issue, has necessarily to decide the said issue and communicate its decision on such issue to the Civil Court. Indeed, the Division Bench of this Court in Mohanlal Chandanmar Surana's case (supra), referring to the similar provisions in Section 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, has held that the Revenue Courts cannot question the maintainability or making, of a reference by the Civil Courts under the said provision of law.

7. Sub-section (2) of Section 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, reads thus:

On receipt of such reference from the Civil Court, the Competent Authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.

Sub-section (2) of Section 99-A of the Hyderabad Tenancy and Agricultural Lands Act, 1950 reads thus:

On receipt of such reference from the Civil Court, the Competent Authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.

Apparently, the provisions are in pan materia. The Division Bench of this Court in Mohanlal Chandanmal Surana's case while interpreting the said provision in Section 125 referred to above, has clearly observed that the said provision specifically limits the authority of the Revenue Courts to deal with and decide the issue referred to it and does not empower to question the authority of the Civil Court to make such reference. Indeed, the provision contained in Section 99-A(2) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 clearly prescribes limitations upon the authority of the Revenue Courts to deal with the issue of tenancy referred to them by the Civil Court and does not empower the Revenue Courts to deal with the scope of the pleadings before the Civil Court and to decide whether those pleadings give rise for the issue of tenancy or not. The jurisdiction to decide whether the pleadings before the Civil Court give rise for the issue of tenancy or not is entirely with the Civil Court and the Revenue Courts cannot encroach upon the said jurisdiction of the Civil Court. It is also to be remembered that the tenancy legislation is a special statute and, therefore, the authorities constituted under the said Statute cannot travel beyond the scope of jurisdiction bestowed upon them under such statute.

8. The learned Single Judge of this Court in Babu Sitaram Adsule's case referring to Section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948, has held that once the Civil Court raises an issue and refers it to the Tenancy Court for its determination, the Tenancy Court is bound to determine that issue and it is not open to the Tenancy Court to say that it has no jurisdiction to decide the issue referred to it. When such an order for reference is made it is open to the party, who desires to challenge it to do so, but in the absence of such a challenge or in the event of such a challenge being negatived, there is a binding decision that the issue requires to be settled, decided or dealt with by the Tenancy Court. Indeed, Sub-section (2) of Section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948 is also in pari materia with Section 99A(2) of the said Act. Referring to the Sub-section (2) of Section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948, the learned Single Judge in Bapu Sitaram Adsule's case has observed thus:

On a plain reading of this section it appears to me that once the Civil Court raises an issue and refers it to the Tenancy Court for its determination, the Tenancy Court is bound to determine that issue. When the Civil Court refers that issue to the Tenancy Court there is necessarily an implied finding that the question in the issue is one which is required to be settled, decided or dealt with by any authority competent to do so under the Bombay Tenancy Act. Once the issue is referred it is not open to the Tenancy Authority to say that it has no jurisdiction to decide the issue referred to it. When an order for reference is made it is open to the party, who desires to challenge it to do so, but in the absence of such a challenge or in the event of such a challenge being negatived, there is a binding decision that the issue requires to be settled, decided or dealt with by the Tenancy Court. To construe the section in a different manner could lead to startling results. If, in the opinion of the Civil Court there is an issue arising in a suit before it which requires to be determined by the Tenancy Authority under Section 85A of the Bombay Tenancy Act, the Civil Court has no jurisdiction to determine or deal with such an issues. If the Tenancy Court to whom the issue is referred were to be permitted to hold that it has no jurisdiction to decide the issue which is referred to it, the result could very well be that neither the Tenancy Court nor the Civil Court would be competent to decide the issue. To give such construction to the provisions of Section 85A would lead to absurd results.

The learned Single Judge while making the above observations has also referred to the decision of the Division Bench of Mohanlal's case.

9. Considering the above two decisions, therefore, it is abundantly clear that the Tribunal could not have interfered with the orders passed by the Revenue Authorities on the ground that the issue of tenancy does not arise from the pleadings in the written statement of the petitioners. Reliance sought to be placed in the decision of the learned Single Judge in Pandu Dhondi Yerudkar's case is totally misplaced. That was a case wherein it was held that whenever an issue as to tenancy is framed by the Civil Court it has in view of Sections 85 and 85A no other option than to refer the issue to the authority under the Tenancy Act for decision, it is not permissible for the Court to direct the defendant to produce prima facie evidence in support thereof before it is referred because determination of such an issue is taken away from the jurisdiction of the Court and it has to be decided by the authorities under the Tenancy Act. It has been further held therein that the issue should not be framed on vague plea unless defendant gives particulars as to time, terms and person creating tenancy and on failure to furnish particulars asked. Court should not frame issue merely on the basis of the vague plea of tenancy. The decision entirely deals with the scope of the provisions contained in Order XIV of Civil Procedure Code. It does, not deal with the powers of Revenue Authorities to sit in appeal or revision over the decision of the Civil Courts framing the issue of tenancy. Apparently, therefore, the decision of the learned Single Judge in Pandu Dhondi Yerudkar's case is of no help to justify the impugned judgment of the Tribunal.

10. It is not in dispute that the respondents have nowhere challenged the decision of the Civil Court framing issue of tenancy and referring it for the decision of the Competent Authority under the said Act. It cannot be disputed that such a challenge cannot be raised before Revenue Tribunal. Being so, the Tribunal while answering the issue in negative on the ground of lack of pleadings to justify framing of issue of tenancy, has clearly acted arbitrarily and without jurisdiction and, therefore, the impugned judgment cannot be sustained and is liable to be quashed and set aside.

11. In the result, therefore, the petition succeeds. The impugned order is hereby quashed and set aside. The matter is remanded to the Maharashtra Revenue Tribunal, Aurangabad to decide the revision application filed by the respondent against the order dated 19.8.1983 of the Deputy Collector, afresh and in accordance with the provisions of law contained in the said Act and bearing in mind the observations made hereinabove. Considering the fact that the matter relates to the year 1983, the Tribunal shall hear and decide the matter within a period of three months from the date of receipt of the writ of this Court. Rule is made absolute accordingly with no order as to costs.