Vatsalabai Wd/O Vishwanath ... vs Madhaorao Laxmanrao Thakare And ...
2004 Latest Caselaw 601 Bom

JUDGMENT

A.H. Joshi, J.

1. This is a second appeal filed by legal heirs of original defendant No. 1. The suit was decreed and the decree has been confirmed by the first appellate Court.

2. The suit pertained to claim for delivery of possession of agricultural land Survey Nos. 62 and 63/1 of Nimgavhan. It was suit by the original plaintiff Madhaorao Laxmanrao Thakare on the basis of the claim that he is the owner of the suit property being the legal heir and adopted son of Ahilyabai who was widow of Laxmanrao Thakare.

3. According to the plaint, the suit lands were let out to the defendant No. 1 for the period upto 1-3-1957 and it is alleged that the defendant No. 1 sub-let Survey No. 105/2 to the defendant No. 2 soon and after the lease period was over, the defendants re-delivered the suit lands in possession of the owner Ahilyabai who thereafter cultivated the land personally. Thereafter Ahilyabai was dispossessed sometime at the end of April, 1957.

Consequent upon the death of the original owner Ahilyabai, the plaintiff Madhaorao Thakare became the owner and, therefore, filed suit for possession of the suit land and also claimed mesne profit.

4. The defendant No. 1 contested the suit by filing the written statement and specifically admitted the lease of one year and further pleaded that he, however, continued to cultivate as tenant. As he claimed the tenancy, prayed for referring the dispute as to his status as tenant, to the Tenancy Court for adjudication. He also pleaded that he had become the owner of the suit land on tiller's day.

5. The defendant No. 2 having no interest in the suit property, did not appear and suit proceeded against him ex parte. At the trial, the trial Court framed the issue Nos. 1 and 2 pertaining to the adoption and its effect in view of the objections which also pertained to the adoption, while the other issues namely issue Nos. 3 to 7 pertain to plaintiff's right to recover possession in view of the alleged status of tenant on the basis of lease claimed by the defendant No. 1. Issue Nos. 8 and 8A to 8G pertain to the improvements, the mesne profits and other reliefs. The learned trial Court held all the issues in favour of the plaintiff and answered issues relating to plaintiffs right to get possession.

6. The crucial question which was posed as main hindrance and the statutory objection to the claim for possession related to the issue of tenancy. The learned trial Court observed as regards tenancy at page 18 of print as follows:

"So far as the question of tenancy is concerned this right is negatived to the Defendant up to the highest tribunal of our nation. The copy of order of M.R.T. is at Exh.74. I have no jurisdiction to entertain this plea and therefore, in view of finding of competent Court, this issue is answered in negative.

Though the plaintiff have failed to prove that Defendant took forcible possession in view of the order of M. R. T. Exh.74 since he is not a tenant, his possession over suit land must be held to be illegal and therefore the plaintiff is entitled to get its possession from the defendants."

7. The judgment of M.R.T. is on record at Exh.74 and is available for perusal. In that case, the defendant No. 1 had claimed that he had become owner on tiller's day and had sought consequential declaration. He had succeeded in first two Courts, however, Maharashtra Revenue Tribunal, upon discrete examination, held that the case in question was one which was governed by the provisions of Berar Regulation of Agricultural Leases Act, 1951, and held that under the said Act, a widow was under disability and lease did not result into creation of a tenancy and consequential statutory protection and tenancy and consequential ownership rights did not accrue or vest to or in the lessee and, therefore, negatived the defendant No. 1's claim as a tenant as well as his right to be a declared owner. The decision of M.R.T. was delivered in revisional jurisdiction over the original jurisdiction of the Tenancy Tribunal under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, which had repelled the earlier Berar Regulation of Agricultural Leases Act, 1951.

8. On the face of this judgment of MRT Exh.74 which was rendered in the mean time, the unsuccessful defendant preferred a Regular Civil Appeal No. 13 of 1980, feeling aggrieved by the judgment and order passed by the Civil Judge, Jr. Dn., Amravati, decreeing the suit. At the hearing of the appeal, as has revealed from the judgment of the first appellate Court, it has recorded in paragraph No. 5 as follows :

"5. At the stage in Appeal during the arguments Mr. Loney, restricted his arguments only as regards to the finding of the Trial Court in the matter of proof of the adoption of the respondent No. 1-Plaintiff by Ahilyabai widow of Laxmanrao. This was rivalled by Mr. Mundada the learned counsel for the respondent No. 1 by saying that no such ground can be urged or allowed to be urged for want of pleadings and also for want of a ground taken in that behalf in the memo of appeal."

In the result, the appellate Court formulated the questions of law which pertained to the adoption only, which are quoted below for ready reference.

"1. Whether the appellant could be permitted to challenge the adoption of the respondent No. 1 Plaintiff?

2. If yes, whether the respondent No. 1 proves that he was validly adopted by Ahilyabai on 10-8-1948 as a son?

3. What order?"

9. In the appeal memo, as was filed in the Regular Civil Appeal No. 13 of 1980, the answer can be found out as to why the learned advocate representing the present appellant before the District Court, had restricted his arguments only to the extent of question of adoption. In the ground No. 4, the appellant had specifically urged a plea analogous to adverse possession contending that in view of the judgment of the M.R.T., the status of the defendant No. 1 had become of a person holding possession illegally. The appellant had also tried to raise objection as to the legality of judgment of M.R.T. by agitating certain questions relating to tenancy by raising ground Nos. 5 and 6. It is, however, common ground that the judgment of the M.R.T. Exh.74 was challenged in the High Court and the challenge had failed. The contention whatsoever, against the said judgment, either before the District Court or before any other lower forum, is, therefore, untenable.

10. Coming to the judgment of the first appellate Court, as referred to above, only two questions which pertain to the adoption, were raised and have been adjudicated upon by the first appellate Court, wherein the findings of the trial Court on the said questions have been confirmed. In the present second appeal, no questions of law were formulated when the appeal was admitted. However, earlier some time when the present appeal had come up for final hearing, the questions of law were supplied to the Court by the learned counsel for the appellants. The questions of law now urged center around only two points, namely;

(a) Whether the appellate Court was right in deciding the appeal without framing the questions for determination as required under Order XLI, Rule 31, Civil Procedure Code?, and

(b) Does the Civil Court have jurisdiction to adjudicate upon the question of tenancy in view of the bar created by sections 124 and 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958?

11. The learned counsel for the appellant relied upon the following judgments in support of the plea as to formulating the questions, also contending that failure to formulate the questions, amounts to non-application of mind. The learned counsel, therefore, relied upon reported judgment of this Court in , Janardhan Nago Patil v. Ramanand Ramdas Mishra, and on the question of non-application of mind, on , Rattan Dev v. Pasam Devi.

The learned counsel also urged a point as to the admissions contained in the pleadings about tenancy and for that purpose relied upon one of the reported judgments of this Court in , Kisan Pandurang Varkad v. Jaising Maruti Varkad. This judgment has been relied upon in order to show that once the landowner admits the status of the tenant in the plaint, on showing by the plaintiff in the plaint itself, the status of the tenant was liable to be accepted as such and the suit ought to have been dismissed. There could be no dispute and controversy on this proposal, but for the variant facts in this case. Though now it is being urged that the defendant No. 1 is a tenant, this contention is raised, on the face of the loss of said plea before the Court of competent jurisdiction and the said judgment being confirmed upto this Court. The judgment in the case of Kisan Pandurang Varkad (supra) is of no use and avail to the present appellant in view of the fact that though the lease is admitted which is a matter of transaction inter-vivos, the tenancy being a status in law, it is already ruled out by the judicial adjudication as referred hereinbefore.

12. The emphasis of the learned counsel for the appellants on the reported judgments Rattan Dev and Janardhan Nago (supra) are on the question firstly, as to non-application of mind and secondly, the non-applicant as emerging from failure of the appellate Court, to formulate the question as required by Rule 31 of Order XLI, Civil Procedure Code needs to be dealt with.

13. True it is that while examining a judgment and decree of the first appellate Court, while hearing a second appeal for admission, failure to formulate the questions as required under Rule 31 of Order XLI of Civil Procedure Code, does indisputability constitute a substantial question of law. Upon admission of a second appeal, however, when the High Court examines the question of reversal of a decree, the Court has to examine whether on account of failure of the first appellate Court to formulate the questions as required by Rule 31 of Order XLI of Civil Procedure Code, has resulted into miscarriage of justice and as complained in the present case where it emerges a situation that thereby the appellate Court has failed in application of mind.

Section 99 of Civil Procedure Code cannot be lost sight of while considering the question as to whether, on account of failure to formulate the questions for determination as required under Rule 31 of Order XLI, Civil Procedure Code, injustice has been caused.

The present case, therefore, will have to be examined in the light of the constraints as imposed by Section 99 of Civil Procedure Code.

14. The issue which is res integra in the present case, therefore, is the question of tenancy which squarely lay beyond the jurisdiction of the Civil Court as mandated by sections 124 and 125 of the Tenancy Act referred to above, and this mandate of law has been duly respected by the Courts below inasmuch as the question of tenancy as adjudicated by a competent forum under the said Act, has been adjudicated upon. The appellant has failed to address and make out a case as to how in spite of the judgment of M.R.T. which had gained the finality upto this Court, again the same question is required to be either referred to the Tenancy Court or is required to be adjudicated afresh.

It is in this background, the objection to the decree of the appellate Court as to failure to formulate the questions relating to the issue Nos. 3 and 5 as were before the trial Court relating to the lease and tenancy, will have to be examined.

15. As has already been referred to in this judgment hereinbefore, the question of tenancy was not agitated before the first appellate Court in view of the judgment of the M.R.T. it was not open, as well as what has been observed by the appellate Court in paragraph No. 5 of the judgment which is quoted hereinbefore, wherein the learned counsel for the appellant restricted his submissions only to the legality of the adoption, the appellate Court was guided by the following situations:

(i) Appellant did not agitate the issue of tenancy in the memo of appeal.

(ii) On the contrary, relying on the judgment of M.R.T. did set up a plea analogous to the adverse possession.

(iii) Judgment of M.R.T. was sought to be interpreted and criticized while it had gained the finality up to the level of High Court.

(iv) All other issues than the adoption, were given up by the learned counsel representing the appellant before the District Court.

In view of the aforesaid guiding yardstick available to the first appellate Court, the first appellate Court had framed the question only relating to the adoption and none other. The question as to whether the appellate Court was required to formulate the questions as to tenancy is primarily led and guided by the contents of the grounds of appeal or memorandum of appeal as presented before the first appellate Court, and later upon as to what has been urged before the first appellate Court in the course of submissions. It is in this background, the question as to whether the failure of the appellate Court to formulate the questions as contemplated by Rule 31 of Order XLI of Civil Procedure Code will have to be addressed.

16. While answering and countering the submissions of the learned counsel for the appellant, the learned counsel Shri A.M. Bapat appearing for the original plaintiff, relied upon reported judgment of this Court in 1980 Mh.L.J. 466, Dhondbaji Raoji Jadhav v. Krishnabai Gopalrao Raje. This is relied upon in order to demonstrate that law did not preclude the present respondent-original plaintiff from filing a suit as a necessary corollary of Section 120(c) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 or other remedy available under the said statute. In view of the reported judgment cited above, there is no dispute that the suit comes out of the clouds, however, the objection to the suit as raised by the appellant is only about the requirement, as alleged, of reference of the issue to the Tenancy Court and in the light of this, though reliance is rightly placed by the learned counsel of the appellant on the aforesaid judgment, no detailed discussion on this is required.

17. The learned counsel Shri A. M. Bapat also placed reliance on reported judgment in , Ram Singh v. Ajay Chawala, in order to contend that whenever findings of facts were recorded concurrently, judgment was not liable to be interfered even if it may have been rendered on the face of lack of jurisdiction. The case in hand before Their Lordships of the Supreme Court was in relation to building which was a house, moreover, in the present case, as is held hereinafter that the question of tenancy being already adjudicated by the Court of competent jurisdiction, was neither liable to be referred nor has the Civil Court itself tried to adjudicate it, no jurisdictional error can be found out attributable to the Civil Court. The judgment cited by Mr. Bapat is, therefore, of no avail in the present case.

18. Upon examination of the submissions referred to above and discussion of judgments relied upon by appellants, I have come to a conclusion that the appellate Court's judgment cannot be regarded to be fallible on account of failure to formulate and address upon all the issues. As referred to in this judgment, the question being examined at the time of reversal of the decree, would always be whether such reversal being done on account of any technicality. It shall be useful to refer Section 99, Civil Procedure Code which is quoted below for reference :

"99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction:- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: Provided that nothing in this Section shall apply to non-joinder of a necessary party."

It is, thus, obvious that a judgment of 1st appellate Court as well is not liable to be set aside on account of any error or defect or irregularity in any suit or appellate proceedings or judgment "not affecting the merits of the case or the jurisdiction of the Court." Section 99, Civil Procedure Code has been interpreted by various High Courts from Privy Council and the Hon'ble Supreme Court, as well. The construction thereof is impelled for avoiding unnecessary cost and inconvenience to the litigant as well as avoiding the situation of setting aside the judgment on account of technicality when the judgment and decree otherwise does not affect the merits of the case, It shall be useful to simply refer to the judgment on this point and shall not be necessary to discuss each one in detail. It shall suffice only to refer to certain precedents on Section 99, Civil Procedure Code namely :-

(i) , Muhammad Husain Khan and Ors. v. Babu Kishva Nandan Sahai, (ii) , Kiran Singh and Ors. v. Chaman Paswan and Ors., (iii) , R.S. Maddanappa v. Chandramma and Anr., (iv) , Chaturbhuj Pande and Ors. v. Collector and (v) , George v. Thekkekkara Vereed.

19. It is, therefore, liable to be held that in the present case, the appellate Court's judgment is not liable to be regard as illegal or otherwise contrary to the principles of justice and suffering from non-application of mind on account of its failure to comply with Order XLI, Rule 31 of Civil Procedure Code. It is also considered necessary to record that in view of Section 99 of Civil Procedure Code, the judgment impugned is not liable to be reversed on account of the said failure as the appellant has failed to demonstrate that the judgment and decree under appeal are wrong on merits and resulting in injustice. No substantial question of law is involved in this case on which the impugned judgment can be reversed. In the result, the appeal fails. Same is dismissed with costs throughout.