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Shankar Raoji Patil v. Mahadu Govind Chawan
Structured Summary of the Legal Opinion (Chagla, C.J.)
Factual and Procedural Background
Respondent No. 1 applied to the Mamlatdar asserting that he had been dispossessed by his landlord, that the landlord had put the petitioners in possession, and that as a protected tenant he was entitled to an order restoring possession to him.
The Mamlatdar found that the landlord had not dispossessed respondent No. 1 but, accepting the petitioners' plea, held that the petitioners were sub-tenants of respondent No. 1 and dismissed respondent No. 1's application.
Respondent No. 1 appealed to the Prant Officer. The Prant Officer upheld the Mamlatdar's finding that the landlord had not dispossessed respondent No. 1, but on the question of sub-tenancy he disagreed with the Mamlatdar and held that the petitioners were not sub-tenants but trespassers, and he passed an order of possession in favour of respondent No. 1.
The petitioners moved in revision to the Revenue Tribunal, which upheld the Prant Officer's order. The petitioners then filed a petition under Article 227 to the High Court, which produced the present opinion.
Legal Issues Presented
- Whether, on the finding by the Prant Officer that the petitioners were trespassers, the Mamlatdar (or an appellate officer acting under the Tenancy Act) has jurisdiction under section 29(1) of the Tenancy Act to award possession to a tenant (respondent No. 1), or whether only a Civil Court can deprive a trespasser of possession and grant possession to the claimant.
- Whether the Mamlatdar's jurisdiction to determine tenancy issues under section 70 of the Tenancy Act necessarily includes jurisdiction to decide that persons are not sub-tenants but trespassers, and, if so, whether he may grant relief (possession) to the tenant on that basis under section 29(1).
- Whether the Collector's power under section 84 (to summarily evict) affects or determines the Mamlatdar's jurisdiction under section 29(1).
Arguments of the Parties
Petitioners' Arguments (as advanced by Mr. Kulkarni)
- On the finding that the petitioners were trespassers, the Prant Officer (or Mamlatdar) had no jurisdiction under section 29(1) of the Tenancy Act to award possession to respondent No. 1.
- Once it is established that the party in possession is a trespasser, only a Civil Court can deprive the trespasser of possession and grant possession to the claimant; accordingly respondent No. 1 should have been directed to file a suit in a Civil Court.
- Viewed another way, the Mamlatdar could only dismiss respondent No. 1's application if he accepted the petitioners' claim of sub-tenancy, but if he held the petitioners were not sub-tenants then his jurisdiction would cease and he could not grant relief to respondent No. 1.
Respondent No. 1's Position (as presented in the opinion)
- Respondent No. 1 contended that he was a protected tenant entitled to possession under the Tenancy Act and thus he applied to the Mamlatdar for restoration of possession on the basis of his title as a tenant.
- He relied on the jurisdiction of the Mamlatdar under section 70 to try the issue raised by the petitioners about sub-tenancy and on section 29(1) as the statutory basis for obtaining possession from the Mamlatdar.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Trimbak Sopana Girme… (Original Defendant) v. Gangaram Mhatarba Yadav… (Original Plaintiff), Opponent | The view (expressed by the Chief Justice sitting singly in that case) that if the Mamlatdar can determine whether persons are tenants he can also, by implication, determine that they are not sub-tenants and are trespassers. | The Chief Justice in the present opinion states that he took that view in the cited single-judge case and regards it as supporting the proposition that the Mamlatdar's jurisdiction to decide tenancy issues includes deciding that persons are trespassers. |
| Dhondi Tukaram v. Dadoo Piraji | The division bench held that where a landlord files a suit in a Civil Court and the defendant raises the defence of tenancy, the issue must be decided by the Mamlatdar: if Mamlatdar finds tenant, Civil Court suit must be stayed/dismissed; if Mamlatdar finds trespasser, the Civil Court proceeds treating the defendant as trespasser. | The Court in the present opinion relies on and distinguishes this decision: it accepts aspects of the division bench's reasoning but notes that the case before that court was a landlord's suit against a tenant, whereas the present case is a tenant seeking restoration of possession. The division-bench decision was discussed as not necessarily controlling the present situation. |
| Sona Gangu Ghadashi v. Ramu Govind Ghadashi | The principle that where a suit is founded upon the Specific Relief Act and the issues are whether plaintiffs proved possession within six months and dispossession, those issues are not triable by the Mamlatdar under the Tenancy Act and are for the Civil Court. | The Court relied on this decision to explain that if a tenant's claim is based on the Specific Relief Act (i.e., not on title as a tenant under the Tenancy Act) then section 29(1) does not apply and the Mamlatdar lacks jurisdiction to try such questions. |
Court's Reasoning and Analysis
The Court framed the controversy around Mr. Kulkarni's primary submission: that when the party in possession is found to be a trespasser the Mamlatdar (or Prant Officer) lacks jurisdiction under s. 29(1) of the Tenancy Act to award possession to the tenant, and consequently the tenant must seek relief in a Civil Court.
The Court first stressed an "important fact" in the case: the petitioners themselves put in issue whether they were the tenants of respondent No. 1, and that question could be tried only by the Mamlatdar under s. 70 of the Tenancy Act. The Mamlatdar did try that issue (and found the petitioners to be tenants), and the Prant Officer later found them to be trespassers. The Court observed that Mr. Kulkarni did not dispute that the Mamlatdar had jurisdiction to try whether the petitioners were tenants, nor that had the Mamlatdar found they were tenants he could dismiss respondent No. 1's application.
The Court rejected the narrower construction urged by Mr. Kulkarni (that the Mamlatdar could only dismiss the tenant's application but could not grant relief to the tenant when it decided the petitioners were not sub-tenants). The reasoning was:
- If the Mamlatdar may determine whether the petitioners were tenants under s. 70, it necessarily follows that he may determine they were not sub-tenants and therefore trespassers; such a determination is implicit in the jurisdiction to try the tenancy issue.
- Section 29(1) must be construed in its plain language: it gives a tenant entitled to possession under any provision of the Tenancy Act the right to apply in writing to the Mamlatdar for possession. By contrast, s. 29(2) expressly restricts the landlord: a landlord cannot obtain possession of land held by a tenant except under an order of the Mamlatdar.
- The legislative distinction is significant and principled: the Tenancy Act is enacted for the protection of tenants; it would be inconsistent with that purpose to require a tenant who comes to the Mamlatdar for possession and gets the tenancy issue tried to be sent to a Civil Court to pursue a fresh suit to obtain possession.
- Accordingly, when the tenant establishes entitlement to possession under the Tenancy Act and the tenancy issue has been tried by the Mamlatdar under s. 70, s. 29(1) obliges the Mamlatdar to protect the tenant's possession and to order restoration against any party who has dispossessed the tenant.
The Court acknowledged there are scenarios distinguishable from the present facts where its observations might not apply:
- Where a tenant applies against a trespasser and the trespasser does not raise the issue of being a sub-tenant, the Mamlatdar may not have had to decide the tenancy question under s. 70; in such a case it might be argued that the Mamlatdar lacks jurisdiction to award possession. The Court declined to express a view on that distinct situation.
- Where a tenant seeks possession not on the basis of title as a tenant under the Tenancy Act but under the Specific Relief Act (for dispossession within the period under the Limitation Act), s. 29(1) does not apply; those issues are for the Civil Court (citing Sona Gangu Ghadashi v. Ramu Govind Ghadashi).
Finally, the Court noted that discussion about the Collector's summary eviction power under s. 84 was unnecessary to resolve the present appeal: whether or not s. 84 allows summary eviction, that power has no bearing on the Mamlatdar's jurisdiction under s. 29(1). The Court therefore concluded that the Revenue Tribunal was correct in upholding the Prant Officer's order.
Holding and Implications
Holding: The petition was dismissed. The opinion states the outcome succinctly: Application dismissed. and the petition fails and must be dismissed with costs.
Implications (direct effect stated in the opinion):
- The Court upheld the Revenue Tribunal's conclusion and thereby validated the Prant Officer's order granting possession of the premises to respondent No. 1 on the basis that he was a protected tenant and that the petitioners were trespassers.
- The Court held that where a tenant claims possession on his title as a tenant under the Tenancy Act and the opposing party has put in issue their tenancy such that the Mamlatdar determines the question under s. 70, section 29(1) entitles the tenant to obtain possession from the Mamlatdar, including an order restoring possession against persons found to be trespassers.
- The Court noted limited contexts in which its reasoning would not apply (for example, tenant claims based on the Specific Relief Act or situations where the tenancy issue was not joined before the Mamlatdar) but did not decide those questions in this opinion.
- The opinion does not purport to lay down a rule about all conceivable situations; it confines its holding to the facts before the Court and to the statutory construction of s. 29(1) as applied where the tenancy issue has been tried under s. 70.
Formal result recorded in the opinion: "Application dismissed." Costs awarded against petitioners. (Order signed K.B.S.)
Chagla, C.J:—
Respondent No. 1 filed an application before the Mamlatdar contending that he had been dispossessed by his landlord, that the landlord had put the petitioners in possession and as he was a protected tenant, he was entitled to an order restoring possession to him. The Mamlatdar held that the landlord had not dispossessed respondent No. 1 but he held on a plea taken by the petitioners that they were the subtenants of respondent No. 1 and therefore he dismissed respondent No. 1's application. Respondent No. 1 went in appeal to the Prant Officer. The Prant Officer upheld the finding of the Mamlatdar that the landlord had not dispossessed respondent No. 1, but he differed from the Mamlatdar with regard to the issue of sub-tenancy and held that the petitioners were not the sub-tenants of respondent No. 1 but they were trespassers and passed an order of possession in favour of respondent No. 1. The petitioners went in revision to the Revenue Tribunal and the Revenue Tribunal has upheld the order of the Prant Officer and the petitioners have now come on a petition under art. 227 to us.
An interesting question has been raised and argued by Mr. Kulkarni before us and his contention is that on the finding of the Prant Officer that the petitioners were trespassers he had no jurisdiction to award possession to respondent No. 1 under s. 29(1) of the Tenancy Act. His contention is that once it is established that the party in possession is a trespasser, it is only a Civil Court that can deprive the trespasser of his possession and give possession to the party claiming it against the trespasser.
Now, an important fact that must be borne in mind in this case is that it was the petitioners who put in issue the question as to whether they were the tenants of respondent No. 1 and it is clear that issue can only be tried by the Mamlatdar under s. 70 of the Tenancy Act. It is also to be borne in mind that respondent No. 1 went to the Mamlatdar claiming possession on the basis of his own title, and his title was that he was a protected tenant, and as such entitled to possession under the provisions of the tenancy act. Mr. Kulkarni does not dispute the position that the Mamlatdar had jurisdiction to try whether the petitioners were the tenants of respondent No. 1 or not. He also does not dispute the position that if the Mamlatdar came to the conclusion as in this case he had, that the petitioners were the tenants, he had jurisdiction to dismiss respondent No. 1's application. But the contention he puts forward is that if the Mamlatdar had come to a contrary conclusion and held that the petitioners were not sub-tenants then his jurisdiction would have ceased and he would have no jurisdiction to grant any relief to the petitioners. Therefore according to Mr. Kulkarni the Mamlatdar had only jurisdiction to dismiss respondent No. 1's application and uphold the contention of the petitioners but had no jurisdiction to grant any relief to respondent No. 1 and reject the contention put forward by the petitioners. Unless such a provision is clearly made in the Tenancy Act we should be very reluctant to hold that a Court or a Tribunal has jurisdiction after entertaining an application only to grant a relief to one side and not to the other. As we shall presently point out the provisions of the tenancy act fortunately do not require that we should come to such a conclusion.
If it is open to the Mamlatdar to determine the question as to whether the petitioners were the tenants of respondent No. 1 or not, it must follow that impliedly he had jurisdiction also to decide that they were not sub-tenants, and therefore were trespassers. That is the view I have taken sitting singly in a case reported in Trimbak Sopana Girme…(Original Defendant), v. Gangaram Mhatarba Yadav…(Original Plaintiff), Opponent*,(4) and that view has been accepted by a judgment of a division bench reported in Dhondi Tukaram v. Dadoo Piraji.(5) But it is urged on the strength of the judgment in Dhondi Tukaram v. Dadoo Piraji that even though the Mamlatdar may impliedly hold that the petitioners are trespassers, he has no jurisdiction to grant a relief to respondent No. 1 and order possession against trespassers. The contention is that it is only when the tenant wants possession from his landlord that under s. 29(1) the Mamlatdar can pass an order for possession in his favour, but when the tenant is seeking possession against a trespasser, the Tenancy Act confers no jurisdiction upon the Mamlatdar to give him possession and the tenant must be relegated to his rights in a Civil Court, and what is urged is that since the Prant Officer came to the conclusion that the petitioners were trespassers, he should have directed respondent No. 1 to file a suit in a Civil Court and not order possession. Now, the view taken by the division bench in Dhondi Tukaram Mali v. Dadoo Piraji Adgale(6) was that if a suit is filed by a landlord in a Civil Court for possession and the defendant raises the contention that he is a tenant the issue must be decided by the Mamlatdar and the suit must be stayed. If the Mamlatdar holds that the defendant is a tenant then the suit must be dismissed. If the Mamlatdar holds that the defendant is not a tenant but is a trespasser then the Civil Court must go on with the suit on the basis of the defendant being a trespasser. Now, one important fact must be borne in mind in considering the decision of the division bench, and that is that it was a suit filed by a landlord against a tenant and not by a tenant against a landlord. The case that we have here is not a case of a landlord seeking possession from his tenant but it is a case of a tenant who has been dispossessed and who wants his possession to be restored. Now, it is from this point of view that one must look at the provision made in s. 29 with regard to the right of a tenant to obtain possession and the right of the landlord to obtain possession. Section 29(1) provides that a tenant entitled to possession of any land or dwelling house under any of the provisions of this Act may apply in writing for such possession to the Mamlatdar; and sub-s. (2) of s. 29 provides that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. The distinction between the two sub-sections will immediately be apparent. Whereas in the case of a landlord the Legislature has expressly provided that he can only obtain an order of possession in respect of a land held by his tenant, sub-s. (1) when dealing with a tenant does not impose any similar restriction. Construing the plain language used by the Legislature in sub-s. (1) it gives a right to the tenant to obtain an order of possession from the Mamlatdar in every case where he is entitled to possession under any of the provisions of the tenancy act, and the reason for this distinction is obviously based on principle. The Tenancy Act was put on the Statute Book for the protection of tenants and it would be difficult to believe that the Legislature intended that after a tenant had gone to the Mamlatdar for possession against a party who was in possession and the Mamlatdar had tried the issue as to whether that party was a sub-tenant or not the Mamlatdar should have no right to give relief to the tenant but should drive the tenant to a Civil Court asking him to start a new litigation and then obtain possession by the rather dilatory method of a suit. The clear object of the Legislature in enacting s. 29(1) was that if the Mamlatdar was satisfied that the tenant was entitled to possession by reason of the Tenancy Act then it was his duty to protect that possession and order any one who had dispossessed the tenant to restore possession to him.
Now, two cases may arise which may be different from the case that arises here, and to those our observation may not apply. There may be a case where a tenant may make an application against a trespasser and the trespasser may not raise an issue with regard to his being a sub-tenant and therefore the Mamlatdar may not have to determine under s. 70 as to whether he is a tenant or not. It may then possibly be urged in such a case that as the application filed by a tenant was against a trespasser simpliciter the Mamlatdar had no jurisdiction to award possession to the tenant. It is unnecessary to express any opinion on a case of that character. The other case that may arise may be that a tenant may make an application against a person who has ousted him from possession and may base his cause of action under the Specific Relief Act. In other words he may not claim possession on his title but he may require possession merely on the ground that he had been dispossessed within the period laid down in the Indian Limitation Act. Clearly such a case would not fall under s. 29(1) of the Tenancy Act because s. 29(1) assumes that the tenant must claim possession on his title as a tenant and he must be entitled to possession as a tenant under the provisions of the tenancy act. This case arose for my consideration in Sona Gangu Ghadashi v. Ramu Govind Ghadashi.(7) There a suit was filed under the Specific Relief Act and the only two issues that arose for the determination of the Court were “Whether the plaintiffs proved their possession within six months prior to the suit” and “Whether they proved dispossession as alleged” and the learned Judge held that he had no jurisdiction to try the suit and in my judgment I pointed out that neither of these two issues were triable by the Mamlatdar under the Tenancy Act and the Civil Court had jurisdiction to try the suit. The application before us is perfectly clear and in this application respondent No. 1 has pleaded his title as a protected tenant and it is on the strength of that title that he wanted possession from the petitioners, and it is equally clear that the petitioners put in issue their own title as sub-tenants of the landlord or the tenants of respondent No. 1 and that issue was tried and determined by the Mamlatdar. Under these circumstances, in our opinion, there is no doubt that s. 29(1) is applicable and the tenant is entitled to obtain possession against the petitioners by an order of the Mamlatdar.
There is some discussion in the judgments below as to the powers of the Collector under s. 84 summarily to evict the petitioners. In our opinion it is unnecessary to consider what is the true interpretation of s. 84 because either the Mamlatdar has jurisdiction under s. 29(1) or he has not. The jurisdiction of the Collector to summarily evict a person under s. 84 can have no bearing on the jurisdiction of the Mamlatdar under s. 29(1). In our opinion, therefore, the Tribunal was right in the conclusion that it came to.
The result is that the petition fails and must be dismissed with costs.
Application dismissed.
K.B.S
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