NAVNITLAL GORDHANDAS DECD Vs. KESHAVLAL MAGANLAL SUTAR
LAWS(GJH)-1963-1-8
HIGH COURT OF GUJARAT
Decided on January 28,1963

NAVNITLAL GORDHANDAS Appellant
VERSUS
KESHAVLAL MAGANLAL SUTAR Respondents

JUDGEMENT

P.N.BHAGWATI, J.M.SHELAT - (1.) This petition raises a short but interesting question of construction of certain provisions of the Bombay Tenancy and Agricultural Lands Act 1948 ( hereinafter referred to as the Tenancy Act ). This extra-ordinary and unique enactment has often been described as a patchwork legislation framed without any scientific accuracy of language and this case affords one more justification of the rich volume of judicial vituperation it has evoked from many Judges in the past. The facts giving rise to this petition are not many and may be briefly stated as follows.
(2.) There is a piece of land bearing Survey No. 223 situate in Navapura Falia of the Town of Kalol in the Panchmahals District. Prior to 1932 one Himatbhaiji held permanent leasehold rights in the land and he had constructed a small Kutcha shed on a part of the land. The petitioner having a money claim against Himatbhaiji and one Chuna Karson filed Suit No. 1189 of 1932 against them and the suit resulted in a decree in favour of the petitioner. In execution of the decree the land together with the superstructure was attached and sold and the petitioner purchased the same and obtained possession of it on 13th February 1940. On the same day the petitioner gave the land and the superstructure on lease to one Dwarkadas for a period of one year. Though the period of the lease expired on 13th February 1941 Dwarkadas did not hand back possession of the land and the superstructure to the petitioner. Dwarkadas on the contrary put up a new superstructure after demolishing the old one and sublet the land with the superstructure to respondent No. 1. The petitioner thereupon filed Suit No. 77 of 1946 against Dwarkadas and respondent No. 1 to recover possession of the land and the superstructure. On Z6th September 1947 a decree was passed in the suit directing Dwarkadas and respondent No. 1 to remove the superstructure and to hand over possession of the land to the petitioner. An appeal was preferred against the decree by respondent No. 1 but the appeal was dismissed. Even so respondent No. 1 did not vacate the land after removing the superstructure as required by the decree. The petitioner was therefore constrained to file an application for execution to recover possession of the land. Bai Anandi wife of respondent No. 1 however obstructed the execution of the decree claiming that she was the owner of the land and the superstructure. An application for removing the obstruction was filed by the petitioner but it was beyond time and was therefore dismissed. The petitioner thereupon filed Suit No. 42 of 1951 against Dwarkadas respondent No. 1 and Bai Anandi for a declaration that he was the owner of the land and for recovering possession of the land from them. In that suit a consent decree was passed on 14th April 1952 whereby respondent No. 1 and Bai Anandi wore declared owners of the northern half of the land together with the superstructure standing thereon while the southern half of the land was declared to belong to the petitioner and respondent No. 1 and Bai Anandi were directed to hand over possession of the southern half of the land to the petitioner. The southern half of the land which was declared to belong to the petitioner and of which possession was directed to be handed over to the petitioner will be referred to by us hereafter as the disputed land. In spite of the consent decree respondent No. 1 and Bai Anandi did not hand over possession of the disputed land to the petitioner. The petitioner thereupon filed an application for execution of the consent decree and on 26th July 1952 obtained possession of the disputed land from respondent No. 1 and Bai Anandi. What happened thereafter is a matter of controversy between the parties. According to the petitioner respondent No. 1 took forcible possession of the disputed land on 25th February 1953 and refused to hand back possession of the disputed land to the petitioner. According to respondent No. 1 however the petitioner gave a lease of the disputed land to respondent No. 1 on 23rd October 1952 at the rent of Rs. 2.00per month since respondent No. 1 required the disputed land for making and storing agricultural implements. Whatever be the true position on 27th January 1956 the petitioner filed Suit No. 6 of 1956 against respondent No. 1 in the Court of the Civil Judge Junior Division Kalol for recovering possession of the disputed land from respondent No. 1. The contention of the petitioner was as is clear from what is stated above that respondent No. 1 was a trespasser on the disputed land and was therefore liable to hand over possession of the disputed land to the petitioner. Respondent No. 1 in the written statement filed by him in answer to the suit contended that he was an artisan making agricultural implements and that he had taken the-disputed land on lease from the petitioner for making and storing agricultural implements since the disputed land was adjoining the other portion of the land on which he had his dwelling house and it was therefore convenient to him to carry on his occupation on the disputed land. Respondent No. 1 contended that he was therefore a tenant within the meaning of the Tenancy Act and that the civil Court had therefore no jurisdiction to entertain the suit. Since the pleadings of the parties raised the issue whether respondent No. 1 was a tenant of the disputed land and this issue was triable exclusively by the Mamlatdar under section 70(b) of the Tenancy Act the learned Judge referred this issue to the Mamlatdar for his decision. When the matter went before the Mamlatdar a statement was filed on behalf of respondent No. 1 and in the statement respondent No. 1 claimed to be a tenant of the petitioner in respect of the disputed land. It may be mentioned here that though in the written statement filed in answer to the suit respondent No. 1 had alleged that he had built a Kutcha shed on the disputed land after taking it on lease from the petitioner no such allegation was made by respondent No. 1 in the statement filed by him before the Mamlatdar. All that respondent No. 1 alleged before the Mamlatdar was that he was an artisan and that he had taken the disputed land on lease from the petitioner for making and storing agricultural implements and that he was in fact carrying on that occupation on the disputed land. Evidence of several witnesses including himself was led by respondent No. 1 to prove that the petitioner had granted a lease of the disputed land to respondent No 1 and that respondent No. 1 was an artisan making agricultural implements and was carrying on occupation as such artisan on the disputed land. The petitioner also led evidence to contest these allegations of respondent No. 1. On the evidence the Mamlatdar came to the conclusion that respondent No. 1 was an artisan and that since it was established that the petitioner had granted a lease of the disputed land to respondent No. 1 respondent No. 1 was a tenant of the petitioner in respect of the disputed land within the meaning of the Tenancy Act. The petitioner being aggrieved by this decision of the Mamlatdar preferred an appeal to the Prant Officer. The Prant Officer also reached the same conclusion as the Mamlatdar and dismissed the appeal. The matter was carried in revision before the Revenue Tribunal but the Revenue Tribunal also for reasons recorded in its order dismissed the Revision Application. The petitioner thereupon preferred the present petition in this Court challenging the order of the Revenue Tribunal.
(3.) The decision of the Revenue Tribunal was attacked by Mr. M. D. Pandya learned advocate appearing on behalf of the petitioner mainly on two grounds. The first ground was that respondent No. 1 was not a tenant of the disputed land within the meaning of the Tenancy Act since the disputed land was not land used for agricultural purposes falling within the definition of the termland contained in clause (a) of sec. 2 The argument was that no one could be said to be a tenant entitled to the protection of the Tenancy Act unless he satisfied the requirements of the definition often antenacted in sec. 2(18) and that it was therefore necessary for respondent No. 1 to show that he satisfied the requirements of that definition. The only part of sec. 2(18) which could be invoked by respondent No. 1 was argued Mr. M. D. Pandya the part which defines atenant to mean a person who holds land on lease. But that part contended Mr. M. D. Pandya did not help respondent No. 1 for it was only a person holding land on lease who could be regarded as a tenant under that part and land was defined in clause (a) of sec. 2(8) to mean land used for agricultural purposes which the disputed land was admittedly not. There was no doubt an extended meaning given to the term land in clause (b) of Section 2(8) but pointed out Mr. M. D. Pandya this extended meaning was by the express provision of the clause itself confined to certain sections and sec. 2(18) not being one of them this extended meaning could not be given to the term land in section 2(18). The term land in sec. 2 therefore carried only the limited meaning given to it in clause (a) of section 2(8). Following this line of reasoning Mr. M. D. Pandya contended that since the disputed land was not land used for agricultural purposes and was therefore not land within the meaning of clause (a) of section 2(8) respondent No. 1 though holding the disputed land on lease could not be said to be a tenant entitled to the protection of the Tenancy Act. The second argument of Mr. M. D. Pandya was that even if the extended meaning given to the term land in clause (b) of sec. 2 were applicable to the definition of tenant in sec. 2(18) notwithstanding the absence of reference to that section in clause (b) of sec. 2 respondent No. 1 could not yet be regarded as a tenant since the disputed land did not come even within the extended meaning of the term land. The disputed land argued Mr. M. D. Pandya was neither the site of a dwelling house occupied by an agriculturist agricultural laboreror artisan nor land appurtenant to such dwelling house so as to fall within sub-clause (i) of clause (b) of sec. 2(8) and sub-clause (ii) of clause (b) of section 2(8) admittedly did not apply. The conclusion pressed by Mr. M. D. Pandya therefore was that the disputed land was not land even within the extended meaning given to the term land in clause (b) of section 2(8) and respondent No. 1 was therefore not a tenant. It was on the other hand argued by Mr. N. V. Karlekar learned advocate appearing on behalf of respondent No. 1 that the issue whether respondent No. 1 was a tenant of the disputed land arose in reference to the contention that the Mamlatdar alone had exclusive jurisdiction to entertain a claim for recovery of possession of the disputed land under sec. 29(2) and that the Civil Court had no jurisdiction to entertain the suit and the issue was therefore required to be decided for the purpose of sec. 29(2). Since the question whether respondent No. 1 was a tenant of the disputed land fell to be decided for the purpose of section 29(2) and clause (b) of section 2(8) provided that the-term land shall have the extended meaning given to it in that clause for the purpose of sec. 29the termlandin the definition of a tenant argued Mr. N V. Karlekar must have such extended meaning when the expression tenant is used in sec. 29(2). Mr. N. V. Karlekar urged that the disputed land was land within the extended meaning of that term given in clause (b) of sec. 2(8) and that respondent No. 1 was therefore a tenant entitled to invoke the provisions of sec. 29(2) in answer to the suit filed by the petitioner. These were the rival contentions urged on behalf of the parties and we shall now proceed to examine the validity of these contentions.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.