Bombay High Court
Shaikh Vazir Ahmed Mulla & Anr vs Bhaskar Bansi Sangamnere on 14 August, 2015
Bench: Ravi K. Deshpande
1 sa234.93.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(CIVIL APPELLATE JURISDICTION)
SECOND APPEAL NO. 234 of 1993
1] Shaikh Vazir Ahmad Mulla,
Since deceased through his proposed
legal heirs.
1 a] Shaikh Nazir Ahmad Shaikh Vazir
1 b] Shaikh Bashir Ahmad Shaikh Vazir
1 c]
Shaikh Jamil Ahmad Shaikh Vazir
1 d] Nasim Begam Anis Ahmad Korabe
1 e] Shaikh Mustaq Ahmad Shaikh Vazir
1 f] Shaikh Shamim Begam Mohmmad Ayyub
1 g] Shaikh Iftikher Ahmad Shaikh Vazir
1 h] Shaikh Arefa Begam Rafiq Ahmad
All: Adults, R/at: Kajipura, House No.2708,
Nashik.
2] Shaikh Hfizul Rehman Ahmad Mulla
since deceased through his legal heirs.
2 a] Shaikh Latifurrehman Hfizurrehman Mulla @
Mullani, Age: 60 yrs., Occ: Agriculturist.
2 b] Shaikh Aizurrehman Hafizurrehman Mulla @
Mullani, Age: 75 yrs., Occ: Business.
2 c] Shaikh Khalilurrehman Hafizurrehman Mulla @
Mullani, Age: 70 yrs, Occ: Retired.
All R/at: House No.90, Near Mamledar Office,
::: Uploaded on - 21/08/2015 ::: Downloaded on - 10/09/2015 20:02:53 :::
2 sa234.93.odt
Lower Peth, Igatpuri, Dist. Nashik.
2 d] Shaikh Habiburrehman Hafizurrehman Mulla @
Mullani, Age: Adult, Occ: Retired.
R/at: 5, Kalluseth Bakery,
258, Bazar Ward, New Mill Road,
Kurla, Mumbai - 400 070.
2 e] Shaikh Mujiburrehman Hafizurrehman Mulla @
Mullani, Age: Adult, Occ: Retired,
Since deceased through his Legal heirs,
2e(i)] Smt. Shaikh Bilkis Mujibrrehman,
Age: 65 yrs., Occ: Housewife.
2e(ii)] Shri Shaikh Asif Mujiburrehman,
Age 40 yrs., Occ: Service.
2e(iii)]Shri Shaikh Arif Mujiburrehman,
Age 30 yrs., Occ: Service.
2e(iv)] Shri Shaikh Sajid Mujiburrehman,
Age: 32 yrs., Occ: Business.
2e(v)] Smt. Shaikh Rijwana Anis Pathan,
Age 35 yrs., Occ: Housewife.
All R/at: Jam Jam Park Apt., Flat No.4,
1st Floor, Wadala Road, Infront of Nagaji
Hospital, Nashik.
2(f)] Mumtaz Begum Fakir Mohammed Inamdar,
Aged: 61 yrs., Occ: Household,
R/at: Near Jalai Masjid,
Kothala, at Post - Ahmednagar,
Dist. Ahmednagar.
2(g)] Khalida Begum Sayyad Mabudh,
Age 56 yrs., Occ: Household.
R/at: Near J.J. Hospital, B.I.T. Block,
1st Floor, B.I.T. Road., Mumbai - 400 008.
::: Uploaded on - 21/08/2015 ::: Downloaded on - 10/09/2015 20:02:53 :::
3 sa234.93.odt
2(h)] Shaikh Akilurrehman Hafizurrehman,
Age: 52 yrs., Occ: Business,
R/at Netaji Chowk, Lower Peth,
Igatpuri, Dist. Nashik.
2(i)] Hazra Begum Shaikh Nisar Ahmed,
Age: 50 yrs., Occ: Household,
R/at: Naikwadipura, Near Chohatta,
At & Post: Nashik, Dist. Nashik.
2(j)] Zakera Begum Bashir Khan Pathan,
Age 45 yrs., Occ: Household,
R/at: Naikwadipura,
At & Post: Sangamnere,
Dist. Ahmednagar.
ig ...... .... APPELLANTS
...VERSUS...
1] Bansi Kalu Sangamnere
Since deceased through his legal heirs.
a] Bhaskar Bansi Sangamnere sincee D/H
Amendment 1](a)(i)] Smt. Sumanbai Bhaskar Sangamnere
carried out as Age: Adult, Occ: Housewife,
per Court order
dtd. 21.06.13 in R/at: Kherwadi, Tal. Niphad, Dist. Nasik.
CA No.8783/13.
1](a)(ii)] Sangeet Sahebrao Jadhav,
Age: Adult, Occ: Housewife,
R/at: Palkhed Bandhara,
Tal. Dindori, Dist. Nasik.
1](a)(iii)] Gayatri Sharad Baste,
Age: Adult, Occ: Housewife,
R/at:Sindwad, Tal. Dindori, Dist. Nasik.
1](a)(iv)] Sonali Bhaskar Sangamnere,
Minor, R/at: Kherwadi, Tal. Niphad,
Dist. Nasik.
b] Sahebrao Bansi Sangamnere
Age: Adult, Occ: Agriculture.
R/at: Kherwadi, Tal: Niphad, Dist. Nashik.
::: Uploaded on - 21/08/2015 ::: Downloaded on - 10/09/2015 20:02:53 :::
4 sa234.93.odt
c] Kaushabai Waman Pekhale
Age: Adult, Occ: Agriculture,
R/at: Madsangavi, District: Nashik.
d] Suman Baburao Kunder
Age: Adult, Occ: Agriculture,
R/at Madsangavi, District: Nashik.
e] Sindu Ashokrao Tahakare
Age: Adult, Occ: Agriculture,
R/at: Sirvade, Tal: Dindori,
District Nashik.
2] Shri Popat Kalu Sangamnere,
Since deceased through his legal heirs
2(a) Shri Rangnath Popat Sangamnere,
Age: Adult, Occ:Agriculture
2(b) Shri Baburao Popat Sangamnere,
Age: Adult, Occ: Agriculture
2(c) Shri Raghunath Popat Sangamnere,
Since deceased through his legal heirs
2(c)(i) Smt. Narmada Raghunath Sangamnere
2(c)(ii) Shri Navnath Raghunath Sangamnere
R/at: Kherwadi, Tal. Niphad, Dist. Nashik.
2(d) Shri Bakerao Popat Sangamnere
Since deceased through his legal heirs
2(d)(i)Smt. Bhagirathibai Bakerao Sangamnere
2(d)(ii) Shri Dinkar Bakerao Sangamnere
Age: Adult.
Both R/at: Kherwadi, Tal. Niphad,
Dist. Nashik.
::: Uploaded on - 21/08/2015 ::: Downloaded on - 10/09/2015 20:02:53 :::
5 sa234.93.odt
3] Sakharam Kalu Sangamnere
Since deceased through his legal heirs
3(a) Smt. Sitabai Sakharam Sangamnere
Age- Adult.
3(b) Shri Dattatray Sakharam Sangamnere
Age- Adult.
3(c) Shri Manik Sakharam Sangamnere
Age- Adult.
3(d) Shri Balasaheb Sakharam Sangamnere
Age- Adult.
3(e) Shri Babaji Sakharam Sangamnere
Age- Adult.
All R/at: Kherwadi, Tal. Niphad,
Dist: Nashik.
3(f) Smt. Sakuntala Manohar Gayake
Age- Adult.
R/at: Shinde Palase,
Tal. and Dist. Nashik.
3(g) Smt. Mandakini Gorakhnath Malode
Age- Adult.
R/at Asdgaon, Tal and Dist. Nashik.
3(h) Shri Namdeo Sakharam Sangamnere
R/at: Kherwadi, Tal. Niphad, Dist. Nashik.
4] Shri Madhav Laxman Sangamnere
Since deceased through his legal heirs
4(a) Shri Shivaji Madhav Sangamnere
Age- Adult.
4(b) Shri Balasaheb Madhav Sangamnere
::: Uploaded on - 21/08/2015 ::: Downloaded on - 10/09/2015 20:02:53 :::
6 sa234.93.odt
4(c) Smt. Hirabai Prataprao Somvanshi
4(d) Smt. Vimal Wamanrao More
4(e) Smt. Lilavati Wamanrao Bhoj
4(f) Smt. Sunita Bhagwan Hasalkar
Age: Adult.
All R/at: Kherwadi (Narayangaon),
Tal. Niphad, Dist. Nashik.
5] Ramsukh Laxman Sanamnere
Since deceased through his legal heirs
5(a) Shri Balasaheb Ramsukh Sanamnere
Age- Adult.
5(b) Shri Dilip Ramsukh Sanamnere
Age- Adult.
5(c) Shri Bhimaji Ramsukh Sanamnere
Age- Adult.
All R/at: Kherwadi, Tal. Niphad,
Dist. Nashik.
6] Shri Jagannath Laxman Sanamnere
Since deceased through his legal heirs
6(a) Shri Nivrutti Jagannath Sanamnere
Age- Adult.
All R/at: Kherwadi, Tal. Niphad,
Dist. Nashik.
7] Parashram Laxman Sanamnere
Since deceased through his legal heirs
::: Uploaded on - 21/08/2015 ::: Downloaded on - 10/09/2015 20:02:53 :::
7 sa234.93.odt
7(a) Smt. Hausabai Parashram Sangamnere
Age- Adult.
7(b) Shri Ramesh Parashram Sangamnere
Age- Adult.
7(c) Shri Pandharinath Parashram Sangamnere
Age- Adult.
7(d) Smt. Bebitai Dattatraya Godse
Age- Adult.
7(e) Smt. Lata Walmik Gaikwad,
Age: Adult.
All R/at: Kherwadi, Tal. Niphad,
Dist. Nashik.
8] Vishnu Laxman Sanamnere
Age: Adult, Occ: Agriculture.
9] Vitthal Laxman Sanamnere
Age: Adult, Occ: Agriculture
Nos.2 to 9 R/at: Kherwadi,
Tal. Niphad, Dist. Nashik. ...... .... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri P.S.Dani, Senior Advocate, assisted by Shri Vilas B. Tapkir,
Advocate, for appellants.
Shri R.A.Thorat, Senior Advocate, assisted by Shri U.B.Nighot,
Advocate, with Shri S.A.Agarkar, Advocate, for respondents.
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
DATE OF RESERVING JUDGMENT : 27.07.2015
DATE OF PRONOUNCING JUDGMENT: 14.08.2015
JUDGMENT
1] In Tenancy Application No. 1158 of 1957,
re-registered as Tenancy Proceeding No. 28 of 1968, instituted by
8 sa234.93.odt
the appellant-landlords, the Tahsildar, Niphad, passed an order of
eviction and possession on 29th August, 1969 in exercise of his
powers conferred by Section 29 read with Section 31 of the Bombay
Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as
"the said Act"), in respect of half share from the eastern side of
Survey No. 87 of Chandori, against one Kalu Raoji Sangamnere,
the original tenant and the father of the original respondent Nos. 1
to 3 and the uncle of the original respondent Nos. 4 to 9 in this
appeal. The aforesaid order was the subject matter of challenge by
six tenants including the original respondent No.1 Bansi Kalu
Sangamnere, a son of original tenant Kalu, who died during the
pendency of proceedings on 1st January, 1958, by filing Tenancy
Appeal No. 240 of 1969, under Section 74 of the said Act, before
the Special Deputy Collector, the Appellate Authority at Malegaon.
The said appeal was dismissed on 14th September, 1970.
2] Tenancy Application No. 503 of 1972 was preferred by
the tenant-respondent No.1 - Bansi Kalu Sangamnere before the
Maharashtra Revenue Tribunal at Bombay (in short "MRT"), under
Section 76 of the said Act, which was allowed on 20 th June, 1973.
The MRT set aside the orders passed by the Authorities below and
the Tenancy Application No. 1158 of 1957 was dismissed. Special
9 sa234.93.odt
Civil Application No. 3025 of 1973 was preferred by the
appellants/landlords before this Court, which was allowed on 9 th
March, 1978, setting aside the order dated 20th June, 1973, passed
by the MRT and dismissing the Tenancy Application No. 503 of
1973, which was preferred by the respondent No.1 before the MRT.
Consequently, the order of eviction and possession passed on 29 th
August, 1969, in Tenancy Proceeding No. 28 of 1968, operated.
3] The respondent No. 1 - Bansi Kalu Sangamnere, a son
of original tenant Kalu Raoji Sangamnere along with eight other
persons who are the respondents in this second appeal, preferred
Regular Civil Suit No. 75 of 1980, claiming a decree for grant of
declaration that the order dated 29th August, 1969, passed in
Tenancy Proceeding No. 28 of 1968 (earlier registered as Tenancy
Application No. 1158 of 1957) as nullity and it does not confer any
right upon the appellants, who were joined as defendants, to seek
enforcement of it. The consequential relief was also claimed to
restrain the appellants-defendants or their legal heirs from creating
any obstruction in peaceful possession and enjoyment of the suit
property by the respondents-plaintiffs. The suit was dismissed on
29th November, 1986.
10 sa234.93.odt
4] Civil Appeal No. 59 of 1987 preferred by the
respondents was allowed by the lower appellate Court on 28 th
August, 1992, setting aside the judgment and order passed by the
trial Court. The appellate Authority passed a decree of permanent
injunction restraining the defendants from obstructing the
possession of the plaintiffs over the suit property and granted a
declaration that the order dated 29th August, 1969, passed in
Tenancy Proceeding No. 28 of 1968 is nullity and restrained the
appellants-defendants from executing it. The original defendants
are before this Court in this second appeal. The parties shall
hereinafter be referred according to their original status as "the
plaintiffs" and "the defendants".
FINDINGS OF THE COURTS BELOW
5] The trial Court recorded the findings that -
(a) the plaintiffs failed to prove that the order dated 29.08.1969 was
nullity and therefore, not executable; (b) the plaintiff Nos. 4 to 9
failed to prove that their father Laxman Raoji was co-tenant along
with Kalu Raoji in respect of the suit land; (c) the Civil Court has
jurisdiction to entertain, try and decide the suit; and (d) the
defendants have failed to establish that the tenancy rights of the
11 sa234.93.odt
plaintiffs are extinguished. The appellate Court has reversed these
findings of the trial Court and it is held that - (a) the order dated
29.08.1969 is nullity and therefore, unexecutable; (b) the plaintiff
Nos. 4 to 9 have established that their father Laxman Raoji was co-
tenant along with Kalu Raoji in respect of suit property; and (c) the
defendants have failed to establish that the tenancy rights of the
plaintiffs are extinguished.
SUBSTANTIAL QUESTIONS OF LAW
6] In the background of the aforesaid undisputed factual
position and the findings of the Courts below, this second appeal
was admitted on 28th June, 1993, framing the following two
substantial questions of law;
(i) Whether the Civil Court had jurisdiction to decide
the tenancy rights?
(ii) Whether the question of nullity of the order of
Tahsildar is rightly decided in law?
7] The substantial question of law at Sr. No. (ii) will have
to be taken first for the decision. It relates to the competency of the
Authority to continue with the proceedings of Tenancy Application
No. 28 of 1968 and to pass an order on 29 th August, 1969, against
12 sa234.93.odt
the deceased respondent Kalu Raoji Sangamnere, in the absence
of any order passed on the application at Exh. 42 filed by the
defendants to bring his legal representatives on record and its
enforceability against the plaintiff Bansi KaluSangamnere, as the
legal representative of the deceased tenant.
8] The provision of Order XXII, Rule 4 of C.P.C, to the
extent it is relevant is reproduced below;
ORDER XXII-
DEATH, MARRIAGE AND INSOLVENCY OR PARTIES
1 . .....
2 . ......
3 . .....
4 . Procedure in case of death of one of several defendants or of
sole defendant-- (1) Where one of two or more defendants dies and
the right to sue does not survive against the surviving defendant or
defendants alone, or a sole defendant or sole surviving defendant
dies and the right to sue survives, the Court, on an application made
in that behalf, shall cause the legal representative of the deceased
defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate
to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under
sub-rule (1), the suit shall abate as against the deceased defendant.
.......
Upon death of the defendant in a suit, if the right to sue survives,
then an application is required to be made under sub-rule (1) of
Rule 4 above by the applicant or the plaintiff to bring the legal
representatives of the deceased defendant on record. The Court
13 sa234.93.odt
has to pass an order on such application causing the legal
representative of the deceased defendant be made a party to the
proceeding and thereafter the Court can proceed further in the suit.
Article 120 of the Limitation Act prescribes a period of limitation for
filing an application to bring the legal representatives of the
deceased defendant on record. It is of 90 days from the date of
death of the defendant. Sub-rule (3) of Rule 4 under Order XXII
states that where within the time limited by law, no application is
made under sub-rule (1), the suit shall abate against the deceased
defendant.
9] It is, therefore, apparent that if the application to bring
the legal representative of the deceased defendant-respondent is
made under sub-rule (1) of Rule 4 under Order XXII of C.P.C, then
the suit does not abate automatically against the deceased
defendant or respondent, unless there is specific order passed by
the Court rejecting such application. But, if no such application is
made within the time prescribed under Article 120 of the Limitation
Act, then the suit or proceeding stands abated automatically against
the deceased defendant or respondent, as the case may be, upon
expiry of the period of 90 days and no specific order is required to
be passed to the effect that the suit has abated.
14 sa234.93.odt
10] Now, the judicial precedents need to be considered.
In the decision of the Apex Court in case of N.
Jayaram Reddy and another vrs. Revenue Divisional Officer
and Land Acquisition Officer, Karnuli, reported in 1979 (3) SCC
578, the two judges of the Apex Court in a Division Bench,
concurred with each other but for separate reasons. In paras 5 and
6 of the said decision, the Apex Court rejected the contention that
the High Court's decree was nullity merely because it was passed
against a dead person. It holds that a decree passed against a
dead person is not necessarily a nullity for all purposes. It will be
sufficient to say that such a decree has been held to be nullity
because it cannot be executed against his legal representatives for
simple reason that he did not have an opportunity of being heard in
respect of it, and the legal representatives cannot be condemned
unheard.
11] In the aforesaid decision, the Apex Court further holds
that while the law treats such a decree as nullity qua the legal
representatives of the deceased defendant or respondent, there is
nothing to prevent him from deciding that he will not treat the decree
15 sa234.93.odt
as nullity, but will abide by it as it stands, or as it may be modified
thereafter in an appeal. The Court has further held that if the legal
representative adopts that alternative course of action, it cannot
possibly be said that his option to be governed by the decree is
against the law or in concept of public policy or purpose or the
public morality. It is held that, thus a matter entirely at the discretion
of the legal representative of the deceased respondent against
whom a decree has been passed, to decide whether he will raise
the question that the decree has become nullity at the appropriate
time, namely, during the course of hearing of any appeal that may
be filed by any other party, or to abandon with obvious technical
objection and fight the appeal on merits.
12] In the aforesaid decision, the Apex Court in
unequivocal terms holds that it is equally futile to argue that an
appellate Court is denuded of its jurisdiction to hear an appeal in
which one of the respondents has died and the right to sue does not
survive against surviving defendant or defendants alone, merely
because no application has been made to bring his legal
representatives on the record when no objection to that effect is
raised by any one.
16 sa234.93.odt
13] In the decision of the Apex Court in Puransing and
others vrs State of Punjab and others, reported in (1996) 2 SCC
205, the question involved was whether the provisions of Order XXII
of the Code of Civil Procedure are applicable to the proceedings
under Articles 226 or 227 of the Constitution of India. The Court
answered the said question in the negative holding that it is not
applicable per se to the writ proceedings. The Court further held
that this, however, does not mean that the death of the respondent
in a writ petition can be ignored if the right to pursue the remedy
even after the death of the respondent survives. The Court further
held that there is no question of automatic abatement of the
proceedings and in the absence of limitation of 90 days, the High
Court has discretion to permit the substitution of legal
representatives and proceed with the hearing of writ petition or writ
appeal, as the case may be.
14] In para 4 of the decision in Puransingh's case, the
Apex Court has held that if the right to sue is held to be a personal
right, it stands extinguish upon the death of the concerned
defendant/respondent and it does not devolve upon his legal
representatives or successors. In such situation, the suit cannot be
continued. But, if the right to sue survives against the legal
17 sa234.93.odt
representatives/heirs of the deceased respondent, then the
procedure under Order XXII, Rule 4 of the Civil Procedure Code
needs to be followed by bringing the legal representatives/heirs of
the deceased on record.
15] In the decision of the Apex Court in case of Jaladi
Suguna (deceased) through L.Rs vrs. Satya Sai Central Trust
and others, reported in (2008) 8 SCC 521, the Apex Court has
held that where the respondent in an appeal dies and the right to
sue survives, the legal representatives of the deceased respondent
have to be brought on record, before the Court can proceed further
in the appeal. It was further held that where the respondent-plaintiff
who succeeded in a suit dies during the pendency of the appeal,
any judgment rendered on hearing the appeal filed by the defendant
without bringing the legal representatives of the deceased
respondent-plaintiff on record, will be a nullity. It was further held
that when the first respondent in an appeal died, the right to
prosecute the appeal survived against her estate and it was,
therefore, necessary to bring the legal representatives of the
deceased Suguna on record to proceed further with the appeal.
16] In the decision of the Full Bench in case of Abdul
18 sa234.93.odt
Wahab vrs. Ramkrushna, reported in AIR 1954 Mysore 65, the
question involved was whether the appeal abated because the
Court had not passed any order on the legal representative's
application. Undisputedly, the application for bringing legal
representative was filed within stipulated time, but no order was
passed by the Court. It was held that, it cannot be said by any
stretch of imagination that the appeal had abated as the application
had been filed in time and as no orders had been passed on it. It
was also held that the omission on the part of the Court to pass
formal order cannot take away the right to proceed with the case
and there is no duty on the part of the litigant to remind the Court by
observance of the rules. It was held that a possible reason for the
omission is that the respondent's counsel took part in the appeal
without any objection and the appeal was disposed of after hearing
him.
17] The position of law on the basis of the aforesaid
decisions can be summarized as under -
(a) If the right to sue is held to be a personal right, it stands
extinguished upon the death of the concerned
defendant/respondent and it does not devolve upon his
19 sa234.93.odt
legal representatives or successors. In such situation,
the suit cannot be continued. But, if the right to sue
survives against the legal representatives/heirs of the
deceased respondent, then the procedure under Order
XXII, Rule 4 of Civil Procedure Code needs to be
followed by bringing the legal representatives/heirs of the
deceased on record.
(b) If the application is made under sub-rule (1) of Rule 4
under Order XXII of C.P.C, then the suit or proceedings
does not automatically abate against the deceased
defendant or respondent even if the period of 90 days
prescribed under Article 120 of the Limitation Act
expires, unless a specific order rejecting such application
is passed in such suit or proceedings. Merely because
there is an omission on the part of the Court to pass
formal order, cannot take away the right to proceed with
the case and there is no duty on the part of the litigant to
remind the Court.
(c) If no such application is made under sub-rule (1) of Rule
4 under Order XXII of C.P.C within a period of 90 days
20 sa234.93.odt
as prescribed under Article 120 of the Limitation Act, the
suit or proceedings gets abated automatically against the
deceased defendant or respondent after expiry of such
period of limitation, even in the absence of any specific
order passed in such suit or proceedings.
(d) The Court is not denuded of its jurisdiction to hear an
appeal in which one of the defendants or respondents
has died and that the right to sue does not survive
against the surviving defendant/s or respondent/s alone,
merely because no application has been made to bring
his legal representatives on record, when no objection to
that effect is raised by any one.
(e) Any such decree or order against a dead person
becomes unexecutable against the legal representatives
of a deceased person for the reason that no opportunity
of being heard is provided to him if he is not brought on
record. In other words, such decree or order becomes
voidable at the instance of the legal representatives of
the deceased.
21 sa234.93.odt
(f) Merely because an order or a decree is passed against a
dead person, it does not become nullity for all purposes
and the Court will have to consider the facts and
circumstances of each case to find out whether such
decree or order has in fact becomes nullity.
(g) There is nothing to prevent the legal representatives of
the deceased defendant or respondent from deciding to
abandon with such technical objection that the appeal
has abated and therefore, the Court cannot proceed with
the matter or proceeds to fight out the case on merits by
his conduct that he will not treat the decree as nullity, but
will abide by it, as it stands, or as the case may be,
modified thereafter in an appeal.
(h) In the facts and circumstances of each case which is
decided against a dead person, the Court will have to
find out whether the legal representative or successor of
the deceased has abandoned such objection or has
proceeded to fight out the case on merits by his conduct
that he will not treat the decree as nullity but will abide by
it as it stands or as the case may be, modified thereafter
22 sa234.93.odt
in appeal or has availed full opportunity of being
succeeded on merits in the original proceedings or in
appeal or revision or writ petition etc., as the case may
be.
18] There cannot be any dispute over the proposition of law
laid down in para 4 of the decision in Puransingh's case. The Apex
Court in Puransingh's case was not dealing with the situation where
the Court proceeded to decide the case on its own merits in the
absence of the legal representatives/heirs of the deceased.
Similarly, the proposition laid down in the decision of the Apex
Court in Jaladi Suguna's case also cannot be disputed, which was
covered by the principle of law laid down in para 4 of the
Puransingh's case by the Apex Court. Hence, Jaladi Suguna's case
decided by the Apex Court would also not apply to a situation where
the Court has proceeded to decide the matter on its own merits in
the absence of legal representatives/heirs of the deceased brought
on record. In the present case, the Tahsildar proceeded to decide
the matter on its own merits against the dead person without there
being any order to bring his legal representatives or heirs on record.
Hence, the principles of law laid down in Puransing's case or in
Jaladi Suguna's case shall not apply to this case.
23 sa234.93.odt
19] In the decision of the Apex Court in N.Jayaram Reddy's
case, Court proceeded to decide the case on its own merits in the
absence of any legal representatives of the deceased brought on
record. Hence, the principles of law laid down in this case shall
govern the facts of the present case. In the present case, the
defendant-tenant Kalu Raoji Sangamnere died on 1 st January, 1958
during the pendency of the said proceeding and the application at
Exh.42 was filed on 16th March, 1959 in the Tenancy Case No. 28 of
1968 for bringing his legal representatives i.e. the original plaintiff
Bansi Kalu Sangamnere on record. The application was pending
and no order was passed on it. Hence, the principle of law laid
down in the decision of the Full Bench of Patna High Court in Abdul
Wahab's case, cited supra, shall also govern the controversy
involved in the present case.
20] Before this Court, in this case, there is no dispute
raised as regards applicability of the provisions of Order XXII of
C.P.C, to the proceedings under Section 29 read with Section 31 of
the said Act. I, therefore, proceed on the footing that the said
provisions are applicable and the respondent in the tenancy
proceedings shall be the defendant referred to in Order XXII, Rule 4
24 sa234.93.odt
of C.P.C. In the present case, Kalu Raoji Sangamnere was the
original tenant and the respondent in the Tenancy Proceeding No.
28 of 1968, under Section 29 read with Section 31 of the said Act
and he died on 1st January, 1958, during the pendency of the said
proceedings. Undisputedly an application for bringing legal
representatives of the original tenant at Exh. 42 was filed on 16 th
March, 1959 i.e. within a period of limitation of 90 days as
prescribed under Article 120 of the Limitation Act, in the Tenancy
Proceeding No. 28 of 1968. No orders were passed on this
application by the Court. Irrespective of this, the plaintiff Bansi
Kalu Sangamnere, who was the legal representative of Kalu,
participated in the proceedings, without raising an objection either
that the appeal has abated or that without any orders on the
application at Exh. 42, the proceedings cannot go on and
examined himself as a witness. He was also cross-examined by
the defendant-landlord. Not only that, but he also preferred the
Tenancy Appeal No. 240 of 1969, which was dismissed on 14 th
September, 1970. The Tenancy Application No. 503 of 1973 filed by
the plaintiff Bansi before the MRT was allowed on 20 th June, 1973.
In Special Civil Application No. 3025 of 1972 filed by the defendant-
landlord, he was the respondent before this Court. On 9 th March,
1978, this Court set aside the order passed by MRT.
25 sa234.93.odt
Cpmsequently, the order dated 29th August, 1969, passed by the
Tahsildar in Tenancy Proceedings No. 28 of 1969 operated.
21] Thus, there was complete participation of the plaintiff in
all the proceedings under the said Act and it was not a case where
the plaintiff was condemned unheard. On the contrary, it was a
case where the plaintiff availed full opportunity and had taken a
chance of succeeding in a challenge before the competent
Authorities and the Court. The plaintiff has exercised his discretion
in this way to abandon the objection or to fight out the case on
merits. Merely because the Tahsildar had not passed an order
bringing the legal representatives of the original tenant on record,
that by itself would not lead to the conclusion that the proceedings
had abated in the absence of rejection of application at Exh.42.
The right of the appellants in this appeal was not taken away, to
proceed with the case. The order dated 29 th August, 1969 passed
in Tenancy Proceedings No. 28 of 1969, therefore, does not
become nullity, it binds the plaintiff and becomes enforceable
against him. The substantial question of law at Sr. No. (ii) is,
therefore, answered accordingly.
22] So far as the substantial question No. (i) is concerned,
26 sa234.93.odt
Section 85 of the said Act creating bar of jurisdiction is relevant and
hence, it is reproduced below.
Section 85 : Bar of jurisdiction
(1) No Civil Court shall have jurisdiction to settle,
decide or deal with any question [(including a
question whether a person is or was at any time in
the past a tenant and whether any such tenant is or
should be deemed to have purchased from his
landlord the land held by him) which is by or under
this Act required to be settled, decide or dealt with
by the Mamlatdar or Tribunal, a Manager, the
Collector or the [Maharashtra Revenue Tribunal] in
appeal or revision or the [State] Government in
exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the
Collector or the [Maharashtra Revenue Tribunal] or
the [State] Government made under this Act shall
be questioned in any Civil or Criminal Court.
Explanation:- For the purposes of this section a Civil
Court shall include a Mamlatdar's Court constituted under
the Mamlatdar's Courts Act, 1906.(Bom II of 1906)
Sub-section (1) of Section 85 clearly bars the
jurisdiction of the Civil Court to settle, decide or deal with any
question which is by or under the Act required to be settled, decided
or dealt with by the Mamlatdar or the Tribunal, a Manager, the
Collector or the Maharashtra Revenue Tribunal in an appeal or
revision, or the State Government in exercise of their powers of
control. Sub-section (2) states that no order of the Mamlatdar,
Tribunal, the Collector or the Maharashtra Revenue Tribunal or the
State Government made under this Act shall be questioned in any
27 sa234.93.odt
civil or criminal Court.
23] In the present case, the question has been settled,
decided and dealt with by the competent Authorities under Section
29 read with Section 31 of the said Act. An appeal and the revision
preferred against the said order before the Collector and the MRT
under Section 74 and Section 76 respectively, have been
dismissed. The order of eviction and possession passed has
attained the finality. While answering the substantial question of law
at Sr.No. (i), it is held that the order passed by the Tahsildar on 29 th
August, 1969 in Tenancy Proceedings No. 28 of 1968, was not
nullity in the eyes of law. The respondent-original plaintiff took the
chance of succeeding in the forum provided under the Act and
having lost it, the jurisdiction of the civil Court was clearly ousted,
by virtue of Section 85 of the said Act.
24] Shri R.A.Thorat, the learned Senior Advocate,
appearing for the respondent has placed heavy reliance upon Paras
4 and 5 of the judgment of this Court delivered on 9th March, 1978 in
Special Civil Application No. 3025 of 1973. The said paragraphs
are reproduced below.
28 sa234.93.odt
"4. While I, therefore, propose to set aside the order
passed by the President of the Tribunal, I must,
however, make it clear that when an authority purports to
pass an order, which is acting without jurisdiction, the
purported order is a nullity; and indeed it is not necessary
for anybody who objects to that order to apply to get it set
aside. Indeed such an order does not give rise to any
right whatsoever, not even to a right of appeal. (See
Abdulamiyan Abdulrehman v. The Government of
Bombay 44 Bom.L.R. 577). If that is so, even the appeal
preferred by the respondent was not competent and the
order passed therein would also have to be held as
incompetent. If that is so, the petition itself filed by the
respondent before the Tribunal would also have to be
held to be incompetent. However, I am not expressing
any opinion on this question. If the order passed by the
Tahsildar on 29th August, 1969 in the tenancy proceeding
No. 28 of 1968 is passed in the application which had
abated and is, therefore, thus a nullity, the respondent is
always at liberty to resist that order for possession in any
proper way he is advised.
5. The result in this petition must succeed. The order
dated 28th June 1973 passed by the Maharashtra
Revenue Tribunal in Tenancy Application No. 503 of
1972 is set aside, and the application must be deemed to
have been dismissed. Rule absolute with no order as to
costs."
This Court has held that if the order passed is without jurisdiction
and nullity, it is not necessary for any body to apply for getting it set
aside. If the appeal preferred by respondent No.1 was not
competent, the order passed in an appeal and consequently in
revision would also have to be held as incompetent. The Court did
not express any opinion on this aspect and kept the question open
as to whether the order passed by the Tahsildar on 29th August,
1969 in Tenancy Proceedings No. 28 of 1968 is nullity or not.
29 sa234.93.odt
25] The aforesaid order passed by this Court cannot be
construed as a license to the respondents to challenge the order
dated 29th August, 1969, by filing a civil suit. Neither the order of
the Court nor the consent of the parties can confer the jurisdiction
upon the civil Court, which is barred by the provisions of Section 85
of the said Act. Once it is held that the order dated 29 th August,
1969, was not nullity in the eyes of law, the jurisdiction of the civil
Court was completely barred.
26] The necessary result of answering the substantial
questions of law is that, the second appeal succeeds. The
judgment and order dated 28th August, 1992, passed by the lower
appellate Court in Civil Appeal No. 59 of 1987 is quashed and set
aside and the judgment and order passed by the trial Court on 29 th
November, 1986, dismissing the Civil Suit No. 75 of 1980 is
restored. No order as to cost.
In view of the disposal of the second appeal, civil application,
if any, does not survive. The same stand disposed of.
JUDGE
Rvjalit
