Holding

The Supreme Court held that the condition precedent under s.88(1)(c) read with s.9 of the Watans Act was not complied with, so the civil court alone has jurisdiction, and sub‑section (6) of s.32(G) does not apply.

Summary

The appellants, heirs of Somabhai Kanjibhai Baria, were tenants of watan lands that were abolished by the Gujarat Watans Abolition Act, 1961 and later re‑granted to the respondent in 1966. The tenancy was terminated on 31 March 1961 and a suit for possession was filed on 14 August 1962. The civil court, relying on Section 88 of the Bombay Tenancy and Agricultural Lands Act, held that it lacked jurisdiction until the mamlatdar decided the tenancy issue. The High Court reversed, finding that the condition precedent under s.88(1)(c) read with s.9 of the Watans Act was not satisfied and that the civil court alone could decide the matter. On appeal, the Supreme Court affirmed the High Court, observing that sub‑section (6) of s.32(G) does not apply because the Watan Act is not listed in Schedule III and the lease had been terminated before the re‑grant, leaving the appellants in possession only on sufferance. Consequently, the appeals were dismissed and the suits were decreed.

Issues considered

Whether the civil court has jurisdiction to determine the termination of tenancy when the condition precedent under s.88(1)(c) of the Bombay Tenancy Act and s.9 of the Gujarat Watans Abolition Act is not fulfilled.
Whether sub‑section (6) of s.32(G) of the Bombay Tenancy and Agricultural Lands Act applies to watan lands abolished by the Gujarat Watans Abolition Act.
Whether possession after termination of tenancy without landlord consent constitutes tenancy at will or mere sufferance.

Legislation cited

Bombay Tenancy and Agricultural Lands Act, 1948s. 32(G) sub‑s.6, s. 88(1)(c)

Subjects

tenancywatan abolitionjurisdictioncivil courtmamlatdarcondition precedentpossession on sufferanceBombay Tenancy ActGujarat Watans Abolition Act

Judgment

A HEIRS AND LRS. OF DECEASED
SOMABHAI KANJIBHAI BARIA ""1"

v.
PATEL PARSH OTTAMDAS JAMDAS (D) AND ANR.

MARCH 7, 1995
B
[K. RAMASWAMY AND B.L. HANSARIA,·JJ.)

Bombay Tenancy and Agricultural Lands Act, 1948:
"
'
Sections 32G(6) and 88(1)(c}-Schedule III-Condition Precedents for ~:
e applicability of.
.........
I

Gujarat Watans Abolition Act, 1961: r

Section ~Applicability of.
D Tenano--Possession of Watan lands-Abolition of watans with effect
from 1.4.63-R.egrant despite abolition of watans-Tennination of tenancy
with effect from 31.3.61 and filing of civil suit for possession on 14.8.62-No
consent given by landlord either in writing or by acquiescence subsequent to
detennination of tenancy-Detennination of rights of tenancy between the
E partie9-Held jurisdiction of Civil Court was not batTed.

The appellants were in possession of watan lands as tenants of
respondents. Despite abolition of watans with effect from 1.4.1963 by
Gujarat Watans Abolition Act, 1961 re-grant was made in favour of the
respondents on 23.4.1966. In the meanwhile the respondents terminated ,_
F the tenancy of appellants with effect from 31.3.1961 and on 14.8.1962 filed
a suit for possession. The appellants raised objections that the Civil Court
has no jurisdiction to decide the question whethertheywere tenants under > -'i'
the respondents and that they were not liable to ejectment on the basis of
termination of tenancy. Relying on Section 88 of the Bombay Tenancy and '{
Agricultural Lands Act, 1948 the Civil Court dismissed the suit and held
G
that appellants were tenants and therefore until the question of tennina·
tion of tenancy was decided by Mamlatdar the Civil Court had no Juris·
diction.

On revision the High Court held that the Civil Court was wrong in
H its concl~sion that the tenancy court has jurisdiction to determine the
580
-t
L.RS. OFS.K. BARIA v. P.P.JAMDAS(D) 581

rights of the tenancy between the parties and accordingly reversed the A
decree and remitted the matter for trial according to law. In appeals to
this court it was contended on behalf of the appellants that by operation
of sub-section (6) of Section 32(G) of the Tenancy Act despite the abolition
of the watan and re-grant in favour of the respondent, the right of tenancy
created in favour of the tenants still subsists. Therefore, the question
whether the tenancy was legally terminated was to be decided only by the
B
mamlatdar and not by the civil court.

Dismissing the appeals, this Court

HELD : 1. The High Court was right in holding that the condition C
precedent prescribed under Section 88(1)(c) of the Tenancy Act read with
section 9 of Watan Act has not been complied with and that therefore, the
civil court alone has jurisdiction to decide the question. (584-E]

2. For application of sub-section (6) of Section 32(G) of the Bombay
Tenancy and Agricultural Land Act, 1948 two essential conditions are D
required to be satisfied. The kind ofland tenures,. referred to in sub-section
(6) should find place in the III Schedule. The Watan Abolition Act, 1961
is not part of Schedule III. Secondly though the re-grant is made in favour
of the bolder of the watan with a condition tliat it is not transferable, the
lease created before the re-grant must be subsisting. In that event, the E
tenant would be entitled to purchase the land under section 32(G). In this
case the tenancy was terminated with effect from 31.3.1961 and the suit for
possession was filed on 14.8.1962. After the determination of the tenancy
and after the respondent filed the suit, there was no consent by the
landlord either in writing or by acquiescence or by conduct In that view
of the matter, the civil court was clearly in error in holding that there exists F
a jural relationship of landlord and tenant between the respondent and
the appellants and that, therefore, the mamlatdar is the competent
authority to decide the dispute of the tenancy rights. (583-G-H, 584-D]

Maneksha Ardeshir Irani v. Manekil Edulji Mistry, (1975) 2 S.C.R. 341, G
relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2685,
2872-73 of 1977.

From the Judgment and Order dated 14/15-7-1977 of the Gujarat H
582 SUPREME COURT REPORTS (1995) 2 S.C.R.

A High Court in C.R.A. No. 397 of 1977.
V.N. Ganpule, Vimal Dave and Mrs. Neelam Kalsi for the Appellant.

S.K. Dhokakia, H.A. Raichura and Ms. Promila Choudhary for the
Respondents.
B
The following Order of the Court was delivered :

Respondent Patel Parshottamdas Jamnadas has died. The appellants
have filed an application to bring the legal representatives on record.
·c Ghanshamdasbhai Parshottamdas Patel, son of the deceased Patel Parshot-
tamdas J amnadas, has also made an application independently on the basis
of ~11 said to have been executed by his father. Without going into the
. infor se rights of the legal representatives of Patel Parshottamdas Jam-
nadas, we bring Ghanshamdasbhai Parshottamdas Patel on record to rep-
resent his estate for the purpose of the disposal of these appeals. The inter
D se tights, if any, would be decided in an appropriate proceedings.
The three appeals are being disposed of by a common order. The
appellants initially were tenants of respondent. The lands are watail lands.
Though the appellants remained in possession from the year 19~,. since
E t~e lands being watan lands, they are not directly governed by the Bombay
Tenancy and Agricultural Lands, Act 1 of 1948 (for short, 'the T.enancy
Act') as extended to the State of Gujarat. The Gujarat Watans Abolition
Act, 1961, abolished the watans with effect from 1.4.63. Subsequently, re-
grant was made in favour of the respondent on March 23, 1966. In the
meanwhile, the respondent terminated the tenancy of the appellants with
F effect from 31.3.61 and filed present civil suit for possession on August 14,
1962.

The appellants contended that civil court has no jurisdiction to I
decide the question whether the appellants are tenants under the respon-
"'""(-..
dent and that they are not liable to ejectment on the basis of termination
G of tenancy. The civil court relying upon s.88 of the Tenancy Act, held, as
preliminary issue, that the appellants are tenants and that, therefore, until
the question of termination of tenancy has been duly determined by the
mamlatdar, the civil court has no jurisdiction. Accordingly, the civil court
dismissed the suit. On revision, the learned single Judge of the High Court,
H by judgment dated 15.4.77, held that for application of s.88 of the Tenancy
L.RS. OF S.K. BARIA v. P .P.JAMDAS (D) 583
Act, read with s.9 of Watan Act, 1961, two conditions must be satisfied, A
namely, the lease should have been lawfully made and such a lease must
be subsisting on the appointed date, namely, April 1, 1963. Though there
was a lease, since it was determined as effective from 31.3.61, there was no
subsisting lease. Therefore, the civil court was wrong in its conclusion that
the tenancy court has jurisdiction to determine the rights of the tenancy B
between the parties and accordingly reversed the decree and remitted the
matter for trial according to law. Thus these appeals by special leave.

Shri Ganpule, learned senior counsel for the appellants, contended
that by operation of sub-s.(6) of s.32(G) of the Tenancy Act, despite the
I
abolition of the watan and re-grant in favour of the respondent, the right C
(- of tenancy created in favour of the tenants still subsists. Therefore, whether
the termination of the tenancy has been legally done should be decided
only by the mamlatdar and not by the civil court. We find no force in the
contention.

Sub-s.(6) of s.32(G) envisages:
D

"If any land which, by or under the provisions of any of the Land
Tenures Abolition Acts referred to in Schedule III of this Act, is
re-granted to the holder thereof on condition that 'it was not
transferable, such condition shall not be deemed to affect the right E
of any person holding such land on lease created before the
re-grant and such person shall as a tenant be deemed to have
purchased the land under this section, as if the condition that it
, was not transferable was not the condition of re-grant."·
F
For application of sub-s.(6) of s.32 (G)-two essential oonditions are
required to be satisfied. The kind of land tenures, referred to in sub-s.(6),
i
should find place in the Illrd Schedule. We have verified Schedule III and
T'
the Watan Abolition Act 1961 is not part of Schedule III. Secondly, though
the re-grant is niade in favour of the holder of the watan with a condition
that it is not transferable, the lease created before the re-grant must be G
subsisting. In that event, the tenant would be entitled to purchase the land
under s.32(G). It is already seen and a clear. finding of fact was recorded
by the High Court and it is not disputed before us that the tenancy was
terminated with effect from 31.3.1961 and the suit for possession was filed
on 14.8.1962. H
584 SUPREME COURT REPORTS (1995] 2 S.C.R.

A The question then is what is the nature of possession the appellants
held. This Court in Maneksha Ardeshir Irani v. Manekji Edulji Mist1y, 1975
(2) SCR 341, held that on cessation of original tenancy, the right of
prote~ted tenant would continoe until it would duly come to an end. It was
found that on August 1, 1956 it came to a terminus and the original contract
of tenancy thereby had ceased. The appellant therein was in occupation of
B. the land only on sufferance since the land-lord had not given any consent
···for the continuance of possession of the tenant. When the landlord did not
give his consent, express or necessary implication, after the termination of
lease, his possession is only by sufferance and he cannot be said to be in
· possession as a tenant holding over or a tenant at will.
c The same ratio applies to the facts in this case. After the determina- -t(
tion of the tenancy and after the respondent filed the suit, there was no
consent given by the landlord either in writing or by acquiescence or by
conduct. In that view of the matter, the civil court was clearly in error in
holding that there exists a jural relationship of landlord and tenant between
D the respondent and the appellants and that, therefore, the mamlatdar is
the competent authority to decide the dispute of the tenancy rights. The
High Court was right in holding that the condition precedent prescribed
under s.88(1)(c) of the Tenancy Act read with s.9 of Watan Act has not
been complied with and that, therefore, the civil court alone has jurisdic-
E tion to decide the question.

The appeals are accordingly dismissed. No costs.

In view of the above findings, the suits stand decreed, as nothing
more remains for trial as agreed by both the counsel.

T.N.A. Appeals dismissed.