Gajanan S/O Govind Mokalkar vs Jagdeo S/O Ganpat Warankar
2005 Latest Caselaw 1508 Bom

JUDGMENT

R.C. Chavan, J.

1. This second appeal by the original plaintiff was admitted for considering the following four substantial questions of law:

(i) Whether in the facts and circumstances of the case, issue as regards tenancy bona fide arises for determination by the Tenancy Court in view of the law laid down by this Hon'ble Court in 1974 Mh.L.J page 548 and 1982 Mh. L.J. page 6641

(ii) Whether alternative plea of the defendant alleging tenancy without giving any details thereof, not taken bona fide, and the absence of even a reference to the alleged tenancy in the defendant's deposition, warrants remitting of an issue regarding tenancy to the Tenancy Court?

(iii) Whether the observations of the lower Court on issue Nos. 7 and 8 regarding tenancy in para 14 of the judgment, amount to determination of the said issues or deletion of those issues in the face of explicit observation that those issues do not survive?

(iv) Whether the trial Court had no other alternative but to remit issue Nos. 7 and 8 regarding alleged tenancy to the tenancy Court in view of the observations of this Hon'ble High Court in C.R.A. No. 469/74, regarding of the fact that pleadings of the defendant and other material on record, do not warrant framing of such issues and their survival and regardless of the law laid down by this Hon'ble Court that in such cases, such issues need not be framed and if framed, need not be remitted to tenancy Court as they do not warrant consideration?

2. The question arose in the following set of facts. The suit property being 3 acres of land out of 10 acres, 34 gunthas bearing Survey No. 160/3 had been purchased by Shantabai by a registered sale-deed from her own husband on 2-5-1968. On the same day, Shantabai had executed a consent deed in favour of her husband, granting him divorce. A sum of Rs. 1,500/- was shown to have been paid by Shantabai's husband towards this consent deed. This, in fact, a sum of Rs. 1,500/- never left the pocket of Shantabai's husband. Shantabai neither received it nor passed it on to her husband again as a consideration for 3 acres of land, which was purchased from her husband on 2-5-1968. Shantabai's husband - the defendant - continued to cultivate the field on behalf of Shantabai and used to pass on the income from the land to her. Shantabai's husband wanted Shantabai to re-convey the field and, therefore, started pressurizing her. Shantabai, who had continued to reside in her husband's house even after divorce, was driven out of the house. She was also served with a notice alleging that the sale-deed was bogus and nominal. Plaintiff Shantabai was dispossessed. Therefore, she filed the said suit for recovery of possession of the suit property.

3. Plaintiff Shantabai died during the pendency of the suit and on the strength of the Will executed by her, Gajanan Govinda Mokalkar - her brother -prosecuted the suit.

4. By filing written statement, among other defences, the defendant contended that he was the tenant of the suit land and had paid rent to the plaintiff. The learned Trial Judge framed the necessary issues, including the one of tenancy, and by an order dated 9th September, 1974 referred the issue to Tenancy Court. The order was challenged before this Court and on 28th February, 1975, this Court set aside the order observing as under:

I am, therefore, inclined to hold that considering the facts of the instant case, the learned Judge acted with material irregularity in ordering the reference immediately without determining the question of ownership. I would, therefore, set aside the order and direct that he should first try issues raised on behalf of the defendant as regards the title. If the Court comes to the conclusion that the defendant could not substantiate his defence and that the plaintiffs title was established, then he should refer the contentions of the defendant as regards the tenancy to the Tenancy Court.

5. When the matter came back to the Trial Court, the Court recorded findings on all the issues after hearing the parties holding that the plaintiff had proved the title to the property and the sale-deed. The defendant had failed to prove the defences raised by him. The defendant's claim of being a protected tenant did not survive and, therefore, decreed the suit.

6. While allowing the defendant's appeal, the learned 2nd Additional District Judge, Akola, held that in view of the order passed in revision by the High Court, after deciding the issue of title, it was necessary for the learned trial Judge to refer the tenancy issue to the Tenancy Court. She, therefore, allowed the appeal, set aside the decree passed by the trial Court and directed the trial Court to comply with the order passed by this Court in CRA No. 469 of 1974. Aggrieved thereby, the present second appeal has been filed.

7. I have heard Shri V.V. Deo, the learned Counsel for the appellant, and Shri V.K. Paliwal, holding for Shri R. L. Khapre, the learned Counsel for the respondent. It is true that this Court had held in CRA No. 469 of 1974 that the Trial Judge should first try the issue raised by the defendant as regards title and that if the Court came to the conclusion that the defendant could not substantiate his defence and that the plaintiffs title was established, then he should refer the issue as regards tenancy to the Tenancy Court. The learned Civil Judge has instead of referring the issue of tenancy to the Tenancy Court, held that the issue did not survive. The learned Judge observed that the plea of tenancy was taken as an alternative plea along with that of ownership. Relying on a decision of this Court in the case of Nilesh Construction Company and Ors. v. Gangubai Bablya Choudhary and Ors. reported in 1982 Mh.LJ. 664, the learned Civil Judge held that it was necessary for him to see whether there was enough material on record for making a reference of tenancy issue to the Tenancy Court. The learned Trial Judge observed in para 15 of his judgment that the defendant in his own evidence at Exhibit 119 had nowhere stated that he was a tenant in the suit land. Therefore, the learned Civil Judge refused to make a reference to the Tenancy Court.

8. Instead of examining the correctness of conclusions drawn by the learned Civil Judge on this issue as well as other issues, the learned 2nd Additional District Judge seems to have insisted upon literal compliance of order passed by this Court in CRA No. 469 of 1974. While doing so, the learned Judge overlooked the requirement that as the final Court of fact, the District Court was required to record findings on all points raised. Therefore, the approach of the learned 2nd Additional District Judge was not proper.

9. The learned Counsel for the appellant submitted that in the case of Pulmati Shyamlal Mishra and Anr. v. Ramkrishna Gangaprasad Bajpai and Ors. reported in 1981 Mh.LJ. 321, this Court had categorically ruled that the Civil Court is not under any obligation to frame and remit an issue of tenancy mechanically merely on the same being raised in the written statement. Unscrupulous pleas of tenancy just to perpetrate unmerited possession can be an integral part of fraudulent defences. Unwarranted remittance of such issue for trial in literal and mechanical compliance with the provisions enables the litigants to abuse the process of the Court, making mockery of the judicial process. The Court, therefore, held that a Civil Court may seek clarification of the bald pleadings, insist on production of documents in doubtful cases and get explanation for the adverse factors before making a reference. In the instant case, as pointed out by the learned Counsel for the appellant, the defendant had not uttered a single word in his evidence that he was a tenant of the plaintiff. The facts enumerated would show that he had continued in possession even after the transfer of land to his wife on her behalf, since the land was obviously transferred to provide the wife with some security, when the defendant was putting and end to his matrimonial relations with the plaintiff. Therefore, the mechanical insistence of the learned 2nd Additional District Judge on remitting the issue to Tenancy Court was improper. Hence, the following order.

10. The appeal is, therefore, allowed. The judgment and decree passed by the learned 2nd Additional District Judge, Akola, is set aside. Instead, the matter is remitted back to the learned 2nd Additional District Judge to hear it afresh on all the contentions raised in the memo of appeal except, of course, the question as to whether the defendant was a tenant.

The parties to appear before the learned 2nd Additional District Judge, Akola, on 6th February, 2006.

The learned Judge shall endeavour to dispose of the appeal as early as possible.

R. and P. be sent back to the Appellate Court.