Holding

The High Court erred in directing delivery of possession to the plaintiff as the trial court decree did not include such relief and Order 41 Rule 33 cannot be invoked without a cross‑objection, so the direction for possession is set aside.

Summary

The appellant, an agricultural tenant, occupied a four‑acre plot that the deceased original owner had repeatedly agreed to sell to various parties, including the plaintiff who paid part consideration but the sale deed was never executed. The plaintiff sued for specific performance of the sale agreement; the trial court ordered the owner to execute the deed and issued injunctions but did not decree possession of the land. The owner appealed, and the High Court dismissed the appeal, directing delivery of possession to the plaintiff. The tenant appealed to the Supreme Court, contending that the civil court lacked jurisdiction over tenancy matters and that the High Court erred in granting possession without a decree for it and without a cross‑objection under Order 41 Rule 22 of the CPC. The Supreme Court held that the High Court could not modify the relief to grant possession where none was decreed and that Order 41 Rule 33 cannot be invoked without a cross‑objection, thereby setting aside the direction for possession in favour of the plaintiff. The appeal was allowed in part and no costs were awarded.

Issues considered

Whether the civil court has jurisdiction to adjudicate matters relating to agricultural tenancy under the Bombay Tenancy and Agricultural Lands Act, 1948.
Whether the High Court could modify the trial court's decree and direct delivery of possession to the plaintiff in the appeal.
Whether Order 41 Rule 33 of the CPC can be invoked by one respondent against another without a cross‑objection under Order 41 Rule 22.

Legislation cited

Bombay Tenancy and Agricultural Lands Act, 1948s. 29(3A), s. 64, s. 70(b), s. 80, s. 85, s. 85A
Code of Civil Procedure, 1908s. Order 41 Rule 22, s. Order 41 Rule 33

Subjects

agricultural tenancyspecific performancepossessioncivil procedureOrder 41Bombay Tenancy and Agricultural Lands Actjurisdiction

Judgment

SHANKAR POPAT GAIDHANI A
v.
HIRMANI UMAJI MORE (DEAD) BY LRS. AND ORS.

FEBRUARY 14, 2003

[S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.] B

}.
land laws and Agricultural Tenancy: Bombay Tenancy and Agricultural
lands Act, 1948; Ss. 29(JA). 64, 70(b), 80, 85 and 88A:

Agreement of sale of agricultural land by the owner and receipt ofpart C
payn1ent in consideration thereoffrorn Vendee-Owner avoiding execution of
sale deed-Trial Court issued directions to execute-On appeal by owner,
• High Court directed delivery ofpossession of suit land to Vendee-On appeal
by the tenant in possession of the disputed land-Held: since Vendee neither
preferred an appeal nor filed cross objection in appeal, and the disputed land D
li'as in possession of agricultural tenant, High Court committed an error in
granting relief in favour of the Vendee purporting to modify relief in the
appeal-Hence part of the Judgment directing delivery ofpossession in favour
of Vendee set aside-Direction issued-Civil Procedure Code, 1908; Order
41; Rule 33 and Order 41; Rule 22-Practice and Procedure.
E
Appellant was an agricultural tenant in the disputed land/property
of defendant No.I in a suit filed before the Civil Court. Earlier, defendant
No. I entered into an agreement with the plaintiff and in consideration
thereof received part payment as well. However, he avoided execution of
sale deed in respect of the disputed land/property in favour of plaintiff, F
who later on filed a suit for specific performance of the agreement to sell
• .le
off disputed land. Trial Court decreed the suit in favour of the plaintiff.
Defendant No. I preferred an appeal which was dismissed by the High
Court directing delivery of possession of the suit land by defendant No.I/
legal heirs to the plaintiff. The present appeal has been filed by the
aggrieved agricultural tenant in possession of the suit lands. G
It was contended for the appellant that the Civil Court had no
jurisdiction to determine any issue concerning agricultural tenancies; and
that since Trial Court did not pass decree for possession in favour of
plaintiff, High Court committed an error by directing delivery of
1189
H
1190 SUPREME COURT REPORTS f2003] I S.C.R.

A possession of the disputed land in favour of plaintiff.

Partly allowing the appeal, the Court

HELD: t. 1. The plaintiff did not question the judgment and decree
passed by the Trial Court. Evidently, the Court did not grant a decree
B for recovery of possession so far as the suit land is concerned. In that view
of the matter, the High Court committed a serious error in granting relief
in favour of the plaintiff in an appeal filed by Defendant No. I purporting
to modify relief particularly in view of the fact that amongst others, the
appellant claimed himself to be in physical possession of the lands in
C question. The appellant indisputably was not a party to the said agreement
for sale. [1193-F, G)

1.2 The High Court also could not have exercised its jurisdiction
in issuing the direction for recovery of possession even under Order 41,
Rule 33 of the Code of Civil Procedure inasmuch the said provision could
D not be invoked by one respondent as against another as therefor it was
obligatory on the part of the plaintiff to file a cross objection in terms of
Order 41, Rule 22 of the Code of Civil Procedure and give notice in
relation thereto to the parties who claimed independent possession Qver
the suit land. Hence part of the judgment under appeal whereby possession
has been directed to be delivered in favour of the plaintiff is set aside. It ·-t
E is clarified that the judgment of the trial Court is not being interfered with.
ll193-H; t 194-A-B)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2283 of 1998.

From the Judgment and Order dated 14.12.1990 of the Mumbai High
F Court in F.A.No. 640 of 1979.

A.S. Bhasme and Shivaprabhu S. Hiremath, for the Appellant.

V.B. Joshi and K.K. Gupta (NP) for the Respondent.

G In-person (NP) for the Respondent No. 6.

The Judgment of the Court was delivered by

S.B. SINHA, J. This appeal arises out of a judgment and decree dated
14.12.1990 passed by the Bombay High Court in First Appeal No.640 of
H 1979 affirming a judgment and decree passed by the Comt of Civil Judge,
SP. GAIDHANI i- HIRMANI UMAJI MORE [S.B. SINHA. J.] 1191

Senior Division at Nashik in Special Civil Suit No.57 of 1974. A
The appellant herein is said to be an agricultural tenant and in occupation
of the property in question admeasuring 4 acres, 16 gunthas being Gut No.189
(Survey Nos.23/2 and 2313) situated at Village Palse in the District ofNashik.
The said property admittedly belonged to Original Defendant No. I (since
deceased). On or about 2.7.1970, an agreement of sale was executed by him B
in favour of Defendant No. 7, Ganu Mahadu Gayakhe. The said agreement
was cancelled. Defendant No. I thereafter agreed to sell the suit land to the
Defendant No.8. The said agreement was also cancelled by Original Defendant
No. I and the amount of advance taken by him was repaid. He then entered
into another agreement with the plaintiff in respect of the suit land, the C
consideration whereof was fixed at Rs. 20,000. By way of earnest money, a
sum of Rs. I 0,000 was paid by the plaintiff to Defendant No. I. At the
relevant time, Original Defendant No. I had taken a loan from the Land
Mortgage Bank on the security of the suit land. From the amount he received
from the plaintiff, Original Defendant No. I repaid his earlier loans. He
thereafter allegedly received a sum of Rs. 6,000 from the plaintiff. D
The co-sharers of the Original Defendant No. I by a notice to the
plaintiff raised a contention that the said property is a joint family property
and thus the said Defendant was not the sole owner thereof.

The appellant herein, claiming himself to be a tenant in the said lands E
also sought to get his name entered in the revenue records. The Original
Defendant No. I, however, at the instance of the plaintiff, requested the revenue
authorities not to enter the name of the appellant herein in the revenue records.

- ...
The Original Defendant No. I, however, avoided to execute the sale-
deed in favour of the plaintiff. He filed a suit for specific performance of the
agreement to sell as also for a direction upon Respondent No.7 to cause
delivery of possession to him and a decree for perpetual injunction against
F

Defendant No.8 (Appellant herein) as also against Defendant Nos. 3 to 6
thereof as they had claimed interest in the property. The appellant herein in
his written statement, inter alia, contended that as he had been cultivating the G
suit land since last five years as a tenant, Defendant Nos. I to 5 and 7 had no
concern with the possession of land and as he was a tenant in possession, the
• Civil Court had no jurisdiction to investigate into the rights of the tenant. On
the pleadings of the parties the learned Trial Court framed as many as 16
issues including : H
1192 SUPREME COURT REPORTS P003J I S.C.R.

A "(9) Does defendant No. 7 prove that he is the tenant in the suit
property described in para I of the plaint ?

(9A) Whether the contentions for defendant Nos. 7 and 8 as regards
tenancy are bona fide conkntions necessitating the reference ?

B (I 0) Does defendant No. 8 prove that he is the tenant in the suit
property described in para I of the plaint ?

(11) Whether the specifa performance of the sale agreement can be
granted in view of the provisions of the Bombay Tenancy and
Agricultural Lands Act 1948 ?"
c The learned ~rial court decreed the suit directing :

"(a) The Defendant No. I do execute sale deed of the suit property in
favour of the plaintiff on the latter's making payment of Rs.
4,000 in accordance with the terms and the conditions of the
agreement ExhilJit 130.
D /·

(b) The Defendant Nos. I to 6 are hereby permanently restrained by
mandatory injunction from getting the names of the Defendant
Nos. 2 to 6 entered to the suit land by way of final entries.

(c) The Defendant Nos. I and 8 are hereby restrained permanently
E by mandatory injunction from getting the final entry of the name
of the Defendant No. 8 to the suit land in the R.R. as tenant.

(d) The Defendant Nos. 2 to 6 are hereby directed by permanent
injunction to get pencil entries of their names to the suit land in
the R.R. cancelled.
F (e) The Defendant No. 8 is hereby directed by mandatory injunction
to get pencil entry of his name in the R.R. to suit land cancelled.

(f) The Defendant Nos. I to 6 and 8 do pay the costs of this suit to
the Plaintiff and bear their own."

G The plaintiff did not challenge the said judgment and decree either by
filing an appeal or by prefen-ing any cross objection. Original Defendant
No. I alone preferred an appeal against the said judgment and decree.

The High Court while dismissing the appeal directed :

H "Consequently, the Appeal must be dismissed. We find that the decree
S.P. GAIDHANI ·.-. HIRMANI UMAii MORE [S.B. ~INHA . .1.J 1193

passed in Clauses (b), (c), (d) and (f) is proper and must be confirmed. A
We clarify that the decree in terms of clause (a) of the Order passed
by the trial Court shall be construed as directing delivery of possession
of the suit land by the heirs and legal representatives of Appellant-
original Defendant No.I to the Plaintiff by way of specific performance
of the agreement as prayed for by the plaintiff in addition to executing B
the Sale Deed in accordance with the terms and conditions of the
Agreement (Exhibit 130), as ordered by the trial Court."
>
Mr. Bhasme, learned counsel appearing on behalf of the appellant, has
raised two short contentions in support of the appeal. The learned counsel
\\'ould contend that having regard to the provisions contained in Sections C
29(3A), 64, 70(b), 80, 85 and 85A of the Bombay Tenancy and Agricultural
Lands Act, 1948, the Civil Court had no jurisdiction to determine any question
relating to agricultural tenancies. Mr. Bhasme would urge that the appellant
herein has not preferred any appeal against the grant of decree for specific
perfonnance being against the Original Defendant No.1 having regard to the
fact that no decree for possession was passed by the learned Trial Judge and, D
thus, the High Court must be said to have committed an error in issuing the
itnpugned directions.

Although there appears to be some substance in the contentions raised
by Mr. Bhasme, we are of the opinion that this Court need not go thereinto.
From the judgment under appeal, it appears that the appellant herein was not E
represented before the High Court. Presumably because no decree for delivery
of possession in respect of the suit property was passed, the appellant chose
not to contest the appeal, as he might have been advised that he could raise
his contentions in a proceedings which may be initiated by the plaintiff for
recovery of.possession of the suit land after a deed of sale is executed in his F
favour by the Original Defendant No. I.

The plaintiff, as noticed hereinbefore, did not question the judgment
and decree passed by the Trial Court. Evidently, the Court did not grant a
decree for recovery of possession so far as the suit land is concerned. In that
view of the matter, the High Court, in our opinion, committed a serious error G
in granting a relief in favour of.the plaintiff in an appeal filed by Defendant
No. I, purporting to modify Relief (a), as aforementioned; particularly in
view of the fact that amongst others, the Appellant claimed himself to be in
physical possession of the lands in question. The Appellant, indisputably was
not a party to the said agreement for sale.
H
1194 SUPREME COURT REPORTS P003l I S.C.R.

A The High Court also could not have exercised its jurisdiction in issuing
the said direction even under Order 41 Rule 33 of the Code of Civil Procedure
inasmuch as the said provision cou.ld· not be invoked by one respondent as
against another as; therefor it was obligatory on the part of the plaintiff to file
a cross objection in terms of Order 41, Ru le 22 of the Code of Civil Procedure
B and give notice m relation thereto to the parties who claimed independent
possession over the suit land.

We are, therefore, of the opinion that part of the judgment under appeal A._
whereby possession has been directed to be delivered in favour of the plaintiff
may be set aside. We, however, make it clear that the judgment of the trial
C court is not being interfered with. The appeal is allowed to the aforementioned
extent. However, there shall be no order as to costs.

S.K.S. Appeal allowed.

,-

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