Shankarsa vs Anusayabai

B.A. Masndkar, J.—This case has it., own interesting and important facets

2 The facts which cannot be disputed are, the present petitioner in both these petitions was tenant or land survey No. 113 and survey No 92 of mouza Donwada, tahsil and district Akola, and the respondent in both these petitions Shrimati Anusayabai is the land-holder.

It appears that Anusayabai served a notice u/s 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereafter called the Act), and filed proceedings u/s 38 read with section 36 of the Act for resumption of land on the ground of bona fide need or personal cultivation. Her application was allowed and parties are agreed tha, under a possession receipt of May 18. 1962, she resumed entire field survey No. 92, 11-38 acres, and 2-37 acres out of survey No. 113.

4 Meanwhile, it appears, for the year 1962-63, the tenant defaulted payment of the lease-money. A notice was given by the landlady exercising her right u/s 19 of the Act and she moved an application u/s 36 on February 22, 1964, for possession on the basis that for non-payment of lease-money there was a forfeiture of the tenancy of the petitioner.

It is not disputed for the purpose of these petitions that this forfeiture could only be with respect to the remaining area out of survey No. 113 which was retained by the tenant after the possession receipt of May 18, 1962.

5 In those proceedings, which were initiated by an application in February 1964, the course of events indicate that the authorities, firstly, the Naib Tahsildar allowed the claim on 18-8-1964. That order was affirmed on 18-10-1965 in appeal and the Maharashtra Revenue Tribunal, by its order made in Revision Application No. 302/Tenancy/1966 on December 13 1966 refused to interfere in its revisional jurisdiction. The tenant moved this Court in Special Civil Application No 211 of 1967 which was rejected summarily on March 23, 1966 It may be mentioned that the copy of that petition has been filed by the landlady in Special Civil Application No. 1464 of 1970 to say that the tenant cannot reagitate the same said question. That copy of the petition shows that the tenant had contended before this Court that because of the provisions of section 46, he had become the owner on 1-4-1961 and thus the proceedings u/s 19 were not tenable.

When however the orders after such termination of proceedings u/s 19 were put in execution against the tenant, he took an exception to the execution by pointing out that the entire proceedings initiated by an application on 22-2-1964 and the consequent orders were all without jurisdiction as much as original application was not authorised in view of section 49 A of the Act. It was further pleaded that in the simultaneous proceeding initiated for conferment of statutory ownership in Revenue Tahsildar and President, Agricultural Lands Tribunal, Akola, holding that the tenant was entitled to be the owner of this very land as on 1-4-196-1. That order was challenged by Anuwiyabai in- Revenue Appeal No. 46/59(13)/67-68 and the appellate authority after condoning the delay in filing the appeal found that Anusayabai was a widow and, therefore, no ownership could be conferred on the tenant of a widow as on 1-M961. That order further directed dropping of the suo motu proceedings. Before the Maharashtra Revenue Tribunal in the revision filed by the tenant, that Tribunal referred to the earlier proceedings by which the tenancy was terminated for non-payment of rent and on its foot found that the proceedings to confer statutory ownership as on 1-4-196-1 were rightly dropped. That is the order which is questioned in Special Civil Application Mo. 1465of 1970 and in the earlier petition, i.e. Special Civil Application No. 1464 of I970, the proceedings in execution are questioned,

Now, proceedings brought up before this Court in Special Civil Application No. 1455 of 1970 clearly relate to the right and entitlement u/s 46 of the Act having reference to first tiller's day viz. 1-4-1961. Anusayabai is admitted on all hands to be a landlady of specified category- being a widow and, therefore, on 1-4-1961 no right could be claimed by her tenant under the provisions of section 46, there being no entitlement u/s 41 of the Act. It is dear that the tenant, therefore, was not right in saying that those proceedings should be kept alive. What is his right with reference to the other date, i.e. 1-4-1963 u/s 49-A of the Act, is not the subject-matter of Special Civil Application No. 1465 of 1970. The reasons- given by the Tribunal about the earlier termination u/s 19 of the Act are really not relevant nor germane. Though the order of the Tribunal refers to those reasons, it is clear that it upholds the order of the appellate authority that the proceedings with reference to date 1-4-1961 of the tenant like the present petitioner were not tenable. Special Civil Application No. 1465 of 1970, therefore, deserves to be dismissed as having no merit at all.

However, Special Civil Application No. 1464 of 1970 has its own eminent and important aspect. It is now well-settled that the provisions of section 49A which were put on the statute book by Amending Act, i.e. Maharashtra Act No, II of 1962, provided for conferment of right in owner ship on the tenants who were on land on 1-4-1963. Those provisions were considered by the Supreme Court in the reported decision in Waman v. Umabai 1970 Mh. L J 211, and it was observed by there Lordship that in the scheme of section 49A there is no warrant for permitting landlords for filing an application seeking possession upon termination of lease after April 1,1953. After referring to the scheme of tae provision; of the Act and specifically section 49A thereof, their Lordships observed:

It clearly implies that so long as the proceeding pending on April 1, 1961 is not disposed of, the landlord may commence rill April I, 1983, but not thereafter a proceeding for termination of tenancy, relying upon a ground ON which the tenancy may be terminated under the Act.

I have examined the scheme of the provisions of section 49A in Namdeo v. Kesharbai Special Civil Application No. 415 of 1969 decided on June 2 and 25,1973, and also the ratio of Waman v. Umabai's decision (supra) in Vasantkumar v. Maharashtra Revenue Tribunal, Nagpur and another Special Civil Application No. 705 of 1970 decided on 9-7-1973. and have concluded that after 1-4-1963 it is not permissible to initiate by an application u/s 36 the proceedings for possession relying on any of the grounds permitting such resumption or relying on defaults committed by the tenant. Woman v. Umabai's case (supra) was also a case of a widow and the observations cited ruled out any such proceedings.

Now, it is no more in dispute that on 18-5-1962 the landlady entered upon the land, i.e. survey No. 92 in its entirety and 2-37 acres out of survey No. 113 and what remained with the tenant after such resumption was the remaining area of survey No. 113. This she did relying on her rights available u/s 38 of the Act. In the scheme of sub-section (5) of section 38 thus after successful termination of tenancy the tenant retained the land which could not be sought for bona fide personal cultivation. A new relationship as it were with respect to that land arose as contemplated by sub-sections (5) and (6) of section 38 of the Act. The tenant was in cultivating possession of this land as on 1-4-1963 which event accelerated his right in view of section 49A that was meanwhile introduced.

Sub-section (1) of section 49A, as has been found, contains an absolute right in favour of the tenant who is on the land and who satisfies the conditions of that sub-section to be the owner of land on 1-4-1963 and the right of the landlord even to apply is extinguished after that date. That being the position an exception was very much available to be raised even at the stage of the execution proceedings.

This position of law available in the ratio of the Supreme Court pronouncement cannot be the subject-matter of any debate nor is disputed here. The learned counsel appearing for the landlady therefore falls back upon the doctrine of res judicata and submits that such a question cannot be reopened for the earlier proceedings terminated through all stages by final rejection of Special Civil Application No. 211 of 1967 filed by the tenant in this Court and the tenability of the application is no more open. He submits that matter must be held to be concluded between parties upon the doctrine of res judicata or its principles. According Co him here was a party the tenant who was facing an application filed on 22-2-1964; he could have raised a plea that such an application was not at all tenable as he had become the owner; he fought his battle by taking challenges to those proceedings which were negatived till the last stage being the Special Civil Application No, 211 of 1967 rejected in motion hearing. Thus it would mean that all proceedings need now be opened which is an impermissible course.

It is true that plea founded on the provisions of section 49A with reference to the second tiller's day, i.e. 1-4-1963, is not properly taken in these proceedings by the petitioner. But on all hands it is admitted that the facts which can give rise to such a plea are not in dispute as the earlier proceedings were initiated upon an application filed on February 22, 1964, i.e. much after 1-4-1963, and it related to the default of lease-money for the year 1962-63.

In the matters of execution what is the power of the Court has been examined and authoritatively pronounced by the Supreme Court in Kiran Singh and Others Vs. Chaman Paswan and Others, There the question arose upon the Suits Valuation Act, 1887 (section 11) and the provisions of the CPC (section 21) and an exception was taken to the jurisdiction. Venkatraman Ayyar J, alluding to the basic principles has observed in para. 6 of the judgment as under :

It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties".

This is an ample and high authority to indicate that a decree which is passed without jurisdiction is a nullity and such plea can be set up wherever such a decree is sought to be enforced or relied upon. The plea of res judicata would not thus stand in the way nor is available in such matters.

The doctrine of waiver is an exception to this fundamental principle. When a plea or an objection is capable of being waived upon the principle of waiver and estopel, like the plea of territorial jurisdiction may not be available at the later stages (see The Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu and Another, . and Seth Hiralal Patni Vs. Sri Kali Nath,

There is also the provision expressly made by section 44 of the Evidence Act which enables a party to set up the plea of incompetency of a Court. In Briday Nath Boy v. Ram Chandra Barna7 the Calcutta High Court pointed out that every species of judgment will be rendered inadmissible on proof that the Court which pronounced it had no jurisdiction. Mookerjee, C. J., pointed out that:

the terms "jurisdiction" may be defined to be the power of a court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it; in other words, by jurisdiction is meant the authority which a Court his to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for the decision." and observed :

An examination of the cases in the books discloses numerous attempts to define the term "jurisdiction", which has been seated to be "the power to hear and determine issues of law and fact;" "the authority by which judicial officers take cognizance of and decide causes;" "the authority to hear and decide a legal controversy;" "the power to hear and determine the sub ject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them" "the power to here, determine and pronounce judgment on the. issues before the Court;" "the power or authority which is conferred upon a Court by the legislature to hour and determine causes between parties and to carry the judgments into effect," "the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution." and further observed:

" We must not this overlook the cardinal position that in order that jurisdiction may be exercised, there must best case legally before the court and a hearing as well as a determination. A judgment pronounced by a Court without jurisdiction is void, subject to the well-known reservation that when the jurisdiction of a Court is challenged, the Court is competent to determine the question of jurisdiction, though the result of the enquiry may be that it has no jurisdiction to deal with the matter brought before it,

The words "competency" of a Court and its "jurisdiction" are synonymous and a reference may be made to the authority of this Court in Sardar v. Anaruyal I L B 21 Bom. 205. 9. I L R 12 Mad. 228.. This Court was considering the effect of section 44 of the Evidence Act and pointed out the distinction between an order which a Court is not competent to pass and an order which even if erroneous in law and in fact is within the Court's competency. Referring to Ketlilamma v. Kelappan I L R 12 Mad. 228. it was held that the words "not competent" in section 44 refer to a Court acting without jurisdiction, and that the decree of a Court in a suit which should have been dismissed as barred by section 244 of the Code of Civil Procedure, though wrong, could not be treated as passed by a Court not competent to pass it. Thus it was held that the "competency" of a Court and its "jurisdiction" are the synonymous terms. It is enough to indicate that competency of the Court has been placed by section 44 of the Evidence Act on par with the principle applicable to fraud or collusion and upon proof of either of these, a judgment, order or decree loses its binding force.

The jurisdiction conferred upon the Tahsildar u/s 36 of the Act is not a universal jurisdiction, but is a special one and all its pre-conditions must exist before he could make a competent and executable order. There is no power suomotu to act if tenant commits default. It is only upon a proper application, the Tahsildar gets the jurisdiction to adjudicate upon the matters so as to make an executable order u/s 36 which can ultimately be executed under the provisions of section 106 of the Act.

If, therefore, in a given case, it can be established that the proceedings initiated upon an application were entirely incompetent and such a proof is available at the stage of execution, I fail to see why the principles laid down in Kiran Sing's (supra) by the Supreme Court should not be attracted. There is no waiver in such matters; nor any question of estoppel, for initially the application itself was not tenable.

All these matters, therefore, require to be considered upon a proper plea being raised. So far the petitioner had merely rested by indicating the provisions of section 46. It is at this stage the provisions of section 49.A which are really germane are being pointed out. Interests of justice, therefore, require that the petitioner should have a proper opportunity in this regard by raising all permissible pleas in execution proceedings.

That necessitates setting aside the orders impugned in Special Civil Application No. 1464 of 1970 and remitting the proceedings back to the Naib Tahsildar, Akola, for giving proper opportunity to the tenant to raise the plea which is being canvassed on the basis of section 49 A of the Act. After such plea is raised, the respondent-landlady will have all opportunity to make her say and Tahsildar shall decide that objection keeping in view the position in law as indicated earlier,

Thus Special Civil Application No. 1464 of 1970 is allowed and the proceedings in that application are remitted back to the Naib Tahsildar for fresh enquiry after hearing the parties.

Special Civil Application No. 1465 of 1970 will however stand dismissed, though this does not bar the enquiry to confer the rights on the tenant in statutory ownership u/s 49-A of the Act.

There will be no order as to costs in any of these petitions.