Monday 13 March 2017

Precaution to be taken court while framing of issues in bombay tenancy and agricultural lands Act

The court examined the facts and held that the trial judge had committed no illegality. Defendant 5 had himself not specifically raised the plea of his being the tenant. He left the defence to defendant 1. He showed no interest throughout the trial in getting an issue to this effect framed and referred to the Mamlatdar. On facts also the court found defendant 5's case to be fraudulent.
12. The court referred to Order XIV of the Code of Civil Procedure ("the Code" for short) which contemplates framing of issues by the court on application of mind, not only to the pleading but also to the documents produced, while Rule 4 thereof empowers it to examine any person and enforce production of additional documents for that purpose. The court observed that these provisions enable the court to frame correct issues and restrict the trial of the case only to the same and there is nothing in Section 85 or 85-A or any other provisions of the said Act, robbing the courts of these powers so indispensable for the effective adjudication of the cases. In the ultimate analysis the court laid down that the court has a duty to examine the substance and refuse to frame and remit any such issue, if the same appears to be demonstrably frivolous and malafide. This decision was followed in Ramu Shivappa's case (supra) by this Court.
13. The upshot of the above discussion is that though an issue as to whether a person is a tenant or not has to be decided be a tenancy court, a reference to tenancy court cannot be made for the asking. The judicially trained mind of the court must scrutinise the pleadings and the documents, make the necessary inquiry and find out whether the plea is genuine or is malafide and fraudulent aimed at procrastinating the litigation. Vague pleadings, unsubstantiated by prima facie material will put the court on guard. The court will also consider the stage at which the plea is raised. If the issue is never raised in the trial court, and application is made belatedly at the appellate stage then it may be a sure indication of an attempt to prolong the agony of litigation. While dealing with such application at the appellate stage the court will have to be more cautious.
Bombay High Court
Rama Hariba Khavale vs Gopika Ramling Survase And Ors. on 26 June, 2003
Equivalent citations: AIR 2003 Bom 449

Bench: R Desai


1. The petitioner is original defendant 1 in Regular Civil Suit No. 313 of 1980. The suit came to be filed by heirs of one Ganpati Hariba Khavale, the deceased brother of the petitioner and defendant 2 for partition and separate possession of the suit property.
2. The trial court by its judgment and order dated 26th September, 1986 decreed the suit. The trial court declared that plaintiffs 1 to 3 an defendants 1 and 2 will have one third share in the suit properties and the parties are entitled to the partition and possession of their one third share. The trial court ordered that partition of lands be got effected by the Collector, Solapur or by the Gazetted subordinate appointed by him for this purpose.
3. Being aggrieved by this judgment and decree, the petitioner carried an appeal to the court of IV Addl. District Judge, Solapur being Civil Appeal No. 752 of 1986. In that appeal the petitioner preferred an application. In the application he stated that prior to consolidation Gat No. 570 was comprising Survey No. 237/1 and Survey No. 238/1. In respect of Survey No. 237/1 admeasuring 14 Acres 21 gunthas certificate dated 28.10.1966 was issued under Section 32M of the Bombay Tenancy and Agricultural Lands Act, ("the said Act" for short) in his favour. He purchased the land out of his own funds. The respondents have no concern with it. The respondent's case that it is purchased for the joint family from the joint family funds but the certificate was issued in petitioner's favour because he was the manager of the joint family is false. It is necessary to decide whether the plaintiff had proved that whether the joint family was the tenant or whether the petitioner was the tenant in his individual capacity. This question cannot be decided by the civil court. It was, therefore, necessary for the trial court to formulate an issue in that behalf and refer it to the tenancy court for determination. The trial court did not do so and, therefore, its judgment is vitiated. In the circumstances it was prayed that the necessary issue be framed and it may be referred to the Tahsildar and after receipt of the report appropriate orders be passed.
4. The said application came to be rejected by the learned Addl. District Judge by his order dated 4.3.1991. It was observed by the learned Judge that certificate under Section 32-G of the said Act has been issued in the name of the petitioner. Therefore, once the question regarding the nature of the tenancy has been decided by the Competent Court no reference is required to be made to the said court. It is this order which is under challenge before me.
5. I have heard at some length Mr. Rajure, the learned counsel appearing for the petitioner. He contended that the learned District Judge erred in rejecting the application. He submitted that the trial court has exceeded its jurisdiction. By holding that the purchase price of the land was paid by the joint family and not by the petitioner out of his funds, the trial court has in effect given a verdict on the tenancy rights of the parties. The civil court cannot decide who is the tenant of the land. That can only be decided by the tenancy court. The trial court overlooked this and therefore, at least at the appellate stage the necessary issue ought to have been framed and referred to the tenancy court. In support of his submissions Mr. Rajure relied on Mudakappa v. Rudrappa and the Full Bench decision of this court in Rajaram Tolaram Patel v. Mahipat Mahadu Patel, 1967 MLJ 522.
6. As against this Mr. Arjunwadkar, learned counsel appearing for the respondents urged that whether the land in question is purchased out of joint family funds or whether it is purchased by the petitioner out of his funds can always be decided by the civil court. As regards the Full Bench decision he urged that there is an essential difference between a person claiming as a tenant and a person claiming as a co-parcener and the Full Bench has not dealt with this aspect. He also submitted that the issue as regards tenancy has not to be mechanically framed by the court. The court will have to first examine whether the issue has in fact arisen or whether a frivolous application is made to delay the proceedings. In this connection he relied on Fulmati Shivlal Mishra and Anr. v. Ramkrishna Gangaprasad Bajpai and Ors., 1981 MLJ 321 and Ramu Shivappa Agalawe and Ors. v. Imam Kashim Pathan and Ors., 1992 (3) B.C.R. 560.
7. In Mudakappa's case (supra) the Supreme Court was considering the Tribunal's jurisdiction. Section 45A of the Karnataka Land Reforms (Amendment) Act 1 of 1974, conferred jurisdiction on the Tribunal constituted under the Land Reforms Act, 1961 to decide the question of tenancy and nature of agricultural land. Under Section 133, Civil Court was prohibited from deciding the said question and was required to make a reference to the Tribunal for decision. After receipt of the report, the civil court was to decide the suit in its light. Under Section 112(B), one of the duties of the Tribunal was to decide whether a person is a tenant or not. The Supreme Court observed that pending the suit, when the question arises whether the member or joint family is the tenant, that question should be decided by the Tribunal alone under Section 48-A read with Section 133 and not by the civil court.
8. In Rajaram Patel's case (supra) the Full Bench of this court was resolving a conflict between two decisions of this court on the question of proper construction of Section 70(b) of the said Act. Section 70(b) of the said Act states the matters which fall within the purview of the Mamlatdar. This court held that the question whether a person is a tenant is not limited to the narrower issue whether a person is a tenant of a particular landlord. Whenever such a issue is raised and by whomsoever it is raised, it will have to be decided by the Mamlatdar to whom a reference has to be made.
9. But the question is whether the issue has to be referred to the tenancy court mechanically and at any stage or whether the court has to examine whether the issue has really and in fact arisen and then take the necessary decision.
10. In Fulmati's case (supra) the plaintiff filed a suit for possession of the agricultural lands, claiming ownership on the basis of a registered sale deed executed by S in their favour. Defendant 1 claimed that he had become absolute owner of the property on the basis of sale-deed executed by S in his favour. Defendant 1 also pleaded that his son defendant 5 had become a tenant of the agricultural land and statutory purchaser thereof on the death of S. The trial court framed an issue as to whether it was necessary to decide whether defendant 5 was the tenant. It found that no such issue was necessary. It heard and disposed of the suit. The plaintiff filed an appeal. The High Court held that the plaintiff was entitled to 1/2 share of the property along with the defendants. The respondents contended that defendant 5 claimed to be the tenant and no decree of partition could be passed unless the extent of its partibility is first ascertained and hence issue as to his tenancy should be framed for that purpose and finding thereon must be called from the Mamlatdar under Section 85 of the said Act.
11. The court examined the facts and held that the trial judge had committed no illegality. Defendant 5 had himself not specifically raised the plea of his being the tenant. He left the defence to defendant 1. He showed no interest throughout the trial in getting an issue to this effect framed and referred to the Mamlatdar. On facts also the court found defendant 5's case to be fraudulent.
12. The court referred to Order XIV of the Code of Civil Procedure ("the Code" for short) which contemplates framing of issues by the court on application of mind, not only to the pleading but also to the documents produced, while Rule 4 thereof empowers it to examine any person and enforce production of additional documents for that purpose. The court observed that these provisions enable the court to frame correct issues and restrict the trial of the case only to the same and there is nothing in Section 85 or 85-A or any other provisions of the said Act, robbing the courts of these powers so indispensable for the effective adjudication of the cases. In the ultimate analysis the court laid down that the court has a duty to examine the substance and refuse to frame and remit any such issue, if the same appears to be demonstrably frivolous and malafide. This decision was followed in Ramu Shivappa's case (supra) by this Court.
13. The upshot of the above discussion is that though an issue as to whether a person is a tenant or not has to be decided be a tenancy court, a reference to tenancy court cannot be made for the asking. The judicially trained mind of the court must scrutinise the pleadings and the documents, make the necessary inquiry and find out whether the plea is genuine or is malafide and fraudulent aimed at procrastinating the litigation. Vague pleadings, unsubstantiated by prima facie material will put the court on guard. The court will also consider the stage at which the plea is raised. If the issue is never raised in the trial court, and application is made belatedly at the appellate stage then it may be a sure indication of an attempt to prolong the agony of litigation. While dealing with such application at the appellate stage the court will have to be more cautious.
14. In the instant case the trial court had framed the following issues;
"(2) Do plaintiffs prove that price of the land Gat No. 570 was paid from out of joint family funds of deceased Ganpati and the defendants?
(6) Does defendant No. 1 prove that he paid the price for the land G. No. 570 from out of his own funds and not from any joint family funds?"
Evidence was led. The trial court after perusing the evidence held that defendant 1 / the petitioner had failed to prove that he had paid the price of the land in question out of his funds and the plaintiffs had proved that price of the said land was paid from the joint family funds of deceased Ganpati and the defendants. The trial court observed that admittedly the family was joint and the petitioner was the 'Karta' and manager of the family. The petitioner had failed to prove his separate source of income. The plaintiff had proved the existence of nucleus of joint family. Since the petitioner's appeal is pending I do not want to express any opinion on the merits of his case. But admittedly during the trial of the suit no application was made praying that an issue be framed and referred to the tenancy court. In the application made belatedly at the appellate stage it is stated that the trial court's judgment is vitiated because the issue regarding the tenancy was not framed and referred to the tenancy court. If the trial court's order is bad as alleged by the petitioner his remedy is to file an appeal. He has in fact filed an appeal. Hence there is no warrant for entertaining such application.
15. For the reasons stated in the preceding paragraphs, the petition will have to be dismissed. However, the appeal filed by the petitioner is pending and observations made by me in this judgment should not have any adverse effect on it. Hence it is clarified that this court has not expressed any opinion on the merits of the case and the court dealing with it shall decide it independently.
16. The petition is dismissed.
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