Bombay High Court
In The High Court Of Judicature At ... vs Unknown on 7 December, 2011
Bench: A. B. Chaudhari
sa538.05.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.538/2005
APPELLANTS :- 1. Sambhugir Sansthan Trust,
(Ori. Plffs) Dhotardi, Tq. & Dist. Akola,
Through its Trustees.
2. Ramdas Namdeo patil,
Aged Adult,
3. Milind Pundlikrao Patil,
Aged Adult,
4. Prakash Shriram Warankar,
Aged Adult,
5. Lalitkumar Shriram Mahalle,
Aged Adult,
6. Tulshiram Pandhari Ranpise,
Aged Adult,
All Agriculturist, R/o Dhotardi,
Tq. & Dist. Akola.
...VERSUS...
RESPONDENTS :- 1. Gopal Tulshiram Vidhate
(Ori. Defts) Aged Adult, Occ. Agriculturist.
2. Yogesh Gopal Vidhate,
Aged Adult, Occ. Agriculturist.
3. Ganesh Gopal Vidhate,
Minor by natural guardian
mother, Sau. Manubai Gopal Vidhate
Now Major.
4. Wasudeo Ramchand Gaigol,
Aged 59 years, Occ. Agriculturist.
All R/o Dhotardi, Tq. & Dist.
Akola.
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[Shri M.N. Ingley, Adv. for appellants]
[Shri C.R. Najbile, S.V. Sirpurkar, Advs. for respdt. nos.1 to 4]
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CORAM : A.B. CHAUDHARI, J.
Date of reserving the judgment: 22.09.2011
Date of pronouncing the judgment: 7.12.2011
J U D G M E N T
1. Heard. Admit. Taken up for final disposal in
view of the fact that the appeal is pending since 2005
only for admission and it relates to the litigation
which is old.
2. Being aggrieved by the judgment and decree
dated 23.2.2005, passed by the 4th Ad hoc Additional
District Judge, Akola in Regular Civil Appeal
No.166/2002 by which the appeal preferred by the
appellants was dismissed and the judgment and decree
dated 29.6.2002, passed by the III Jt. Civil Judge
(Jr. Dn.), Akola in Regular Civil Suit No.181/1997 was
upheld, the present second appeal has been filed by
the original plaintiffs/appellants.
3. Shambhugir Sansthan Trust, Dhotardi a
registered Trust through its five trustees filed a
suit for declaration and possession vide Regular Civil
Suit No.181/1997 against the respondents/original
defendants in the Court of Civil Judge, Senior
Division, Akola on 14.2.1997. The plaint allegations
are that plaintiff no.1 Public Trust was registered
as Public Trust by order dated 16.5.1958, passed by
the Registrar acting under the Madhya Pradesh Public
Trusts Act and consequently, was registered on
21.2.1964 after coming into force of the Bombay Public
Trusts Act, 1950. The agricultural lands bearing
Survey
no.60/2, admeasuring 7.21 acres and
agricultural land bearing Survey no.35/4, admeasuring
4.33 acres of village Dhotardi is owned by plaintiff
no.1 Public Trust and accordingly entry to that is
also to be found in Schedule I Public Trust register
which entry is final and conclusive. One Tulshiram
Sambhaji Vidhate claiming to be the protected tenant
of the Trust over the said suit lands in collusion
with the Tenancy Tahsildar got both the lands
transferred in his name by way of compulsory transfer
of ownership to a tenant under Sections 46 and 48 of
the Bombay Tenancy and Agricultural Lands (Vidarbha
Region) Act, 1958 (for short, hereinafter referred to
as the Tenancy Act ) in two revenue proceedings i.e.
Revenue Case nos.1087/59(13)/Dhotardi/63-64 and
1076/59/13/63-64 of village Dhotardi in respect of the
said two fields by playing fraud and in collusion with
one of the Trustees by name Pundlik Raoji Patil by
orders dated 30.9.1966. The defendants are the sons of
Tulshiram and subsequent transferees from them. In
both above proceedings i.e. Revenue Case
nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of
village Dhotardi, the landlord who was shown to have
been given notice of those proceedings was Gajanan
Sansthan, Dhotardi and not Shambhugir Sansthan i.e.
plaintiff no.1. Both these orders are thus void ab
initio and not binding on plaintiff no.1 Public
Trust. The said orders were passed without holding any
enquiry by Tahsildar and none of the Trustees who were
alive at that time and who were recorded in the Public
Trust register were given notices except Pundlik
Patil, who colluded with Tulshiram. The said order
dated 30.9.1966 in both revenue cases i.e.
Revenue Case nos.1087/59(13)/Dhotardi/63-64 and
1076/59/13/63-64 of village Dhotardi are thus void ab
initio and nullity and therefore, the civil Court has
jurisdiction to examine the validity thereof. The
transfer of lands subsequently to others by the sons
of Tulshiram in violation of Section 57 of the Tenancy
Act was also illegal and the suit lands were liable to
be forfeited.
4. With the above factual background, prayers
were made for declaring the orders in Revenue Case
nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of
village Dhotardi as null and void and not binding on
the Trust and that the defendants have no right over
the suit properties. After the death of Shambhugir
Guru Ramgir in the year 1945-46 the State Government
took possession of the suit lands and continued to
auction the same every year till the year 1966-61 for
cultivation and thereafter the lands were handed over
to the Trust.
Defendant nos.1 to 3 filed their written
statement to the plaint. They stated that on 30.9.1966
the Tenancy Tahsildar had made legal and valid
adjudication between plaintiff no.1 Trust and
Tulshiram; a tenant. Allegations about collusion and
fraud were denied in toto. It was then stated that the
suit in question was a second round of litigation just
to cause harassment to the defendants inasmuch as
earlier Regular Civil Suit No.216/1996 was filed by
plaintiff no.1 Trust against the defendants for
permanent injunction with the same subject matter in
the suit, namely the suit fields and the same parties.
In that suit, application (Exh.17) for dismissal of
the suit for want of jurisdiction of the civil Court
was allowed by the Civil Judge, Junior Division, Akola
on 29.10.1996 and the said order in the said civil
suit therefore operates as res judicata or bar for
fling the instant suit. It was then stated that in the
instant suit, names of the Trustees have been added
and that is the only difference and no other. The
defendants also raised an objection that the orders
sought to be declared as null and void dated 30.9.1966
in the said two proceedings i.e. Revenue Case
nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of
village Dhotardi under the provisions of the Tenancy
Act could be challenged only under the provisions of
the said Act and the said Act being a Special Act, the
jurisdiction of civil Court is completely barred under
Section 124 of the Tenancy Act. Apart from that for
the relief claimed by the plaintiffs, remedy is
available under the provisions of the Tenancy Act and
accordingly the plaintiffs had challenged the orders
under the Tenancy Act in the present subject matter up
to the High Court and had lost in all proceedings and
thus all those orders have become final and conclusive
qua the issue of tenancy and the ownership of the
deceased Tulshiram, who died in the year 1991.
Therefore, the suit was instituted clearly out of
mala fides and is required to be dismissed with costs.
5. Parties filed several documents on record of
the trial
Court and also tendered evidence. The
learned trial Court heard the parties on the question
of jurisdiction of the civil Court and dismissed the
suit holding that it had no jurisdiction. The lower
appellate Court confirmed the said decree. Hence, this
second appeal.
6. In support of the appeal, learned Counsel
for the appellants made the following submissions.
(i) The Courts below committed an error in
holding that the civil Court had no jurisdiction
ignoring the fact that the orders passed by the
Tenancy Tehaildar if are found to be without
jurisdiction, null and void, jurisdiction of the civil
Court is not barred. He relied on the decisions in the
case of Madhav Kesu Khupse...Versus...Sundrabai
Mugutrao Phadatare since deceased by heirs Krishna
Dagdu Khuspe and others, reported in 1978 Mh.L.J. 289
and Chandbi Amirshah and others...Versus...Narayan
Karnoo Lengure, reported in 1987 Mh.L.J. 143.
(ii) The Courts below have not looked
into the orders passed under the provisions of the
Madhya Pradesh Public Trusts Act and the Bombay Public
Trusts Act in relation to plaintiff no.1 Public
Trust, wherein there is a clear mention about the
number of five Trustees at inception so also the suit
properties belonging to the Public Trust. Admittedly,
only Pundlik Patil was noticed before the Tenancy
Tahsildar and other Trustees mentioned in the Schedule
of the Trustees were never summoned. Therefore, in the
face of the fact that all Trustees are required to be
parties to such proceedings, the said order dated
30.9.1966 in Revenue Case nos.
1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of
village Dhotardi are illegal and not binding on the
Trust.
(iii) In both proceedings i.e. Revenue
Case nos.1087/59(13)/Dhotardi/63-64 and
1076/59/13/63-64 of village Dhotardi, the landlord was
Gajanan Sansthan, Dhotardi and not Shambhugir
Sansthan, Dhotardi and there is a certificate on
record from Grampanchayat to show that there is no
Gajanan Sansthan at Dhotardi.
(iv) The suit lands were under the
control of the State Government till the year 1966
which used to auction the lands for cultivation every
year and therefore, there could be no tenancy much
less valid tenancy in favour of Tulshiram before 1966.
(v) No enquiry for conferring tenancy
on Tulshiram was at all made as required by law.
(vi) The Trust was having Exemption
Certificate dated 30.3.1960 under Section 129 (b) of
the Tenancy Act and therefore, on 30.9.1966 no orders
conferring ownership on the alleged tenant could be
passed. Hence, the said order is null and void and not
binding on the Trust.
(vii) Subsequent transfer by Tulshiram's
sons is in violation of Section 57 of the Tenancy Act.
(viii) Civil Suit No.216/1996 was
dismissed for want of jurisdiction of the civil Court
and the same was not for declaring the orders dated
30.9.1966 as illegal or void ab initio.
(ix) Under Section 54 of the Tenancy Act,
tenancy is not heritable in respect of the land held
by the Public Trust as decided by the Supreme Court in
the case of Shriram Mandir Sansthan @ Shri Ram
Sansthan Pusda...Versus... Vatsalabai and others,
reported in 1999 (1) Mh.L.J. 321 and therefore, the
orders are illegal and at any rate the present
defendants cannot continue to hold the suit lands.
(x) The civil Court has jurisdiction
in such matters in view of the peculiar facts stated
above.
Learned Counsel for the appellants,
therefore, prayed for decreeing the suit by allowing
the appeal.
7. Per contra, learned Counsel for the
respondents vehemently opposed the appeal and argued
that the present litigation is an abuse of process of
law. The appellants had filed earlier suit and had
lost in the same subject matter and between the same
parties again the instant suit was filed. Earlier
civil suit having been dismissed, the same is bound to
operate as res judacata and thus barred the present
suit. The issue being the same, the Courts below were
right in dismissing the suit. Apart from this fact
Section 124 of the Tenancy Act clearly barred
jurisdiction of the civil Court as remedies are
available under the provisions of the Tenancy Act and
as a matter fact, statement was made by the learned
Counsel for appellant no.1 before this Court when Writ
Petition Nos.295/1992 and 296/1992 were decided by
this Court on 17.1.1996, that the appellants would
approach the competent Forum under the Tenancy Act for
the grievances made in those petitions. The said
judgment of the High Court also cannot be ignored and
would operate as bar for entertaining the civil suit.
Finally, the learned Counsel for the respondents
prayed for dismissal of the appeal with costs.
8. I have perused the entire record and
proceedings. I have heard learned Counsel for the
rival parties at length. Having heard learned Counsel
for the rival parties, following substantial questions
of law arise for my determination.
(1) Whether the decision of this Court
dated 17.1.1996 in Writ Petition Nos.295/1992 and
296/1992 would bar Regular Civil Suit No.181/1997 ?
...No.
(2) Whether Regular Civil Suit No.181/1997
filed by the appellants for declaration and possession
in respect of the suit lands was barred as Regular
Civil Suit No.216/1996 was dismissed by order below
Exh.17 on the ground that the civil Court had no
jurisdiction in relation to issue of tenancy ?
...No.
(3) Whether the orders dated 30.9.1966 in
Revenue Case nos.1087/59(13)/Dhotardi/63-64 and
1076/59/13/63-64 of village Dhotardi, passed by the
Tenancy Tahsildar, conferring statutory ownership on
Tulshiram are void ab initio, nullity and not binding
on appellant no.1 Public Trust and whether the civil
Court can declare them so ?
...Yes.
(4) Whether the orders dated 30.9.1966 in
Revenue Case nos.1087/59(13)/Dhotardi/63-64 and
1076/59/13/63-64 of village Dhotardi are null and void
ab initio in view of the order of exemption dated
30.3.1966, below Exh.40, passed by the competent
authority, namely Sub Divisional Officer, Akola in
Revenue Case No.90/101/58-59, Dhotardi in respect of
suit survey nos.60/2 and 35/4 of Mouza Dhotardi ?
...Yes.
(5) Whether the jurisdiction of the civil
Court to entertain Regular Civil Suit No.181/1997 for
declaration and possession was barred by Section 124
of the Bombay Tenancy and Agricultural lands (Vidarbha
Region) Act, 1958 ?
...No.
(6) (i) Whether after the death of
Tulshiram, the alleged original tenant, tenancy was
heritable by his sons in the light of Section 54 of
the Tenancy Act ?
...No.
(ii) Whether therefore at least after
the death of Tulshiram the suit lands were required to
be restored to plaintiff no.1 Public Trust ?
...Yes.
9. As to question no.1 : - It is necessary to
have a look at various facts and evidences on record
before proceeding to deal with the questions
aboveframed.
10. It appears that Shambhugir Guru Ramgir died
somewhere in the year 1945-46, who had held the suit
lands and after his death since there was none to look
after, the Revenue Department of the Government took
over the suit lands and started auctioning the same
every year for cultivation. This is evident from the
communication
ig dated 29.5.1957 from the Revenue
Inspector in which it is stated that the suit lands
along with other lands were being auctioned every year
by the Government since 10 years after the death of
Shambhugir on cash Theka basis. It then appears that
(1) Pundlik Raoji Patil (2) Shrawan Narhari Gawande
and (3) Shankar Kashiram Guhe of Dhotardi had made an
application on 4.2.1956 with Schedule A of the
property showing the suit properties also with other
properties for registration of the Public Trust and in
para (iii) there is a statement that the Government is
in possession of the suit lands. The said application
was registered as Revenue Case No.1/15/55-56 of
Dhotardi and was decided on 30.10.1957 by the Deputy
Commissioner, Akola. By the said order, the suit
property was treated as Trust property and accordingly
application for registration was processed since the
legal Department of the Government by letter
No.20077/E dated 5.8.1957 opined that the property was
not of the Government but was of the Shamgir Trust.
Accordingly, the Registrar of the Public Trust made an
order on 16.5.1958 registering the Public Trust with
finding in para 3 (ii) (b) Immovable Property
mentioning
the two suit properties i.e. Survey
nos.35/4 and 60/2 of Dhotardi as Trust property. There
is further finding at para (iv) mentioning in all
first five trustees i.e. (1) Pundlik Raoji Sarpanch
(2) Tukaram Januji (3) Shankar Kashiram (4) Baliram
Gondaji and (5) Tulshiram Wayadwar. It is, thus, clear
that the suit properties are the Trust properties of
plaintiff no.1 - Shambhugir Sansthan and not of
Gajanan Sansthan Dhotardi.
11. It appears that the suit property was
transferred/sought to be transferred in contravention
of Section 57 of the Tenancy Act, 1958 and therefore,
some Trustees of appellant no.1 Trust had approached
Sub Divisional Officer, Akola under Sections 57 and
122 of the Tenancy Act against the respondents for
declaration that the said transfers were illegal and
void. The Sub Divisional Officer, Akola passed an
order on 10.8.1989 and held that the applications were
not tenable before him but Tahsildar was having
jurisdiction. The said order dated 10.8.1989 passed by
the Sub Divisional Officer was challenged before the
Maharashtra Revenue Tribunal, Nagpur which dismissed
the revisions by order dated 20.9.1991. Feeling
aggrieved
thereby, writ petitions, namely Writ
Petition Nos.295/92 and 296/1992 were filed by the
appellants before this Court. It appears that in the
meanwhile the Trustees had approached the Tahsildar,
who made an order on 29.9.1995 and rejected their
application filed by the Trust under Section 122 of
the Tenancy Act turning down the application for
declaring the transfer made by the alleged tenants as
invalid. That order of Tahsildar dated 29.9.1995 was
challenged before the Sub Divisional Officer who
dismissed the appeal by order dated 10.1.1996 and
maintained the order of Tahsildar dated 29.9.1995. It
appears that the learned Counsel for the appellants/
petitioners in those writ petitions made a statement
that the said order of Sub Divisional Officer in
appeal dated 10.1.1996 was revisable by the
Maharashtra Revenue Tribunal and therefore, this Court
observed, that it was open to the Trust to challenge
the said order of Sub Divisional Officer dated
10.1.1996, while delivering the judgment in the said
Writ Petition on 17.1.1996. These facts have been
obtained by me upon perusal of the copy of writ
petition and the judgment dated 17.1.1996 made by this
Court. It is, thus, clear that the said decision of
this Court dated 17.1.1996 pertains to the challenge
of the appellant/Trust, in relation to the transfer of
suit property by the tenants in violation of
Section 57 and for possession under Section 122 of the
Tenancy Act, as illegal and nothing more. I have
perused the averments in the plaint in Regular Civil
Suit No.181/1997 and find that the prayers are in
consonance with the pleadings, which I reproduce
below.
It is therefore prayed that the
Hon'ble court be pleased to declare that the
order passed by Tenancy Tahsildar in Rev.
case no.1076/59/13/63-64 of village Dhotardi
dtd. 30.6.66 and in Rev. case
no.1087/59(13)/63-64 of village Dhotardi
th
dt. 30 Sept. 1966 is nullity and was
obtained by fraud and is not binding on the
plff's trust.
B) it be declared that the deft.
No.1 to 4 have no right or interest in the
property.
C) the plffs be put in actual
physical possession of the property.
D) enquiry into future mesne
profit from the date of filing of the suit
till the actual delivery of the possession
of the property may kindly be directed to be
made.
E) Costs of the suit alongwith
any other relief may kindly be granted to
the plffs.
The prayers thus relate to the validity of
orders dated 30.9.1966 passed by Tenancy Tahsildar,
and have nothing to do with the averments in
W.P. Nos.295/1992 and 296/1992 nor the judgment dated
17.1.1996 of this Court shows any issue arising in the
plaint being raised or adjudicated. Hence, I answer
question no.1 in the negative.
12. As to question no.2 : - Perusal of the
plaint in Regular Civil Suit No.216/1996 shows the
grievance made by the plaintiff/Trust in the said
suit. It is stated therein that Writ Petition No.
295/1992 was decided by the High Court on 17.1.1996,
in which the High Court kept it open to the
plaintiff/Trust to take action before Tahsildar
against the defendants. In paragraph no.5 of the
plaint it is stated that defendants have no right to
transfer or sell the suit property to others belonging
to the Trust and the purchaser Wasudeo was likely to
claim the suit property on the basis of sale-deed
executed by the sons of Tulshiram so also by Bapurao
Mahalle and all these leases and sales were contrary
to law and illegal. The defendants in the suit were
trying to dispose of the suit property of the Trust in
violation of the provisions of the Tenancy Act and
therefore, they were required to be injuncted by
permanent injunction from transferring or selling the
suit properties. In other words, the said suit was
simplicitor suit for permanent injunction from
effecting the sales of the suit properties any further
by the children of the alleged tenant Tulshiram and
nothing more. This suit was dismissed by the trial
Court by order dated 29.10.1996, holding on
preliminary issue Exh.17 application that the civil
Court had no jurisdiction in view of the bar provided
by Section 124 of the Tenancy Act. To sum up, the
issue about the validity of orders dated 30.9.1966
passed by Tenancy Tahsildar was never the subject
matter of the said Regular Civil Suit No.216/1996 as
in Regular Civil Suit No.181/1987 in question. The
issue whether Tulshiram was a tenant or orders dated
30.9.1966
declaring him tenant and conferring
ownership on him were legal or not was not at all
involved in the Regular Civil Suit No.216/1996. It
appears that Regular Civil Suit No.216/1996 was filed
under legal advice instead of approaching Maharashtra
Revenue Tribunal after this Court on 17.1.1996 in W.P.
Nos.295/1992 and 296/1992 recorded the following
observations in its judgment in para 7.
7. Mr Bhavsar, the learned
counsel for applicant Trust submitted that
while rejecting the application filed by
the applicant Trust as not maintainable,
the Sub-Divisional Officer had two courses
open : (i) either to send the applications
filed by the applicant Trust before the
Sub-Divisional Officer to the concerned
Tahsildar for proper enquiry, or (ii) to
direct the applicant Trust to make fresh
application before the Tahsildar and in
any case, now the applicant Trust may be
permitted to make application before the
Tahsildar under Section 122 of the Tenancy
Act. The said contentions made by the
learned counsel for applicant Trust cannot
be entertained for the simple reason that
the Tahsildar, Akola had taken suo-motu
action
Trust
igon
under
the request
Section 122
of
of
the
the
applicant
Tenancy
Act, 1958 and by the order dated
29.9.1995, has rejected the contention
that such sale or transfers made by the
tenants were invalid. The Tahsildar,
however, observed that the matter was
pending before the High Court and the
judgment of the High Court would be
binding. The order passed by the Tahsildar
on 29.9.1995 was carried in appeal by the
applicant Trust before the Sub-Divisional
Officer and the Appellate Authority by the
order dated 10.1.1996 has rejected the
appeal and maintained the order passed by
the Tahsildar on 29.9.1995. Mr Bhavsar,
the learned counsel for applicant Trust
candidly conceded that the order passed by
the Sub-Divisional Officer, Akola on
10.1.1996 is revisable by the Maharashtra
Revenue Tribunal. That being the position,
it would be open to the applicant Trust to
challenge the order passed by the
Tahsildar on 29.9.1995 and confirmed in
appeal by the Sub-Divisional Officer on
10.1.1996 before the Maharashtra Revenue
Tribunal and on such challenge being made,
the Tribunal would decide the matter in
accordance with law.
For the above reason therefore question no.2
will have to be answered in the negative.
13. As to question no.3 :- Perusal of the orders
below Exhs.31 and 32 i.e. orders dated 30.9.1966 in
Revenue Case no.1087/59 (13)/Dhotardi/63-64 relating
to Survey no.60/2 and in Revenue Case
no.1076/59/13/63-64 of village Dhotardi relating to
Survey no. (not mentioned) (but according to the
respondents it is Survey no.35/4) show that landlord
is Gajanan Sansthan, Dhotardi through Wahiwatdar
Pundlikraoji Patil and not plaintiff no.1 - Shambhugir
Sansthan and paragraph no.2 of both these orders shows
that individual notices were sent to the said landlord
i.e. Gajanan Sansthan. That means Shambhugir Sansthan
which is the owner of these two suit survey numbers
was never a party to both the said tenancy proceedings
of conferral of ownership on Tulshiram. There is no
other order produced by the respondents anywhere on
the record of the civil Court alike Exhs.31 and 32 to
show that plaintiff no.1 Shambhugir Sansthan Trust,
Dhotardi was shown as a landlord and accordingly
notices were issued to the said Shambhugir Sansthan
plaintiff no.1. Thus, it is clear that both these
orders Exhs.31 and 32 which were challenged in the
suit in the very first prayer clause relate to
landlord Gajanan Sansthan and not the Shambhugir
Sansthan/Public Trust but then the suit lands
belonging to Shambhugir Sansthan were being treated as
the lands of which ownership was conferred on the
alleged tenant Tulshiram. It is, thus, clear that the
orders below Exhs.31 and 32 dated 30.9.1966 on the
basis of which tenancy/ownership was allegedly
conferred on Tulshiram did not at all relate to
Shambhugir Sansthan and therefore, the said orders in
relation to Shambhugir Sansthan which were sought to
be declared as null and void and not binding on the
Trust, were liable to be so declared and needless to
say that they were nullity as against plaintiff no.1
Shambhugir Sansthan. Question no.3 will have to be
therefore answered in the affirmative.
14. As to Question no.4 :- Perusal of the record
of the lower Court shows that there is order of
exemption dated 13.3.1960 below Exh.40 in Revenue Case
No.90/101/58-59, Dhotordi by the Sub Divisional
Officer, Akola. Section 129 (b) of the Bombay Tenancy
And Agricultural Lands (Vidarbha Region) Act, 1958
reads thus :
Section 129. Nothing in the
foregoing provisions except section 2, the
provision of Chapter II (excluding
sections 21, 22, 23, 24 and 37) and
section 91 and the provisions of
Chapters X and XII in so far as the
provisions of the said Chapters are
applicable to any of the matters referred
to in sections mentioned above shall
apply-
(a) .........
(b) to lands which are the property
of a trust for an educational purpose,
hospital, Panjarpole, Gaushala, or an
institution for public religious worship,
provided the entire income of such lands
is appropriated for the purposes of such
trust.
15. It is clear from the above that the said
provision is a provision providing exemption from the
application of provisions of Tenancy Act. The said
exemption order below Exh.40, passed by the Sub
Divisional Officer on 30.3.1960 is not in dispute and
therefore, it is abundantly clear that in the wake of
exemption obtained by plaintiff no.1 - Shambhugir
Sansthan, the question of conferring ownership on
Tulshiram after exemption order was passed i.e. on
30.9.1966 did not arise. In other words, the Tenancy
Tahsildar did not at all bother to find out whether
there was any exemption obtained by the Trust before
he made orders dated 30.9.1966. In so far as the
Trustees of plaintiff no.1 Trust are concerned, the
following evidence of P.W.1 Ramdas has gone totally
unchallenged in the cross-examination.
Deosthan received a certificate
under Section 129 of the Bombay Tenancy and
Agricultural Lands (Vidarbha Region) Act in
its name. But this fact came to my notice
for the first time on 27.1.1997 when I
inspected the Trust records with the office
of Charity Commissioner. I had paid
inspection fees vide Exh.33.
Tenancy Tahsildar therefore had no authority
in law to make any order conferring tenancy or
ownership on any tenant. Therefore, the orders dated
30.9.1966
in both proceedings, namely Revenue Case
Nos.1087/59 (13)/Dhotardi/63-64 and 1076/59/13/63-64
of village Dhotardi were passed without jurisdiction
and without any authority vested in the Tenancy
Tahsildar as the suit lands were clearly exempted from
the provisions of Tenancy Act. It is not in dispute
that the plaintiffs pleaded 'fraud' in the plaint and
P.W. 1 - Ramdas has also given enough evidence about
it. The decision of Apex Court in the case of A.V.
Papayya Sastry and others...Versus...Govt. of A.P. and
others, reported in 2007 (4) Supreme Court Cases 221,
and in particular the paras 22, 26, 38, 39 and 40
would be apt to quote :
22. It is thus settled
proposition of law that a judgment, decree
or order obtained by playing fraud on the
court, tribunal or authority is a nullity
and non est in the eye of the law. Such a
judgment, decree or order by the first
court or by the final court has to be
treated as nullity by every court,
superior or inferior. It can be challenged
in any court, at any time, in appeal,
revision,ig
proceedings.
writ or even in collateral
26. Fraud may be defined as an
act of deliberate deception with the
design of securing some unfair or
undeserved benefit by taking undue
advantage of another. In fraud one gains
at the loss of another. Even most solemn
proceedings stand vitiated if they are
actuated by fraud. Fraud is thus an
extrinsic collateral act which vitiates
all judicial acts, whether in rem or in
personam. The principle of finality of
litigation cannot be stretched to the
extent of an absurdity that it can be
utilised as an engine of oppression by
dishonest and fraudulent litigants.
38. The matter can be looked at
from a different angle as well. Suppose, a
case is decided by a competent court of
law after hearing the parties and an order
is passed in favour of the plaintiff
applicant which is upheld by all the
courts including the final court. Let us
also think of a case where this Court does
not dismiss special leave petition but
after granting leave decides the appeal
finally by recording reasons. Such order
can truly be said to be a judgment to
which Article 141 of the Constitution
applies. Likewise, the doctrine of merger
also gets attracted. All orders passed by
the courts/authorities below, therefore,
merge in the judgment of this Court and
after such judgment, it is not open to any
party to the judgment to approach any
court or authority to review, recall or
reconsider the order.
39. The above principle,
however, is subject to exception of fraud.
Once it is established that the order was
obtained by a successful party by
practising or playing fraud, it is
vitiated. Such order cannot be held legal,
valid or in consonance with law. It is
non-existent and non est and cannot be
allowed to stand. This is the fundamental
principle of law and needs no further
elaboration. Therefore, it has been said
that a judgment, decree or order obtained
by fraud has to be treated as a nullity,
whether by the court of first instance or
by the final court. And it has to be
treated as non est by every court,
superior or inferior.
40. Hence, the argument of
Mr Venugopal cannot be upheld. Even if he
is right in submitting that after
dismissal of SLPs, the respondent herein
could not have approached the High Court
for recalling its earlier order passed in
April 2000 and the High Court could not
have entertained such applications, nor
the recalling could have been done, in the
facts and circumstances of the case and in
the light of the finding by the High Court
that fraud was committed by the landowners
in collusion with the officers of the Port
Trust Authorities and the Government, in
our considered view, no fault can be found
against the approach adopted by the High
Court and the decision taken. The High
Court, in our opinion, rightly recalled
the order, dated 27-4-2000 and remanded
the case to the authorities to decide the
same afresh in accordance with law.
The plea of the respondents that the
litigation had earlier attained finality and the
Courts cannot reopen the 'lis' is thus not acceptable
to me.
The prayers made to declare those orders
dated 30.9.1966 as null and void and not binding on
the Trust and being without jurisdiction, were thus
perfectly maintainable in the civil suit in the light
of the above discussion. Hence, question no.4 will
have to be answered in the affirmative.
16. As to question no.5 :- As to the bar of
entertaining civil suit by Civil Court, the law is
well settled and it would be appropriate to cite the
Statement Of Law made by the Hon'ble Chief Justice
Mr. M.C. Chagla in the case of Husein Miya
Dosumiya...Versus...Chandubhai, reported in 1955
Bom. L.R. 946.
In Husein Miya Dosumiya...
versus.... Chandubhai, the order of the
Mamlatdar passed under the said Act was
challenged as ultra vires. In that case,
an application was made by the landlords
for possession against their tenant under
section 29 of the said Act to the
Mamlatdar and a consent order was taken on
24th August, 1948, by which the tenant
agreed to hand over possession to the
landlords. According to the tenant in that
case, there was fresh tenancy agreement
between him and the landlords and that was
in July 1949 and by reason of the fresh
tenancy the tenant continued to remain on
the lands and the landlords never took
possession of them. It was further the
case of the tenant that in July 1950 he
exchanged with the
landlords the lands demised to him with
consent of the
the same area of the lands which had been
demised to another tenant. On 15th February
1952, the landlords applied to the
Mamlatdar to execute the order of 24th
August 1948. On 22nd March 1952, the
tenant filed an application before the
Mamlatdar stating that he was a tenant of
the landlords under a new agreement and
that he should not be dispossessed. On
17th March 1952, the Mamlatdar ordered the
tenant to hand over possession of the
lands, in execution of the order dated
24th August 1948 and on 20 March 1952 the
landlords took possession of the lands
from the tenant. On 22nd March 1952, the
tenant applied to the Mamlatdar under
section 29 (1) for possession alleging
that he was a tenant of the landlords, and
on 9th August 1952, the Mamlatdar made an
order in favour of the tenant and he
directed that possession be given to him
on 16th August 1952. On 15th August 1952
the landlords filed a suit in the Civil
Court contending that the order passed by
the Mamlatdar on 9th August 1952 was
invalid and ultra vires and asked for an
injunction against the tenant preventing
him from taking possession of the lands
from
them.
of the
While
said
interpreting
Act ousting
section
the
jurisdiction of the Civil Court, the
learned Chief Justice Mr. M.C. Chagla
observed:-
It is clear that the
jurisdiction of the Civil Court has
been only ousted in respect of
valid orders made by the Mamlatdar.
It is only when the Mamlatdar makes
an order with jurisdiction, or, in
other words, makes an order for the
purposes of the Act or an order
required by the Act, that that
order cannot be questioned in a
Civil Court. If the Mamlatdar
while passing a valid order deals
with any of the matters under
section 70, then those matters
cannot be dealt with by the Civil
Court. But if the order made by
the Mamlatdar is not for the
purposes of the Act or not required
by the Act and the order is
incompetent or ultra vires, then
the order is a nullity and it can
be challenged in a Civil Court.
While dealing with the argument
in
that case that it
landlords to prefer an appeal against the
was open to the
decision of the Mamlatdar and that instead
of preferring an appeal they had filed a
suit in a Civil Court, the learned Judges
posed a question whether the fact that a
statute provides for a right of appeal
against an order made by an authority set
up under that statute would make any
difference to the position when the order
made by the authority is an invalid or
ultra vires order. The learned Judges
answered that question and the arguments
as follows:-
It is clear that if the order itself
is ultra vires it is a nullity and there
is no obligation upon a party against whom
the order is made to prefer an appeal
against that order. The appeals that are
provided for under section 74 are strictly
appeals against valid orders made by the
Mamlatdar and orders made with
jurisdiction. It may be that the
Collector could have corrected the
Mamlatdar and could have held that the
order of the Mamlatdar was ultra vires.
But the question is not whether the
opponents (landlords) could have appealed
to the Collector and could have got the
the
necessary relief.
opponents
The question is whether
(landlords) are bound to
appeal and prevented or precluded from
going to a Civil Court. In our opinion,
on principle it is erroneous to argue that
merely because a statute provides for a
right of appeal, the party against whom
the order is made is bound to appeal
although the order made is a nullity. If
the order is a nullity, the party is
entitled to ignore it, to treat it as
waste paper, and to go to a Civil Court
for a declaration that the order is a
nullity and no action should be taken
against the party under that order which
would prejudice his rights.
In the case of Shri Gopinath s/o Ganpatrao
Pensalwar...Versus...State of Maharashtra & Anr.
reported in 2006 (6) ALL MR 504, Full Bench of this
Court in paragraph nos.13 and 14 held thus:
13. Section 11 of the Act
of 1876 can not, in our view, be said to
create a bar in entertaining the suit
relating to an action of the Revenue
Officer, where he purports to do an act
which is without jurisdiction. It goes
without ig saying that where
acts without jurisdiction or purports to
an authority
pass an order, that is without
jurisdiction, such order is void, nonest
and nullity. We do not think it is
necessary for us to deal with this aspect
at length, as we are benefited by the Full
Bench decision of this Court in the case
of Abdullamiyan Abdulrehman Vs. The
Government of Bombay, Vol.XLIV (1942)
Bombay Law Reporter 577. The Full Bench
of this Court had an occasion to consider
section 11 of the Act of 1876. The Full
Bench considered few decisions of this
court in the case of Surannanna Vs.
Secretary of State for India, 2 Bom.L.R.
261; Malkajeppa Vs. Secretary of State for
India, 14 Bom.L.R. 332; Rasulkhan
Hamadkhan Vs. Secretary of State for
India, 17 Bom.L.R.513; Dhanji Vs. the
Secretary of State, 23 Bom.L.R. 279;
Patdaya Vs. Secretary of State, 25
Bom.L.R. 1160; Sulleman Vs. Secretary of
State, 30 Bom.L.R.431 and Manibhai Vs.
Nadiad City Municipality, 28 Bom.L.R.
1465, and concluded the legal position
thus:
Those cases have established
the principle that where an
authority which purports to pass
an order is acting without
jurisdiction, the purported order
is a mere nullity, as Sir.
Lawrence Jenkins puts it, it is
mere waste paper; and it is not
necessary for anybody who objects
to that order, to apply to set it
aside. He can rely on its
invalidity when it is set up
against him, although he has not
taken steps to set it aside. The
Advocate General does not dispute
the proposition established by
those cases, but he says that the
principle does not apply to S.11
of the Bombay Revenue Jurisdiction
Act, which operates when an appeal
is possible, and not merely when
it is obligatory. I find it
difficult to see why the principle
should not apply. If the true
principle be, as those cases
decided, that an order, or what
purports to be an order, passed
without jurisdiction, is a
nullity, it cannot give rise to
any right whatever, not even to a
right of appeal.
ig 14. It was held by the Full
Bench that on a strict use of language an
order which is invalid, is not an order.
It was further held that where the revenue
officer purports to do an act or pass an
order which is invalid, his action does not
operate to raise a bar under section 11 of
the Act of 1876.
In the case of Dhulabhai
etc....Versus...State of Madhya Pradesh and another,
reported in AIR 1969 Supreme Court 78, the Apex Court
in paragraph nos.32 (1), 32 (2) and 32 (7) held thus :
32 (1) Where the statute
gives a finality to the orders of the
special tribunals the civil court's
jurisdiction must be held to be
excluded if there is adequate remedy to
do what the civil courts would normally
do in a suit. Such provision, however,
does not exclude those cases where the
provisions of the particular Act have
not been complied with or the statutory
tribunal has not acted in conformity
with the fundamental principles of
judicial procedure.
(2) Where there is an
express bar of the jurisdiction of the
court, an examination of the scheme of
the particular Act to find the adequacy
or the sufficiency of the remedies
provided may be relevant but is not
decisive to sustain the jurisdiction of
the civil court.
Where there is no express
exclusion the examination of the
remedies and the scheme of the
particular Act to find out the
intendment becomes necessary and the
result of the inquiry may be decisive.
In the latter case it is necessary to
see if the statute creates a special
right or a liability and provides for
the determination of the right or
liability and further lays down that
all questions about the said right and
liability shall be determined by the
tribunals so constituted, and whether
remedies normally associated with
actions in civil courts are prescribed
by the said statute or not
(7) An exclusion of the
jurisdiction of the civil court is not
readily to be inferred unless the
conditions above set down apply.
17. It is, thus, clear that the civil Court has
jurisdiction in such type of cases. The discussion
aforesaid made by me as to how the orders dated
30.9.1966 in both proceedings i.e. Revenue Case No.
1087/59 (13)/Dhotardi/63-64 and 1076/59/13/63-64 of
village Dhotardi made by the Tenancy Tahsildar were
null and void, illegal and not binding on the Trust
leads me to hold that bar provided by Section 124 of
the Tenancy Act cannot have any application in the
peculiar facts of this case. I, therefore, answer
question no.5 in the negative.
18. As to question no.6 (i) :- There is specific
averment in the plaint that Tulshiram expired in the
year 1991. The sons who are defendants succeeded to
the suit properties and that is why they started
making claims and also effected certain transfers of
the said properties. Thus the facts that Tulshiram
expired in the year 1991 and that the respondents are
his sons claiming to have succeeded to the suit lands
by inheritance from Tulshiram are not in dispute at
all. Therefore, even if the issue whether sons of
Tulshiram could not inherit the tenancy or not was not
averred in the plaint, the same was raised vide
paragraph 9 of lower appellate judgment but was not
decided. Since
ig the said issue can be decided on
admitted facts above stated, in exercise of power
under Section 103 of the Code of Civil Procedure, this
Court thinks it fit to decide the same by answering
question no.6 framed above.
The question whether tenancy was heritable
in the light of Section 54 of the Tenancy Act in fact
is no more res integra in the light of the decision of
the Supreme Court in the case of Shriram Mandir
Sansthan @ Shri Ram Sansthan
Pusda...Versus...Vatsalabai and others, reported in
1999 (1) Mh. L.J. 321, particularly paragraph no.10,
which reads thus :
10. Section 54 (1) (a)
makes a slight departure from Hindu Law of
Succession. Inheritance by survivorship is
conferred on all members of the joint
family instead of only the coparceners.
Therefore, all members of the joint family
- male and female inherit. The provisions
in the Hindu Succession Act in cases where
there are female heirs of a male having an
interest in the joint family property, are
also
not applicable. The
whether by reason of this departure from
question is
ordinary law, the legislature intended
that tenancies not covered by section
54 (1) (a) would nevertheless be governed
by the ordinary law. In our view section
54 (1) (a) cannot be read differently from
section 54 (1) (b) or section 54 (3). The
entire section must be read harmoniously.
The legislative intention as seen from the
scheme of section 54 is, that heritability
of any tenancy falling, within the
definition of that term under the Tenancy
Act of 1958 is governed exclusively by
section 54. Where section 54 is made
expressly non-applicable under the Tenancy
Act of 1958, the tenancy is not heritable
at all. An express provision in the Act
which excludes the operation of certain
provisions, cannot be made nugatory by
resorting to general law.
19. In view of the above decision of the Supreme
Court, point no.6 will have to be answered in
accordance with the law laid down by the Supreme
Court. Hence, question no.6 (i) is answered in the
negative.
Question no.6 (ii):- As a sequel to above
answer to question no.6 (i), this question no.6 (ii)
will have to be answered in the affirmative.
20. The upshot of the above discussion is that
the instant second appeal must succeed. In the result,
I make the following order.
O R D E R
(i) Second Appeal No.538/2005 is allowed
with costs.
(ii) The impugned judgment and decree dated
23.2.2005, passed by the 4th Ad hoc Additional District
Judge, Akola in Regular Civil Appeal No.166/2002 and
the judgment and decree dated 29.6.2002, passed by the
III Jt. Civil Judge (Jr. Dn.), Akola in Regular Civil
Suit No.181/1997 are set aside.
(iii) Regular Civil Suit No.181/1997
filed by the appellants/plaintiffs is decreed with
costs.
(iv) The orders dated 30.9.1966 in
proceedings i.e. Revenue Case
nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of
village Dhotardi, passed by the Tenancy Tahsildar are
declared to be without jurisdiction, null and void and
not binding on plaintiff no.1/Shambhugir Sansthan
Trust, Dhotardi, registered as P.T.R. No.A 859, Akola.
(v) It is further declared that defendants
have no right and interest in the suit property.
(vi) The defendants are directed to hand
over the possession of the suit property bearing
Survey no.60/2, admeasuring 7.21 acres, Mouza
Dhotardi, now changed into Gut No.167, and Survey
no.35/4, admeasuring 4.33 acres situated at village
Dhotardi, Tq. and Distt. Akola to the plaintiffs on
1st April, 2012.
(vii) If the possession is not handed
over as above on 01.04.2012, the plaintiffs are at
liberty to execute the decree.
(viii) Enquiry into future mesne profit
under Order XX Rule 12 of the Code of Civil Procedure.
Decree be drawn up accordingly.
JUDGE
ssw
