Bombay High Court
Gitabai Namdev Jadhav (Kumbhar) ... vs Kisan Tulsiram Aware (Decd) Thr ... on 5 June, 2023
Bench: N. J. Jamadar
2023:BHC-AS:14625
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1789 OF 2022
1 Gitabai Namdev Jadhav (Kumbhar)
2 Manohar Namdev Jadhav
3 Pramila Arvind Tamdale
4 Hemlata Kalias Bhagwat
5 Chandrakala Manoj Kumbhar
6 Shubhda Pravin Kumbhar
7 Anusaya Kashinath Jadhav (deceased)
through LRs.
7a Mundabai Trimbak Jagadale
7b Shivananda Uttam Sonavane
7c Ijabai Ashok Bhalerao
7d Shayalee Ranganath Gaikwad
7e Sulabai Kacharu Vishwase
7f Kamabai Ragunath Gaikwad
8 Kisan Kashinath Jadhav
9 Laxmibai Vasant Jadhav
10 Ganesh Vasant Jadhav
11 Jaywant Vasant Jadhav
12 Suvarna Sameer Shinde
13 Yashoda Thakaji Jadhav
14 Baban Thakaji Jadhav
15 Bharat Thakaji Jadhav ...Petitioners
Versus
1 Kisan Tulsiram Aware (deceased)
through LRs
1a Govind Kisan Aware
1b Murlidhar Kisan Aware
1c Balu Kisan Aware
1d Valabai Kalu Khatale
1e Bijlabai Mahadu Jadhav
2 Namdev Vasant Jadhav
3 The State of Maharashtra ...Respondents
Mr. Sandesh Patil, i/b Ms. Divya Pawar, for the Petitioners.
Mr. Pratik Rahade, i/b Mr. P. N. Joshi, for Respondent
Nos.1(b) to 1(e).
Mr. C. D. Mali, AGP for the State/Respondent No.3.
1/25
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CORAM: N. J. JAMADAR, J.
RESERVED ON: 6th APRIL, 2023
PRONOUNCED ON: 5th JUNE, 2023
JUDGMENT:-
1. Rule. Rule made returnable forthwith and with the
consent of the learned Counsel for the parties heard finally.
2. The petitioners take exception to a judgment and order
dated 9th February, 2021 passed by the learned President,
Maharashtra Revenue Tribunal, Mumbai, in Tenancy Revision -
NSK No.193 of 2017, whereby the revision application preferred
by respondent Nos.1a to 1e came to be allowed by setting aside
the order dated 23rd March, 2015 passed by the Agricultural
Land Tribunal ("ALT") and Tahsildar, Igatpuri holding that
respondent Nos.1a to 1e are not the tenants, and the order
dated 8th June, 2017 passed by the Sub-Divisional Officer,
Igatpuri, in Tenancy Appeal No.5 of 2015, affirming the aforesaid
order of the ALT. The Maharashtra Revenue Tribunal ("MRT")
thus held that respondent Nos.1a to 1e were the tenants of the
agricultural land bearing Gat No.296 situated at village
Mukane, Taluka Igatpuri ("the subject land").
3. Background facts leading to this petition can be stated in
brief as under:
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(a) The petitioners claim that Namdeo Kondaji Jadhav,
the husband of petitioner No.1 and father of petitioner No.2, was
the holder of the subject land. As the subject land has been the
ancestral property of Namdeo, the name of Kondaji Nana
Kumbar, the predecessor-in-title of Namdeo was mutated to the
cultivator's column of the subject land in the year 1937.
However, in connivance with the officers of the revenue
department and behind the back of the predecessor-in-title of
the petitioners the name of one Babu Devram Aware came to be
mutated to the subject land as the owner thereof by making a
pencil entry. Subsequently, the name of Kisan Tulshiram
Aware, the predecessor-in-title of respondent No.1a to 1e, came
to be mutated to the cultivator's column of the subject land. All
these entries were allegedly made without notice to the
predecessor-in-title of the petitioners and the subject land had
along been in the possession and cultivation of the predecessor-
in-title of the petitioners.
(b) Taking undue advantage of the paper entry Kisan
Tulshiram Aware started to cause obstruction to the possession
of the plaintiffs predecessor-in-title over the subject land.
Namdeo Jadahv thus was constrained to initiate proceedings for
a declaration that Kisan Aware was not a tenant in the subject
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land. The said Tenancy Application No.3 of 1979 was allowed.
In appeal, however, the Sub-Divisional Officer negatived the
claim of Namdeo and made a declaration in favour of Kisan
Aware. Tenancy Appeal No.87 of 1981 preferred before the MRT
was also dismissed primarily on the ground of delay in filing the
revision application. Writ Petition No.928 of 1982 preferred by
Namdeo came to be disposed of as withdrawn with liberty to
institute appropriate proceedings, if so advised.
(c) In the meanwhile, the deceased Kisan Aware,
preferred Regular Civil Suit No.145 of 1979 seeking a decree of
perpetual injunction. By a judgment and decree dated 9 th
February, 1999, the learned Civil Judge, Junior Division,
Igatpuri, decreed the suit and perpetually restrained the
predecessor-in-title of the petitioners from causing obstruction
to the possession and enjoyment of Kisan Aware over the
subject land otherwise than by following due process of law.
Civil Appeal No.6 of 2000 preferred by the petitioners came to be
dismissed on 29th September, 2001. The second appeal preferred
thereaginst is subjudice before this Court.
(d) The petitioners instituted a suit, being Regular Civil
Suit No.251 of 2001, before the Civil Court, Nashik, for
possession, declaration and injunction. By orders dated 18 th
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September, 2009 and 13th September, 2009, the learned Civil
Judge was persuaded to frame issues as to whether the Civil
Court had jurisdiction to entertain the suit and whether the
deceased respondent No.1 was the tenant of the subject land
and also make a reference to the ALT for adjudicating the issue
of tenancy. Writ Petition No.1050 of 2009 preferred by Namdeo
came to be rejected with a request to the trial court to direct the
ALT to decide the reference expeditiously.
(e) The ALT and Tahsildar, Igatpuri, by a judgment and
order dated 23rd March, 2015 was persuaded to return a finding
under Section 70(b) of the Maharashtra Tenancy and
Agricultural Lands Act, 1948 ("the Act, 1948") that deceased
Kisan Aware was not a tenant of the subject land within the
meaning of Section 4 of the Act. It was further declared that the
tenancy of deceased Kisan Aware stood terminated under
Section 32-O of the Act, 1948. The ALT was of the view that
there was no material to show that the deceased Kisan Aware
had paid rent to the landlord and receipts were passed.
(f) Respondent Nos.1a to 1e preferred an appeal being
Tenancy Appeal No.5 of 2015 before the Sub-Divisional Officer,
Igatpuri - Trimbakeshwar Sub-Division. By a judgment and
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order dated 8th June, 2017 the SDO dismissed the appeal
concurring with the view of ALT.
(g) Being further aggrieved respondent No.1a to 1e
preferred revision, being Tenancy Revision NSK 193/2017. By
the impugned judgment and order, the learned President, MRT,
was persuaded to allow the revision holding that the findings
recorded by the authorities below that deceased Kisan Aware
was not the tenant of the subject land were perverse and
rendered upon an incorrect impression of the provisions
contained in Section 4 and 32-O of the Act, 1948. The
petitioners have thus invoked the writ jurisdiction.
4. I have heard Mr. Patil, the learned Counsel for the
petitioners, Mr. Mali, the learned AGP for the respondent - State
and Mr. Rahade, the learned Counsel for respondent Nos.1b to
1e. I have also perused the material on record including the
orders passed by the authorities below.
5. Mr. Sandesh Patil, the learned Counsel for the petitioners,
mounted a two-fold challenge to the impugned order. Firstly,
with the death of respondent No.1a Govind Aware in the year
2018 during the pendency of the revision before the MRT and
his legal representatives having not been brought on record, the
revision abated as a whole. Thus the orders impugned before
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the MRT having attained finality qua deceased respondent No.1a
Gonvind Aware, it could not have been interfered with by the
MRT qua respondent No.1b to 1e as well, as it brought into
existence two conflicting orders.
6. Secondly, the learned President, MRT, committed a grave
error in law in interfering with the concurrent findings of facts
recorded by ALT and Sub-Divisional Officer, in exercise of
limited revisional jurisdiction. Mr. Patil would submit that the
learned President did not make any endeavour to come in close
quarters with the reasons ascribed by the authorities below. The
fact that there were neither receipts nor any material to show
that rent was ever paid by Kisan Aware, was rather
incontrovertible. In the circumstances, the learned President
had no reason to take a contrary view.
7. Mr. Patil further submitted that the finding recorded by
the ALT and SDO that the tenant had not exercised the right to
purchase the subject land from the landlord within one year of
creation of the tenancy under Section 32-O of the Act, 1948 was
also factually impeccable. Thus, the MRT was not at all justified
in interfering with the orders passed by the authorities below.
8. In opposition to this, Mr. Rahade the learned Counsel for
respondent Nos.1b to 1e submitted that the fact that Kisan
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Aware had been in possession of the subject land has been
established in multiple proceedings and beyond the pale of
controversy. The predecessor-in-title of the petitioners had not
succeeded in obtaining a negative declaration before the tenancy
authorities that Kisan Aware was not the tenant of the subject
land. The said matter attained finality with the dismissal of the
writ petition by this Court. The Civil Court had also recorded a
categorical finding that Kisan Aware was in cultivation of the
subject land since 22 to 25 years prior to the institution of
Regular Civil Suit No.145 of 1979. In this backdrop, the order
passed by ALT that Kisan Aware was not the tenant of the
subject land for want of receipts and proof of payment of rent,
being wholly perverse, was rightly interfered with by MRT.
9. It was submitted that it is well neigh recognized that to
establish lawful cultivation under Section 4 of the Act, 1948
proof of payment of rent or receipt is not peremptory. What has
to be shown is the lawful cultivation. To bolster up this
submission, Mr. Rahade placed a strong reliance on a decision
of this Court in the case of Jagannath Vithu Jadhav (since
deceased) thorugh LRs Smt. Shalan Jagannath Jadhav and ors.
vs. State of Maharashtra and others1.
1 2013(2) Mh. L.J. 285.
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10. Mr. Rahade further urged that the ALT as well as SDO
completely misconstrued the scope of the provisions contained
in Section 32-O of the Act, 1948. As the petitioners - landlords
have been disputing the status of respondent Nos.1a to 1e as
tenants of the subject land, the period of limitation of one year
would commence from the date of final adjudication of the
tenancy and not before. To buttress this submission as well, the
learned Counsel for respondent Nos.1b to 1e placed reliance on
the aforesaid judgment in the case of Jagannath Jadhav (supra)
and Gulabrao Sahebrao Shinde vs. Sayaji Shankar Shinde
2004(1) Mh.L.J. 873. On the aspect of the alleged abatement of
the revision in its entirety, the learned Counsel for respondent
Nos.1b to 1e submitted that since the estate of deceased
respondent No.1a was represented by respondent Nos.1b to 1e
there could be no abatement of revision.
11. The learned AGP also supported the impugned order.
12. I deem it in the fitness of things to first appreciate the
challenge to the impugned order on merits. Few facts are rather
incontestible. In the record of right of the subject land, for the
year 1966 to 1967, the name of Babu Devram was mutated as
the holder and that of Kisan Aware as the tenant. Indisputably,
the predecessor-in-title of the petitioners had instituted a
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proceedings purportedly under Section 70-b of the Act, 1948
being Tenancy Case No.3 of 1979 seeking a declaration that
Kisan Aware was not the tenant of the subject land. The said
proceedings came to be dismissed and appeal thereagaint being
Tenancy Appeal No.8 of 1980 also came to be dismissed and the
revision being Tenancy Revision No.87 of 1981 before the MRT
met the same fate. There is not much controversy over the fact
that deceased Kisan Aware had instituted RCS No.145 of 1979
seeking a decree of perpetual injunction and it came to be
decreed by judgment and order dated 9th December, 1999. Civil
Appeal No.6 of 2000 preferred by the predecessor-in-title of the
petitioners was dismissed by the first Appellate Court by
judgment and order dated 29th September, 2001 and the second
appeal is pending before this Court.
13. In the light of the aforesaid uncontroverted facts, the
petitioners instituted the suit seeking declaration and
possession of the subject land, being Suit No.251 of 2001, in
which the issue of tenancy came to be framed and referred for
adjudication to the ALT. While determining the said issue, by
order dated 23rd March, 2015 the ALT was persuaded to hold
deceased Kisan Aware failed to establish tenancy over the
subject land for the reason that there was no proof of payment
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of rent either in cash or kind nor the landlord had passed the
rent receipts. The ALT was also of the view that the tenancy of
Kisan Aware was recorded till the year 1966 - 1967 and thus it
was incumbent upon the tenant to make an application to
purchase the subject land within one year as provided under
Section 32-O of the Act, 1948.
14. Whether the aforesaid approach of the ALT, which was
affirmed by SDO, was justifiable, was the question before the
MRT. The learned President held that the authorities below
erred in appreciating the factum of possession as well as the
legal significance of cultivation under Section 4 of the Act, 1948.
Since the petitioners were disputing the tenancy of deceased
Kisan Aware the time to make application to purchase the
subject land under Section 32-O of the Act, 1948 did not
commence.
15. A tenant is defined under Section 2(18) of the Act, 1948 as
under:
"2(18) "tenant" means a person who holds land on
lease and include,
(a) a person who is deemed to be a tenant under
Section 4;
(b) a person who is a protected tenant; and
(c) a person who is a permanent tenant; and the word
"landlord" shall be construed accordingly;"
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16. Section 4 of the Act, 1948 defines who are deemed to be
the tenants for the purpose of the Act, 1948. It reads as under;
"S.4 Persons to be deemed tenants:
(1) A person lawfully cultivating any land belonging to
another person shall be deemed to be a tenant if such land
is not cultivated personally by the owner and if such person
is not--
(a) a member of the owner's family, or
(b) a servant on wages payable in cash or kind but not
in crop share or a hired labourer cultivating the land under
the personal supervision of the owner or any member of the
owner's family, or
(c) a mortgagee in possession.
Explanation 2[(I)]: A person shall not be deemed to be a
tenant under this section if such person has been on an
application made by the owner of the land as provided
under section 2-A of the Bombay Tenancy Act, 1939,
declared by a competent authority not to be a tenant.
[Explanation II.-- Where any land is cultivated by a widow
or a minor or a person who is subject to physical or mental
disability or a serving member of the armed forces through
a tenant then notwithstanding anything contained in
Explanation I to clause (6) of section 2, such tenant shall be
deemed to be a tenant within the meaning of this section].
...................
(3) Notwithstanding anything contained in sub-clause
(a) of clause (ii) of sub-section (1) of section 32H, the
purchase price in such cases shall be 200 times the
assessment.]"
17. Since controversy revolves around the correct construction
of the provisions contained in Section 32-O of the Act, 1948, it
may be apposite to extract the same at this stage itself.
"32-O. Right of tenant whose tenancy is created after tiller's
day to purchase land.
(1) In respect of any tenancy created after the tillers' day 4
[by a landlord (not being a serving member of the armed
forces)] notwithstanding any agreement or usage to the
contrary, a tenant cultivating personally shall be entitled
within one year from the commencement of such tenancy to
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purchase from the landlord the land held by him or such
part thereof as will raise the holding of the tenant to the
ceiling area.
[(1A) A tenant desirous of exercising the right conferred
on him under subsection (1) shall give an intimation in that
behalf to the landlord and the Tribunal in the prescribed
manner within the period specified in that sub-section].
(2) The provision of section 32 to 32N (both inclusive)
and of sections 32P, 32Q, and 32R in so far as they may be
applicable shall apply to the purchase of the land by a
tenant under sub-section (1)."
18. From the perusal of the provisions contained in Section
2(18) read with Section 4 of the Act, 1948, it becomes evident
that apart from the contractual tenant, deemed tenant,
protected tenant and permanent tenant are subsumed with the
definition of tenant under the Act, 1948. For a person deemed
to be a tenant, such person shall be in lawful cultivation of the
land belonging to another person, if such land is not cultivated
personally by the owner and such person is not one of the
excluded categories, namely, a member of owner's family, a
servant on wages and a mortgagee in possession.
19. What is of critical significance is, "lawful cultivation of the
subject land". The definition of deemed tenant does not envisage
a situation of cultivation with the consent or under the
authority of the owner/landlord. If it is a case of cultivation
with the consent or authority, it would ordinarily be a case of
contractual tenancy. By expanding the scope of tenancy by
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incorporating a deeming provision with the only qualification
being lawful cultivation of the subject land, the legislature has
expanded the amplitude of the beneficial provision.
20. In the case of Dahya Lala and others vs. Rasul Mahomed
Abdul Rahim and others2, the Constitution Bench of the
Supreme Court considered the question whether a person
claiming the status of deemed tenant must have been
cultivating the land with consent or under the authority of the
owner. Answering the question in the negative, the Supreme
Court expounded the legislative object behind incorporating the
beneficial provisions as under:
"6. ........ But the Act has by Section 2(18) devised a
special definition of tenant and included therein persons
who are not contractual tenants. It would therefore be
difficult toasume in construing Section 4 that the person
who claims the status of a deemed tenant must be
cultivating land with the consent or authority of the owner.
The relevant condition imposed by the statute is only that
the person claiming the status of a deemed tenant must
cultivate land with the "lawfully" : it I not the condition that
he must cultivate land with the consent of or under
authority derived directly from the owner. To import such a
condition it is to rewrite the section and destroy its practical
utility. A person who derives his right to cultivate land from
the owners would normally be a contractual tenant and he
will obviously not be a "deemed tenant". Persons such as
licencees from the owner may certainly be regarded as
falling within the class of persons lawfully cultivating land
belonging to others, but is cannot be assumed therefrom
that they are the only persons who are covered by the
section. The Act affords protection to all persons who hold
agricultural land as contractual tenants and subject to the
exceptions specified all persons lawfully cultivating lands
belonging to others, and it would be unduly restricting the
intention of the Legislature to limit the benefit of its
2 1964 SCC 1230(1).
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provisions to persons who derive their authority from the
owner, either under a contract of tenancy, or otherwise. In
our view, all persons other than those mentioned in cls. (a),
(b) and (c) of Section 4 who lawfully cultivate land belonging
to other persons whether or not their authority is derived
directly from the owner of the land must be deemed tenants
of the lands."
21. The aforesaid pronouncement makes it abundantly clear
that the primary enquiry ought to be to ascertain whether a
person is in lawful cultivation of the land of another and he does
not fall within any of the excluded categories envisaged by Sub-
Section (1) of Section 4. In the circumstances, insisting upon
the consent or the authority of the landlord would amount to
adding conditions which do not find mention in the definition of
tenant and deemed tenant.
22. The ALT and SDO did not keep in view the aforesaid
nature of the, "deemed tenancy" and the legislative object. They
proceeded on the premise that there was no document to show
the creation of the tenancy between the landlord and deceased
Kisan Aware. This vitiated the entire approach of ALT and SDO.
Negativing the claim of deceased Kisan Aware on the ground
that there was no proof of payment of rent to landlord
manifested the incorrect impression which the authorities
entertained.
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23. In the case of Jagannath Jadhav (supra) a learned Single
Judge of this Court after adverting to the pronouncements of
this Court in the cases of Dhondu Bapu Survey vs. Aniruddh
Yeshwant Vaidya,3 Gulabrao Shinde (supra) and Special Civil
Application No. 475 of 1975 held that this Court has taken a
consistent view that it is not necessary to have an entry in the
tenancy column or rent note or a rent receipt to support the
claim of a tenant of statutory tenancy. It has further been held
that all that is required under Section 4 of the Act, 1948 is
lawful cultivation by a person other than the person of the
excluded category, subject to other conditions laid down in
Section 4.
24. In Special Civil Application No.475 of 1975, this Court has
observed in clear and explicit terms that the reasoning of the
Tribunal that there ought to be an entry in the tenancy column
or rent note or rent receipt was against the provisions of Section
4 of the Tenancy Act, which does not require an entry in the
tenancy column or a rent note or a rent receipt to support the
claim of a tenant to statutory tenancy under that section. Such
a view was a fashioned notion of the law of landlord and tenant
which the legislature had consciously omitted in the definition
of, "statutory tenancy".
3 77(25) T.L.R. 6 in Special CA No.479/1972.
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25. In the case at hand, the ALT as well as SDO had based
findings on the traditional notions of tenancy rooted in contract.
In the face of overwhelming material to show that deceased
Kisan Aware was in lawful cultivation of the subject land, the
claim could not have been discarded for want of receipt or proof
of payment of rent. The learned President, MRT, was fully
justified in correcting the error into which the authorities below
had fallen in.
26. At this juncture, the incongruity in the claim of the
petitioners as regards their status as landlord of the subject
land also assumes importance. The material on record,
especially the pleadings in RCS No.251 of 2001, indicate that the
petitioners questioned the title of Mr. Babu Devram as the
holder of the subject land. The learned Civil Judge in the
judgment in RCS No.145 of 1979 noted that there was a clear
inconsistency in the claim of the predecessor-in-title of the
petitioners over title to the subject land. At one breath, it was
contended that one Bhau Rama Kumbhar had transferred the
suit land in the name of Kondaji Nana Kumbhar, father of
Namdeo, on 1st March, 1933. At another breath, it was asserted
that the legal representatives of deceased Babu Devram had
sold the suit land and waived their rights over the suit land.
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Noting this incongruity, in the impugned order, the learned
President recorded that the petitioners initially based their claim
of ownership on the basis of an entry in the revenue record and
later on relied upon the Agreement for Sale purported to have
been executed on 23rd March, 1979 and the claims were clearly
inconsistent bordering on dishonest.
27. Mr. Sandesh Patil advanced a severe criticism against the
aforesaid reasoning of the learned President on the ground that
such a ground was taken for the first time in the revision. The
articulation by the learned President may be termed harsh.
However, the clear inconsistency in the stand of the
predecessor-in-title of the petitioners as to the ownership over
the subject land is a matter which has a significant bearing.
The learned President was thus justified in taking into account
the said fact as well.
28. The second ground of tenants not having moved to
purchase the subject land within one year of the creation of the
tenancy under Section 32-O of the Act, 1948 ascribed by the
ALT and SDO to negative the claim of deceased respondent No.1
was equally untenable. Evidently, the predecessor-in-title of
respondent Nos.1a to 1e had asserted the claim of the tenancy
at least since the year 1979 and the predecessor-in-title of the
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petitioners disputed the same by seeking a negative declaration
that deceased Kisan Aware was not the tenant of the subject
land, again, at least, since the year 1979. The status of
deceased Kisan Aware as the tenant of the subject land was
itself put in contest by the predecessor-in-title of the petitioners,
and the petitioners, in successive proceedings. In the
circumstances, the learned ALT and SDO could not have taken
a view that deceased Kisan Aware ought to have moved to
purchase the subject land within one year of the termination of
the tenancy, purportedly in the year 1968.
29. The legal position is no longer res intergra. In the case of
Gulabrao Shinde (supra) a learned Single Judge of this Court
held that the question of exercising right to purchase the land
under Section 32-O of the Act would arise only after the
proceedings in which the tenancy was questioned were finally
culminated with a finding that the tenant was in lawful
cultivation of the land. Only upon culmination of the
proceedings (writ petition before the Court) would the petitioner
- tenant be required to give intimation for the purpose of Section
32-O of the Act, 1948.
30. In the case of Jagannath (supra), after following the
aforesaid pronouncement and the decision of this Court in the
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case of Bhila Keshav Patil vs. Ganpati Chunilal Kabre, 4 it was
enunciated that this Court has taken a consistent view that
until the landlord accepts the statutory tenancy or until his
contentions denying the tenancy are finally and conclusively
overruled, the period of one year provided for sending intimation
under Section 32-O will not commence.
31. The aforesaid exposition of law is to advance the object of
protecting the interest of a tenant, whose tenancy is created
after the tiller's date. If the period of limitation of one year
prescribed in Section 32-O is held to run from the date of the
creation of tenancy, even where the landlord disputes the
creation of tenancy, the statutory protection envisaged by
Section 32-O would be rendered negatary as the landlord, on
the one hand, would dispute the tenancy and, on the other
hand, take advantage of the lapse of time and urge that since
intimation had not been given within one year of the
commencement of the tenancy the right under Section 32-O is
lost. The learned President, MRT, was thus within his rights in
correcting the error which the authorities below had committed.
4 1973 Mh.L.J. 344.
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32. The conspectus of aforesaid discussion is that, on merits, I
do not find any reason to interfere with the order passed by the
learned President, MRT.
33. This takes me to the challenge to the impugned order on
the ground that the revision itself stood abated with the death of
respondent No.1a Govind Aware. Mr. Patil submitted that the
orders impugned before the MRT were indivisible. Once the
revision abated on account of the death of respondent No.1a
Govind, the abatement would operate against one and all. Lest,
there would be incongruious orders, as is manifested in the
instant case. One, confirmation of the orders passed by the
authorities below qua respondent No.1a due to abatement of the
proceedings. Two, reversal of those orders by the impugned
order. To lend support to this submission Mr. Patil placed a
strong reliance on a Division Bench judgment of this Court in
the case of Sheela Vijay Choudhari and others vs. Central Bank
of India and ors.5
34. In the said case, this Court, in the backdrop of the facts
wherein one of the defendants i.e. defendant No.2a who was
initially impleaded as a respondent No.2 to the appeal came to
be deleted and the appeal was prosecuted by the original
5 1998(1) Mh.L.J. 928.
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defendant Nos.2b to 2d, held that the fact of deletion of name of
respondent No.2 - original defendant No.2a from the appeal-
memo was that the decree passed by the trial court which was
impugned in the said appeal had become final as against deleted
respondent No.2 - defendant No.2a and in the event the appeal
was ultimately allowed the net result would be that two different
decrees would hold the field. Such a situation is against the law
enunciated by the Supreme Court in the case of State of Punjab
vs. Nathu Ram6 and the subsequent judgments. It was thus
held that where a decree was joint and indivisible in nature, and
as the decree has become final against one of the defendants,
the appeal would abate as a whole.
35. Mr. Patil placed reliance on the following observations of
the Supreme Court in the case of Nathu Ram (supra):
"8. The difficulty arises always when there is a joint
decree. Here again, the consensus of opinion is that if the
decree is joint and indivisible, the appeal against the other
respondents also will not be proceeded with and will have to
be dismissed as a result of the abatement of the appeal
against the deceased respondent. Different views exist in the
case of joint decrees in favour of respondents whose rights
in the subject matter of the decree are specified. One view is
that in such cases, the abatement of the appeal against the
deceased respondent will have the result of making the
decree affecting his specific interest to be final and that the
decree against the other respondents can be suitably dealt
with by the appellate Court. We do not consider this view
correct. The specification of shares or of interest of the
deceased respondent does not affect the nature of the decree
and the capacity of the joint decree- holder to execute the
entire decree or to resist the attempt of the other party to
6 AIR 1962 SC 89.
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interfere with the joint right decreed in his favour. The
abatement of an appeal means not only that the decree
between the appellant, and the deceased respondent has
become final, but also, as a necessary corollary, that the
appellate Court cannot, in any way, modify that decree
directly or indirectly. The reason is plain. It is that in the
absence of the legal representatives of the deceased
respondents, the appellate Court cannot determine anything
between the appellant and the legal representatives which
may affect the rights of the legal representatives under the
decree. It is immaterial that the modification which the
Court will do is one to which exception can or cannot be
taken.
(emphasis supplied)
36. Per contra the learned Counsel for respondent Nos.1b to
1e submitted that if the estate of deceased party was fully and
substantially represented there would be no abatement.
Reliance was placed on a recent decision of the Supreme Court
in the case of Shivshankara and another vs. H.P. Vedavyasa
Char7.
37. During the pendency of the revision, respondent No.1a
Govind Aware expired on 15th November, 2018. Evidently, the
legal representatives of respondent No.1a - petitioner No.1a, in
the revision application were not brought on record.
Respondent Nos.1b to 1e, being the legal representatives of
deceased Kisan Aware and siblings of respondent No.1a Govind
represented the estate of deceased respondent No.1a Govind
Aware. Thus, the revision would not abate in its entirety. The
analogy of a single and individual decree sought to be imported
7 AIR 2023 Supreme Court 1780.
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on behalf of the petitioners thus would not govern the facts of
the case at hand. Therefore, non-impleadment of the legal
representatives of respondent No.1a Govind Aware before the
Tribunal would not entail the consequence of abatement of the
revision petition as as whole.
38. I am, thus, not persuaded to accede to the submission on
behalf of the petitioners that the revision petition abated in its
entirety.
39. The upshot of the aforesaid consideration is that on both
counts the petition fails.
40. Hence, the following order:
:ORDER:
(i) The petition stands dismissed.
(ii) Since the proceedings arose out of reference to the
ALT, for the sake of clarity, especially for the purpose
Section 32-O of the Act, 1948, it is declared that the
deceased Kisan Aware, during his lifetime, was, and
after the demise of the Kisan Aware, respondent
no.1a, during his life, was, and respondent Nos.1b to
1e, are the tenants in respect of the subject land.
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(iii) Subject to the aforesaid clarification, the rule stands
discharged.
(iv) No order as to costs.
[N. J. JAMADAR, J.]
The learned Counsel for the petitioners seeks stay to the
effect and operation of the order.
As the interim protection was in operation during the
pendency of the petition till the pronouncement of the
judgment, the execution and operation of this order is stayed for
a period of six weeks.
However, in the meanwhile, the petitioners shall not
proceed with RCS No.251 of 2001.
[N. J. JAMADAR, J.]
