Kisan Pandurang Varkad vs Jaising Maruti Varkad
2002 Latest Caselaw 153 Bom

JUDGMENT

A.B. Naik, J.

1. Both these Writ Petitions are based on identical set of facts and the Collector and the Maharashtra Revenue Tribunal have decided two applications together and disposed of by a common judgment. Both these writ petitions were heard together and are being disposed of by the common judgment. (The parties will be hereinafter referred to as per their status in this writ petition). The facts that are required to be stated in brief are as follows :

Land Gat No. 57/1 and Gat No. 57/2 situate at Ghospuri, Taluka Parner, District Ahmednagar were previously owned by Moro Ganesh Kulkarni. Moro Ganesh Kulkarni, by a registered sale deed dated 11-8-1947 sold this land to the father of the present respondent. The present respondent in both these applications claims to be the owner on the basis of the said sale deed.

2. One Sawalaram claimed to be a tenant over both these lands. This Sawalaram has two sons namely Pandurang and Ranganath. Both predeceased their father Santaram. Two sons of Santaram namely Pandurang and Rangnath survived by their sons namely Kisan and Madhav. Santaram died in 1949 and after death of Santaram the present petitioners in both the petitions came in possession of the lands as a tenants. After demise of Santaram in 1949 the present petitioners continued in possession as tenant.

3. The respondent filed two Civil Suits against these petitioners in the Court of Civil Judge (S.D.) Ahmednagar being R.C.S. No. 52/79 and R.C.S. No. 63/79 claiming declaration that (i) he may be declared as owner of the land, (ii) the defendant being a tenant of the suit land, symbolical possession be given to the plaintiff. Undisputed fact is that both the suits were came to be decreed on 3-5-1985. The Civil Court decreed the suit and granted declaration as prayed by the plaintiff that is present respondent and held him as a owner of the suit property. The finding also recorded that the present petitioners who were defending that suit were declared to be the tenant in possession of the land and they were directed to handover symbolic possession of the suit land. A statement is made at the bar that the petitioners who were defendants in that suit filed appeals but the said appeals are dismissed. Now I proceed to refer to the proceedings which are subject matter of these two writ petitions. The respondent by two separate applications being Tenancy Application No. 3/85 and 5/85 approached the Collector, Ahmednagar invoking the Collector's jurisdiction under Section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act.). Both these applications related to the lands which are in possession of the respective petitioners being land Gat No. 139 (S. No. 57/1) and Gat No. 145 (S. NO. 57/2). In the said application it is contended that the present petitioners are in possession of the said land. It was contended that after the purchase of the land by his father on 11-8-1947, the name of his father came to be recorded. It is contended that Sawalaram was in possession of the land as tenant from 4-8-1949 and thereafter, the land came in possession of the present petitioners. Further it was contended in the said application that the petitioners have taken a plea in the Civil Suit that they are not the tenants but they have became owners by adverse possession. The plea taken by them has been turned down by the Civil Court. It was contended that in view of the fact that the petitioners in Civil Suit have raised a plea that they have become owners by adverse possession, their possession is unlawful and it was stated, "That the opponents are unauthorisedly occupying the land mentioned in the application and their possession is therefore, wrong." It was contended in the said application that the petitioners are purposely denying that they are the tenants over the suit land. As they are denying the fact of tenancy, their possession is unauthorised. Therefore, they be evicted summarily by invoking the jurisdiction conferred by Section 84 of the Act. This application came to be filed on 28-8-1985.

4. In support of the applications the respondent (i.e. Jaisingh Varkad) got himself examined before the Collector and also documentary evidence. The Additional Collector after considering the evidence, and submissions made before him by the learned advocates for the parties came to the conclusion that :

"14. In view of the above discussion and in the light of the ruling cited hereinbefore I conclude as follows :

A. That Jaysing Maruti Varkad is the owner of the suit lands as held by competent Court of law.

B. That the applicant Jaysingh or his father did not create tenancy in favour of the opponents by executing any document or even by oral agreement so far as the lands under dispute are concerned.

C. That the opponents have not furnished any positive or self supporting evidence to prove their tenancy of the authorised occupation of the lands in question, Their entire reliance is on the statement of Jaysingh which is neither convincing not supported by facts.

D. That the opponents have entered into the absence and ignorance of the landlord or his heirs and they are continuing in possession without any title or right or interest and hence their possession of the lands is that of a rank trespasser.

After recording this finding the Additional Collector, Ahmednagar on 5-8-1986 allowed the application and ordered that possession of the land be given to the respondent by evicting petitioners from lands Gat No. 139, 145 of village Ghospuri.

5. The order passed by the Additional Collector in Tenancy Application No. 3/85 and 5/85 came to be challenged by the present petitioners by filing two different revision applications before the Maharashtra Revenue Tribunal at Pune. The said revisions were heard and disposed of by the common judgment by the learned Member of the Maharashtra Revenue Tribunal, Pune and by the order dated 12-11-1986 dismissed the said revision applications and confirmed the order passed by the Collector. The Maharashtra Revenue Tribunal has commented that the present petitioners did not remain present before the Collector and there was no occasion for cross-examination of respondent. The learned Member of the Tribunal drawn an inference that the petitioners did not appear before the Collector under the fear of cross-examination. The Member of the Maharashtra Revenue Tribunal accepted the reasons and findings were recorded by the learned Collector, Ahmednagar in respect of the admissions that is given by the present respondent before the Civil Court in the Civil Suit which was filed against the present petitioner. After recording the above finding, the Tribunal dismissed the revisions. The abovesaid orders passed by the Maharashtra Revenue Tribunal are challenged by the petitioners by filing above said two writ petitions.

6. Shri Gaikwad, instructed by Shri R. N. Dhorde, learned counsel for the petitioners raised following contentions in support of the petition. The learned counsel contended that (i) The Collector before whom the application under Section 84 of the Act was filed should have recorded a finding about the nature of the possession of the petitioner. He should have recorded a positive finding that the petitioners are unauthorisedly occupying the land and they are wrongfully in possession of the land, (ii) The respondent has in clear terms admitted that the petitioners are the tenants in possession of the suit land and he is estopped from taking contrary stand thereby contending that the petitioners are the trespassers, (iii) Summary eviction provided under Section 84 of the Act is not available to the respondent as the petitioners are claiming to be the tenants and in lawful possession of the land. In such case the summary eviction is not permissible, (iv) Even assuming that the Collector has jurisdiction under Section 84 to entertain such application, he has no right to decide question of tenancy and he should have referred the issue of tenancy to be determined by Mamiatdar as contemplated under Section 70 of the Act. The Collector should have referred the issue to the Mamiatdar, as under the Act, it is the exclusive jurisdiction of Mamiatdar to determine the question of tenancy. Contra Shri Temkar, contended that Collector and the Maharashtra Revenue Tribunal were right in accepting the contention that the admission given by the respondent in the Civil Suit were not properly made and the admission whether right or wrong can be established in the present proceedings. The learned counsel contented that in the present proceedings, the respondent's evidence was recorded. The evidence so recorded gone unchallenged and the Collector has given appropriate reason considering the demeanour of the witness and considering the method in which he has deposed before the Collector, the Collector rightly recorded a finding that the respondent was a person of forgetful nature. The learned counsel contended that both the Courts below have accepted the fact that the admission given in the suit were under mistaken belief and said finding recorded by both the authorities being essentially the finding of fact and the said cannot be interfered by this Court under jurisdiction conferred on him by Article 227 of the Constitution. The learned counsel further stated that by reading the entire order passed by the Collector and the M.R.T. it is clear that they have considered the fact that the petitioners are unauthorized occupants of the suit land therefore, this Court may not interfere in the order passed by the Collector and Revenue Tribunal.

7. I will now consider rival contentions. Whenever an application is filed under Section 84 of the Act, is filed before the Collector, the Collector has to specify that the person coming before him fulfills all the criteria or the requirement of Section 84. Section 84 provides for a summary eviction from agricultural land and the person in possession of the land unauthorisedly or wrongfully. In the present circumstances, it was duty of the Collector to find out whether the present petitioners are unauthorisedly occupying the land or they are in wrongful possession of the land. Unfortunately, the Collector who was trying the application under Section 84 has misguided himself and without considering the basic and important fact that is to be considered has not considered in proper perspective. Before the Court there were pleadings of the parties and the pleadings were so clear that bare looking to the said pleadings, it is accepted that in unequivocal terms the present respondent has admitted the status of the present petitioners. In para 7 of the plaint in R.C.S. No. 52/79 a specific plea is raised :

^^izfroknh gk ;k tehuhr dqy Eg.kwu vkyk gksrk o vktgh R;kapk rkck dqy Eg.kwup vkgs- rks ;k tfeuhpk vWMOglZ i>s'kuus d/khgh ekyd >kyk ukgh p dk;|kus gksÅ 'kdr ukgh- R;kpk rkck gk usgehp ijehflOg vlY;kus R;kyk vWMOglZ i{ks'kuph rØkj djrk ;s.kkj ukgh**

The English translation of the said para is :

"That defendant entered in the land as a tenant and at present also he is in possession as tenant. He has not become owner of the suit land by adverse possession and under provisions of law he cannot acquire the status of owner by adverse possession. The possession of the defendant being permissive he cannot claim adverse possession."

The relief which was sought in the plaint are also very material to be considered :

^^v½ nkO;krhy uewn dsysY;k feydrhps oknh gs iw.kZ ekyd vkgs vls tkghj d:u feykos-

c½ izfroknh gs lnj feydrhr oknhps dqy vlY;kus R;kpsdMwu oknhl flacksyhdy i>s'ku ns.ksr;kok-**

"(a) The plaintiff be declared as owner of the land mentioned in the plaint.

(b) The defendant be declared as the tenant of the suit land and symbolic possession be given from the said tenant."

The parties adduced evidence and on the elaborate trial the Civil Court has decreed the suit, by passing a decree in following terms:

"1. The suit of the plaintiff is decreed with costs.

2. It is hereby held and declared that the plaintiff is a full owner of the suit property.

3. It is further held and declared that the defendant is a tenant in respect of the suit property.

4. The defendant is directed to handover to the plaintiff a symbolical possession of the suit property.

5. The defendant do pay the costs of this suit to the plaintiff and bear his own.

6. A decree be drawn up accordingly.

7. A copy of this judgment and order be retained in the sister suit R.C.S. No. 63 of 1979."

It is necessary also to refer to the contentions that is raised in the application filed by the respondent under Section 84 of the Act, where it is contended that the petitioners are in possession of the land and their possession is unauthorized and wrongful.

With these two undisputed facts brought on record in my judgment both the authorities have committed error in holding that the admission given by the respondent was not correct. After going through the record and the finding that has been recorded, the respondent has nowhere stated as to how and from what point of time the possession of the present petitioners have become unauthorised, there is not a whisper in the pleadings that were filed before the Civil Court and in the present application. Therefore, the Collector and the Maharashtra Revenue Tribunal fallen into an error in allowing the application filed by the respondent without recording a finding that has to be required in a proceedings under Section 84 of the Act. I asked the learned counsel appearing for the respondent whether at any point of time any application is filed before the Civil Court, when the suit was in progress either to correct the said admission given in para 7 or to explain the same in what circumstances the admissions are made. But the learned counsel has stated that no such application was made nor any attempt was made at any time prior to recording of the evidence of the respondent in the present proceedings. Considering these undisputed facts and considering the law laid down by the Apex Court which was relied on by Shri Gaikwad, about the value of judicial admissions given by the parties in the proceeding either in the pleadings or in evidence. The case which is relied on by Shri Gaikwad, is Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and Ors. The learned counsel has relied on the ratio laid down by the Apex Court in para 27 of the reported judgment, where the Apex Court has said :

"Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties.

The facts in case of Nagindas (supra) are very short. The facts are :

"Appellant was a tenant of the premises at Ward No. 3, Nondh No. 1823/9 in the Salabatpur area of Surat. He was in arrears of rent since October 16, 1961. On November 16, 1962, the landlords served a notice on the appellant terminating his tenancy and also requiring him to pay the arrears of rent. On January 2, 1964, the landlords instituted the suit in the Court at Surat for possession against the tenant on two grounds namely:

(i)      non-payment of rent in arrears for a period of more than one year, 
 

(ii)     bona fide requirement of the premises by the landlords for their own use and occupation. The suit came to be decreed.  
 

Thereafter, on January 12, 1968, the landlords filed a petition for execution of the decree. It was dismissed as premature. The tenant having failed to pay Rs. 152.50 i.e. the balance of arrears, by the agreed date, the decree-holders on January 17, 1968, again took out execution for the recovery of the said amount. Thereafter, on October 3, 1968, the landlords filed the second petition to recover possession of the suit premises in execution of the decree. In the said proceedings the tenant has admitted that according to the compromise, agreed to give possession on September 30, 1968, but added that in 1968 A.D. the ground floor of the premises had become submerged in flood waters and thereupon the decree-holders seeing the plight of the tenant orally agreed to allow him to continue in the premises on payment of a monthly rent of Rs. 15/-. An admission is made by the tenant in the said proceedings. The Apex Court on the back drop of the facts observed:

"From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."

Considering the law laid down by the Apex Court referred above, I am of the firm view that the admissions given by the present respondent in a Civil Suit which has culminated in passing of a decree for declaration of ownership of the land and also for symbolic possession of the land as sought by him, that the present petitioners are the tenants of the suit land. The respondent is estopped from contending contrary to the admission given by him in Civil Suit. Moreover, no attempt is made by the respondent at any stage to show that the admission given in Civil Suit is or was wrong. It will not be possible to approve the view taken by the Additional Collector and confirmed by the M.R.T. Pune. The learned counsel for the respondent has relied on a judgment of the Apex Court Smt. Krishnawati v. Shri Hans Raj, the learned counsel relied on para 6 of the said judgment, where the Apex Court has stated :

"Previous self-serving statements by a party in other proceedings cannot be used as substantive evidence in subsequent proceedings against that party."

In this case the Apex Court was considering the previous statement in a previous proceedings and the effect under Section 21 of the Evidence Act. In a case that is relied on by Shri Gaikwad, the Apex Court was considering the provisions of Section 58 of the Evidence Act. Section 58 deals with the facts which are not to be proved. Section 58 reads as follows :

"58. Facts admitted need not be proved -- No fact need be proved in any proceeding which the parties thereto or their agents agreed to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings : Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."

Section 21 deals with the relevancy of the fact stated and enumerated under Section 21 but so far as the proof of pleadings and the admission in the pleadings, such admissions if found true and correct need not be proved by leading any evidence. In this case on the facts of this case the ratio laid down in Nagindas's case is squarely applicable and the ratio in Krishnawati's case on the facts of this case is not applicable.

8. Considering the admissions given in the suit and as there is no positive finding recorded by the Collector regarding the nature of possession of petitioners, in my judgment application under Section 84 is not maintainable and the Collector has committed an error in entertaining the application and awarding possession to the present respondent. The Maharashtra Revenue Tribunal also fallen in error in confirming the said order.

9. For the reasons stated above, it is not possible for this Court to approve and confirm the order passed by the Collector, Admednagar and Maharashtra Revenue Tribunal, respectively. Accordingly, those orders are set aside. Rule made absolute in terms of prayer Clause (b). Looking to the circumstances of the case, there will be no order as to costs.