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PETITIONER: PUNDLIK KRISHNA JI AND ORS.

       Vs.

RESPONDENT: TRIMBAK BHIKAJI PATIL AND ORS.

DATE OF JUDGMENT23/04/1992

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) FATHIMA BEEVI, M. (J)

CITATION:  1992 AIR 1338            1992 SCR  (2) 749  1992 SCC  Supl.  (2) 290 JT 1992 (3)   110  1992 SCALE  (1)908

ACT:      Berar  regulation  of Agricultural  Leases  Act,  1951- section 8(1)(c)(f)-tenancy-termination-Applications by Karta of family-Legality of.      Bombay Tenancy and agricultural lands (Vidarbha  region )Act,1958-proceedings under-Non-compliance of prior  notice- Effect.      Constitution  of India, 1950-Article136-Appeal by  spe- cial  leave-appreciation of High Court’s finding-Lease  deed dated 30-04-1951, whether genuine.

HEADNOTE:      Respondent No.1 was the owner of the disputed land. The land was in cultivating possession of the  appellant-tenants since  1951. They acquired the status of  protected  lessees under  the Berar Regulation of Agricultural Leases  Act,1951 and  the  Bombay Tenancy and  Agricultural  Lands  (Vidarbha Region) Act, 1958.      The respondent filing two separate applications against the  appellants. Initiated Proceedings before the Sub  Divi- sional Officer for ejectment of the appellants on the ground that Predecessor of the appellant No1 created sub-leases  in favour  of  appellant  No.2 and another and  as  such  their tenancy  was  liable  to be terminated in  term  of  section 8(1)(c)(f)of the Berar Act.      The  appellants  resisted the  applications  contending that all the three persons were independent lessees in their own  rights and as  such there was no question of  appellant No.1 having created sub-leases in favour of the other two.       The respondent No.1 produced a lease deed dated  April 30,1951to  prove  that  all the three tracts  of  land  were leased  to  appellant No.1and no part of the land  was  ever leased to appellant No.2 and another; and that the  original lessee,  appellant No.1, sub-leased part of the land to  the other two occupants.                                                  750 The Sub- Divisional Officer allowed the applications of  the respondent No.1.      The  appellants  filed appeals  before  the  Sub-Deputy Collector   against   the  order  of     the   Sub-Divisonal Officer,which were dismissed.

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    The  appellants-tenants  went in  revision  before  the Revenue  Tribunal. The Tribunal allowed the  revision  peti- tions of the appellants.      The  respondent  challenged the order of  the  tribunal dated 25.03.1970 in the High Court on 4.8.1971. In order  to get  over  the delay in filing the writ petition  the  land- owner  filed  an affidavit stating that the  papers  in  his office remained unattended due to oversight and pressure  of work and as such the filing of the petitions was delayed.      The High Court allowed the petitions of the land-owner. These  appeals were filed by the tenants by way  of  special leave  petitions  against the judgment of  the  High  court. Allowing the appeals of the tenants,this court,      HELD :1There is no infirmity in the finding of the High court that the respndent No.1 being the Karta of the  family could  file the applications for termination of the  tenancy without associating his brother [755H-756A].      2  The High court was also right in rejecting the  con- tention of the tenant that the proceedings under the  Bombay Act  were illegal as the requirement of prior  notice  under the said Act was not complied with [756-A].      3.0.1.  The High Court erred in holding that the  lease deed dated April 30,1951 was a genuine document. No  enquiry was  held  at any stage regarding the genuine of  the  lease deed.  the  sub-Divisional Officer refused to  go  into  the question  on the ground that there were no pleadings on  the point.  The Sub-Divisional Officer was obviously  wrong  be- cause the lease deed was filed by the respondent-land -owner after the pleadings were completed. The Appellate Court  was wholly unjustified in observing that the  appellants-tenants had  admitted  the execution of the lease deed.  The  appel- lants’case  throughout  had been that the lease deed  was  a forged document.(756 B-C)                                                      751      3.02.The  High Court should have remanded the  case  to Trial  Court  for determining the genuineness of  the  lease deed  dated  April 30,1951 specially when the  case  of  the respondent-land-owner was wholly based on the doucment.  the High court had no material before it to come to the  conclu- sion that the lease deed was a genuine document.(756 D-E)

JUDGMENT:      CIVIL  APPELLATE JURISDICTION :Civil Appeal No.  349-50 of 1978     From  the  Judgement and Order dated  10.8.1977  of  the Bombay High Court in Special Civil Application Nos. 230  and 235 of 1972.     Udai U. Lalit and C.K. Ratnaparkhi for the Appellants.     P.K.  Goswami, P.H. Parekh and Sunil Dogra for  the  Re- spondents.     The Judgement of the Court was delivered by     KULDIP  SINGH,J. These appeals are directed against  the judgement of the Nagpur Bench of Bombay High Court directing the  ejectment of the appellants from three tracts of  agri- cultural-land  which the appellants are in cultivating  pos- session since 1951.     Respondent  Bhikaji  is the owner of about 20  acres  of land  subject-matter  of the dispute. The said  land  is  in cultivating  possession  of the appellants  since  1951  and according to them, they have acquired the status of protect- ed lessees under the Berar Regulation of Agricultural Leases Act, 1951(hereinafter called ‘the Berar Act’) and the Bombay Tenancy  and agricultural Lands (Vidarbha  Region)Act,  1958

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(hereinafter called ‘the Bombay Act’)     The respondent Bhikaji initiated proceedings before  the Sub-Divisional  Officer Buldana for ejectment of the  appel- lants on the ground that predecessor of the first appellants created  sub-leases  infavour of second  appellant  and  one Zipra  Wanchu  and as such their tenancy was  liable  to  be terminated in terms of Section 8(1)(c)(f) of the Berar  Act. Bhikaji  filed two seperate applications against the  appel- lants.  The  applications were resisted  by  the  appellants inter alia on the ground that all the three persons, namely, Pundlik Krishna, Kashao Krishna and Zipra Wanchhu were inde- pendent lessees in their own rights and as such there was no question  of  Pundlik Krishnaji  having  created  sub-leases infavour                                                          752 of  the  other two. Before the Sub-Divisional  Officer,  the respondent  Bhikaji  produced a lease deed dated  April  30, 1951 to prove that all the three tracts of land were  leased to  late Pundlik Krishnaji and no part of the land was  ever leased to Keshao Krishnaji and Zipra Wanchhu. It was  sought to  be  shown from the lease deed that the  original  lessee Pundlik  Krishnaji sub-leased part of the land to the  other two  occupants.  The  Sub-Divisional  Officer  accepted  the contention  of the respondent and ordered the  ejectment  of the appellants. The Sub-Divisional Officer proceeded on  the following reasoning:-               ‘‘The contention of the defendant Nos.1 and  2               that the lease of the remaining half share  of               the  suit land was created by the  plaintiff’s               brother  Keshav  Bhikaji  with  the  defendant               Nos.2 and 3 has no force......               The  defendant  Nos.1 and 2 contend  that  the               original lease deed dated 30.4.51 is a  forged               one, but they have failed to mention this fact               in all their written statements or to show any               reason  when  questioned  by  the  plaintiff’s               counsel.....     Pundlik  Krishnaji and Keshao Krishnaji went  in  appeal before  the  Sub-Deputy Collector against the order  of  the Sub-Divisional Officer. The Collector dismissed the appeals. Regarding  the  lease  deed relied upon  by  the  respondent Bhikaji, the Collector observed as under:-               ‘‘The  very  fact that the  appellant  Pundlik               executed  a lease deed of all these fields  in               favour  of  respondent Trimbak goes  to  prove               that  he was the Karta of the family  and  his               brother  Keshao had no hand in the  management               on leasing out the property......               The  execution of lease deed dated 30.4.51  by               appellant Pundlik in favour of the  respondent               Trimbak    has    been   admitted    by    the               appellants......               On  the other hand there is  document  ‘‘Lease               Deed’’ dated 30.4.51 which clearly shows  that               appellant  Pundlik was the sole lessee of  the               fields  in question. I, therefore, agree  with               the finding of the lower court that  appellant               Pundlik  was a tenant of the fields  in  ques-               tion.’’     The tenants further went in revision before the  Revenue Tribunal.                                                        753 The  Tribunal  set aside the orders  of  the  Sub-Divisional Officer and of the Sub-Collector and dismissed the ejectment applications  of the respondent-landlord. The  Tribunal  no-

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ticed the arguments of the appellants-tenants in the follow- ing words:-          ‘‘Feeling aggrieved by this order, applicants filed          two separate appeals. In their appeals, they  urged          that neither Keshao nor Zipra Wanchhu was the  sub-          tenant  of the fields in question. Pundlik had  not          sublet  the fields to them. The alleged lease  deed          dated  30.4.51  was a forged document  and  adverse          inference  against them should not have been  drawn          for their failure to plead that the document  dated          30.4.51  was a forged one as the same was  produced          after  written  statements by the  applicants  were          already  filed.  Zipra Wanchhu was  colluding  with          landholder Trimbak Bhikaji and the story put up, by          him should have been discarded....           The Tribunal finally held as under:-               ‘‘It has been contended by the applicants that          the  lease  deed  of 30.4.51 was  a  forgery.  This          contention of the applicants had not been  inquired          into upon the short ground that it was not made  in          the  written  statements  of  the  applicants.  The          applicants  say that the lease deed  dated  30.4.51          was  filed  after their written statements.  It  is          true  that  they could have amended  their  written          statements  so  as to allege forgery of  the  lease          deed  dated 30.4.51 when the same was filed.  None-          the-less,  it appears to me that the contention  of          forgery  should  have been inquired into  when  the          same  was made by the applicants. It has  been  the          case  of applicants that Pundlik was the lessee  of          half  of  the share in the fields  survey  numbers,          whereas  applicant No.2 keshao Krishnaji and  Zipra          Wanchhu cultivated as the lessee of the other  half          of  the fields. They never said that they were  the          lessees  under any lease-deed. It  was,  therefore,          necessary to find out as to whether the lease  deed          dated 30.4.51 was genuine or forged document.          In the result, applications made by Trimbak Bhikaji          alone  without  joining keshao Bhikaji, who  was  a          necessary   party   to   the   applications,    are          rejected.’’                                                        754     The  tenant challenged the order of the Tribunal by  way of  two petitions under Article 227 of the  Constitution  of India before the Nagpur Bench of the Bombay High Court.  The order of the Tribunal dated March 25,1970 was challenged  in the  High Court on August 4, 1971. In order to get over  the delay in filing the writ petition counsel for the land-owner filed  an  affidavit stating that the papers in  his  office remained  unattended due to oversight and pressure  of  work and as such the filing of the petitions was delayed.The High Court allowed the petitions on the following grounds:-     (1) The reasons for not filing the writ petitions  dili- gently having been explained by the petitioner’s advocate by filing  an affidavit the petition could not be dismissed  on the ground of delay and latches.     (2)  The  Tribunal  rejected the claim  of  the  tenant- petitioner on the only ground that the original applications were bad as petitioner’s brother was not joined as a  party. The  High Court held that ‘‘Trimbak Bhikaji Patil being  the Karta  of the family could file the applications for  eject- ment in that capacity.’’     (3)  Regarding  the lease deed April 30, 1951  the  High Court held as under:-               ‘‘There  is one more circumstance.  The  lease

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        deed that was executed in respect of the suit lands          was  in  favour  of the  petitioner.  It  is  dated          30.4.51.  The lessee is respondent No.1. Thus,  the          relationship  of the landlord and tenant came  into          existence  between  the petitioner  and  respondent          No.1.  It will not be normally open for  respondent          No.1  to urge that the petitioner alone is not  his          landlord.  To  get  over this  difficulty,  it  was          suggested  at the time of the arguments  that  this          lease deed is forged one. The M.R.T. has considered          this  question in a slip-shod-manner. The point  as          to the alleged forgery of lease deed was not  taken          in the written statement by any of the respondents.          In  spite  of that the M.R.T. has stated  that  the          contention  of  forgery should have  been  enquired          into.  I am not able to accept this reasoning  par-          ticularly  when the Niab Tahsildar and  the  S.D.O.          have accepted the lease deed as genuine one.’’                                                        755     (4)  Under  the Berar Act, before  initiating  ejectment proceedings, no notice was required to be sent to the tenant but under the Bombay Act there is requirement of the notice. It was argued on behalf of the tenant that since in the year 1958. The Bombay Act had come into force repealing the Berar Act  and the proceedings, though initiated under  the  Berar Act, were deemed to be under the Bombay Act, and because  no prior  notice as required by the Bombay Act was  given,  the proceedings  were  bad in law. The High Court  rejected  the argument  on the ground that the proceedings having  already been  initiated under the Berar Act no notice was  necessary and  the  proceedings  were rightly taken to  be  under  the Bombay Act.     The  High Court allowed  the petition and set aside  the order of the Tribunal. It is these circumstances that  these in appeals by the tenants by way of special leave  petitions are before us.     We  have   heard  learned counsel  for  the  parties  at length.  We are of the view of that the High Court  was  not justified  in  reaching the conclusion that the  lease  deed dated April 30, 1951 was a genuine document.     The  Tribunal allowed the tenant’s revision on the  fol- lowing grounds:-     (1)  The land in question belonged to the  two  brothers jointly.  The applications for ejectment were filed only  by Trimbak Bhikaji. The other brother had not made the applica- tions  for terminating the tenancy either separately  or  by joining  his  brother. The Tribunal came to  the  conclusion that  the  applications by Trimbak Bhikaji  alone  were  not competent  and  on  this ground the  Tribunal  rejected  the applications.     (2)  The Tribunal after examining the pleadings and  the evidence  on  the  record came to the  conclusion  that  the Courts  below should have enquired into the  genuineness  of the  lease deed. The Tribunal reached the finding ‘‘it  was, therefore,  necessary  to find out as to whether  the  lease deed dated 30.4.51 was genuine or forged document.’’     A  bare reading of the Tribunal’s order shows  that  the Tribunal granted relief to the appellant-tenant on the above two  grounds.  We are of the view that the  High  Court  was justified  in setting aside the Tribunbal’s finding  on  the first  point  mentioned  above. The High  Court  found  that Trimbak Bhikaji being the Karta of the family could file the applications for termination of the tenancy without  associ- ating his brother. We see no                                                        756

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infirmity  in the said finding of the High Court.  The  High Court  was  also right in rejecting the  contention  of  the tenant that the proceedings under the Bombay Act were  ille- gal  as the requirement of prior notice under the  said  Act was not complied with. We are, however, of the view that the High Court erred in holding that the lease deed dated  April 30, 1951 was a genuine document. No enquiry was held at  any stage regarding the genuineness of the lease deed. The  Sub- Divisional  Officer refused to go into the question  on  the ground  that there were no pleadings on the point. The  Sub- Divisional  Officer  was obviously wrong because  the  lease deed was filed by the respondent-land-owner after the plead- ings were completed. The Appellate Court was wholly unjusti- fied  in observing that the appellants-tenants had  admitted the  execution  of  the lease  deed.  The  appellant’s  case throughout  had been that the lease deed was a forged  docu- ment.     The Tribunal could not remand the case for enquiry  into the genuineness of the lease deed because it had allowed the revisions  on two grounds. The High Court,  having  reversed the finding of the Tribunal on the first point, should  have remanded  the  case to the Trial Court for  determining  the genuineness of the lease deed dated April 30, 1951 specially when the case of the respondent-land-owner was wholly  based on the said document. The High Court had no material  before it  to  come  to the conclusion that the lease  deed  was  a genuine document.     We,  therefore, set aside the High Court  judgement  and also  of  the Courts below and remand the case to  the  con- cerned  trial court for deciding the ejectment  applications filed  by the respondent-land-owner afresh  after  affording opportunity to the parties in accordance with law. The trial court  shall afford full opportunity to the parties to  pro- duce  evidence on the issue of the genuineness or  otherwise of the lease deed dated April 30, 1951.     The appeals are allowed in the above terms with no order as to costs. V.P.R.                                    Appeals allowed.                                                        757