Shri Shrimant Ajitsingrao ... vs Shri Nivruti B. Bhone And Anr
2017 Latest Caselaw 7386 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION

                            WRIT PETITION NO. 1889 OF 1994


            Shri Shrimant Ajitsingrao Fattesingrao
            Bhosale, since deceased, through
            his legal representative
            Shri Raghujirate Ajitsingh Bhosale                    ..Petitioner
                  vs.
            Shri Nivrutti Balwant Bhoite
            since deceased through his L.Rs.
            Smt. Kamal Nivrutti Bhoite & Ors.                     ..Respondents


            Mr. Prathamesh Bhargude i/b. Mr. S. B. Deshmukh for Petitioner.
            Mr. P. B. Shah for Respondents.

                                              CORAM : M. S. SONAK, J.

DATE: 21 SEPTEMBER 2017

ORAL JUDGMENT :

            1]      Heard learned counsel for the parties.



            2]      This petition takes exception to the judgment and order dated

6th October 1993 made by the Maharashtra Revenue Tribunal

(MRT), allowing revision application No. MIT. MS. VI/92 (CN C.J.

72/92) instituted by the respondents, setting aside the judgment

and order dated 4th June 1992 made by the Sub Divisional Officer

and restoring the judgment and order dated 31 st October 1991

made by the Tahsildar and ALT determining the purchase price in

terms of Section 32G of the Maharashtra Tenancy and Agricultural

Lands Act, 1948 (Tenancy Act).

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            3]      These proceedings concern property bearing Survey No. 61,

Area 0-21, Asst. 22.50, Survey No. 63, Area 2-00, Asst. 15.94,

Survey No. 64, Area 0-10, Asst. 71-90, Gat No. 230, Assess 212.00

and Survey No. 65, Area 22-17, Asst 102-25 situated at Village

Deur, Taluka Koregaon, District Satara, Area of Gat No. 238 is H 16-

15 R. (suit property). There is no dispute that the petitioner, was the

owner of the suit property. However, some time in the year 1925,

the suit property was brought under the management of Court of

Wards and the Collector of Nagpur, was appointed as the Manager

to manage the suit property.

4] On 3rd April 1946, the Collector of Nagpur, in his capacity as

the Manager, executed a lease in respect of the suit property. The

term of this lease was indicated as 11 years. This lease was never

extended or renewed. However, there is no serious dispute that

from 3rd April 1946, the respondent, who was inducted in possession

of the suit property has continued in possession (presently through

his legal representatives).

5] Some time in 1979's, the Court of Wards, which was in the

management of the suit property, issued a notice seeking to

terminate whatever rights the respondent may have had in the suit

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property and demanded restoration of possession. The respondent

contested the notice and refused to deliver possession. Therefore,

on 6th April 1973, the Court of Wards, instituted Special Civil Suit

No. 21 of 1973 and Special Civil Suit No. 22 of 1973 alleging that

the respondent is a trespasser and seeking restoration of

possession.

6] The aforesaid suits were decreed on 29th August 1975 and the

respondent was directed to deliver suit possession and pay mesne

profits and costs. The appeal against the said decree was also

dismissed. However, there is no dispute that the decree was never

executed by the Court of Wards. On 23 rd September 1982 and 18th

February 1985 certain agreements were entered into between the

petitioner and the respondents concerning the suit property.

Similarly, yet another agreement was entered into on 5 th February

1986, again, concerning the suit property. The scope and import of

these agreements will be discussed later in the course of this

judgment and order.

7] On 29th July 1985, the suit property, amongst several other

properties, came to be released in favour of the petitioner by the

Court of Wards.

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            8]      On 23rd October 1992, the respondent applied to Tahsildar

and ALT for determination of purchase price in terms of Section

32G of the Tenancy Act. Necessary notice was served upon the

petitioner. The returnable date i.e. 31st October 1991, the petitioner

was represented by his constituted attorney, who, incidentally

happened to be uncle of the respondent.

9] Mr. Bhargude points out that in pursuance of the notice from

the Tahsildar, the petitioner had in fact addressed a letter seeking

for adjournment on ground of inability to attend the proceedings on

the returnable date i.e. 31st October 1991. However, on 31st

October 1991, the statements of the respondent as well as the

attorney for the petitioner came to be recorded. On the same date,

the Tahsildar allowed the petitioner's application under Section 32G

and determined the purchase price by judgment and order dated

31st October 1991.

10] The petitioner, aggrieved by the judgment and order dated 31 st

October 1991 appealed to the SDO. Before the SDO one of the

contentions concern the authority of the power of the attorney to

represent the petitioner. The other contention raised in appeal was

that the respondent was required to institute proceedings before the

civil court in order to enforce the agreements dated 23 rd September

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1982, 18th February 1985 and 5 th February 1986 and the Tahsildar

was not entitled to take cognizance of the said agreements and on

the said basis, determine the purchase price. The SDO, by

judgment and order dated 4th June 1992 allowed the appeal

instituted by the petitioner.

11] The respondent, aggrieved by the SDO's judgment and order

dated 4th June 1992 instituted revision petition No. 5 of 1992 before

the MRT. The MRT, vide the impugned judgment and order dated 6th

October 1993 has allowed the revision, set aside SDO's order and

restored the Tahsildar's order dated 31 st October 1991. Hence, the

present petition.

12] Mr. Bhargude, learned counsel for the petitioner has made the

submissions in support of this petition:-

(A) That the Court of Wards either had no authority to

create a tenancy in favour of the respondent or in any case,

the tenancy created by the Court of Wards on 3 rd April 1946

for a period of 11 months, could not have survived beyond the

said period of 11 months, or in any case beyond the tenure of

the Court of Wards itself. In support of this proposition, Mr.

Bhargude relies upon the decision in the case of Musamia

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Imam Haider Bax Razvi vs. Rabari Govindbhai Ratnabhai

& Ors.1

(B) In any case, the Court of Wards, had secured a decree

of eviction against the respondent. This decree had attained

finality on account of dismissal of the appeal against the

same. The decree, was inter se binding between the Court of

Wards and the respondent. Upon the Court of Wards

restoring the possession of suit property to the petitioner, the

petitioner, is also entitled to the benefit of such decree. The

decree declares that the respondent was a trespasser in

respect of the suit property. In these circumstances, there was

no question of the Tahsildar entertaining the respondents

application under Section 32G of the Tenancy Act. The very

entertaining of such application under Section 32G of the

Tenancy Act was an act without jurisdiction. Mr. Bhargude

submits that unless and until a party takes out appropriate

proceedings before the appropriate forum, within the

appropriate period to set aside a judgment or decree, the said

judgment or decree binds the parties inter se and its effect

cannot be avoided by merely stying the same as nullity.

(C) The Tahsildar and MRT have grossly erred in relying

1 AIR 1969 SC 439

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upon the three agreements of 1982, 1985 and 1986. The

agreements of 1982 and 1985 cannot bind the petitioner

because the date when the same were executed the suit

property was being managed by the Court of Wards. The

possession of the suit property was restored to the petitioner

only on 29th July 1985. In any case, Mr. Bhargude submits

that the Tahsildar has no jurisdiction to enforce agreements

between parties. If, any party seeks enforcement of

agreements, then, appropriate proceedings are required to be

instituted before the civil courts. The orders made by the

Tahsildar and now restored by MRT are orders without

jurisdiction. Mr. Bhargude submits that the SDO has

appreciated the issue in its proper perspective and MRT

exceeded jurisdiction in interfering with the well reasoned

decision of the SDO.

(D) Assuming that the provisions of Section 88 (1)(c) and

the proviso thereto became applicable to the present case

and the provisions of Section 32 to Section 32R became

applicable to the suit property on 29th July 1985, which is the

date on which the property was released by the Court of Ward

in favour of the petitioner, then, the respondents had to

exercise their right to purchase the suit property on or before

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29th July 1987, i.e., within two years from the date of

applicability of the said provisions. In this case, admittedly,

application under Section 32G was made on 19 th October

1990, which is much beyond the period of limitation

prescribed under Section 88(1)(c) and the proviso thereto. On

this ground also application made by the respondents under

Section 32G was required to be dismissed.

13] Mr. Shah, learned counsel for the respondents, submits that

he does not join in any issue with the propositions urged by Mr.

Bhargude that the Court Wards was not entitled to create any

tenancy in respect of the suit property, beyond the term of Court of

Wards. He submits that in the present case, that the tenancy of the

respondents stands admitted in terms, in the agreements of 1982,

1985 and 1986, the execution of which, is never denied by the

petitioner. He submits that the agreements make reference to the

rates prescribed under the Tenancy Act as also the government

orders in this regard. He submits that the petitioners have received

the entire consideration towards purchase price and the attempt to

deny benefits to the respondents is mala fide. He submits that writ

jurisdiction should not be exercised to assist the petitioner to

renege upon the solemn assurance in the agreements of 1982,

1985 and 1986. He submits that even the Appeal Court has

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recorded that the Power of Attorney Holder was authorised to make

the statement which he made in the proceedings before the

Tahsildar. The Power of Attorney Holder has clearly admitted to the

factum of tenancy and the factum of execution of agreements. For

all these reasons, Mr. Shah submits that this petition may be

dismissed with costs.

14] In this case, there is no dispute that the petitioner was served

with the summons in proceedings under Section 32 G of the

Tenancy Act. The petitioner appeared on the returnable date, i.e.,

31st October 1991 through his Constituted Attorney Bapusaheb

Bhoite. Although, vague contention was raised before the Appeal

Court to the effect that granted to the Attorney had already been

revoked or cancelled, the same was never substantiated and the

same was not even accepted by the Appeal Court. Even the Appeal

Court, which has, otherwise held in favour of the petitioner, has

observed that there was no reason to challenge the authority of the

Attorney or the statements made by the Attorney before the

Tahsildar. In this regard, even the appeal court, has observed thus :

"In the present case the power of attorney of the appellant has given an application to allow him to join as a third party and advocate for him has also appeared before me but did not give the argument, On perusal of the application it is seen that the contention of him is regards to his status as power of attorney and its validity. I do not want to challenge the authority of the power of attorney and what ever he has stated before the Lower Court, inspite of that an going though the

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casepapers and the argument put forth before this court my observation and findings are as under -.............."

15] Now, the Power of Attorney of the petitioner has clearly

deposed that the respondents were the tenants in respect of the suit

property. He has also deposed that the agreements of 1982, 1985

and 1986 were indeed executed and entered into by and between

the parties. In fact, even the petitioner, does not dispute the

execution. The contention is that 1982 and 1985 agreements were

executed when the property was in the management of the Court of

Wards and therefore, the said agreements are not binding upon the

petitioners. Such a contention, cannot be entertained in a writ

petition. In exercise of writ jurisdiction, the parties, cannot be

permitted to renege upon solemn commitments, even assuming that

such commitments may have been contractual.

16] In any case, 1986 agreement substantially reiterates the

position borne out by 1982 and 1985 agreements. Admittedly, on

29th July 1985, the suit property was released in favour of the

petitioner by the Court of Wards. The petitioner, therefore, cannot

renege upon the commitments in the agreement dated 5 th February

1986. In fact, the petitioner, has acted on the basis of agreement

dated 5th February 1986. The petitioner has also received

consideration on the basis of these agreements. These agreements,

are in the nature of admission as regards the tenancy status of the

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respondents. These agreements are in the context of payment of

purchase price, which again, determined in terms of provisions of

Tenancy Act.

17] There is also no merit in the contention of Mr. Bhargude

based upon the Civil Court decree. The decree was made in a suit

instituted in the Court of Wards on the basis that the provisions of

Tenancy Act do not apply to properties in the management of Court

of Wards. It is in this context that it was held that the respondents

are trespassers. However, the evidence on record establishes that

the respondents have been in possession of the suit property right

from the year 1946. The revenue records supports this position,

which is even otherwise, undisputed. No sooner, the provisions of

Tenancy Act became applicable to the suit property consequent

upon its release by the Court of Wards, the petitioner took no steps

to terminate the tenancy but rather, entered into agreements with

the respondents, confirming and ratifying earlier agreements of

1982 and 1985. Even the Court of Wards, chose not to execute the

decree obtained by it and the respondents continued in the

possession of the suit property uninterruptedly from the year 1946.

In such circumstances, including in particular, the execution of

agreements of 1982, 1985 and 1986, it is not open for the petitioner

to fall back upon the decree which may have been obtained by the

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Court of Wards. The circumstances, both in terms of law as well as

fact have undergone a sea change since the release of the property

by the Court of Wards in favour of the petitioner. In these

circumstances, it is not possible to turn the clock back and at this

belated stage and to permit the petitioner to place reliance upon the

decree obtained by the Court of Wards, which again, the Court of

Wards chose never to execute.

18] The contention based upon limitation was never raised by the

petitioner either before the Tahsildar, Sub-Divisional Officer (SDO)

or the MRT. The contention, is not a pure question of law. In any

case, the petitioner has also not taken any steps to terminate any

tenancy within a period of one year from the date of restoration of

possession by the Court of Wards. In these circumstances, it really

cannot be said that the application under Section 32G of the

Tenancy Act made by the respondents was barred by limitation.

Besides, in the present case, within less than a year from the date

of release of the property by the Court of Wards in favour of the

petitioner, the petitioner, himself chose to execute an agreement

dated 5th February 1986, in which, he confirmed the purchase price

and made a commitment to complete the sale.

            19]     The application under Section 32G of the Tenancy Act came








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to be filed because the petitioner, in breach of the commitments

undertaken and despite the receipt of entire consideration failed to

complete the procedural formalities. The Appeal Court in such

circumstances, was not justified in non-suiting the respondents as if,

the respondents were seeking some specific performance of the

agreements 1982, 1985 and 1986. The respondents were relying

upon the said agreements as evidence as to the admission of their

status of tenancy. The respondents were relying upon the said

agreements as admission, in the context of determination of

purchase price.

20] Even before this Court, the petitioner has not disputed the

execution of the 1982, 1985 and 1986 agreements. The only

contention is that the respondents should have instituted civil suit

before the civil courts for enforcement of the said agreements. It is

not possible to entertain such a plea in the exercise of writ

jurisdiction and to non-suit the respondents, who are admittedly, in

possession of the suit property, since the year 1946 and who have,

consistent with the agreements of 1982, 1985 and 1986 paid the

entire consideration to the petitioner.

21] The jurisdiction under Articles 226 and 227 of the Constitution

of India is discretionary and in the facts and circumstances of the

present case, there is no case made out for exercise of such

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discretion in favour of the petitioner, even assuming that some

technical point may benefit the petitioner in the facts and

circumstances of the present case. This jurisdiction cannot be

exercised to assist the petitioner to renege upon the solemn

agreements of 1982, 1985 and 1986. This jurisdiction also cannot

be exercised to disturb the possession of respondent from the year

1946 in a situation where it is not even disputed that the respondent

has complied with its part of the bargain under 1982, 1985 and

1986 agreements. This jurisdiction is to promote justice and if

justice is the by-product of even some erroneous interpretation by

the MRT (which, in present case, it is not) there is no reason to

interfere, if the consequent possession would be grossly unjust.

22] Therefore, upon cumulative consideration of all such factors,

there is no case made out to interfere with the orders made by the

Tahsildar and the MRT in favour of the respondents.

23] The petition is therefore, dismissed. There shall however, be

no order as to costs. The interim order, if any, stands vacated.

(M. S. SONAK, J.) Chandka/Sherla