DHONDO PANDHARINATH KULKARNI Vs. SBRIPATI DAGDU NIMBALKAR
HIGH COURT OF BOMBAY
Dhondo Pandharinath Kulkarni
Sbripati Dagdu Nimbalkar
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M.H. Kania, J. -
(1.) THIS is a revisional application challenging the order passed by the learned Civil Judge, Junior Division, Osmanabad, in Civil suit No. 44 of 1967 framing a new issue.
(2.) THE petitioner before me was defendant No. 1 in that suit and respondent No. 2 was defendant No. 2 therein. The main party, who would be interested in supporting the order of the learned Civil Judge viz. the plaintiff in the suit, is respondent No. 1 before me. Although respondent No. 1 has been duly served he has not appeared. Civil Suit No. 44 of 1967 was filed by the plaintiff against the petitioner and respondents Nos. 2 to 5 being the defendants therein for a perpetual injunction restraining the defendants from executing the orders of the tenancy Court against the plaintiff and from interfering with the possession of the plaintiff. In the plaint it has been alleged by the plaintiff that he is in possession of the suit land since 1953 and has become owner thereof by adverse possession. Alternatively, the plaintiff has contended that he was a tenant in respect of the suit land. In 1959 defendant No. 1 had filed an application against the plaintiff under section 98 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as the Hyderabad Tenancy Act) to recover possession of the suit land from the plaintiff on the ground that the plaintiff was unauthorisedly occupying the suit land. The plaintiff claimed to be the tenant of the land. The Deputy Collector, Osmanabad, who disposed of the matter, passed an order for summary eviction of the plaintiff on the ground that he was a trespasser, on March 31, 1964. The plaintiff filed an appeal against this order before the Revenue Tribunal at Aurangabad, but the said appeal was dismissed in July 1964. The plaintiff thereafter filed a Civil Revision Application before this Court but the same was summarily dismissed. He thereafter filed this suit. In the suit the contention of the plaintiff is that the orders passed against him under section 98 of the Hyderabad Tenancy Act are ultra vires and the authorities had no jurisdiction to decide whether the plaintiff was or was not a tenant of the suit land At the hearing several issues were framed by the learned Civil Judge and the relevant issues, being issues Nos. 2, 3 and 5, are as follows:
2. Can the plaintiff challenge the decisions regarding the Bait land given in litigations between him and defendant No, 1? If yes.
3 Does he (plaintiff) prove that orders dated 31 -3 -1964 and 17 -7 -1964 are ultra vires and illegal?
5. Can alternatively plaintiff contend that his possession is as a tenant in view of previous decisions, if they are held binding on plaintiff?
The learned Civil Judge came to the conclusion that the Deputy Collector had no authority to decide the question of tenancy of the plaintiff and all the decisions by which the eviction of the plaintiff was ordered were ultra vires and not binding on the plaintiff. In view of this conclusion the learned Civil Judge framed a new issue being issue No. 5 (a) viz. whether the plaintiff proves that he is a tenant of the suit land, and referred that issue to the Tenancy Tahsildar for giving his finding thereon. Till the receipt of the finding on the said issue, the hearing of the suit was stayed under section 99A of the Hyderabad Tenancy Act and it is this finding which is attacked by Mr. Bhadekar, for the petitioner (defendant No. 1) before me.
(3.) SECTION 98 of the Hyderabad Tenancy Act provides as follows :
Any person unauthorisedly occupying or wrongfully in possession of any land -
(a) the transfer of which either by the act of putties or by the operation of law is invalid under the provisions of this Act, or
(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; may, if the said provisions do not provide for the eviction of such person, be summarily evicted by the Collector.
Section 99 (1) of the said Act provides that save as provided in the said Act, no civil Court shall have jurisdiction to settle, decide or deal with any question including a question whether a person is or was at any time in the past a tenant or protected tenant and whether any such tenant or protected tenant is or should be deemed to be the full owner of the lands which is by or under the said Act required to be settled, decided or dealt with by the Tahsildar, Tribunal or Collector or by the Commissioner or Government. Sub section (2) of section 99 provides:
No order of the Tahsildar, Tribunal or Collector or of the Commissioner or Government made under this Act, shall be questioned in any Civil or Criminal Court.
The main contention of Mr. Bhadekar was that it having been decided by the Deputy Collector that the plaintiff was in unauthorised occupation or wrongful occupation of the suit land and as the decision of the Deputy Collector shows that he had come to the conclusion that the plaintiff's claim to be the tenant of the suit land was not justified, it was not open to the plaintiff to raise that contention at all in the civil suit before the learned Civil Judge. According to him, the order of the Deputy Collector for summary eviction of the plaintiff involved a decision that the plaintiff was not the tenant of the suit land and that this decision was given by the competent authority under the Hyderabad Tenancy Act That being so, it was not open to question in the civil Court.;
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