Bhiva S/O Gangaram Landge And Ors. vs State Of Maharashtra And Ors.
2004 Latest Caselaw 125 Bom

JUDGMENT

A.B. Naik, J.

1. By this petition, the order dated 2nd February, 1985 passed by the Addl. Commissioner, Aurangabad Division, Aurangabad, is challenged by the petitioners.

2. The present petition is filed by the original defendants. The respondents 3, 4 and 5 original plaintiffs 1 to 3 (hereinafter referred to as "the plaintiff) instituted Regular Civil Suit No. 112/1977 against the present petitioners/original defendants (hereinafter referred to as "the defendants") for the relief of declaration that the plaintiffs are in possession of the suit land and the defendants be restrained permanently from obstructing their peaceful possession and enjoyment of the suit land. It is contended by the plaintiffs that Gangaram, the father of the plaintiffs and defendant No. 1, was in possession of land Survey No. 274 admeasuring 20A 20B and 275 18A 33B situated at village Neknoor Tq. and Dist. Beed, (hereinafter referred to as "suit land") as tenant of the suit lands and has cultivated the land as tenant till his death. It is contended that one Chand Pasha s/o Ziauddin was the original Inamdar and after Gangaram's death, the suit land was cultivated by his son Gangaram. The suit land were governed by the provisions of Hyderabad Abolition of Inams and Cash Grants Act, 1954 (hereinafter referred to as "the Act"). As defendant No. 1 was elder member of the family, the occupancy rights in respect of the suit land came to be granted in his favour. It is contended by the plaintiffs that the plaintiffs and defendants are members of Hindu joint family and they are cultivating the suit lands jointly according to their respective shares. All the plaintiffs has 3/4 share in the suit land and defendants had 1/4 share. It is contended that granting of occupancy right of the land was, in fact, in favour of the defendant No. 1 as Karta of joint family and, as such the land was declared in his name as Karta of the joint family. They all cultivating the lands jointly. It is contended that the occupancy price was paid out of joint family funds as the declaration was made in the name of defendant No. 1 his name came to be recorded in the revenue record in respect of suit lands. It is contended that the plaintiffs and defendant No. 1 jointly cultivated the suit land as per their share upto 2nd April, 1977 as the defendants obstructed their possession over the suit land. Therefore, the plaintiffs filed the above referred suit on 10th April, 1977.

3. On receipt of the summons of the suit, the defendants 1 to 3 filed their written statement denying all adverse contentions that are raised by the plaintiffs. The defendants denied that Gangaram, their father was never a tenant of the suit land. On the contrary, it is contended that the defendant No. 1 is in exclusive possession and cultivating the land as a tenant since beginning. It is accepted that the occupancy right of the suit land has been granted in favour of the defendant No. 1 alone and not as the Karta or member of the joint Hindu family. It is denied that plaintiffs and defendants were the members of the Hindu joint family. It is denied that the plaintiffs jointly cultivated the suit lands. It is contended that during the life time of Gangaram, his sons i.e. the plaintiffs and defendants were residing separately and they are separated in mess. It is contended that all sons of Gangaram having different land and they are cultivating the lands separately. It is contended that defendant No. 1 is exclusively and independently obtained the suit land on lease from Inamdar, some fifty years back. The plaintiffs, never cultivated the suit land in any capacity nor they had right to or concern with the same. It is contended that even Gangaram had no right or concern with the suit land. It is contended that defendant No. 1 was never the Karta of Joint family and the declaration of occupancy/ownership of the suit land was not made as a Karta of the joint family. It is contended that the declaration made in favour of defendant No. 1 is not in the capacity of Karta of Joint family nor the joint family has concern with the land. It is contended that defendant No. 1 alone in exclusive possession and cultivation of the suit land as a tenant when the Act came in force. It is contended that the occupancy rights of the suit lands were granted in favour of the defendant No. 1 only. He contended that it is the defendant No, 1 who alone paid the entire occupancy price of the suit land out of his own income. The plaintiffs have no concern whatsoever with the suit land. They are not in possession of the suit land as contended by them. With these contentions, they prayed for dismissal of the suit.

4. On the basis of the pleadings, the learned trial Judge framed the following two issues which reads thus :

"1. Do plaintiff prove that the deceased Gangaram was P. T of the

land.

2. Do defendants prove that defendant one exclusive tenant of the suit land for more than 50 years"

5. As the issues relate to the status of deceased Gangaram as protected tenant, the learned Civil Judge referred the Issue Nos. 1 and 3 to the Tenancy Court, under Section 99A of the Hyderabad Tenancy and Agricultural Lands Act. On receipt of the issues, the Tahsildar, Beed, did not answer the issue, but he sent back the reference to the Civil Court on the ground that he has no jurisdiction to decide the issue. While returning the reference, he relied on notification issued by the Government of Maharashtra on 20th September 1969 whereby the Government has authorized all Assistant and Deputy Collectors in District of Aurangabad, Parbhani, Beed, Osmanabad, Nanded and Rajura to decide the question under the provisions of Clauses (1) to VI of Sub-section (2) of Section 2A of the Act, 1954 within their respective jurisdiction.

6. On return of the reference by the Tahsildar, the learned Civil Judge, again, referred those issues to the Deputy Collector (Land Reforms) Beed for his decision, The Deputy collector, on receipt of the reference by the Civil Court issued notice to the parties. Accordingly, the parties appeared before him. On hearing the parties, he held that the plaintiffs failed to prove that deceased Gangaram was protected tenant of the suit land. The Deputy Collector held that deceased Gangaram was not the protected tenant of the suit land and accordingly answered Issue No. 1 against the plaintiff. So far as Issue No. 3 is concerned, he recorded a finding on the basis of the evidence produced by the defendant that the family partition took place some time 20 to 25 years back. He further drawn an inference that the partition took place in the year 1956-57 and prior to that the family was joint i.e., at the time of enforcement of the Act and, as such, they were cultivating the lands jointly. On the basis, he held that defendant No. 1 was not exclusive tenant of the suit land arid answered the issue accordingly.

7. Feeling aggrieved by the order passed by the Deputy Collector (LR) Beed, the defendants preferred an appeal to the Additional Commissioner, Aurangabad Division, Aurangabad who, by his order dated 2nd February 1985 dismissed the appeal on the ground of jurisdiction. The learned Addl. Commissioner was of the view that the reference was received by the Deputy Collector under Section 99A of the Hyderabad Tenancy and Agricultural Lands Act and in case the parties are aggrieved by the order passed by the Deputy Collector under the Tenancy Act, the parties should have approached the Maharashtra Revenue Tribunal to challenge that order.

8. Feeling aggrieved by the order of dismissal of appeal by the Additional Commissioner, the defendants filed the present Writ Petition. During pendency of this Writ Petition, the defendant No. 1 (Petitioner No. 1 died and his sons petitioner Nos. 2 and 3 are brought on record, his name came to be deleted. The petitioner No. 2 also died and his heirs and legal representatives are brought on record, who are prosecution this petition).

9. Heard Shri K.M. Babhulgaonkar, learned Adv. for the petitioners and Shri Suresh Mundhe instructed by Shri S. C. Bora, for the respective respondents. Shri Babhulgaonkar, learned Advocate for the petitioners made available the copies of the plaint and the written statement. On going through the pleading, I am of the view that it is really unfortunate that the issues were framed by the learned trial Judge on total non-application of mind. In my judgment, the issue of tenancy in respect of deceased Gangaram was not at all germane in the suit. As the parties proceeded on accepted position that the defendant No. 1 was declared occupant under the provisions of the Act. Under the provisions of the Act, the relevant date for granting occupancy right is 1st July 1960. Therefore, as accepted by the parties that Bhiva was declared occupant, that means Bhiva was in possession of the land on 1st July, 1960. To understand the controversy raised in the suit and in this petition, some admitted position that emerge from record will have to be noted :

(a)     The suit land admittedly governed by the Act.
 

(b)    Sections 5 and 6 of the Act which deals with grant of occupancy rights in Inam land came into force on July, 1st 1960.
 

(c)     Date of vesting of Inam in the Government is July 20, 1955.
 

(d)     All rights including the rights of occupant to the possession of the land, had vested in the State of July, 20, 1955 under Section 3 of the Act.
 

(e)     The possession of a person after July 20, 1955 though lawful, but without interest in the land.
 

(See Thakur Niranjan Singh v. Bagat Raj Dagdoba, 1966 Mh.L.J. 440 - 68 Bom.L.R.167)
 

(f)     Even assuming that Gangaram was tenant, but for the operation of Section 3, the Inam vest in the State and his tenancy right came to an end.
 

Hence even the plea raised by the 'defendant to that effect, the issue for the decision of the suit was not necessary.
 

10. It is to be noted that the Inamdar of the land has not came forward to question the validity of the order of granting occupancy in favour of Bhiva s/o Gangaram/defendant No. 11 but the plaintiffs came to the Court seeking partition of the property on the ground that granting of occupancy in favour of Bhiva/defendant No. 1, as Karta of Hindu joint family. Hence the real controversy which is involved in the suit by the plaintiffs is, whether the declaration of ownership or conferring occupancy right by the authorities under the Inam Act on Bhiva as in his individual capacity, or as the Karta of Joint Hindu family. If defendants prove that Bhiva was alone declared as occupant then the suit of the plaintiffs has to be dismissed and if the plaintiffs prove that the conferring occupancy right on Bhiva as a Karta and the occupancy price was not paid by or on behalf of joint family funds, then the question will arise to pass a decree for partition. The plaintiffs have claimed in their plaint that occupancy price was paid jointly by all members of the family as it was for the joint family property. Therefore, the plaintiffs have come with a case that there was joint family consisting of three plaintiffs and defendant No. 1 and the grant of occupancy in favour of Bhiva thus for and on behalf of joint family. In fact, the issue of tenancy of late Gangaram does not arise at all as nothing will turn on the findings on the issue of tenancy. Even if for the sake of argument it is accepted that late Gangaram was the tenant on the land and the provisions of Tenancy Act applies, even then by virtue of Section 40 of the Tenancy Act all four sons of Gangaram inherit the tenancy right. As the lands were admittedly governed by the Act hence the provisions of Tenancy Act are not attracted. As such, in my judgment, the provisions of Hyderabad Tenancy and Agricultural Lands Act is not applicable to the Inam lands. Therefore, the issue was wrongly referred to the Tenancy Court under Section 99A of the Tenancy Act. On noticing the undisputed facts, it will be in the interest of justice to call back the issue and set aside all the orders. In my judgment, all the authorities including the Civil Court over-stepped their jurisdiction.

11. The real issue that is involved in the suit is the nature of grant of occupancy on Bhiva. This aspect has to be considered in the light of provisions of the Act and the judgment of this Court in the case of Laxmibai Date v. Ganesh Date, 1977 (LXXIX) BLR 234, where the full Bench held that if occupancy right under the Inam Act, is conferred on the Karta of the family then the said declaration will be for and on behalf of the family. The real issue, therefore, was, whether Bhiva got the occupancy right in his individual capacity or Karta of Hindu joint family and that issue necessarily has to be decided by the Civil Court. Hence, there is no question of tenancy of deceased Gangaram to be decided, because from and after the date of declaration or conferring occupancy right on Bhiva all rights regarding tenancy has come to an end. With this aspect, Z have to consider the point involved in this petition.

12. Before adverting to submissions of Shri Babhulgaonkar, learned Advocate for the petitioners regarding maintainability of the appeal before the Additional Commissioner, let me consider the provisions of the Act and the consequence thereof. The Act is enacted in public interest to provide for the abolition of Inams and Cash Grants, with certain exceptions in Hyderabad State. Section 2 deals with the definitions. Section 2A deals with the power of the State Government and authorized Officer to decide the question relating to Inams and appeal.

Section 2A permits the State Government or authorized Officer to decide certain questions;

2A(i)       .................
 

(ii)     ................
 

(iii)    ...............
 

(iv)    ...............
 

(v)     ................
 

(vi)   Whether any person is kabiz-e-kadim, permanent tenant or tenant, the State Government or an Officer authorized by the Government shall decide the question.
 

13. This section further provides for appeal to the State Government under Section 2A(2). Further Sub-section (3) enables the Government to call for the record of the proceedings for satisfying the legality, propriety etc. of the order passed by the officer. Sub-section (4) gives finality to the orders passed under the above provision. I am not concerned with this aspect.

Section 3 of the Act provides for abolition and vesting of Inams and consequences thereof:

Section 3 reads thus :

(1) Notwithstanding anything to the contrary contained in any usage, settlement, contract, grant, sanad, order or other instrument, Act, Regulation, rules or order having the force of law and notwithstanding any judgment, decree or order of a Civil, Revenue or Atiyat Court, and with effect from the date of vesting, all inams to which this Act is made application under Section (2) (or Sub-section (2A) of Section 1 of this Act shall be deemed to have been abolished and shall vest in the State.

(2) Save as expressly provided by or under the provisions of this Act and with effect from the date of vesting, the following consequences shall ensue namely:

(a) the provisions of the Land Revenue Act, 1317 Fasli, relating to Inams, and the provisions of the Hyderabad Atiyat Enquiries Act, 1952 and other enactment, rules, regulations and Circulars in force in respect of Atiyat grants shall, to the extent they are repugnant to the provisions of this Act, not apply to the provisions of Land Revenue Act, 1317 Fasli, relating to unalienated lands for purpose of land revenue, shall apply to the said inams;

(b) all rights, title and interest vesting in the inamdar kabiz-e-kadim, permanent tenant (and tenant) in respect of the inam land, other than the interests expressly saved by or under provisions of this Act and including those in all communal lands, cultivated and uncultivated lands (whether assessed or not) waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries, shall cease and be vested absolutely in the State free from all encumbrances;

14. In the present case, provision of Section 5 are not applicable. Section 6 provides for grant of occupancy rights. The relevant provisions for the purpose of this petition reads thus :

6. Occupancy rights in respect of occupied land to which Section 5 does not apply: (i): In the case of an occupied land comprised in an inam other than land to which the provisions of Section 5 apply :

(a) where such land is in the possession of the inamdar, or kabiz-e-kadim or of a permanent tenant or tenant holding from the inamdar, then such inamdar, kabiz-e-kadim, permanent tenant shall in respect of the land which is in his possession, be primarily liable to the State Government for the payment of the land revenue and shall, subject to the provisions of Sub-section (2) (3), (4) and (5), be entitled to all the rights and be liable to all the obligations as an occupant in respect of such land under the Land Revenue Act, 1317 Fasli and the rules made thereunder :

(b) the rest of the land, in respect of which under Clause (a) neither the inamdar nor the kabiz-e-kadim nor the permanent tenant nor the tenant is primarily liable for the payment of land revenue, shall be at the disposal of Government and any person in possession of such land shall be deemed to be unlawfully occupying Government land and shall be liable to be evicted therefore in accordance with the provisions of the Land Revenue Act, 1317 Fasli.

6(2) In respect of the land for which the inamdar, kabiz-e-kadim, permanent tenant or tenant is liable under Sub-section (1) for the payment of land revenue.

(a) the inamdar or, as the case may be, the kabiz-e-kadim, shall be liable to pay an occupancy price equal to six times the amount of the full assessment of the land,

(b) the permanent tenant shall be liable to pay an occupancy price equal to right times the amount of the full assessment of the land, and

(c) the tenant shall be liable to pay an occupancy price equal to twelve times the full assessment of the land, to the State Government within the prescribed period either in lump sum or by such instalments as may be prescribed;

(3) The occupancy granted under Sub-section (i) shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such sum to the State Government or the Central Government may, by general or special order, determine."

15. Admittedly, the occupancy is granted in favour of Bhiva. The question that raised in the suit whether the grant of occupancy in favour of Bhiva was in his individual capacity or on behalf of family. This question will depend on the status of the family, as Section 6(3) permits the partition of the occupancy, with permission of the Collector. On the other hand, this question is to be decided on the principles of Hindu Law, i.e. whether a property is self-acquired property by a member of the family or it is acquired with the joint efforts of the family members. The Full Bench in Laxmibai's case (supra) was dealing with somewhat identical provision and the situation. The Full Bench was dealing with the provisions of the Bombay Merged, Territories Miscellaneous Alienation Abolition Act, 1955 (hereinafter referred to as "the Bombay Act") wherein similar provisions as of that Act are existing in the Bombay Act. Section 2(i) (i) defines alienation a grant or recognition on a grant. Chapter III of the Bombay Act deals with Abolition of Alienations and Conferment of Occupancy rights Grant of Occupancy rights under Section 6. Section 6(3) permits alienation and partition subject to sanction from the Collector. On this backdrop, the question which was referred and the Full Bench has considered this aspect in following way:

"When an alienation like the service inam in this case was a grant to a family in the name of senior member and the same is abolished, whether the provisions of Section 4 of the Bombay Merged Territories Miscellaneous Alienation Abolition Act, 1955 extinguish the ordinary rights and incidents in respect of such alienation under the person law of the parties?

The Full Bench considered the question. The Full Bench answered the question in negative and the reasons to do so are these :

"The Act was amended with a view to abolish some of the alienations of miscellaneous character prevailing in the merged territories and to provide for matters consequential and incidental thereto. The word "alienation" in the Act meant a grant or recognition as a grant (I) of a village, portion of a village or land to any person, whether such grant be of soil with or without exemption from payment of land revenue or of assignment of the whole or a share of land revenue thereof, (II) of total or partial exemption from payment of revenue to a person in respect of any land held by him, or (III) of cash allowance or allowance in kind to any person by whatever name called, by the ruling authority for the time before merger of or any the State Government after merger. Chapter II of the Act deals with abolition of alienation and conferment of deals with abolition of alienations and rights and in idents in respect thereof. Its provisions are as under :

4. Notwithstanding anything contained any usage, settlement, grant, agreement, sanad, order, rule, notification or Vat Hukum or any decree or order of a Court or any law for the time being applicable to any alienation in the merged territories, with effect from and on the appointed date :

(i)     all alienations shall be deemed to have been abolished;
 

(ii)    save as expressly provided by or under this Act all rights legally subsisting on the said date in respect of such alienations and all other incidents of such alienations shall be deemed to have been extinguished."
 

Under Section 5 all alienated lands are made liable for payment of land revenue in accordance with the provisions of the Code the rules made thereunder and the provisions of the Code and the Rules relating to unalienated lands shall apply to such lands. The provisions as regards re-grant of such lands are contained in sections 6 and 7. We are concerned in this present case with Section 7(2) and its provisions are as under :

"7. All land held under a watan is hereby resumed and shall be regranted to the holder in accordance with the following provisions, namely :

(1).......

(2) in the case of a watan to which Clause (1) does not apply, the land appertaining to the watan shall be regranted to the holder on payment of the occupancy price equal to twelve times the amount of the full assessment of such land within the prescribed period...."

In the referring judgment a clear and unequivocal finding is given by the division Bench that so far as the holder prior to the abolition of the alienation was concerned, it was Date family, that Narhar was grantee in the year 1928 as representative of the family and Sadashiv became the grantee in the year 1928 as representative of the family consisting of himself and his three brothers. The short question that was canvassed before the Division bench was that in view of the non-obstante clause in Section 4 the ordinary incident under the personal law of Hindus relating to partition of joint family property was extinguished and therefore when a re-grant was made under Section 7 it was Sadashiv alone who was entitled thereto and the other members of the family had no right to ask for a share therein by way of partition. It is undoubtedly true that Section 4 starts with a non-obstante clause, but it is well recognised cannon of construction to give effect to a non-obstante clause having regard to the object with which it is enacted in a statute. The non-obstante clause is contained at the inception of Section 4 and the sole object of Section 4 is to abolish alienations and rights and incidents in respect thereof. The right of a member of joint Hindu family to ask for partition of a joint family property cannot be regarded as a right relating to grant of land as service inam or as an incident in respect thereof- The sole object underlying Section 4 is to abolish all alienations defined in the statute and to extinguish all rights legally subsisting on the appointed date in respect of such alienations and all other incidents thereof. These provisions have nothing to do with the normal rights of a member of a Hindu family under the personal law applicable to Hindus.

Provision similar to those in the Act, contained in the Bombay Inferior Village Watans Abolition Act (Act 1 of 1959) came up for consideration before Malvankar, J. in Dhondi Vithoba v. Mahadeo Dagdu, he held that after the abolition of a watan, held as joint family property or held by tenants-in-common, under the Bombay Inferior Village Watans Abolition Act, 1958, the resumption and re-grant of the land to the watandar of the watan does not take away the character of the land as joint family property or as held by tenants-in-common. He has further taken the view that even though the watan is abolished and its incidents are extinguished under the Act and the lands are resumed under Section 4 of the Act, the Act maintains the continuity of the interest in the lands of the persons before and after the coming into force of the Act, provided the holder pays occupancy price. What the Act does is only to effect a change in the nature of the tenure or the nature of the holding, in that before the abolition of the watan and the land was being held by the Watandar in consideration of rendering service and non-payment of assessment, but after the abolition of the watan and the land revenue. It does not affect any other change in any other rights of the holders in such lands. At page 293 after summarizing the provisions of the Bombay Inferior Village Watans Abolition Act, 1958, Malvankar, J. points out:

"..... It seems to me, therefore, that what Section 4 Sub-section (1) and (2) seek to abolish and extinguish is the inferior village hereditary office together with the tenure with the tenure of Watan property held, acquired or assigned under the Watan law for providing remuneration for the performance of the duty appertaining to an inferior village hereditary office and all the incidents thereto including the rights to hold office or to levy customary fees or perquisites in money or in kind, and the liability to surrender service. It does not affect the ordinary incidences of the property under the personal law. In other words, if such property is joint family property or the property led by tenants-in-common, its incidences are not extinguished by the abolition of Watan and extinction of its incidents."

16. Considering the judgment of the Full Bench, and the provisions of the Act in general and Section 3 and 6 in particular, in my judgment, the reference to the Tenancy Court itself was uncalled for. By considering the contents of the plaint and the written statement the issue as framed, does not arise and, therefore, there is no question of answering the same. In my judgment, therefore, the order of reference to the Tenancy Court was itself bad and uncalled for and, therefore, all orders including referring the issue to the Deputy Collector by the Civil Court are null and void and illegal, and therefore, are required to be set aside, in exercise of jurisdiction conferred on this Court under Article 227 of the Constitution of India as all the authorities have overstepped their jurisdiction.

17. Shri Babhulgaonkar, learned Advocate contended that the Deputy Collector in fact decided the question that was referred to under Section 2A of the Act and hence the Additional Commissioner being higher Officer in the official hierarchy the appeal was filed. Shri Babhulgaonkar, learned Adv. contended that as the Deputy Collector was competent authority under Section 2A of the Act to decide the question referred to therein, has rightly decided, at the relevant time by virtue of notification dated 18-4-1970 under the provisions of Section 3(4) of the Bombay Commissioners of Division Act (1958) all the powers of the appeal were invested with the Divisional Commissioner, hence the appeal was filed before the Commissioner. Therefore, the Commissioner was not justified in rejecting the appeal on the ground of jurisdiction. He contended that if the appeal was incompetent then the Additional Commissioner should have returned the appeal to the appellants for filing it before the appropriate forum. It is not possible for me to accept the submission of the learned Advocate for more than one reason: (i) the issues itself did not arise and the real issue of acquisition of occupancy only the Civil Court has jurisdiction; (ii) there is no provision contained in the Act akin to the provisions of Section 99A of the HTAL Act; (iii) on abolition of Inam, the land vest in the Government free from encumbrances; (iv) the occupancy rights are to be conferred on the person who is in possession of the inam lands on 1-7-1960 and, as Bhiva was declared occupant and the grant of occupancy whether individually or as Karta of Joint family is to be decided by the Civil Court and not by the Deputy Collector under Section 99 of the HTAL Act. For the above reason, all the orders challenged in this petition including the framing of Issue Nos. 1 and 2 will have to be interfered with, hence the contention stands rejected.

18. Accordingly, the petition stands allowed and I hold that the reference made by the Civil Court to the Tenancy Court (Deputy Collector (LR) Beed, itself was incompetent and uncalled for. Hence I direct the learned Civil Judge, Junior Division, Beed, before whom the suit i.e. RCS No. 112/1977, to frame fresh issue in the light of the observations made in this judgment and to proceed to decide the suit as expeditiously as possible and at any event, before the end of June, 2004.

19. Rule made absolute in above terms. There will be no order as to costs.

20. C.A. No. 3041/2001 for the reasons stated in C.A., C.A. allowed in terms of Prayer clause "B" and on allowing CA. CA (St) No. 14726/1999 stands restored. The same is granted. Civil Application Nos. 3041/2001 and 3042/2001 are allowed accordingly.