Civil Rev. Appln. No. 643 of 1990

17th February, 1999

Petitioner Counsel: Shri. V. S. BEDRE
Respondent Counsel: Shri. R. N. DHORDE

Cases Cited:
Madhav Kesu Khuspe Vs. Sundrabai Magutrao Phadatare, since deceased by heirs Krishna Dagdu Khuspe., 1978 Mh. L.J. 289 [Para 10]
Dada Savla Yadav Vs. Vasant Anant Sultane., LXII (1960) Bom. L.R. 471 [Para 12]

JUDGMENT

JUDGMENT :- This Civil Revision Application is directed against the Judgment and Order, passed by the learned Civil Judge, Junior Division, Rahuri, dated 18th April 1984, below Exhibit 1 in Regular Civil Suit No. 116 of 1981 ; and the Order of dismissal of Regular Civil Appeal No. 165 of 1984, preferred against the said Judgment and Order, decided on 14th March 1989 by the learned Second Additional District Judge, Ahmednagar.

2. The short question which is involved in the present Civil Revision Application is, as to whether the orders passed by both the Subordinate Courts, refusing to entertain the suit filed by the Petitioners, under O.VII, R.11(d), C.P.C. - that is, where the suit appears from the statement in the plaint to be barred by any law - are proper and legal. The objection raised to the suit filed by the plaintiffs is based on section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "The Tenancy Act"), which is as follows :

85. Bar of jurisdiction.

(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.

2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court.

Explanation. - For the purposes of this section a Civil Court shall include a Mamlatdars' Court constituted under the Mamlatdars' Courts Act, 1906.

3. Both the Courts have held that the suit is barred in view of the provisions of section 85 of the Tenancy Act; and have, therefore, returned the plaint.

4. The plaint contains the statements. "The property involved in the suit was initially property of one Rambhaji, who had executed a Will Deed on 12-6-1947 ; and thereby life interest was created in favour of the wife of Rambhaji, namely, Laxmibai; and after her death, the property has been bequeathed to the present plaintiff. In the year 1980, Laxmibai expired." It is further alleged that at the time of her death, she was 85 years of age; and prior to her death, for 20 years, she was ill; and since 15 years, she was bed-ridden, as she had suffered paralytic attack. Since 1966, thus, she was not in a position to go out of her house" and, therefore, it is further stated that the defendant-Respondent, being the brother of the said Laxmibai, was aware of the fact that after the death of Laxmibai, the property will revert back to the plaintiff; and, therefore, with an object to swallow the suit property, in the year 1967, the lease deed was executed." In respect of that lease deed, the allegation is that the said lease deed was obtained by fraud and at the time of the execution of the said lease deed, Laxmibai was not in a disposable state of mind and, under the pressure and duress; and taking the benefit of the influential relation of the defendant with Laxmibai, the said lease deed was obtained." It is further alleged that "on the basis of the said lease deed, the proceedings under section 43A of the Tenancy Act were completed." The allegation against that proceedings is that" the deceased Laxmibai never filed any application before the tenancy authorities; that she never appeared before the tenancy authorities; and that she never gave any deposition before the tenancy authorities." In short, the allegation is that these proceedings are fabricated one by the defendant-Respondent. Thus, the documents of the lease deed and the documents of the tenancy proceedings are fabricated and fraudulent one; and that deceased Laxmibai was not aware of it. In paragraph 3 of the plaint, the particulars of the fraud have been given.

5. On a plain analysis of the statements in the plaint, the following things are clear :

(1) The suit of the plaintiff is based on title as a reversioner on the basis of will which was executed by the husband of deceased Laxmibai ;

(2) The document of lease executed in 1967 is alleged to have been obtained by fraud; and

(3) The tenancy proceedings have been fabricated one.

6. Thus, the source of title of the plaintiff and the fraud is a cause of action for the suit. If the plaintiff succeeds in proving the fraud as alleged, the Court has to decree the suit.

7. However, as the document under challenge is of the lease; and the proceedings are the tenancy there is bar of section 85 of the Tenancy Act. The said provision states that the issues or the points, which are required to be dealt with by the tenancy authorities, if arise in any suit, the said suit is barred. Therefore, the question arises, whether, in the present suit, any point or question is involved, which is exclusively required to be dealt with and decided by the tenancy authorities.

8. For this purpose, it is necessary to have a look into the powers and duties of various tenancy authorities under the Tenancy Act. The duties and powers of the Mamlatdar have been stated in section 70, the duties and powers of the Tribunal have been enumerated in section 68; and thereafter, the powers of the appellate authorities have been stated. On scrutiny of those provisions, it is clear that none of the provisions of the Tenancy Act have given a power to any of the authorities under the Tenancy Act to decide as to whether the lease document has been obtained by fraud, or, that the proceedings are vitiated as a result of the fraud. Thereby, the issue which is required to be settled, dealt with and decided in the suit is not within the competence of any tenancy authorities and, therefore, there is no express bar to the present suit.

9. The learned Counsel for the Respondent very vehemently submitted that section 85 of the Tenancy Act covers this suit and is, therefore, not tenable. However, with due respect to the learned Counsel, as analysed in the above paragraphs, the suit is not barred by the provisions of section 85 of the Tenancy Act.

10. A reference in this connection may be made to the decision of this Court in Madhav Kesu Khuspe Vs. Sundrabai Magutrao Phadatare, since deceased by heirs Krishna Dagdu Khuspe and others, 1978 Mh. L.J. 289, wherein this Court has held that wherever the procedure provided under the law has been flouted and, thereby, the order under challenge is a nullity, the order passed in such proceedings is ultra vires, even though the remedy of appeal is available; and the civil suit in such circumstances is tenable in law to set aside those proceedings.

11. It is well-settled principle of law that bar to the Civil Court's jurisdiction should not be easily inferred. On the contrary, the Civil Court has a supervisory jurisdiction over the statutory authorities to see if the procedure which has been provided under the relevant statute for deciding the questions, which are required to be dealt with and decided by that statutory authority, have been flouted or otherwise, so as to make the orders passed by the statutory authority ultra vires or nullity. The suit in these circumstances is very much tenable. Whenever the challenge to the proceedings or the document is based on fraud, the fraud being a complicated question affecting the civil rights of the parties, it is a matter to be dealt with by the Civil Courts.

12. In Dada Savla Yadav Vs. Vasant Anant Sultane, LXII (1960) Bom. L.R. 471, this Court has observed that section 70 of the Bombay Tenancy and Agricultural Lands Act, 1948, does not empower the Mamlatdar to decide the question whether a surrender which has been already accepted by him and in pursuance of which possession has been ordered to be delivered to the landlord, was a nominal surrender never intended to be acted upon. Therefore, once the landlord obtains possession of the lands from a tenant in pursuance of a surrender, which is accepted by the Mamlatdar in accordance with the provisions of the Act, the question whether such a surrender was a nominal or sham surrender does not fall within the ambit of section 70 of the Act. The jurisdiction of the civil Court to decide that question cannot, therefore, be ousted by virtue of Section 85 of the Act and the procedure under section 85A is not applicable.

13. In view of this settled position, I find that the orders passed by the Courts below are bad in law.

14. Civil Revision Application is, therefore, allowed. The Judgment and order passed by the Civil Judge, Junior Division, Rahuri below Exhibit 1 in Regular Civil Suit No. 116 of 1981, dated 18th April 1994; and that of the Second Additional District Judge, Ahmednagar, dated 14th March 1989 in Regular Civil Appeal No. 165 of 1984, are hereby quashed and set aside. The Civil Judge, Junior Division, Rahuri, is hereby directed to accept the plaint, register it on its original number; and he shall proceed to hear and dispose of the said suit in accordance with law. In view of the fact that the suit was returned at the stage when the issues were framed, it is hereby directed that the suit shall be heard and disposed of as early as possible, and, in any case, within a period of six months from the date of receipt of writ of this Court. Rule made absolute accordingly. There shall, however, be no order as to costs.

Revision allowed.