Dismissed

Hasan Bin Salam Salam Bin v. Madhavrao Rangnathrao Shinde

Bombay HC21 Aug 2014LPA/42/2002

Case brief

AI extract

What is this about?

An appellant landlord sought quashing of an order allowing a respondent declared owner to dispossess him under section 98 of the Hyderabad Tenancy Act. The High Court rejected the plea that section 32 was the exclusive remedy and dismissed the appeal on limitation grounds.

What did the court decide?

Letters Patent Appeal dismissed; no order as to costs; pending civil application disposed of.

Hasan Bin Salam Salam Bin Vs Madhavrao Rangnathrao Shinde — Landlord and Tenant | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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LETTERS PATENT APPEAL NO. 42 OF 2002 IN

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WRIT PETITION NO. 463 OF 2002

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Hasan Bin Salam s/o Salam Bin Abdul Habib, age 40 years, occ. Agril, r/o Mangangaon, Tq. & Dist. Prabhani

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.. APPELLANT

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VERSUS

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Madhavrao s/o Rangnathrao Shinde age 41 years, occ. Agril. r/o Mangaongaon, Tq. & Dist. Parbhani At present r/o Ganeshnagar, near Zakir Hussain High School, Parbhani. Dist. Parbhani. .. RESPONDENT

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Mr. S. V. Warad, advocate for appellant. Mr. S. M. Kulkarni, advocate for respondent.

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=====

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CORAM : R.M. BORDE & V. K. JADHAV, JJ. DATE : 21^st AUGUST, 2014.

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JUDGMENT :

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Appellant /ex-landlord of the disputed agricultural land, is praying for quashment of the order passed by the learned Single Judge in Writ Petition No. 463/2002 decided on 31.01.2002.

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Respondent initiated proceeding under section 98(C) of the Hyderabad Tenancy and Agricultural Lands Act for dis-possession of appellant herein who was in unauthorised possession of agricultural land. According to respondent, his father was tenant of the agricultural land owned by appellant herein. Father of respondent was declared as protected

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tenant and ownership of the land stood transferred in view of provisions of section 38(E) of the Act in favour of tenant i.e. father of petitioner on 25.05.1957. It is not disputed that tenant deposited the price of the land and as such, ownership of the land stood transferred in favour of father of respondent. It is further pointed out that father of respondent was in possession of the suit land however, later on he came to be dis-possessed by the ex-landlord i.e. appellant herein. On demise of father of respondent, he initiated proceeding in the office of Additional Tahsildar, Parbhani, for recovery of possession of agricultural land under section 98 of the Act.

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Initially, the additional Tahsildar allowed the application tendered by respondent and issued direction in respect of handing over of possession of land to respondent – tenant. The order passed by the Additional Tahsildar, Parbhani was subject matter of challenge at the instance of appellant – ex-landlord to the Deputy Collector, Land Reforms, Parbhani. The Deputy Collector by order dated 04.06.2001 set aside the order passed by the Tahsildar and dismissed the application presented by tenant. While dismissing the application, the Deputy Collector directed cancellation of tenancy rights of the tenant. The order passed by the Deputy Collector, Land Reforms, Parbhani, was subjected to challenge by tenant before Maharashtra Revenue Tribunal. The tribunal allowed revision application tendered by tenant and set aside the order passed by the Deputy Collector and restored the order passed by the Additional Tahsildar. The order passed by the Maharashtra Revenue Tribunal was subject matter of challenge in writ petition at the instance of appellant herein. Writ petition has been

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dismissed by the learned Single Judge of this Court by order dated 31.01.2002.

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Learned counsel for appellant vehemently contended that order passed by the learned Single Judge is erroneous and liable to be quashed and set aside. It is the contention of appellant that the application under section 98 of the Act tendered by respondent – tenant to the Tahsildar was not entertainable and the only remedy available to the tenant was under section 32 of the Act. It is further contention of appellant – ex-landlord that even otherwise application tendered by tenant under section 98 of the Act after lapse of about 45 years from the accrual of cause of action is not entertainable.

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Both the contentions raised by appellant were considered by the learned Single Judge of this Court and those have been rightly discarded. So far as the first contention raised by appellant that application under section 98 of the Act is not entertainable and the only remedy available to the tenant is to present an application under section 32 of the Act within a period of two years from the date of dis-possession is devoid of any substance. It is not disputed that father of tenant has been declared owner of the land under section 38(E) and by virtue of provisions of the Act, ownership of land has been statutorily transferred on 25.05.1957. After statutory transfer of the land in favour of the declared tenant, his (tenant's) status is transformed into full ownership and the landlord who later on claimed to have resumed possession of the land shall have to be branded as

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a person in unauthorised possession and a trace-passer. The remedy under section 32 of the Act is available in the event relationship between the parties is of tenant and landlord. It is required to be considered that after 25.05.1957 the land possessed by tenant i.e. father of respondent stood transferred in his favour and as such he (father of respondent) became owner of the land. The status of appellant who claims to be in possession after statutory transfer is that of a trace-passer and the remedy of presentation of application under section 32 of the Act is as such not available to the tenant who is declared as owner. So far as provisions of section 98 of the Act are concerned, the proceedings thereunder can be initiated on satisfaction of the condition that (1) the person to be evicted must be in unauthorised and wrongful possession of the land, (2) there should not be any other provision under the Act under which such person can be evicted and (3) under the Act the person against whom relief is claimed shall not be entitled to possession of the land. In the instant matter, it cannot be controverted that the person to be evicted i.e. the appellant is in unauthorised and wrongful possession of the land from the date of statutory transfer and that respondent is entitled to claim possession of the land. Under the Act, there is no other provision provided for eviction of the person in unauthorised possession. Application tendered under section 98 of the Act for summary eviction of appellant (ex-landlord) is perfectly maintainable and has been rightly entertained by the Tahsildar.

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Reference can be made to a Judgment delivered by the Division Bench of this Court in the matter of Sitaram Deoba Marathe V/s Hawadya

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Piraji and others reported in 1975 Mh.L.J.521 . The reference before the Division Bench was relating to availability of remedy under section 36(1) of the Hyderabad Tenancy Act after grant of declaration of ownership in favour of the tenant by taking recourse of provisions of section 46 and 49-A of the Bombay Tenancy & Agricultural Lands (Vidarbha Region) Act, 1958. The provisions of section 46 and 49-A of Vidarbha Act are similar to section 38-E of the Hyderabad Tenancy Act. The question that arose for determination before the Division Bench was as to whether a tenant who became owner under the provisions of section 46 and 49(A)(i) of Vidarbha Act either on 1.4.1961 or 1.4.1963 still continues to be the owner for the purpose of making an application under section 36(1) of Vidarbha Tenancy Act if he is dispossessed after date of vesting of title in him. While dealing with the issue, the Division Bench has observed in paragraph Nos. 23 and 25 thus:-

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“23. From the reference to observations in the Supreme Court judgments, it is clear that the Supreme Court has accepted the plain meaning of the language used by the Legislature in section 46(1) and section 49A(1). Depending upon that approach, and independently construing the provisions, the Division Bench of this Court laid down that vesting is complete and transfer of title takes effect either on 1.4.1961 or 1.4.1963, as the case may be. To us, therefore, it appear that the law was well-settled and there was hardly any scope to take a different view. We may emphasis a clause present in section 46(1) as well as section 49(A) which must have been advisedly used by the Legislature to remove any doubts. Having pointed out that the land shall stand transferred to and vest in the tenant on the dates mentioned in those section, the Legislature further adds a clause that the tenant “shall be deemed owner of such land.” This deeming provision obviously means an introduction of legal fiction. Even if some

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formalities had remained and were to be performed later and if due to the inability to comply with those provisions, in some cases the sale was to be declared ineffective later, until that stage is reached the earlier tenant is to be deemed to be the full owner for all purposes. That is the intention of the Legislature and we find that no other view is possible on the reading of these two section.

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This, the Legislature has achieved by the present legislation. Having once declared them as owners, the Legislature appears to have stopped at that. The basic concept is that an owner of land must cultivate the land himself. If the owner was absent and the land was in physical possession of a tenant, the tenant was raised to the status of an owner, whether the original landlord wanted to transfer his title or not. Having created this kind of title, the new owner is now left to himself to protect his title and possession as best as he can. We are not deciding, but we are incidentally making an observation that section 120(c) seems to have been enacted to enable anyone to get relief provided he is able to satisfy the Collector that the other person falls within the categories mentioned in that section, and is a person in unlawful possession. Short of that, the owner is left to resort to law of the land for protecting his rights as an owner. There are no provisions which indicate that a special plea must be made in favour of the ex-tenants who are now owners to enable them to make use of section 36 for the purpose of regaining possession lost by them after the title was vested in him. ”

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On consideration of analogy recorded in the judgment of Division Bench, it can be concluded that the land which has been transferred to the tenant on the notified date provided under the provisions of Hyderabad Tenancy Act and shall vest in the tenant and tenant shall be deemed to be full owner of such land. The deeming provision introduces legal fiction. Thus

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the contention of the appellant that remedy under section 32 is available to the respondent does not stand to scrutiny. There is no scope for concluding that the tenant who became full owner under section 38-E of the Act can still call himself a tenant for the purpose of section 32 when he is dispossessed after the date of vesting. The tenant who has become owner of the property by virtue of legal fiction if dispossessed otherwise than in due course of law, in such case, there is presumption of continuity of possession. The Division Bench in Sitaram's matter, held that a summary remedy under section 120 of Vidarbha Act is available to the declared owner. The provisions of section120(c) of Vidarbha Act are pari materia with section 98 of Hyderabad Tenancy Act. Section 98 of the Act provides for a summary remedy for evicting any person unauthorizedly occupying or wrongly in possession of land (a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act, (b) the management of which has been assumed under the said provisions, or (c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such person, may be summarily evicted by the Taluqdar. In this context, reference can be made to the Judgment of learned single Judge in the matter of Waman Nagorao Deshpande & others V/s Dayanand Babu Mitekari and others reported in 1983 Mah. L.J.298 . The objection in the aforesaid matter was in respect of maintainability of suit presented by a declared owner under section 38-E of the Act and it was canvassed that only remedy available to a person thrown out of possession is to apply under section 98 of the Tenancy Act. The learned Single Judge of this

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Court relying upon the Judgment of Division Bench in Sitaram's case (cited supra) held that both the remedies are available to the declared owner i.e. either to present a suit or to proceed under section 98 of the Act. It is observed in para No.7 of the Judgment that summary remedy of presenting application under section 98 of the Act was available to the respondent therein. However, it must be held that existence of summary remedy does not oust the jurisdiction of the Civil Court. In the instant matter, the tenant, declared owner has chosen to avail summary remedy under section 98 of the Act. In the given facts, it cannot be concluded that the availment of summary remedy by a declared owner, respondent in the instant appeal, is not permissible.

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So far as limitation for entertaining application under section 98 of the Act is concerned, said section does not provide for bar of limitation. Issue raised by appellant in the instant appeal is no more res intigra in view of judgment delivered by this Court (Justice R.M. Borde) in the matter of Limbaji Shankar Munde Vs. Bhaurao Baliram Munde reported in 2010(3) Mh.L.J. 138 . This Court relying upon the judgment of the Apex Court in the matter of Ram Chand Vs. Union of India reported in (1994) 1 SCC 44 has turned down the contention raised by petitioner in the writ petition as regards bar of limitation. The observations made by the Supreme court are quoted in the judgment thus :

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In the absence of any specific limitation provided thereunder, necessary implication is that the general law of limitation provided in the Limitation Act (Act 2 of 1963) stands excluded. The Division Bench, therefore, has rightly held that no limitation has been prescribed and it

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can be executed at any time, especially when the law of limitation for the purpose of this appeal is not there. Where there is statutory rule operating in the field, the implied power of exercise of the right within reasonable limitation does not arise. The cited decisions deal with that area and bear no relevance to the facts.”

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Similar question arose as to whether there is any limitation provided for tendering application under section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 and the same was considered by the Division Bench of this Court in the case of Ghanshyamprasad Natwarlal Bhatt vs.

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Gendalsingh Vakhatsing and others in Speical Civil Application No. 764/1955. The Division Bench has observed thus :

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“You cannot apply limitation by analogy. Limitation either bars a remedy or extinguishes a right of a party and it is unthinkable that any Court would bar a remedy or extinguish a right when the Legislature has not done so by importing the principles of some other statute and drawing analogy from some other provision of law. If there is no limitation provided by the legislature then the only thing that the Tribunal has to do is to permit the application to be made irrespective of passage of time.”

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In this context, reliance can also be placed on a judgment in the matter of Kisan Sayaji Shelke Vs. Madhukar Mohan Deshpande and others reported in 2010(7) Mh.L.J. 347 . This Court has held in the aforesaid matter that provisions of section 98 do not prescribe for any limitation and as such, there can be no impediment for entertaining the application under section 98 of the Act by the competent authority at any point of time.

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