VISHNU DADA LOKHANDE Vs. UMABAI

JUDGEMENT

(1.) The lands in suit originally belonged to one Vishwanath Bajirao. Vishwanath was murdered in February 1948 and his property devolved upon his widow Umabai. Vishwanath had served a notice upon the defendant who was his tenant in respect of the suit lands terminating the tenancy as from March 31, 1948, on the ground that the lands were required for personal cultivation. The defendant declined to deliver possession after expiry of the period of notice. Thereupon Umabai filed application No. 2 of 1948 in the Court of the Mamlatdar, Karad, under Section 24 of the Bombay Tenancy Act, 1939, for an order for possession. The application was granted by the Mamlatdar on June 2, 1948, and Umabai enforced the order of the Mamlatdar and obtained possession of the suit lands on June 23, 1948. The defendant preferred appeal No. 49 of 1948 against the decision of the Mamlatdar to the District Deputy Collector, Karad Division, North Satara District, The appeal was heard by the Deputy Collector and it was ultimately decided in favour of the defendant. The Deputy Collector reversed the order of the Mamlatdar and directed Umabai to restore possession of the lands in suit to the defendant. Against that order, Umabai filed an application in revision to the Provincial Government and applied for stay of execution of the order passed by the Deputy Collector till the disposal of the revision application. Umabai also filed suit No. 264 of 1948 in the Court of the Joint Civil Judge, J.D., Karad, against the defendant for a declaration that she was entitled to retain possession of the suit lands and for an injunction restraining the defendant from taking possession of the suit lands in enforcement of the order passed in appeal No, 49 of 1948. In the alternative Umabai claimed a declaration that the tenancy of the defendant was determined, and that the defendant was not entitled to enforce the order of the Deputy Collector. The suit was resisted by the defendant. The defendant contended inter alia that the civil Court had no jurisdiction to entertain the suit. He also contended that Umabai did not require the lands for personal cultivation and that Vishwanath, Umabai's husband, had never cultivated the lands personally at any time. The learned trial Judge, on a consideration of the evidence, held that the tenancy of the defendant was duly determined by notice to quit, but the plaintiff was not entitled to the declaration that the defendant's tenancy had terminated. He also held that the plaintiff did not require the suit lands bona fide for personal cultivation and that Umabai was not personally cultivating the lands after getting the same in her possession. In the view of the learned Judge, the suit filed by Umabai for the relief claimed by her was maintainable and that the civil Court had jurisdiction to entertain the suit, but on the view that the plaintiff did not require the lands bona fide for personal cultivation, the learned Judge dismissed the suit. An appeal was preferred to the District Court at Satara against the decree passed by the trial Court. In appeal, the learned District Judge held that the tenancy of the defendant had been duly determined by proper notice to quit and that the plaintiff required the lands for personal cultivation. He also held that the suit filed by the plaintiff was maintainable and that the civil Court had jurisdiction to entertain the suit and to grant the declaration and injunction sought. The learned Judge accordingly allowed the appeal filed by the plaintiff and reversed the decree passed by the trial Court. The learned Judge declared that the plaintiff was entitled to retain possession of the land. He also declared that the tenancy of the defendant was validly determined. In arriving at that conclusion, the learned District Judge expressed the view that the District Deputy Collector, who heard the appeal against the decision of the Mamlatdar, had no jurisdiction to entertain and decide the appeal. In the opinion of the learned Judge, an appeal against the order of the Mamltadar could only be entertained by the Collector of the District and it could not be heard by a District Deputy Collector. He observed: Under the provisions of the Tenancy Act, it is the Collector who is referred to as the Authority to whom an appeal from the decision of the Mamlatdar is to be filed. No notification delegating the powers of the Collector in that respect to the District Deputy Collector is pointed out. Hence in the absence of such notification, the District Deputy Collector cannot prima facie be regarded to be entitled to entertain the appeal; and I find that there is a good deal of force in the argument that the order passed by the District Deputy Collector is ultra vires. Under the circumstances, the possession obtained by the plaintiff under the orders of the Maralatdar cannot be regarded to be in any way wrongful. The defendant has filed this second appeal against the decree passed by the learned District Judge. Mr. G.A. Desai, who appears on behalf of the defendant, has contended that the civil Court had no jurisdiction to entertain and decide the suit for a declaration that an order passed by the District Deputy Collector in an appeal properly filed under the Bombay Tenancy Act, 1939, awarding possession to the defendant was not liable to be enforced. Mr. Desai also contended that the appeal against the order of the Mamlatdar lay to the Deputy Collector and the Deputy Collector was competent to decide the appeal and the District Court was in error in holding that the order passed by the Deputy Collector was without jurisdiction.

(2.) NOW , the proceedings were taken by Umabai in the Court of the Mamlatdar when the Bombay Tenancy Act, 1939, was in force, and notwithstanding the repeal of that Act by the Bombay Tenancy and Agricultural Lands Act, 1948, the proceedings commenced under the Bombay Tenancy Act, 1939, had to be heard and disposed of as if that Act had not been repealed. Under Section 24 of the Bombay Tenaney Act, 1939, a landlord was entitled to make an application to the Mamlatdar for obtaining possession of any land held by a tenant. On receipt of an application by a landlord for possession of any land held by a tenant, the Mamlatdar was required to hold an enquiry in the prescribed manner and to decide the case according to the rights of the parties. Against the decision of the Mamlatdar, Sub -section (3) of a, 24 provided an appeal to the Collector, and Sub -section (4) provided that, subject to the provisions of Section 28, every order passed by the Mamlatdar under Sub -section (2), unless modified or revised by the Collector on appeal under Sub -section (3), and every order passed by the Collector under Sub -section (3), shall be final. The effect of that provision was to make the decision of the Mamlatdar, if not modified or reversed on appeal, and the decision of the Collector in appeal, final. In the present case, an application was filed by Umabai for possession of the land from her tenant and that application was governed by Section 24 of the Bombay Tenancy Act, 1939. The Mamlatdar decided the application in favour of Umabii. If the order had not been validly appealed from the order by Sub -section (4) of Section 24 would have become final. But an appeal was filed by the defendant against that order and in appeal the Deputy Collector reversed the order of the Mamlatdar and directed that Umabai do restore possession of the property which she had obtained under the order of the Mamlatdar. If the order of the Deputy Collector is passed in exercise of jurisdiction vested in him, that order must also be regarded as final and it is not open to the civil Court to decide the question whether that order was irregularly passed. The validity of that order can only be challenged on the sole ground of competence of the Mamlatdar or the Collector. Now, the learned District Judge, as I have stated earlier, held that an appeal from a decision under Section 24, Sub -section (2), of the Bombay Tenancy Act, 1939, can be entertained only by the Collector and not by the Deputy Collector. If that decision is correct, evidently the Deputy Collector had no jurisdiction to entertain and hear an appeal against the decision of the Mamlatdar and to reverse his decision.

(3.) IT appears that the provisions of Section 10 of the Bombay Land Revenue Code were not brought to the notice of the learned District Judge, and he held that the Collector of the district alone can exercise appellate powers under Section 24 of the Bombay Tenancy Act, 1939, and not a Deputy Collector or an Assistant Collector. Mr. Jahagirdar, who appears on behalf of the plaintiff, has contended that even though the expression 'by this Act or any other law at the time being in force' in the second paragraph of Section 10 of the Bombay Land Revenue Code is very wide, the duties and the powers which an Assistant Collector or a Deputy Collector can exercise or perform relying upon the statutory delegation must in view of the first paragraph of Section 10 relate to the revenue administration of the taluka. He contended that when the Collector can by order put his Asistant or Deputy in charge of the revenue administration of a taluka or talukas, the exercise of the powers and the performance of the duties by the Assistant Collector or the Deputy Collector must be in relation to the revenue administration of the taluka or talukas in his charge and not in performance of any other duties or exercise of other powers. According to Mr. Jahagirdar, if the powers which are required to be exercised or the duties which are required to be discharged by the Collector do not relate to the revenue administration, the jurisdiction cannot be exercised by the Assistant or the Deputy Collector relying upon the provisions of Section 10, para. 2. In support of that contention, Mr. Jahagirdar has pointed out to us certain provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, and the amendment made by the Legislature in that Act by Bombay Act XII of 1951. Mr. Jahagirdar has also relied upon a decision of a division bench of this Court in Jsonuv Arjun : AIR1915Bom17 decided under the Mamlatdars' Courts Act of 1906.