KRISHNABAI ANAJI GHULE AND OTHERS v. NIVRUTTI RAMCHANDRA RAYKAR AND ANOTHER

Citation: [1983] 3 S.C.R. 822

Court: Supreme Court of India

Bench: D.A. DESAI, R.B. MISRA

Case summary

The Tribunal set aside the concurrent findings on·the question of bonafide requirement of the landlord by observing that the appellate court erroneously rejected a piece of evidence which ....

Judgment text

KRISHNABAI ANAil GHlJLE AND OTHERS ' v. NIVRUTTI RAMCHANDRA RAYKAR AND ANOTHER • September 5, 1983 • (D. A. DESAI AND R. B. MISRA, JJ. ] Bombay Tenancy and Agricultural Land, Act, 1948_;. S, 33-B-Certificated landlord's right to obtain posseJsion of exempted land from excluded tenarrt- Requirements to be satisfied by·land/ord-Scop. e ofproceedings under s. 33-B. Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 provides that every tenant of agricultural land shall be deemed to have purt chased from his landlord as on April I, 1957 (Tiller'• Day) the land held by him as tenant free. from all encumbrances. However to protect petty or small landlords against statutory compulsory purchase, provision w. as made in Part II-A of Chapter III read with· s. 88-C of the Act enablin& them to obtain exemption certificate under s. 88-C. Whiles. 33-A designates· such petty land- _lords as 'certificated landlords' and the tenants of such exempted lands as •excluded tenants', s.

33-B confers a special right on a certificated landlord to terminate the tenancy of the excluded tenant in respect of the exempted land and obtain possession of such land if he bona fide requires the same for cultivating it personally. The land in question in this appeal had fallen to the share of the respondent in a family partition. The bonajides of the partition was the main issue in the prOceedings held undet s. 88-C for grant of an exe? lption certificate in favour of the respondent.. However, the order granting the certificate withstood all challenge from the tenants and became final. In the subsequent proceedings instituted by the respondent under s. 33·B for possession _of the land the Tehsildar arrived a,t the finding that tbe respondent . required the land bona fide for his personal cultivation and this finding was confirmed by the Sub·. Divisional Officer in· appeal and the tenants were directed to hand over possession of the land to the respondent.

Th~ tenants filed revision applications before the Revenue Tribunal which allowed them on the . grotind that the Sub-Divisional Officer had wrongly declined to admit an important piece of evidence having a direct beil. ring on the question ·of bona/ides of the parti· tion. The r(:spondent moved the. Hig'h Court under Art. 227 and the High Court set aside the Tribunal's judgment holding that the bona fides of the partition which had already been agitated inter par/es in proceedings under · · s. 88·C could nol be reconsidered in a subsequent proceedings under s. 33·B and directed the Tribunal to decide the revision in accordance with law. The Tribunal, taking note of the tact that the respondent had sold a. piece of land l 1/2 years before filing the present application for possession and also that he owned hou·se property in Poona City, came to the conclusion that the respon· dent did not bona fide require . the land in question for personal cultivation and It. A. OHULE V; N. R.

RAYKAR 823 dismissed the application-for possession of ,land. The respondent once aaain moved the High Court under Art. 227. The High Court restored the decision of the Sub-Divisional Officer, holding that the Tribunal was in error in holding that in order to obtain pOssession of land from an excluded tCnant' under s. 33·B, it was obligatory upon a certificated landlord to prove the compelling necessity to cultivate the land, and that the sale of. land by the r~spondent prior to the commencement of the present proceedin&s which was-for a small price did not have an adverse impact ? D his bona fides. · • Counsel for appetlant~tenants submitted that even assuming that the High Court was right in holding th~t the bon~ fides or the partition could not "be the subject matter of a collateral attack in the present proceedings as the same had been considered and decided iri proceedini:s he1d under s.

88-C, still the question could be gone into to ascertain the bona fides of the landlord • when he moved an application under ·s. 33-B seeking eviction for personal cllltivation. Dismissing the appeal, HELD : It is true that a certificated landlord is not entitled to recover possessio~ from the excluded tenant merely for asking. He can only obtain the direction for possession if he bona fide requires the exempted land for cultivati;g it personally. When it" is said· that the landlord bona fide requires possession of the land, it would be neceSsary for him to prove that he i. s acting \,.. honestly and that the application for possession is not a device to dispossess 4- the tenant and that he requires, in the sense needs possession of, the land for personal cultivation. In other words, personal cultivation is necessary to obtain the yield of the land for himself.

Some element of requirenient could inhere the requirement for maintenance by undert::iking the avocation of personal cultivation. It is not that the landlord e\en if he has sufficient source of maintenance, can seek posse:;sion merely because he wants to pursue the avocation of cultivating the land personally' but this aspect hardly ever arises in an application under s. 33-B because such "an application can only t_e made by a certificated landlord and none else and the certificated landlord is one whose holding does not exceed an economic holding. As long as the certificate of exemption under s. 88-C subsists, two inferences flow therefrom : that the landlord is a petty or small land holder arid that his annual income from all sources including rent of land does not exceed R5, 1,500. lt is the bona fide requirement of such a small and petty landlord for personal cultivation that has to be examined under s. 33-B.

It may be that while examining the bana /ides of the requirCment of the certificated lalldlord, the court may take into account how the landlord became the owner of the land and, if it is by pa~ition, the. bona/ides of the partition may be examined. [830 G-H; 831. A-D] Arvind Lal Bhukanda v. Khandu, 63 B. L. R. 929 approved and distinguish~d. In the ~nstant cas~. the appellant-tenants contested the proceedings initiated by the landlord for certificate of exemption under s. 88-C at all levels and on all availab]e contentions, the principal one being the natur_e and 824 ' SUPREME COURT'llEPORTS (! 983) 3 s. c. R. character of the partition. That contention having been concurrently negatived cannot be re-opened. The Tehsildar arr. ived at the finding that the respondent required the land bona fide for his personal cultivation and it was confirmed by the first appellate court which was the last fact-findiug court.

The· Triborial interfered with this finding on the ground that some important piece of evidence had been over-looked. The finding cannOt be re-opened at this stage on the short submission that . the Court declined to eX. amine·· thC genuiqeness or validity or bona fides of the partition particularly when this very question was considered in an earlier round of proceedings and decided in favour of the landlord. [832 E-F; 833 E-HI _ CIVIL APPELLATf JURISDICTION : Civil Appeal No. 2896 of 1977. • Appeal by Special leave from the Judgment and Order dated· the 4th November, 1977 o. fthe Bombay High Court in Special Civil Appln. No. 107 of 1977. V. M. Tarku11de, P. JJ. Parekh and Mrs. Manik Karanajawala for the Appellants. U. R. La/it, V. N. Ganpule, _Mrs. V. D. Khanna and Alta/ Ahmad for the Respondents. ) -+ The Judgment of the Court was delivered by DESAI, J.

Two decades have elapsed since the commencement of the proceedings involving a simple issue whether the first respondent designated as certificated landlord is entitled to recover possession of land bearing Su~vey No. 14/A/2 admeasuring 7 acres and. 13 gunthas situated at Village Manjari Badruk Tahika Haveli Distt. Poona in Maharashtra State from the appellants I to 3 who are heirs of excluded tenant Shri Ghule· and appellant No. 4 who is also· an excluded tenant. . A brief resume of the various proceedings leading to the present G, appeal may . shed some light on a simple issue involved in this appeal. One Ramchandra Gopal Raykar, father of the first re~p6ndcnt landlord leased land included in Survey No. 14/A/2 to two different persons. Land admeasuring 4 acres out of. total area of 7 acres and - 13 gunthas was leased to Shri Anaji Maruti Ghule'. Appellants. No. I to 3 are the heirs and legal representatives ·Of Sh. Gh. ule. The I it. A. GllULE V. N. R. RAYKAR (Desai, J.

) 82$ remaining 3 acres and 13 gunthas of land was leased to Vishnu Maruti Tilekar Appellant No. 4 in this appeal. . After a partition in the family of the landlord, the land involved in this appeal fell to the share of the first respondent. landlord. He moved an application under sec. 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 ('Tenancy Act, for short) praying for a certificate therein envisaged on the allegation that his holding does not exceed the economic holding and total annual income of the landlord including the rent of such Jarid does not exceed Rs. 1,500. After an enquiry made by the Mamlatdar as contemplated by sec. 88-C (iii) and (iv) an exemption certificate was granted to the landlord. The order of the Mamlatdar was challenged by the tenants upto the High Court of Judicature at Bombay, but the order of the Mamlatdar granting exemption certificate wit~stood the challenge. And that order has become final.

The effect of the granting of an exemption certificate is that, amongst others, provisions contained in secs. 32 to 32R shall not apply to the land leased by such certificated . landlord. In other words, the excluded tenants of such certificated landlord shall not become the owners of the land on the Tillers' day i. e. 1st April, 1957. Sec. 33-B confers a right on the· certificated landlord to terminate the tenancy of the land in respect of which exemption certificate is granted, and to make an application to the Mamlatdar for obtaining possession if such certificated landlord bonafide requires such land for cultivating it personally. Accordingly the 'fespc. ndent landlord made an application on March 29, 1962 to the Mamlatdar having jurisdiction in the area praying for an order for possession of the land in respect of which certificate was granted. This application was resisted by both the tenants raising ,various contentions, one such worth noticing being that appellants No.

I to 3 were not served with the statutory notice as required by Sec: 33-B. In the meantime it, appears that the land bearing Survey No. 14/A/2 was put to auction to recover arrears of irrigation dues and the same was purchased for a consideration of Re: I by the Government; Taking note of this fact, the Mal)llatdar rejected the application of thelandlord observing that he had no title to the land. In an appeal by the landlord, the order of the Mamlatdar was set aside and the matter was remanded to the Mal)llatdar for disposal according to law. A revision petition by the appellants was dismissed by the Maharashtra-Revenue Tribunal. Mamlatdar designated asTel)-sildar, • . , slii>RBME co\JRt R. Etioirrs [i983) 3s. c. R.. GU remand held an enquiry, recorded a finding that notice terminating the tenancy was served on present appellant No. 4, but it was not served on Appellants No. I to 3, the heirs of Anaji Ghule.

He · ·~· accordingly allowed :the application of the landlord for possession against Appellant No. 4 Tilekar but dismissed the same against Appellants No. I to 3, the heirs of Ghule. For separate appeals came to be filed against the decision of tl;le Tehsildar, two by two sons of Anaji, Appellants. No. 2 and 3 Herein, one by the landlor e fair to deny this very reasonable request in appeal under Art. 136 when all authorities including High ·Court have held in favour of this petty small landlord. We decline to A interfere. • Accordingly this appeal fails and is dismissed with no order as to costs. B H. L. C. Appeals dismisseii. • •• ' ' ·~···'