Remanded

Gopal Kashinath Wategoankar v. Sitaram Yeshu Yadav Decd. Th.L.H. and Ors.

Bombay HC1 Sept 2004WP/1085/1985

Case brief

AI extract

What is this about?

This court considered writ petitions regarding possession of agricultural land where the original landlord died during proceedings. Holding that exemption certificates are heritable, the court ruled that heirs must establish their bona fide requirement afresh on the date they are brought on record. The matter was remanded for fresh enquiry.

What did the court decide?

Petitions disposed of; parties relegated to Tenancy Aval Karkoon for fresh enquiry into heirs' bona fide requirement within six months.

Gopal Kashinath Wategoankar Vs Sitaram Yeshu Yadav Decd… — Landlord and Tenant | Bombay HC (2004)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.1160 OF 1984

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1. Aba Krishna Lokare

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2. Rama Ganu Yadav since deceased by his heirs and representatives

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 Yashwant Rama Yadav
 Yeravale Taluka Karad,
 Dist.Satara.

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 Smt.Parubai Rama Yadav
 residing at Yeravale,
 Taluka Karad, Dist.Satara.

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 Sou. Vimal Gorakhnath Sankpal
 At and Post Vihe Taluka Patan,
 Dist. Satara.

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 Sunanda Bajirao Patil
 at & Post Pachumre, Tal.Walwa
 Dist.Satara.

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 Versus

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1. Gopal Kashinath Vategaonkar,

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2. Smt.Jayantibai Gopal Vategaonkar

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 Since deceased by her legal heirs
 and legal representatives

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 Smt.Malini Dattatray Kulkarni,
 residing at Palous, Taluka Palous

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 Dist. Sangli.

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 Smt.Rohini Madhukar Bokil,
 residing at Karvenaka, Gaon Bhag,
 Karad Trimurti Colony at Karad,
 Dist. Satara.
 Mr.Rajendra V. Pai with P.R.Arjunwadkar for
 petitioners
 Mr.Vishwanath Talkute with M.A.Rane for
 respondent No.2.

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 WITH
 WRIT PETITION NO.1085 OF 1985

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 1. Gopal Kashinath Wategaonkar
 since deceased through legal
 heirs Smt.Jayantibai Gopal
 Wategaonkar
 Since deceased through legal heirs
 1A. Malati Dattatray Kulkarni,
 R/o. Palus, Taluka Palus,
 Dist. Sangli.
 1B. Rohini Madhukar Bokil,
 R/o.Karvenaka, Gaon Bhag,
 Trimurti Colony, Karad,
 Tal.Karad, Dist. Satara. ..Petitioners
 Versus
 1. Sitaram Yesu Yadav,
 deceased by his heirs and
 legal representatives:-

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 A. Yashwadabai W/o. Atmaram
 Yadav,

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 B. Laxmibai Pandurang Yadav,

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 C. Janardan Atmaram Yadav,

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 D. Sou. Susheela Tanaji Kale,
 R/o. at Kalgaon Taluka Patan,
 Dist. Satara,

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 E. Sou. Sunanda Hanmantrao
 Sawant, R/o.Chikhali, Taluka
 Karad, Dist. Satara.

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 F. Laxman Atmaram yadav,

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 G. Bajarang Atmaram Yadav,
 minor by next friend Janardan
 Atmaram Yadav

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 Nos. 1A to 1C, 1F and 1g all
 R/o.Yeravali, Taluka Karad,
 Dist. Satara.

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 H. Sou. Kamal Anandrao Mohite,
 Umarkhanchan, Taluka Karad,
 Dist.Satara.

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 I. Sou. Subhadra Balwant Mohite,
 R/o.Umarkhanchan, Taluka Patan,
 Dist. Satara.

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 J. Smt. Vimal Khoshaba Pawar,
 at and post Vahagaon, Taluka
 Karad, Dist. Satara.

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 3. Joti Sakhoba Yadav
 Since deceased through his
 legal heirs

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 a) Raghunath Joti Yadav,

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 b) Ramchandra Joti Yadav

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 c) Krishna Joti Yadav

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 d) Hirabai Keshav Mane

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 e) Indubhai Dhanudas Pawar
 f) Shalini Vilas shinde.

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 (a) to (e) r/o.Yeravale Tal.Karad,
 Dist. Satara
 (d) r/o.Chinchani, Tal.Khanapur,
 Dist. Sangli

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 (e) and (f) R/o.Kille Machindragad,
 Taluka Karad, Dist. Satara. .. Respondents.
 Mr.Vishwanath Taluka with M.A.Rane for
 petitioners
 Mr.Rajiv V. Pai with Mr.P.R.Arjunwadkar for
 respondent Nos. 1 and 2.

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CORAM : A.M.KHANWILKAR, J.

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DATE : SEPTEMBER 1, 2004.

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 P.C.

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 1. Both these petitions can be disposed of

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 by a common judgement. The land in question is

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 an agricultural land situated at village
 Yeravale, Taluka Karad, Dist. Satara. One
 Kashinath Wategaonkar was recorded as owner of
 the suit land. His name was however, deleted

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 from the record of rights in respect of certain
 lands and name of his son Gopal came to be
 inserted by mutation entry No.2646 on 31st
 December 1956. The petitioners in writ petition
 No.1160 of 1984 were tenants in the suit lands
 since prior to tillers date i.e. 1st April 1957
 (hereinafter referred to as tenants for sake of
 brevity). Suffice it to observe that Gopal and
 his father Kashinath jointly filed application
 for issuance of exemption certificate under
 section 88C of the Bombay Tenancy and
 Agricultural Lands Act, 1948 (the said Act) on
 the assertion that they had no land in their
 possession and were eligible for issuance of such
 certificate. The appropriate authority favoured
 the said Gopal and Kashinath with certificate
 under section 88C of the Act. That decision was
 carried right upto this Court and which has
 become final. In other words, Gopal has been

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 held to be a certificated landlord. On the basis
 of the said certificate the said Gopal by a

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 notice terminated the tenancy of the tenants in
 respect of the suit land on the ground of
 bonafide requirement. Later on, Gopal instituted
 application under section 31 read with section 29
 of the Act for possession of the suit land.
 Separate applications were filed against each of
 the tenants. The said applications were disposed
 of against which the matter was carried further
 and eventually came to be remanded for fresh
 enquiry. After the remand, applications came to
 be finally disposed of by the tenancy Aval
 Karkoon by his decision dated 29th March 1977.
 The said authority found that the landlord was
 entitled to get possession of the suit land in
 terms of the relief claimed in the application.
 Against this decision, matter was carried in
 appeal by the tenants. The appellate authority
 by its decision dated 12th July 1979, however,
 allowed the original applications preferred by
 Gopal only to the extent of half share in the
 suit land. In other words, the appeals preferred

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 by the tenants were partly allowed, on the
 following terms :-

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 "The appeal is allowed partially and the
 lower court’s order is modified to the
 extent that the landlord be restored with
 half share from S.No.54/5, 203/4, 131/3,
 and 157/1 and that S.No.202/1 be
 completely excluded from the scope of
 restoration.

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 No order as to costs.

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 The parties be informed accordingly."

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 The case of the tenants is that, this decision
 was communicated to them by communication dated
 14th August 1979 which was received by Aba
 Krishna Kokare on 20th August 1979. Soon
 thereafter, on 22nd August 1979 an application
 for obtaining certified copy was made. But as

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 the certified copy was not delivered for long
 time, fresh application for obtaining certified
 copy was made to the authority on 4th November
 1981. In response to that application the
 Sub-Divisional Officer, Appellate authority,
 informed the tenants that as the papers in
 connection with the matter have been remitted to
 the Maharashtra Revenue Tribunal (MRT), certified
 copy of the order cannot be supplied. On receipt
 of that communication, the tenants then made
 application for issuance of certified copy to the
 MRT on 26th November 1980; which was received on
 27th November 1980 and on the next day, revision
 application came to be filed before the MRT i.e.
 on 27th November 1980 questioning the correctness
 of the decision of the appellate authority
 directing the tenants to restore half share from
 the specified lands. The landlord, on the other
 hand, had also filed revision application before
 the tribunal (MRT) questioning the same decision
 of the appellate authority to the exent it

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 refused to allow the application for possession
 of the suit lands in its entirety. Insofar as
 the revision application preferred by the tenants
 is concerned, the same has been dismissed by the
 Tribunal by decision dated Decemebr 13, 1983,
 mainly on the ground that the same was barred by
 limitation and the cause shown by the tenants -
 applicants before the Tribunal was not sufficient
 cause. Insofar as the revision application
 preferred by the landlord Gopal Kashinath is
 concerned, the same came to be dismissed by the
 Tribunal vide decision dated December 13, 1983
 taking the view that the conclusion reached by
 the appellate authority was correct and in
 conformity with the legal requirements. Both
 these decisions of the Tribunal are subject
 matter of challenge in these writ petitions. The
 tenants have filed the Writ Petition No.1160 of
 1984 whereas the landlord has filed W.P. 1085 of
 1985.

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 2. What is relevant to note for our purpose
 is that during the pendency of the writ petition,
 the landlord Gopal Kashinath had expired and his
 heirs and legal representatives have now been
 brought on record. In the light of this
 development, the Counsel for the tenants submits
 that the heirs and legal representatives of the
 original landlord will have to establish the
 claim for possession of the suit land on the
 ground of bonaide requirement afresh. To
 buttress this submission reliance is placed on
 the decision of this Court in the case of Maruti
 Namdeo Gade Vs. Dattatraya Vishnu Maval,
 reported in 1977 Mh.L.J. 848and in the case of
 Hariba Deshav Barbole Vs. Smt.Motibai Deepchand
 reported in 1974 Mh.L.J. 823and lastly a recent

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 decision in the case of Nivrutti Gangaram Pawar
 Vs. Dinkar Maruti Jadhav reported in 2004(2)
Mh.L.J. 674. In substance, the arguments of the
 tenant is that the law obligates the heirs and
 legal representatives of the deceased landlord to

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 establish their bonafide and personal requirement
 as on the date, when they have been brought on
 record. It is argued that since final order on
 the application preferred by the landlord is yet
 to be passed and before such an order could be
 passed, the landlord having died and his heirs
 and legal representatives having been brought on
 record, they are obliged to establish their
 bonafide requirements on the date when they have
 been brought on record of the proceedings. On
 this submission, the Counsel for the tenants
 submits that no other enquiry into the matter is
 relevant because order of possession as already
 passed or likely to be passed on the application
 filed by the original landlord cannot be given
 effect to in view of these changed circumstances,
 unless the heirs and leal representatives were to
 establish their bonafide and personal
 requirements afresh.

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 3. On the other hand, Counsel for the heirs

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 and legal representatives of Gopal, original
 landlord, applicant, submits that the tenants
 cannot take advantage of the changed
 circumstances, especially in the fact situation
 of the present case. It is submitted that the
 tenants’ revision application has been dismissed
 by the Tribunal on the ground of unexplained
 delay and this Court by accepting the arguments
 of the tenants, will in effect, open the
 Pandora’s box which is impermissible. The
 learned Counsel submits that the view taken in
 the reported decisions relied upon at the
 instance of tenants are of no avail, in the fact
 situation of the present case. He further
 submits that the writ petition as preferred by
 the tenants ought to be dismissed as no fault can
 be found with the view taken by the Tribunal in
 rejecting the application on the ground of
 unexplained delay. He further submits that on
 the other hand, the writ petition preferred on
 behalf of the landlord which is now pursued by

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 the heirs and legal representatives of the land
 lord will have to be allowed so as to grant the
 application preferred by the landlord in its
 entirety and not restricted to half share in the
 specified lands as has been ordered by the
 authority below.

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 4. Having considered the rival submissions,
 I have no hesitation in taking a view that in
 view of the reported decisions which are pressed
 into service, the legal position is well
 established. It is well settled that exemption
 certificate issued under section 88C of the Act
 is heritable. If on the basis of such
 certificate tenancy has been terminated and the
 application for possession has been instituted by
 the landlord, that application can be pursued by
 the heirs and legal representatives of the
 landlord if, the landlord dies during the
 pendency of such proceedings. However, in that
 case, the heirs and legal representatives will

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 have to establish their bonaide requirement on
 the date on which they have been brought on
 record in the proceedings. The fact that the
 landlord dies during the pendency of the
 application or at the appellate stage or for that
 matter at the revisional stage or during the
 pendency of the writ petition will make no
 difference. Inasmuch as, the settled legal
 position is to ascertain the bonafide requirement
 on the date when the final order is to be passed.
 In the present case, the final order on the
 application, as filed by Gopal Kashinath
 Vategaonkar is yet to be passed. The application
 so filed by him can be said to have been
 conclusively decided only upon disposal of the
 present proceedings, much less, the writ petition
 filed in this court which is continuation of
 proceedings of the original application. Viewed
 in this perspective, merely because the landlord
 has died during the pendency of writ petition

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 that would not absolve the heirs and legal

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 representatives of such deceased landlord from
 complying with the rigours as may be applicable
 to the heirs and legal representatives of
 landlord who had died during the pendency of
 proceedings before the appellate court or the
 revisional court. Same analogy would apply even
 when the landlord dies during the pendency of
 writ petition in this Court. The arguments
 canvassed by Mr.Arjunwadkar that the heirs and
 legal representatives of deceased landlord cannot
 be relegated to fresh enquiry and that course
 will be unreasonable and unjust cannot be
 accepted in view of the decisions which are
 pressed into service on behalf of the tenants.

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 5. Understood thus, the heirs and legal
 representatives will have to establish their
 bonafide requirement, on the date on which they
 have been brought on record in the present
 proceedings. Unless that factum is established
 by the heirs of deceased landlord, the

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 application for possession in respect of the suit
 lands cannot succeed. Indeed, the revision
 application preferred by the tenants before the
 Tribunal was barred by limitation. However,
 having regard to the aforesaid legal position it
 will make no difference. Whereas, in view of the
 changed circumstances, fresh enquiry will have to
 be undertaken in which the heirs and legal
 representatives of the deceased landlord will
 have to establish their bonafide requirement in
 respect of the suit land.

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 6. In this view of the matter, both the
 petitions will have to be disposed of by
 relegating the parties before the Tenancy Aval
 Karkoon who in turn will examine the issue as to
 whether the heirs and legal representatives of
 the deceased landlord Gopal have established
 their bonafide requirements in respect of the
 suit lands on the date on which they have been
 brought on record in the proceedings. For that

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 purpose, the authority will offer opportunity to
 both sides to adduce necessary evidence and
 decide the application afresh on its own merits
 in accordance with the law without being
 influenced by any observations in the impugned
 decision or for that matter in the present order.
 The authority shall decide the proceedings which
 are remanded pursuant to this order within six
 months from the receipt of writ of this Court.
 Both petitions are disposed of on the above terms
 with no order as to costs.

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 ******

Gopal Kashinath Wategoankar v. Sitaram Yeshu Yadav Decd. Th.L.H. and Ors.

Case brief

What is this about?

What did the court decide?

Gopal Kashinath Wategoankar v. Sitaram Yeshu Yadav Decd. Th.L.H. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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