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PETITIONER: DADU RAU YELAVADE (DEAD) BY HIS HEIRS AND LRS.

       Vs.

RESPONDENT: HIMMAT RASUL PATEL

DATE OF JUDGMENT10/03/1992

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. RAMASWAMI, V. (J) II YOGESHWAR DAYAL (J)

CITATION:  1992 AIR 1093            1992 SCR  (2) 101  1992 SCC  (2) 573        JT 1992 (3)   394  1992 SCALE  (1)613

ACT:      Bombay Tenancy and Agricultural Lands Act,     1948-Sections 32, 32G 32M, 43, 64(8)-Transfer of land by landlord   after   tiller’s   day-Void-Sale   by   landlord- Ratification-Effect-Vesting   of   title   on   tenants   on 21.12.1969-Sale  of  share  by  a  co-tenant  on  11.5.1966- Validity of.

HEADNOTE:      The  landlord,  Prabhu’s  lands measuring  3  acres  25 gunthas  were  under  the cultivation of  rau,  the  tenant- appellant.      The landlord u/s. 31 read with section 29 of the Bombay Tenancy  and  Agricultural  Lands  Act,  1943  instituted  a proceeding against the tenant.      During the pendency of the proceeding Rau died and  his tenancy rights were inherited by his four sons, the  present appellants.      The landlord on 27.4.1961 decided to sell the suit land to  the  fourth son of the demised tenant,  who  effected  a partition of the property.      On 24.5.1961, the proceeding u/ss.29, 31 of the Act was dismissed.      Mahadu,  one of the sons of Rau, sold his share  in  the suit  land  in favour of the respondent on  11.5.1966  by  a registered deed.      In  1969, the Tahsildar initiated proceedings u/s.  32G of  the Act, and on 21.12.1969 by his order he declared  the fourth son of Rau as the purchaser and also directed that  a certificate u/s. 32 M read with section 43 of the Act should be  issued  to  the tenants.  He also  held  that  the  sale effected by Mahadu in favour of the respondent was  contrary to  law  and directed the removal of the  respondent’s  name from the revenue records.      In  the meanwhile one of the sons of Rau  instituted  a suit  against the respondent for an  injunction  restraining him  from obstructing his possession of the  property.   The respondent contested the suit contending that he,                                                        102 being  the  purchaser  of Mahadu’s share,  was  entitled  to

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remain in possession as a co-owner along with the plaintiff.      The Civil Court u/s. 85 of the Act referred two  issues for determination of the tenancy authorities, which were:-          "(1)  Was  the  plaintiff a  tenant  of  the  suit-          property and did he subsequently become its  deemed          purchaser ?          (2)   Was  the  sale  deed  by  Mahadu   to   Patel          (respondent) invalid under Act?"          The   Tahsildar   answered   both   questions    in          affirmative.      In  appeal,  the findings of the  Tahsildar,  that  the plaintiff  was the deemed purchaser of the land on  1.4.1959 and that the transfer by Mahadu in favour of the  respondent was  hit by the  provisions of section 43 of the  Act,  were confirmed.      Respondent’s  revision  was  allowed  by  the   Revenue Tribunal,  holding  at  the  sale by  Mahadu  in  favour  of respondent was not invalid; that the ons of Rau were  deemed purchasers  only  on 24.5.1961 and became  actual  purchaser only  on  21.12.1969,  when the sale  in  their  favour  was regularised u/s. 32M of the Act.      The  High Court dismissed the revision  petition  filed under  Article  227 of the Constitution by  the  appellants, holding  that section 64 did not prohibit the landlord  from selling his land to the tenants by private agreements;  that the  ownership rights of the tenants were acquired not  u/s. 32  of the Act but by virtue of a sale between the  landlord and  the  tenants;that since the sale was  not  one  u/s.32, provision  of section 43 of the Act were not attracted;  and that  the  tenants  became owners not on  24.5.1961  but  on 27.4.1961.      Against  the order of the High Court by special  leave, the present appeal was preferred by  the tenants.      The  appellants-tenants-plaintiffs contended  that  the High  Court erred in holding that the sale in favour of  the appellants-tenants  was  not affected by section 64  of  the Act.                                                         103      Disposing of the appeal on the question, whether by the sale deed dated 11.5.66 any valid title to the suit land was conferred upon the respondent the Court      HELD  : 1.01. The High Court has over-looked the  clear provisions of section 64(8), which declare that any transfer by a landlord after tiller’s day would be void.  The tenants could  not,  therefore, have acquired any  rights  or  title under the sale deed executed by the landlord. [107H-108]      1.02.  Though the order under section 32-G purports  to ratify  the earlier transaction of sale by the  landlord  to the  tenants, the transaction acquires its validity  not  by virtue  of the sale deed of 27.4.1961 but only by virtue  of the order under section 32-M dated 21.12.1969. [108B]      1.03.  On  11.5.1966  - the date of  the  sale  to  the respondent - the tenants (including Mahadu) had no title  to the  property which they could validly convey in  favour  of thr   respondent.  That  title  vested  in  them   only   on 21.12.1969,  when  the order under section 32G  was  passed. This being so, the logic that the transfer in favour of  the respondent was not of property acquired under section 32 but of  a  property  acquired  by a  voluntary  process  is  not correct. [108B-C]      1.04.  On  the date of the sale deed in favour  of  the respondent, the vendor had no tittle to the land in view  of the  provision  of section 64(8).  Even  if  the  subsequent conferment  of title on them by the order under section  32G be  treated to date back to 24.5.61, still Mahadu,  being  a

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tenant  who  acquired title under the Act, his sale  to  the respondent will fail in view of the of section 43(2) of  the Act. [1980D]      1.05.  The question referred to the tenancy  courts  by the civil court are answered accordingly by saying that  the sale  deed by Mahadu in favour of the respondent is  invalid under  the  provision of the Act.  The High Court  erred  in upholding the order of the Revenue Tribunal.  [108F-G]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2407(N) of 1979.      From  the  Judgment and Order dated  20.9.1978  of  the Bombay High Court in S.C.A. No. 993 of 1974.      V.N.Ganpule,  Ashok K. Singh, Ms. Punam Kumari and  Ms. H. Wahi,                                                          104 before the Appellants.      S.V. Deshpande for the Respondent.      The Judtgment of the Court was delivered by      RANGANATHAN,  J. This is an appeal from a judgement  of the  Bombay High Court dismissing a petition filed  by  Dadu Rau Yelavade (now represented by his legal  representatives) under Article 227 of the Constitution of India.      One  Anant  Gopal Prabhu (‘Prabhu’ for short)  was  the owner of 3 acres 25 gunthas of land bearing Survey No. 54 in village   Ingali  in  Hatakanangale   Taluka   of   Kolhapur district.  The lands were under the cultivation of one  Rau, who was the father of the petitioner before the High  Court. The  landlord instituted proceedings under section  31  read with section 29 of the Bombay Tenancy and Agricultural Lands Act,  1948 (hereinafter called ‘the Act’ against the  tenant Rau.  During the pendency of these proceedings, Rau died and his  tenancy  rights were inherited by his four  sons,  Dadu (predecessor of the present appellants), Mahadu, Ganpati and Shripati.  These proceedings came to an end eventually by an order  dated  24.5.1961, on which date  the  petition  under section   29   read   with   section   31   was   dismissed. Subsequently,  proceedings were initiated by  The  Tahsildar under  section 32G of the Tenancy Act. This was sometime  in 1969  and  will be referred to later.  In the  meantime,  on 27.4.1961, the landlord Prabhu had decided to sell the  suit land  to the fourth son of Rau, who effected a partition  of the property and Mahadu, one of the other sons of Rau,  sold his  share  in  the  suit land  in  favour  of  the  present respondent  Patel by registered document dated May  11,1966. In  view  of  this,  the  proceedings  under  section   32G, initiated by the Tahsildar, came to an end with and order of the  Tahsildar  declaring  the  fourth son  of  Rau  as  the purchaser.   His  order  was  passed  on  21.12.1969.  After discussing the questions whether the tenants were in  lawful possession  of the suit land, whether they were entitled  to purchase the suit land and whether the purchase price  fixed in  the voluntary sale between  Prabhu and Rau’s fourth  son was  reasonable  and whether the sale effected  between  the landlord  and  tenants could be regularised,  the  Tahsildar decided  to regularise the purchase of the suit land by  the tenants,  and directed that a certificate under section  32M read  with  section 43 of the Act should be  issued  to  the tenants  Dadu  Rau and his brothers. In the  course  of  his order, he also discussed                                                          105  the  alleged sale in respect of Patel, on whom  notice  had

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been served and who had participated in the proceedings.  He came  to the conclusion that the sale effected by Mahadu  in favour  of  Patel, being contrary to law,  was  illegal  and directed  that his name should be removed from  the  revenue records.      In  the meanwhile, the petitioner, one of the  sons  of Rau,  had instituted a suit against Patel for an  injunction restraining  him  from  obstructing his  possession  of  the property,  Patel  resisted  the  suit  claiming  to  be  the purchaser  of  share of Mahadu and, therefore,  entitled  to remain in possession as a co-owner alongwith the petitioner. In  view of the rival contentions of the parties, the  civil court referred the following two issues for determination of the  tenancy authorities as contemplated by  provisions   of section 85A of the Act :          (1) Was the plaintiff a tenant of the suit property          and did he subsequently become its deemed purchaser          ?          (2)  Is  the sale deed by Mahadu to  Patel  invalid          under the Act?      In the proceedings before the revenue authorities,  the Tahsildar  answered both questions in the  affirmative.   He held  that the plaintiff were the deemed purchasers  of  the land on 1.4.1959 and he also came to the conclusion that the transfer  by   Mahadu  in favour of Patel  was  hit  by  the provisions  of section 43 of the Tenancy Act.  According  to him,  therefore, Patel had no right of title to the  portion of  the land in suit which Mahadu had sold him.  This  order was  confirmed  in  appeal, on 23.10.71,  by  the  Assistant Collector.      Patel  thereupon  filed a revision before  the  Revenue Tribunal which set aside the order of the authorities  below and  held  that  the  sale deed  by  Mahadu  in  favour   of respondent  no.1 was not invalid under the provision of  the Act.   The  Revenue  Tribunal agreed that the  sons  of  Rau became deemed purchasers only on 24.5.1961 and became actual purchasers only on 21.12.1969 when the sale in their  favour was  regularised under s.32M of the Act. However, in  regard to the sale by Mahadu, it observed:          "But,  the important point to be gone into in  this          case is, whether the sale of such a land by Mahadu,          one  of the owners of deceased Rau, to  Himmat  was          hit by the provision of section                                                       106          43  of the Act.  It is nobody’s case that the  sale          to Himmat by Mahadu was after 21.12.69.   According          to   Himmat,  it  is  on  11.5.66.   This  is   not          challenged.  It will be thus seen that this sale to          Himmat, of his share in the suit land by Mahadu  is          dated  11.5.66 long before Mahadu and his  brothers          came to be regarded as purchasers under section  32          of the Act. Section 43 of the Act, according to me,          applied  to  transfers  subsequently   effected  by          purchasers under sections 32, 32-F, 31-I, 32o,  33C          or  41-D. Similarly, restriction contained in  sec.          43-G  of the Act, applied to transfers by  persons,          after the land was sold to them under section  32-P          or  64 of the Act.  In this case, it is clear  that          while selling his share in the property, Mahadu was          not a landlord intending to sell the tenanted land.          So a sale by him to Himmat could not be said to  be          a  sale in contravention of section 64 of the  Act.          The   point,   whether   Himmat   Patel   was    an          agriculturist  or non-agriculturist or  whether  he          was  or  was not an agriculturist labourer  is  not

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        enquired  into  even if it is held for  some  time,          that he was a person to whom the land could not  be          sold  under  section  63 of the  Act.   But  Mahadu          ventured to do so.  The sale by Mahadu would be  at          the  most  hit  by section 63  of  the  Act.   This          section (43 of the Act) does not mention section 63          of  the  Act.   Therefore, it is  not  possible  to          uphold  the findings of the first two  Courts  with          regard  to  the transfer of a portion  of  land  by          Mahadu  to  Himmat Patel.  This  sale  effected  in          favour of Himmat Patel by Mahadu in 1966 is of date          prior  to  Mahadu,  and his  brothers  came  to  be          regarded as purchasers of the land under section 32          of the Act.          We have seen that originally the sale in favour  of          Rau’s  sons  by  Prabhu  was  in  contravention  of          section  64  of  the Act.  But  such  sale  is  not          covered by section 43 of the Act.  This view can be          fortified  by  following in Special C.A.605  of  61          referred  to  on  page 179 of  Tenancy  Law  Digest          (reported and un-reported cases_) by Gadgil,  1965.          It is observed that to such a sale even, section 43          of the Act does not apply.  Such a sale, even if it          is  validated under provision to section 84(2)  can          not  be regarded as a sale under section 64 of  the          Act.  Where a sale is made in favour of a tenant by          the landlord in contravention of section 64, it may          be regularised by the Mamlatdar.  Where the same                                                       107          is sold by the tenant to some other person, such  a          sale is valid and is not affected by provisions  of          section 43 of the Act."      In  this  view  of the  matter,  the  Revenue  Tribunal answered  the  questions  referred by  saying  (a)  that  the plaintiff  and his brothers had become deemed purchasers  on the  postponed day under the Act and (b) that the sale  deed by Mahadu in favour of Patel was not invalid.      The  present  appellants  preferred  a  petition  under Article  227 of the Constitution.  The High  Court  endorsed the  conclusion  of  the Revenue Tribunal but  on  a  ground somewhat  different  from  the one  on  which  the  Tribunal allowed the revision petition.  It was pointed out that  the Revenue  Tribunal  had  proceeded on the  footing  that  the tenants (including Mahadu) had become purchasers of the suit land under the provisions of section 32 of the Tenancy Act on May  24, 1961 when proceedings under section 31 came  to  an end.   But this ingnored the fact that, during the  pendency of the proceedings under sections 29 and 31 of the Act,  the landlord and tenants by a private agreement had  transferred the  ownership of the property in favour of the  tenants  on 27.4.1961.   The  tenants, therefore, became owners  not  on 24.5.61  but on 27.4.61. Section 64 did not, in the  opinion of the Court, prohibit the landlord from selling his land to the  tenants by a private agreement.  It only  required  the owner,  in  case he desired to sell, to  have  a  reasonable price  fixed  therefore by moving the Land  Tribunal.   This being  so,  the  ownership rights of the  tenants  had  been acquired  not under the provisions of section 32 of the  Act but  by  virtue  of  a sale between  the  landlord  and  the tenants.   Since the transfer in favour of the  tenants  was not  one under section 32, the provisions of section  43  of the Act were not attracted by the sale of 11.5.1966. In this view  of the matter, the revision petition before  the  High Court was also dismissed.      Dadu Rau is in appeal from the order of the High Court.

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Though  the  proceedings have had a chequered  history,  the issue  before  us is a very simple one : Does  the  sale  by Mahadu  to Patel on 11.5.66 confer on the latter  any  valid title to the land in question ? The High Court has  answered this  question in the affirmative by upholding the  sale  by Prabhu  to his tenants on 27.4.61. Sri Ganpule  argues,  and rightly  in  our  opinion, that the  High   Court  erred  in holding  that  the  sale in favour of the  tenants  was  not affected by section 64 of the Act.  The High Court has over- looked the clear provisions of section 64(8), which declare that any transfer by a landlord                                                         108 after  tiller’s day would be void.  The tenants  could  not, therefore,  have acquired any right or title under the  sale deed  executed by the landlords.  It is no doubt  true  that ultimately the proceedings under section 32-G went in  their favour and the sale certificates issued in their favour  was regularised.   Though the order under section 32-G  purports to ratify the earlier transaction of sale by the landlord to the  tenants, the transaction acquires its validity  not  by virtue  of the sale deed of 27.4.1961 but only by virtue  of the   order   under  section  32-M  dated   21.12.1969.   On 11.5.1966,- the date of the sale to Patel presently impugned -  the  tenants  (including  Mahadu) had  no  title  to  the property which they could validly convey in favour of Patel. That title vested in them only on 21,12,1969, when the order under  section 32G was passed.  This being so, the logic  of the  Tribunal and High Court that the transfer in favour  of Patel was not of property acquired under section 32 but of a property acquired by a voluntary process is not correct.  As we have already pointed out, on the date of the sale deed in favour of patel, the vendor had no title to the land in view of the provisions of section 64(8).  Even if the  subsequent conferment  of title on them by the order under section  32G be  treated to date back to 24,5,61, still Mahadu,  being  a tenant  who acquired title under the Act, his sale to  Patel will fail in view of the provisions of section 43(2) of  the Act.  We may indeed point out that this decision had already been  given  by the revenue authorities in the  order  dated 21.12.1969.   There  is  a reference in  the  order  of  the Assistant  Collector  to  an appeal  claimed  to  have  been preferred by Patel from this order but we are informed  that no   such  appeal  was  filed  or  is  pending.   But   this circumstance apart, Patel’s claim cannot be upheld for   the reasons given above.      We  are, therefore, of the opinion that the High  court erred  in upholding the order of the Revenue Tribunal.   The orders  of  the  High Court and  the  Revenue  Tribunal  are therefore  set  aside  and the order of  the  lower  revenue authorities restored.  The questions referred to the tenancy courts by the civil court have to be answered accordingly by saying  that the sale deed by Mahadu in favour of  Patel  is invalid  under  the  provisions of the Act.  The  appeal  is disposed  of accordingly and the matter will go back to  the civil court for the disposal of the civil suit filed  before it  in  the  light of  the answers  given  to  the  referred questions  set out above.  In the circumstances of the  case we make no order regarding  costs. V.P.R.                                   Appeal disposed of.                                                   109