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PETITIONER: VIJATABAI & ORS.

       Vs.

RESPONDENT: SHRIRAM TUKARAM & ORS.

DATE OF JUDGMENT:       20/11/1998

BENCH: SUJATA V. MANOHAR., & A.P. MISRA.

ACT:

HEADNOTE:

JUDGMENT: JUDGMENT MISRA, J. -------- The  short  question raised in the appeal is whether on the facts and  circumstances  of  this  case  when  in  a proceeding  under  Section  8  of  the  Bombay  Tenancy  and Agriculture  Lands  (Vidarbha   Region)   Act,   1958,   the respondent No.    1  in  terms  of  the  compromise declared himself not be be the tenant of the  disputed  land  and  in pursuance   thereof  his  name  being  the  deleted  by  the Tahsildar under Section 8(3) could the Tahsildar in exercise of his suo motu power under Section 49B after lapse of about 11 years declare respondent No.  1 to be  tenant  under  the said Act? In  the  present appeal respondent No.1 claims to be tenant of the suit land of which appellants  and  respondent No.  2  claim  to  be the landlord/owner.  To appreciate the controversy it is necessary to give certain facts.  On  20th March  1959  appellants’  predecessors  filed an application before the  Tenancy  Tahsildar  for  deleting  the  name  of respondent No.    1  from the list of tenants to correct the records  prepared  under  Section  8(1)  of  the  1958  Act. According to the said application the suit land is owned and possessed  by  the applicants and they have been cultivating it personally by engaging Saldar and worked as a  Saldar  in the field  of  the  applicants  for  nearly  20  years.  The respondent No.  1 was also engaged as such  along  with  his father.   The  applicants  also entrusted their bullocks and implement  to  the  custody  of  their  Saldars  since   the beginning.    It   was  specifically  averred  in  the  said application that the Patwari of  the  village  Dongarkhadala and  Kherdi  in collusion with the non-applicant had entered the name of the respondent No.  1 in  the  list  of  tenants prepared and  published under Section 8.  Hence a prayer was made for deleting the said name which was  wrongly  recorded therein.   During  the pendency of the said procceding it is not in dispute a  compromise  was  arrived  at  between  the appellants and respondent  No.  1 on 21th December 1960.  In paragraph (8) of the  said  compromise  respondent  No.    1 admitted that he was never tenant of the appellants over the

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disputed land.    The  said  compromise also spelt out other conditions.  It seems that respondent No.  1 even  prior  to this  compromise on 3rd December 1960 made an application in the said proceeding that his name be deleted from  the  list of tenants.    This  was done as earlier the parties seem to have arrived at  a  compromise  which  ultimately  was  only signed later.    In  pursuance to this on 30th December 1960 the Tahsildar ordered the deletion of name of respondent No. 1 in exercise of his power  under  Section  8(3)  read  with Section 100(2) of the said Act.  This fact was also recorded by the  Tahsildar in his order.  It is significant to record here that none of the  parties  filed  appeal  against  this order and this became final. In fact,  after  this  order  in  pursuance  of  the compromise  as  aforesaid,  10  access  38  gunathas of land situated at Mouza Kherdi was purchased by respondent No.   1 from the  appellants  for  a  consideration  of Rs.  7000/-. Hence not only the name of respondent No.  1 was deleted but the compromise was acted upon by respondent No.  1 by taking the  aforesaid  land  from   appellants   under   the   said compromise.   After  lapse  of  about  11  years in 1971 the Tehsildar initiated proceeding suo motu under Section 49B of the said Act.  In pursuance to  this  notice  the  appellant (landlord)  filed  the written statement and stated that the land in suit belongs to his family since  1940  and  it  was cultivated personally by the family by engaging Saldars.  It was never leased out to anybody at any time.  It was further stated that  respondent  No.   1 was also one of the Saldars (servant) who had been cultivating land as such.  Respondent No.  1 filed  reply  by  stating  that  he  and  his  father cultivated the suit  land  as  tenant.    Respondent No.  1, however, admitted to have purchased the suit land of an area of 10 acres 38 guathas from the  appellants  no  11th  March 1961.   The  Tehsildar  by means of order dated 2nd February 1971  with  due  consideration  of  the  earlier  order   of Tahsildar  passed  under  Section 8(3) read with Section 100 (2) of the aforesaid Act also  with  due  reference  to  the aforesaid compromise,  held  that  respondent No.  1 had not cultivated the suit land as tenant during the  year  1958-59 and  hence  he  is  not entitled for restoration of the suit land.  Hence he dropped the proceedings under Sec.    49  B. Aggrieved by  this  respondent  No.    1 preferred an appeal before Special Deputy Collector (Land Reforms)  who  allowed the  appeal  by holding the compromise was brouth upon under pressure and allurement, hence could not be acted upon  thus in view  of  evidence on record held respondent No.  1 to be the tenant of the suit land primarily on the basis  of  sole entry  recorded under Section 8 of the said Act published on 1th April 1959.  The appellants challenged this order before Maharashtra  Revenue  Tribunal   in   revision   which   was dismissed.  Thereafter a writ petition was filed in the High Court  which  was  dismissed  and finally the letters patent appeal in the High Court was also dismissed. The learned Senior Counsel for the  appellants  Shri Mohta  submits once in the proceeding under Section 8 of the aforesaid Act, between the appellants  and  the  respondent, the  question was determined by holding respondent not to be the tenant of the appellants and that  order  having  become final  since  no  appeal  was  preferred, he is stopped from raising  a  contradictory  plea  in  subsequent   proceeding initiated  by Tahsildar under Section 49B, in respect of the same land.  He submits only foundation for the claim of  the respondent  to be the tenant is the said entry, only for one year, i.e.  1958-59 and that entry having been deleted there was no foundation even for the  Tahsildar  to  initiate  suo

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motu proceedings.    Further  respondent and his father were Saldar (servant) of the appellants and the  said  entry  was obtained  by  them  in  collusion  with  the  Patwari of the concerned village and for that he would have no  sustainable claim for  adjudication.   Thus the findings recorded by the authority/Court as aforesaid contrary to this are liable  to be set aside. On the other hand, Shri Deshpande,  learned  counsel for the respondent supported the decision that respondent is a  tenant  of the disputed land and proceeding under section 49B was rightly initiated by Tahsildar suo motu.    Further, there  being  no termination of his tenancy under Section 19 of the aforesaid Act and in any case,  unless  an  order  is passed  by  the  Tahsildar  under Section 36(2) the landlord cannot obtain possession of the suit land.   The  submission is  that  as  he was a tenant on appointed day, namely, 28th August 1958 as also recorded and hence by virtue of  Section 46 and 49A is entitled to become statutory owner. Before  we  proceed  to decide the controversy it is necessary to record certain admitted facts.  On  20th  March 1959   the   appellants  filed  application  before  Tenancy Tahsildar under Section 8(3) for deletion  of  the  name  of respondent No.  1 from the list of tenants pertaining to the suit land  as  prepared  under  Section 8(I).  That entry in favour of respondent No.  1 as tenant was recorded for  only one year namely in the records of 1958-59 which was actually prepared under  Section  8(1)  as  aforesaid.   Thus in this proceeding question which arose was, whether respondent  No. 1 is  a tenant of the suit land of the appellants or not?  A compromise was arrived at which led respondent  No.    1  to file  an  application  dated  3rd  December  1960 before the Tahsildar in the said proceeding for deleting his name  from the  list  of tenants and withdrawing allegation, if any, to the contrary in his written statement.  This was followed by a written compromise dated 21st December 1960.   Under  that respondent No.    1 admitted that he was never the tenant of the appellants of the land in suit.    The  said  compromise contemplated  that  10  acres  38 gunthas of land out of the suit land, appellants would sell to respondent No.  1 for  a consideration of  Rs.  7000/- and the said consideration was actually paid on the date of this  compromise  in  pursuance thereof the  respondent  No.   1 purchased the said land for the said  consideration.    For  11  years   thereafter   no proceeding or action was initiated by respondent No.  1 over the  suit  land and parties continued to enjoy the suit land in terms of the said compromise and as a consequence of  the order  passed under section 8 (3) recording in favour of the appellant by deleting the name of respondent.  It is only on 2nd February 1971 i.e., after 11 years, suo motu  proceeding was initiated  by  Tahsildar  under  Section  49B.  It is on these admitted acts and the aforesaid facts, the controversy is to be adjudicated. In the second round of proceeding under Section  49B Tahsildar  upheld  the  contention  of the appellants on the basis of the compromise  as  aforesaid  but  in  appeal  the Collector  negatived the contention holding in favour of the respondent.  Similarly, the revision was also  dismissed  by the Tribual.     Both  the  appeal  and  the  revision  were dismissed primarily  by  holding  that  the  compromise  was arrived  under  pressure  and  allurement  and  that  he was recorded as tenant in the year 1958-59.  The  writ  petition and  letters patent appeal filed by the appellants were also dismissed.  The High Court upheld the order  of  the  courts below  and  further  recorded  that  without an order of the Tahsildar under Section 36(2), which is not in  the  present

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case,  the  appellants  cannot obtain possession of the suit land.  Thus the Court held respondent  No.    1  to  be  the tenant  primarily based on the said one entry of 1958-59 and on the oral evidence. Normally  this  Court  would  not interfere with any such finding of fact recorded but where the conclusions  are arrived  at  by  misconstruing  the provisions of an Act and without appreciating the principle  of  estoppel,  including adjudicating  of  such  right  in early proceeding under the same Act  between  the  same  party  this  Court  would  not hesitate to  reconsider  such  adjudication  of  facts.  The facts are very clear in the present  case.    the  question, whether respondent  No.  1 was a tenant of appellants of the suit land came up for consideration under this very Act  and the  Tahsildar  in a proceeding initiated under Section 8(3) passed an order deleting the name of respondent  as  tenant. The question,  whether  respondent  No.    1  was  tenant of appellants or not was directly in issue in  this  proceeding which  was  finally  adjudicated by the competent Authority, holding  against  the  respondent  Section  49B  refers   to transfer  of  possession  and  ownership of lands to certain dispossessed tenant.  This section is applicable only  where a  tenant referred to in section 46 or 49A was in possession of the land on the appointed day but was dispossessed before the relevant date.  Thus before a power could  be  exercised under  it  there has to be a tenant of the suit land, who is dispossessed on the relevant date.  But  this  fact  was  no more  res  integra between the appellants and respondent No. 1 on the date suo motu notice was issued by  the  Tahsildar. As  aforesaid,  dispute  if  any  regarding  tenancy between respondent No.  1 and appellants  of  the  suit  land  stood concluded in  the  proceedings  under  section  8.  The said order passed under section 8 is appealable but no appeal was preferred.  Thus so far the appellants  and  respondent  are concerned,  inter  se  between  them,  as  they were parties therein, this issue became final.  In other  words,  on  the date   when  Tahsildar  exercised  his  suo  motu  power  of initiating  proceeding  under  section  49B  there  was   no material on the record of the Tahsildar to proceed under it, the  only  record  of an entry of 1958-59 stood creased when name of respondent No.   1  was  deleted  by  the  competent authority under this very Act. Tahsildar  while exercising his suo motu power under Section 49B has to initiate on the basis of materials before him not  arbitrarily.  Every  exercise  of  suo  motu  power explicitly  or  implicitly reveals to correct an error crept in under a statue, what ought to have been done was not done or which escaped the attention of any  statutory  authority, or error or deliberate omission or commission by the subject concerned   requires   correction,  of  course,  within  the limitation of any... such statute. This has to be  based  on some  relevant material on record, it is not an omnipower to be exercised on the likes and dislikes of such an authority. Though such a power is a wide power but has to be  exercised with  circumspection within the limitations of such statute. Wider  the  power  the  greater  circumspection  has  to  be exercised. Returning to the present case it has to be seen what on the records of the Tahsildar when he initiated proceeding under Section 49B.  Admittedly the only documentary evidence on records was the sole entry of 1958-59 which stood deleted by an  order  of  the  competent  authority, viz.  Tahsildar himself in accordance with law under this very same statute. Question is, has the Tahsildar any power under  Section  49B to set  aside  an order passed under Section 8?  Section 49B

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does not contain words, "Notwithstanding any thing  in  this statute"  orders  passed  by  Tahsildar both under Section 8 order is not subject to Section 49B.  This  apart,  what  is primarily  required for exercise of such power is that there has to be a tenant and he is dispossessed  on  the  relevant date.   So there has to be a tenant first, a tenant referred under Section 46 and 49A.   To  appreciate  the  controversy Section 8 and 49B are quoted hereunder:          "Section  8  - Record of rights of ordinary tenants         (1) As soon as may be  after  this  Act  comes  into         force  the  Tahsildar shall cause a list of persons,         other than occupancy tenants, and protected lessees,         who are deemed to be tenants under  sub-section  (1)         of  Section 6 to be prepared for entry in the Record         of Rights  in  accordance  with  the  provisions  of         Chapter IX of the Code.         (2)    After  such  list  is  prepared  it  shall be         published  in  the  prescribed  manner  and  if   no         application is made by the landlord or the tenant or         any  other  person interested within a period of six         months of the date of such publication disputing the         correctness or omission  of  any  entry,  such  list         shall be final.         (3)    If an application is made to the Tahsildar by         the landlord or  the  tenant  or  any  other  person         interest   in   the  prescribed  manner  within  the         aforesaid  period,  disputing  the  correctness   or         omission  of  such entry, the Tahsildar shall decide         thee dispute in accordance with  the  provisions  of         sub-section  (2) of section 100 of this Act and such         decision subject to appeal or  revision  under  this         Act  shall, notwithstanding section 106 of the code,         be final.         (4)  In  deciding  the  question  referred   to   in         sub-section (3) the Tahsildar shall, notwithstanding         anything  contained  in  Section  92  of  the Indian         Evidence Act, 1872, or in Section 49 of  the  Indian         Registration  Act, 1908, or in any other law for the         time being in force, have power to inquire into  and         determine  the  real  nature  of the transaction and         shall  be  at  liberty,   notwithstanding   anything         contained in any law as aforesaid, to admit evidence         of any oral agreement or a statement or unregistered         document with a view to such determination."         "Section 49B - Transfer of possession and  ownership         of  lands  to certain dispossessed tenants - Where a         tenant referred to in Section 46 or Section 49A  was         in  session  on  the  appointed  day  but  is not in         possession of the land held by him on  the  relevant         date  on  account  of  his being dispossessed before         that date, otherwise than in the manner  and  by  an         order of the Tahsildar as bravados in Section 36 and         the land is in the possession of the landlord or his         sucessor-in-interest  on  the 31st day of July, 1969         and is not put  to  a  non-agricultural  use  on  or         before the last mentioned date; the Tahsildar shall,         notwithstanding  anything  contained  in section 36,         either suo motu or on the application of the  tenant         hold  an inquiry, and direct that such land shall be         taken from the possession of the landlord, or as the         case may be, his successor-in-interest and shall  be         restored   to  the  tenant  and  the  provisions  of         Sections 46 to 49A shall, in so far as they  may  be         applicable  apply thereto, as if the tenant had held         the  land  on  the  relevant  date  subject  to  the

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       modification  that the ownership of land shall stand         transferred to and vest  in  the  tenant,  and  such         tenant  shall  be deemed to be the full owner of the         land, on the date on which the land is  restored  to         him.         Provided that,  the  tenant  shall  be  entitled  to         restoration  of  the land under this section only if         he undertakes to cultivate the land personally,  and         of  so  much thereof as together with the other land         held by him as owner  or  tenant  shall  not  exceed         three family holdings." Section  49B stipulates enquiry where a tenant under Section 46 or Section 49A was in possession on the appointed date but was disposed on the relevant date to transfer  back such land  to  such  tenant and confer ownership on him.  So far initiating proceeding  there  has  to  be  something  on record to show that one is a tenant of the suit land.  It is significant  both  Section 46 and Section 49A open; with the words "Notwithstanding anything  in  this  chapter........". Thus notwithstanding confines to the Sections of the chapter in which  these sections 46 and 49A are placed viz.  Chapter III.  We find Section 8 is in Chapter II.  So orders  passed under Section  8 would have its full effect.  Section 46 and Section 49A confer right of  ownership  of  the  land  on  a tenant from  the specified date.  Thus Sections 49B, 49A and 46 refer to a tenant.  Tenant is defined under Section 2(32) to mean;         "Section  2(32)  -  tenant  means a person who holds         land on lease and includes -         (a)  a person who  is  deemed  to  be  tenant  under         Section 6, 7, and 8         (b) a person who is Protected  lessee  or  occupancy         tenant,  and  the word ’landlord’ shall be construed         accordingly." It  means a person holding land on lease and further he is deemed to be a tenant under Section 6, 7  and  8.    A person  lawfully cultivating any land of other person who is not cultivating such land personally or through other member of his family or servant then such a person would be  deemed to be  a  tenant  under Section 6.  This question was up for consideration in  a  proceeding;  under  Section  8.    Then Section  7  also  refers to a person holding alienated land, trust etc.  on a condition specified therein to  be  a  deem tenant.  However,  we  are  not concerned under it.  Finally adjudication is made under Section 8, as to who  is  tenant, in case any objection is raised either by tenant landlord or any other   person.      When   objection  is  raised  under Sub-section (2) of Section 8 disputing  correctness  of  any entry, which is raised inthis case, regarding 1958-59 entry, the   Tahsildar  decides  the  dispute  in  accordance  with sub-section (2) of Section 100 of this Act, which is  final, subject to  appeal or revision.  For deciding this Tahsildar is empowered to enquire to determine the real nature of  the transaction  between the parties, by taking such evidence as he deems fit by virtue of sub-section (4) of Section 8. We find in the present case Tahsildar  reopened  the very question  which  finally stood concluded, viz.  whether respondent No.  1 was or was not the tenant  of  suit  land? He   further  errocously  entered  into  a  new  promise  of reopening the question of validity of the  compromise  which could  have been in issue if at all in appeal or revision by holding that compromise was arrived at  under  pressure  and allurement.   How this question be up for determination when this became final under this very same  statute.    This  is also not  a case that respondent No.  1 made any application

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even under Section 46(1A)(a) for getting back the possession from the appellants or any application  under  Section  49B. So  no  the relevant date there did not exist any record for the Tahsildar to initiate proceedings suo  motu  except  the record of  1958-59  entry  which stood deleted.  This apart, finding of pressure and allurement  recorded  was  not  even pleaded.   No pleading has been placed before us which shows such a pleading though it was brought in by  oral  evidence. On  the other hand, we find the compromise was acted upon as respondent No.  1 purchased part of the same suit land of an area of 10 acres 38 gunthas for  the  consideration  of  Rs. 7000/-.  In other words, the compromise was acted upon under which respondent  gained  part of the same property.  On the facts of this case and further when respondent did not raise any such issue for 11 years, we find exercise  of  power  by Tahsildar   suo   motu  under  Section  49B  to  be  without jurisdiction and unsustainable in law. It  would  be  impermissible  to permit any party to raise an issue inter se where such an issue under  the  very Act has  been  decided  in an early proceeding.  Even if res judicata in its strict sense may not apply but its principle would be applicable.  Parties who are disputing now, if they were parties in an early  proceeding  under  this  very  Act raising  the  same issue, would be stopped from raising such an issue both on the principle of estoppel and  constructive res judicata.    The finding recorded even by the High Court that possession by the landlord could only be  by  an  order under  Section  36(2)  is  also not sustainable as that only conceived of the  case  where  tenant  is  dispossessed  and landlord  is seeking to get back possession of the suit land from such tenant.  In the present case  there  was  no  such question.  For  this  respondent No.  1 has to be at least a tenant and whether  he  is  a  tenant  stood  concluded,  as aforesaid  earlier,  hence  initiation  of  proceeding under Section 49B cannot be sustained in law. Learned counsel for the respondent faintly  referred to Section  6  of  the Act to contend that respondent No.  1 would be deemed tenant.  As aforesaid, Section 6 refers to a person lawfully cultivating any land  belonging  to  another person  to  be held to be deemed tenant in case such land is not cultivated personally by the  owner.    In  the  earlier proceeding  when application is made by the appellants under Section 8(3) of the Act  it  was  specifically  stated  that appellants  were  cultivating  the  suit land personally and through respondent’s father and later respondent No.   1  as their   Saldar  (Servant)  and  this  question  having  been specifically pleaded order was  passed  under  Section  8(3) holding respondent No.    1  not to be the tenant.  In other words, respondent No.   1  could  not  be  said  to  be  the lawfully   cultivating   the  land  of  another  person,  as appellants (owner)  were  personally  cultivating  the  land themselves  or  through their Saldars, hence Section 6 would not confer  any  benefit  to  the  respondent.    Section  6 excludes  a  person to be deemed tenant in case the owner is cultivating the land personally. In  view  of the aforesaid findings we hold that the decision by the Appellate and the  Revisional  Authority  in the  proceedings under Section 49B and the High Court in the writ  petition  and  finally  under  letters  patent  appeal contrary to what we have recorded above cannot be sustained. thee   authorities  and  the  Court  misdirected  itself  to conclude in favour of respondent by not properly  construing the  provisions  off  the  Act and the power of Tahsildar to exercise under Section 49B of the Act. The said decision  to the contrary is hereby set aside.

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Accordingly,  the appeal is allowed and the findings recorded against the appellants  in  the  proceedings  under Section  49B  of  the  Act  are  hereby quashed. Cost on the parties.