BHIKHABHAI JETHABHAI Vs. J V VYAS ADDITIONAL COLLECTOR

JUDGEMENT

(1.) The petitioners are the owners of land bearing S. No.339 and admeasuring 19 Acres and 38 Gunthas situate in village Vanesa Palsana Taluka Surat District. On 27th June 1939 the land was purported to be sold by the petitioners to one Ambelal Jaduram for the price of Rs. 1261.00. Though ostensibly a sale it was in reality a mortgage effected by the petitioners in favour of Ambelal Jaduram to secure an existing debt to the extent of Rs. 1261.00. Even after this transaction the possession of the land remained with the petitioners until 1945-46. It appears that the petitioners were unable to pay interest on the mortgage debt to Ambelal Jaduram and possession of the land was therefore handed over to Ambelal Jaduram in or about 1946-47. Ambelal Jaduram thereafter inducted the 2nd respondent on the land. According to the petitioners it was in July 1951 that the 2nd respondent was brought in as a tenant on the land by Ambelal Jaduram but this was disputed on behalf of the 2nd respondent who alleged that he came as a tenant on the land sometime in 1947. For the purpose of the present petition however it is not necessary to decide this controversy. The land originally formed part of the territories of the quondam Baroda State After the merger of the Baroda State the Bombay Tenancy and Agricultural Lands Act 1948 ( hereinafter referred to as the Tenancy Act ) and the Bombay Agricultural Debtors Relief Act 1947 were both applied to the territories of the former Baroda State with effect from 1st August 1949. The petitioners thereafter made an application to the appropriate Court under the Bombay Agricultural Debtors Relief Act 1947 for a declaration that the purported sale of the land in favour of Ambelal Jaduram was in reality a mortgage and for adjustment and redemption of the mortgage debt including recovery of possession of the land from Ambelal Jaduram The application was resisted by Ambelal Jaduram. The Court trying the application held by an order dated 28th March 1957 that the transaction though ostensibly a sale was in fact a mortgage and ordered accounts to be taken in order to ascertain the amount due and payable by the petitioners to Ambelal Jaduram under the mortgage. Ambelal Jaduram was aggrieved by this order passed by the Trial Court and se accordingly preferred an appeal in the District Court Surat. The appeal was dismissed by the District Court Surat on 30th June 1958. It appears that in the meantime accounts were taken between the parties and the amount due and payable by the petitioners to Ambelal Jaduram under the mortgage was ascertained and a final award was passed by the Court on 21st July 1958 under which an order for possession of the land was made in favour of the petitioners on the petitioners paying up the amount so ascertained. The petitioners thereafter paid up the amount mentioned in the final award and claimed possession of the land from Ambelal Jaduram. Since possession of the land was not handed over by Ambelal Jaduram to the petitioners in pursuance of the final award the petitioners made an application on 3rd November 1958 for recovering possession of the land in execution of the final award. At this stage the 2 respondent made an application to the executing Court for being joined as a party respondent to the execution application on the ground that he was in possession of the land as a protected tenant and that possession of the land could not therefore be ordered to be handed over to the petitioners. This objection raised on behalf of the 2nd respondent was negatived by the executing Court which took the view following the decision of the High Court of Bombay in Kanji Kurji v. Kala Gopal 59 Bom. L.R. 846 that even though the 2nd respondent was brought in as a tenant by Ambelal Jaduram yet Ambelal Jaduram being a mortgagee the 2nd respondent could not be regarded as a deemed tenant under sec. 4 of the Tenancy Act and his interest iII the land having come to an end on the redemption of the mortgage by the petitioners he was not entitled to continue in possession of the Land as against the petitioners. The executing Court accordingly made an order for issue of a warrant for possession. The 2nd respondent thereupon preferred an appeal in the District Court Surat but after a time he filed a Purshis before the District Court stating that he did not wish to proceed further with the appeal and the appeal was there upon dismissed for want of prosecution. The warrant for possession issued by the executing Court was thereafter executed and possession of the land was handed over to the petitioners on 7th February 1960. This was the position which obtained from and after 17th February 1960 In the meantime notices were issued under sec. 32d of the Tenancy Act for fixation of the purchase price of lands situate in village Vanesa. The notices were general notices as well as special notices addressed to the landlords and the tenants in respect of the lands. A special notice was addressed to the 2nd respondent in respect of the land in dispute in the present petition since the name of the 2nd respondent continued to appear in the record of rights as a tenant in respect of the land. The petitioners and the 2nd respondent appeared before the Agricultural Lands Tribunal to whom for the sake of brevity we will refer as the Tribunal. I he petitioners contended that the 2nd respondent was not a tenant of the and and that it was therefore not necessary to fix the purchase price of the land. This contention was denied by the 2nd respondent. The issue which thus arose before the Tribunal was whether the 2nd respondent was a tenant of the land or not. The petitioners contended that having regard to the decision of the executing Court in B.A.D.R. proceedings the 2nd respondent was not a tenant of the land and could not therefore claim to be a deemed purchaser under the provisions of the Tenancy Act. The 2nd respondent on the other hand contended that he was a deemed tenant within the meaning of sec. 4 of the Tenancy Act and that he was therefore a deemed purchaser under the provisions of the Tenancy Act. The Tribunal by an order dated 5th March 1960 held that the decision of the executing Court in B. A. D. R. proceedings vas binding on the parties and that in any event the 2nd respondent being a tenant of the mortgagee was not a deemed tenant within the meaning of sec. 4 of the Tenancy Act and could not therefore be regarded as a deemed purchaser under the provisions of the Tenancy Act. The Tribunal observed that since the 2nd respondent was not entitled to the right of purchase under the provisions of the Tenancy Act the question of fixing the purchase price did not arise. the 2nd respondent preferred an appeal against this order of the Tribunal before the Additional Collector Surat. The Additional Collector treated the appeal as if it was an appeal against a decision given under sec. 70(b) of the Tenancy Act on the question whether the 2nd respondent was a tenant of the land and proceeded to dispose of the appeal on that basis. The Additional Collector took the view that the executing Court had no jurisdiction to decide whether the 2nd respondent was a tenant or not since the jurisdiction to decide that issue was vested exclusively in the Mamlatdar under the provisions of the tenancy Act and that the decision of the executing Court relied on by the petitioners did not therefore stand in the way of the 2nd respondent and that it was open to the Tribunal to decide the question whether and 2nd respondent was a tenant of the land. On the merits of the question the Additional Collector held that until the nature of the document executed by the petitioners in favour of Ambelal Jaduram was finally determined viz. whether it was a mortgage or a sale which happened on 30th June 1955 Ambelal Jaduram was the owner of the land since the document was a document of sale until determined otherwise and that the 2nd respondent being a tenant of Ambelal Jaduram was therefore a tenant of the land on 1st April 1957 and as such became the deemed purchaser of the land under the provisions of the Tenancy Act. The Additional Collector observed that the subsequent adjudication of the document to be a document of mortgage and the redemption of such mortgage by the petitioners could not affect the right of the 2nd respondent to be the deemed purchaser which right vested in him on 1st April 1957. The Additional Collector accordingly held that the 2nd respondent was a tenant of the land on 1st April 1957 and must therefore be deemed to have purchased the land under the provisions of the Tenancy Act and the Tribunal should therefore have proceeded to fix the purchase price under sec. 32 of the Tenancy Act. The Additional Collector in the result allowed the appeal set aside the order of the Tribunal and directed the Tribunal to proceed further with the inquiry for fixing the purchase price and also ordered than possession of the land be restored to the 2nd respondent. The petitioners thereupon preferred the present petition in this Court challenging the order of the Additional Collector.

(2.) Two contentions in the main were advanced by Mr. N. R. Oza learned advocate appearing on behalf of the petitioners in support of the petition. The first contention was that the decision of the executing Court in B. A. D. R. proceedings holding that the 2nd respondent was not a tenant of the land was binding on the parties and that it was not open to the Tribunal or the Additional Collector to examine the question afresh whether the 2nd respondent was a tenant of the land or not. Mr. N. R. Oza also contended that in any event the 2nd respondent not having pursued the appeal preferred by him against the decision of the executing Court the decision of the executing Court had become final and had been accepted by the 2nd respondent as binding upon him and it was therefore no longer open to the 2nd respondent to contend in the present proceedings that he was a tenant of the land. Mr. M. H. Chhatrapati learned advocate appearing on behalf of the 2nd respondent sought to repel this contention by pointing out that the executing Court had no jurisdiction to decide the issue whether the 2nd respondent was a tenant of the land or not such issue being triable exclusively by the Mamlatdar under the provisions of the Tenancy Act and that the decision of the executing Court was therefore a nullity as being a decision of a Court suffering from inherent lack of jurisdiction and that it could not therefore be regarded as binding upon the 2nd respondent so as to preclude the 2nd respondent from being able to agitate the question in the present proceedings. This contention argued Mr. M. H. Chhatrapati also provided a complete answer to the second contention of Mr. N. R. Oza based on the circumstance that the 2nd respondent withdrew the appeal filed by him against the decision of the executing Court and allowed the decision of the executing Court to become final. Mr. M. H. Chhatrapati urged that if the decision of the executing Court was a nullity the 2nd respondent was entitled to ignore it and was not bound to prefer an appeal against it or to have it set aside. It is obvious that the validity of these rival contentions urged on behalf of the parties turned on the question whether the decision of the executing Court was a nullity and it is to the determination of this question that we will now address ourselves.

(3.) The issue before the executing Court was whether the 2nd respondent was a tenant of the land entitled to the protection of the Tenancy Act. The 2nd respondent claimed to be a deemed tenant under sec. 4 of the Tenancy Act. The contention of the 2nd respondent was that as a tenant of the mortgagee he lawfully cultivated the land belonging to the petitioners and that he was therefore a deemed tenant within the meaning of sec. 4 of the Tenancy Act. The petitioners combated this contention urged on behalf of the 2nd respondent by pointing out that a tenant of a mortgagee in possession was included in the excepted category of mortgagee in possession given in clause (c) of sec. 4 and that the 2nd respondent could not therefore fall within the scope and ambit of sec. 4 even if he was lawfully cultivating the land belonging to the petitioners. The question debated before the executing Court therefore was whether the 2nd respondent came within the scope and purview of sec. 4 of the Tenancy Act so as to be a deemed tenant under that section for it was clear that if the 2nd respondent was a deemed tenant under sec. 4 he would be a tenant within the meaning of the definition of that term contained in sec. 2(18) of the Tenancy Act. Now this question whether the 2nd respondent was a deemed tenant under sec 4 so as to be a tenant within the meaning of sec. 2(18) was by reason of the provisions of sec. 70(b) read with sec. 85 triable exclusively by the Mamlatdar. The executing Court had no jurisdiction to try this question and if the executing Court proceeded to determine it the decision of the executing Court was obviously a nullity.