Partly allowed

G.T.Pandit and Others. v. B.B.Patil and Others.

Bombay HC18 Jan 2012WP/1884/1996

Case brief

AI extract

What is this about?

This writ petition challenged the Maharashtra Revenue Tribunal order remanding a possession application. The Court declined to decide, holding that the Civil Court judgment on rent arrears is binding. It quashed orders and remitted the matter to the Tahsildar to determine if the tenant was in arrears as of the application date and issues of waiver.

What did the court decide?

Orders of all authorities were quashed. Matter remitted to Tahsildar, Sindkheda for fresh enquiry on four specific issues including arrears on date of application and waiver.

G.T.Pandit and Others. Vs B.B.Patil and Others. — Landlord and Tenant | Bombay HC (2012)

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1 wp 1884.96

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 1884 OF 1996 (OLD BOMBAY WRIT PETITION NO. 5721 OF 1988)

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Trimbak Martand Pandit (Deceased by his heirs)

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Gopinath Trimbak Pandit, Residing at Rly. Quarters No. RB-II /611-C, North Colony, Bhusawal, Dist. Jalgaon.

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Prabhakar Trimbak Pandit, Residing at B-94, O.N.G.C. Colony, At and Post Srisegor, Assam, Pin - 787 640.

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Ramabai W/o Trimbak Pandit, C/o No. 4, Govt. Quarters Blocks, No. 5-A, Opposite to Mamlatdar Katcheri, At Post-Nandurbar, Dist. Dhulia.

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(Petitioner No. 3 deleted as per Court Order dated 29.09.1997)

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Maltibai D/o Trimbak Pandit, Residing at Govt. Quarters Blocks, No. 5-A, Opposite to Mamlatdar Katcheri, At Post-Nandurbar, Dist. Dhulia.

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Sumatibai D/o Trimbak Pandit @ Sumatibai W/o Ravindra Joshi, Residing at C/o Shri R. N. Joshi, Railway Block No. 14-A/307-A, at and Post Daund, Dist. Poona. .. Petitioners

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Versus

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Bajirao Budha Patil, (Deceased through his L.Rs.)

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1-A Gulab Bajirao Patil, Age : 50 Years, Occu. : Agril., R/o Kurukwade, Tq. Sindhkheda, Dist. Dhule.

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Maharashtra Revenue Tribunal, Through its Member Shri R. P. Valvi, 2nd Floor, Old Secretariate Annexe Building, At & Post - Fort, Bombay. .. Respondents

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Shri V. J. Dixit, Senior Advocate, Advocate for Petitioners. Shri A. N. Sabnis, Advocate for the Respondent No. 1-A. Smt. S. D. Shelke, A.G.P. for the Respondent No. 2.

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CORAM : S. V. GANGAPURWALA, J. DATE : 18TH JANUARY, 2012.

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ORAL JUDGMENT :

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. The present petitioner had filed an application for possession as the present respondent No. 1 tenant committed

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default in payment of rent for the years 1974-1975, 1975-1976, 1976-1977 and 1977-1978 purportedly invoking Sec. 25(2) of the Bombay Tenancy and Agricultural Lands Act. The authorities decided the same. The matter was remanded to the first authority twice earlier by order of Sub Divisional Officer and Maharashtra Revenue Tribunal. Eventually the Sub Divisional Officer vide its order dated 16th August, 1987 remanded the matter to the Tahsildar Sindkheda for rehearing and directed him to make an enquiry on the issue referred by the Maharashtra Revenue Tribunal, Bombay in its decision dated 12.03.1984. The issues referred by the M. R. T. in its decision dated 12.03.1984 reads as under :

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"The case is remanded back to trial court for deciding the issue as to whether the payment of Bunding due was ever made at the instance of the landlord in the light of the discussion above."

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The petitioner challenged the said order before the Maharashtra Revenue Tribunal in Revision Application No. 202/1987. The M. R. T. allowed the revision and set aside the orders of the authorities and remanded the matter for fresh enquiry as observed by him in the said judgment. The said order is assailed in the present writ petition.

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Shri V. J. Dixit, the learned senior counsel submits that the Member, Maharashtra Revenue Tribunal, Bombay in its impugned judgment has travelled beyond the scope of revision and has remanded the matter for an enquiry which is not relevant, nor contemplated. The certificate U/Sec. 88-C and the provisions of Sec. 33-C are not at all relevant for the determination of the present dispute. The M. R. T. could not have entered into the debate in respect of the said provisions. The only question was about the default in the payment of rent. The M. R. T. has enlarged the dispute. There is judgment of competent Civil Court. The Civil Court has held that the respondent/tenant is defaulter and a decree to that extent is also passed. Even the Civil Court has held that defendant/tenant is not entitled for the adjustment of bunding charges. In view of that, in fact, nothing remained to be decided by the Tenancy Court and revision should have been allowed by setting aside the order and pass a decree of eviction. The learned senior counsel submits that moment the petitioner brings on record the non payment of rent, the order of eviction follows in view of Sec. 25(2) of the Bombay Tenancy and Agricultural Lands Act. This aspect has not been considered by the authorities. According to the learned senior counsel judgment of the Civil Court would operate

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as an res-judicata. It was erroneous on the part of the M. R. T. to observe that the judgment of Civil Court would not be binding. The learned Senior Counsel relied on the judgment of the Division Bench of this Court in a case of Mohanlal and another Vs. Governor General in Council reported in AIR (32) 1945 Nagpur 255 and another judgment of Division Bench of this Court in a case of Laxmibai Kisanrao Tamhane and others Vs. Smt. Trivenibai reported in 1974 Bombay 152 (V 60 C 40) .

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Shri Sabnis, the learned counsel for the respondent No. 1 submits that it is rightly held that the judgment of Civil Court regarding tenant in arrears of rent would not be binding on tenancy authority. It was within the realm of tenancy authority to decide the aspect of default, so also the adjustment of bunding charges. The M. R. T. was justified in passing the said order. According to the learned counsel the petitioner had satisfied the decree and as on date of the application the petitioner was not in arrears of any amount of rent. In such circumstances, the application for eviction U/Sec. 25(2) of the Tenancy Act was not maintainable. The learned counsel relies on the judgment of the Apex Court in a case of Vithal Vasudeo Kulkarni Vs. Maruti

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Rama Nagane and others reported in AIR 1968 S.C. 461 .

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With the assistance of learned counsel I have gone through the impugned judgment. The litigation has got a chequered history. The matter has been remanded on number of occasions. The last order of remand which is assailed in the present writ petition is by the Maharashtra Revenue Tribunal, Bombay. In its order the learned Member of the M. R. T. has remanded the matter on various grounds. One of the ground on which the matter has been remanded is that the Tahsildar should make an enquiry about applicability of Sec. 88-C and 33-B of the Tenancy Act. The said provision would be alien to the present dispute. The possession is not sought for personal cultivation. The possession is sought only on the ground that the tenant has committed default in payment of rent as is detailed in the petition for eviction. In such circumstances, there is no need to enter into the debate regarding whether the petitioner would be deemed to be certificated landlord as laid down U/Sec. 88-C, nor any enquiry as to the applicability of Sec. 33-B of the Tenancy Act is relevant. Moreover, there is no pleading to this effect on behalf of tenant. The said order of M. R. T. to this effect cannot be sustained. The M. R. T. has also further debated on the

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applicability of the judgment of the Civil Court which is passed in regular civil suit filed by the petitioner for recovery of rent against the respondent No. 1. The decree passed in R. C. S. No. 31/1978 makes it abundantly clear that the tenant was in default of the arrears of rent. The Civil Court in the said R.C.S. No. 31/1978 had framed the following issues :

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Issues

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Findings

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Does deft prove that there are cosharers along with plff in the suit No. land and hence the suit is bad for non-joinder of necessary parties ?

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Is deft entitled to set off of Rs. 390/paid by him towards bunding charges ? No.

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Does plff prove that he has become owner of the suit land to the Yes by intestate exclusion of other virtue of will dt. succession and 28.03.66 executed by deceased not by the will of Rajaram in his favour ? deceased.

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Is suit barred by Limitation ? Claim of Rs. 130.30 i. e. Rent for the years 74-75 is time barred.

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What order and Decree ? as per order below

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The Court after considering the evidence on record was pleased to pass the following judgment and order.

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O R D E R

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Defendant no. 1 do pay to the plff sum of rs. 390.90 and proportionate cost of the suit.

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Defts to bear their own costs.

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Decree be drawn up accordingly.

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There is nothing under the Tenancy Act which bar the jurisdiction of the Civil Court from entertaining suit for recovery of arrears of rent. Sec. 70 deals with the duties of the Mamlatdar. Whenever there is a dispute regarding rate of rent, then the Mamlatdar has to decide the same as per Sec. 70(c) of the Tenancy Act and in the present case, there was no dispute regarding rate of rent. Earlier there was provision i. e. 70(me) which dealt with the powers of the Mamlatdar to recover the arrears of rent. The said provision is deleted in the year 1961. As such, by virtue of the deletion of said 70(me) of the Tenancy Act in the year 1971, the jurisdiction no longer remained with the Mamlatdar regarding recovery of arrears of rent. There is no other provision pointed out by the learned counsel for respective parties which authorizes the Mamlatdar to recover the arrears of rent. In such circumstances, it will have to be held that the Civil

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Court has the juridiction to pass a decree regarding the recovery of arrears of rent.

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As the Civil Court is competent to pass a decree in respect of recovery of arrears of rent, then in such circumstances, the judgment of the Civil Court would be final and binding on the Tenancy Court regarding the arrears of rent and same would operate as res-judicata, as such remand on the said ground was also not permissible.

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Upon considering the arguments advanced by the learned counsel, the only issues that would be relevant are :

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A. Whether on the date of application filed before the Tahsildar/Mamlatdar for eviction, the tenant was in arrears of rent as contemplated U/Sec. 25(2) of the Tenancy Act ?

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B. If any payment is made pursuant to a decree of Civil Court, whether that would come within the meaning of waiver ?

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C. Whether the concept of waiver is applicable for eviction U/Sec. 25(2) of the Tenancy Act ?

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D. Whether the landlord is entitled to the possession and tenant is required to be directed to deliver

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possession to the landlord ?

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The parties shall have to be given an opportunity to adduce evidence on the said aspect.

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In light of that the orders of all the authorities are quashed and set aside and the matter is remitted to the Tahsildar, Sindkheda for deciding the application filed by the petitioner afresh on the aforesaid four issues and pass the appropriate orders. The parties shall appear before the Tahsildar Sindkheda on 15th February, 2012. The record and proceedings be sent back to the Tahsildar Sindkheda forthwith.

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Rule is made absolute in above terms.

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Sd/- [ S. V. GANGAPURWALA, J. ]

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bsb/Jan. 12

G.T.Pandit and Others. v. B.B.Patil and Others.

Case brief

What is this about?

What did the court decide?

G.T.Pandit and Others. v. B.B.Patil and Others.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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