Patel Ramanlal Ishwardas vs Patel Amthabhai Narottamdas

S.B. Majmudar, J.—In this revision application u/s 115, Code of Civil Procedure, the petitioner has challenged the order passed below ex. 83 in regular Civil Suit No. -120 of 1974 by the learned Civil Judge (J.D.) Vijapur. In order to appreciate the grievance of the petitioner, a few relevant facts are required to be noted at the outset.

The petitioner is the owner of agricultural land bearings. No. 28 situated on the outskirts of village Kalavada in Vijapur taluka at Mehsana district. It was mortgaged with possession with the present opponent, on 4-10-1949 by registered dated. After the period of mortgage was over, the petitioner served a notice of redemption and as it was not complied with, he was compelled to file the above suit in the trial court for redemption of the mortgaged field and possession thereof.

In the written statement ex. 17, the present opponent-defendant contended that he had been the tenant of the suit field even prior to the date of mortgage i.e. prior to 4-10-1949 and, therefore, often if the mortgage is redeemed, his possession could, not be disturbed. The aforesaid plea squarely fell within four corners of Section 25A of the Tenancy Act. The said provision reads as under:

If any land is mortgaged by a landlord by way of a usufructuary mortgage to a tenant cultivating such land, the tenancy of such land shall be in abeyance during the period the mortgage subsists. After the expiry of the said period it shall notwithstanding any other law for the time being in force, be lawful to the tenant to continue to hold the land on the terms and conditions on which he held it before the mortgage was created.

It is therefore, obvious that the present opponent-defendant pinned his faith on the aforesaid provision and took a chance to get a decision on the point. It axiomatic that if that plea succeeded, despite the decree for redemption, actual possession could not have been taken from the opponent. As the opponent lookup this contention by his written statement, the learned trial Judge framed an issue and referred it to the Mamlatdar for decision under the Tenancy Act as per Section 85AA of, the Tenancy Act, as that issue fell within the exclusive jurisdiction of the Mamlatdar for his decision. In the meantime, the suit remained pending on the file of the learned trial Judge. The Mamlatdar and ALT Vijapur on receipt of the said reference from the Civil Court, proceeded with the reference on merits and recorded evidence offered by the contesting parties i.e. the petitioner as well as the opponent. After recording the evidence, the Mamlatdar ALT passed an order on 22-12-1978 to the effect that the opponent failed to prove that he was the tenant of the land prior to the date of mortgage; i.e. 4-10-1949. Thereafter, the opponent carried the matter in appeal under-Section 74-of the Tenancy Act before the Deputy Collector. That appeal came to be dismissed on 29-11-1979 by the Deputy Collector who agreed with the finding reached by the Mamlatdar that the opponent was not a tenant prior to the mortgage, meaning thereby, he was not entitled to the protection u/s 25A of the Tenancy Act, and was merely a mortgagee in possession. The opponent not being satisfied by the aforesaid decision of the deputy Collector filed a revision u/s 76 of the Tenancy Act before the Gujarat Revenue Tribunal which was registered as TEN. B.A. No. 1694 of 1982. It may be noted at this stage that even though the order of the Deputy Collector in appeal was dated 29-11-1979 and it was challenged by way of revision before the GRT in 1980, that revision earlier was dismissed, for default and thereafter Restoration Application No. 25 of 1982 was filed and when it was granted, the revision application of the opponent was renumbered as TEN. B.A. No. 1694 of 1982. This revision application reached final hearing on merits before the GRT on 17-2-1983. On that day, the opponent unconditionally withdrew his revision and hence it was dismissed. It is interesting to note that the opponent withdrew his revision application unconditionally on 17-2-1983 and thereafter presumably when the decision of the GRT who communicated to the trail court and when the trial court was in the process of resuming proceeding of the stayed suit of 1974, the present opponent vide an application dated 5-4-1983. ex. 83 sought to amend his written statement by insertion of a new plea that as the opponent was old and incapacitated and as he could not do the work meaning thereby, agricultural work, he had given the land to his son Nathalal as a tenant and he was cultivating the same on crop share basis and he was staying separate from the opponent since 13 to 14 years. This application for amendment was, opposed by the petitioner. It was pointed out by the plaintiff to the trial court that this was clearly a mala fide attempt. That amendment application was filed after great delay and after passage of more then 9 years add it was a mala fide effort only to prolong the said proceedings as if was obvious that if such amendment was granted and an issue was raised whether the opponents son was a tenant, a fresh reference was required to be made under the Tenancy Act to the Mamlatdar and the entire gamut would start once again inviting procedure of three types viz. Mamlatdar, Deputy Collector. An appeal and the Revenue Tribunal in revision, it was also submitted by the petitioner before the trial Court that the proposed amendment was entirely an afterthought and that the opponent had never contended all these years that his son was cultivating the suit field as his own tenant. There is lot of substance in these submissions of the plaintiff present petitioner. It is obvious that the aforesaid effort is being made by the opponent to avoid the evil day as far as he can and he seeks now to resort to Section 4 of the Tenancy Act which reads as under:

A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not

(a) a member of the owner''s family; or

b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owners family or

(c) a mortgagee in possession.

In view of the aforesaid provision, the mortgagee in possession cannot be said to be a deemed tenant but as held by the Supreme Court in Dahya Lal and Others Vs. Rasul Mohammed Abdul Rahim, , a tenant inducted by the mortgagee inpossession would become a deemed tenant presumably with this end in view, the present amendment application was moved by the opponent with a view to holding a brief for his son and with a view to seeing that in any case, possession of the suit land is not actually made available to the petitioner. It is pertinent to note that till reference proceeding dragged on before the tenancy authorities for 8 to 9 years, petitioner never whispered that his son was his tenant and was in possession of the suit land. On the contrary, his written statement proceeded on the footing that he himself was in possession, and that his possession should be protected even after redemption as Section 25A. applies to his case and as he was a tenant prior to the mortgage. The aforesaid plea resulted into the reference made by the trial court years, back and ultimately the opponent lost and had to eat an humble pie and had to unconditionally withdraw his revision. It is thereafter that by way of an afterthought and with a view to further delaying the present proceedings he filed the aforesaid application by raising the contention that his son was the tenant through him. If such a plea was allowed, it will give rise to another issue regarding status of the opponent''s son as a tenant and that will have again to be referred to the tenancy court. Thus, the opponent wanted, in the guise of the said amendment, a second innings Such an amendment at a belated stage after having lost his down case upto the Revenue Tribunal, was clearly an afterthought and a mala fide one. Unfortunately the learned trial Judge without coming to the grips of the matters in the light of the chronological History of the proceedings in this litigation, came to the conclusion that even though say of the defendant appeared to be different then marinated in the written statement, since-allowing of the amendment helped resolution of the full dispute between the parties, it was required to be allowed in the interest of justice. The learned trial Judge having not considered the sequence of events in which the present application for amendment came to be moved in the light of what had transpired during the pendency of the suit clearly failed to exercise its jurisdiction, or in any case, acted illegally or with a material irregularity in exercise of his jurisdiction. The learned trial Judge also failed to consider whether the proposed amendment was necessary for the purpose of determining the real question in controversy between the parties. That question was whether plaintiff on redemption of the suit filed is entitled to actual possession thereof from the defendant. For deciding this question, the plea whether defendant''s son was defendant''s tenant or not and therefore a deemed tenant of the plaintiff in farmer''s own right and de hors the interest of the defendant or not was entirely an irrelevant, extraneous and impermissible plea. The trial Court had no jurisdiction to allow such an amendment which was ultra vires in Order 6, Rule 17 C.P.C.M.

There is also lot of substance in the contention of Mr. Jani for the petitioner that this 1 proposed amendment in the written statement is an afterthought and a mala fide one and that the opponent by the proposed amendment wanted to further delay the proceedings and any-how cling to the suit field by hook or by crook,. The learned trial Judge should have noted the salient facts that once originally the written statement was filed as early as on 15-2-1975, by the opponent himself who took up the contention that he was in possession and his possession was even prior to the date of the mortgage as a tenant, he never even whispered at that stage that the possession was not his but of his son as a tenant. Thus, he took a chance with a view to maintaining his possession of the field by taking up a plea u/s 25A of the Tenancy Act and he lost before all the tenancy authorities. He had unconditionally to withdraw the revision application and it is thereafter that he came forward with the present amendment application pleading absolutely on inconsistent case, that possession of the field was not, with him but with his son since number of years. It is also interesting to note that until now, the opponent''s son nowhere contended that he is a tenant. May be, he might not have done as he is not a. party to these proceedings, but even that apart, as far as the opponent is concerned, he is totally stopped from taking up such a contention at such a belated stage on behalf of his son. So far as the opponent is concerned, the effort made by him at this belated stage to get the proceeding further delayed by raising a contention on behalf of his son is nothing but entirely a mala fide attempt on his part to protract the litigation as far as he can only on this short ground, this revision application will have to be allowed.

I may, however, mention one contention raised by Mr. Desai for y the respondent. He submitted that the plea u/s 25A of the Tenancy Act is quite independent of the plea that the opponent''s son is a tenant of the mortgagee in possession and that to that extent, the said plea cannot be said to be inconsistent with the earlier one. It is not possible to agree with the contention for the simple reason that in the original written statement, the defence put forward by the opponent was that he was in possession of the suit land not only from the date of the mortgage as mortgagee in possession but even prior thereto as a tenant of the original owner. Implicit in this plea is the factual contention the opponent was in possession of the field in his town right on the date on which he filed the written statement. Having lost in the gamut of proceedings before the tenancy authorities, and having failed to get this plea accepted he has now come forward with this inconsistent contention in April 1983 that he is not in actual possession of the land but his son is in possession as his tenant, meaning thereby, in latter''s own right and independently of the present opponent. Such a plea must necessarily be held to be totally inconsistent in the factual settings in which it has been raised. It must be dubbed as a wholly mala fide one. As this important aspect of the matter is totally missed by the learned trial Judge, the judgment and order rendered by him cannot be sustained. Only on this ground, the revision application is allowed. The order passed below ex. 83 by the learned trial Judge is quashed and set aside. The opponent''s application for amendment of the written statement as per ex. 83 is dismissed. Rule accordingly made absolute. There will be no order as to costs.