Ramakant Ganesh Naik v. Shankar Shantaram Naik

(i) Sau. Saraswatibai Trimbak Gaikwad Vs.

(ii) Cheeranthoodika Ahmmedkutty and Another

Vs. Parambur Mariakutty Umma and Others[2],

(iii) A. Samikkutty and Another Vs. P. V. Chandran and Another[3],

(iv) Pushpalata Narayan Thorbole Vs. Purshottam

(v) Mudakappa V/s. Rudrappa and others[5],

(vi) Mudakappa V/s. Rudrappa & Ors.6,

(vii) Rajaram Totaram Patel V/s. Mahipat Mahadu

(viii) Shrikant Gangaram Teli V/s. Bhaskar Narayan

(ix) Bhima Aba Rade, since deceased through his

(x) Ramkuwar w/o. Ramkishan Pallod, deceased through LRs. V/s. Krushnanath Sajan Belhekar and anr.10

(xi) Thimmappa Rai V/s. Ramanna Rai and Ors.11

12. Relying on the above Judgments, Mr. Walawalkar would submit that it is well-settled position in law that issue of correctness of 32M certificate cannot be gone into by the Civil Court nor other family members can claim a share in the property purchased by the purchaser under Section 32M. He would submit that orders passed by the Trial and first Appellate Court deserve to be set aside.

13. Per-contra, Mr. Khaladkar, the learned counsel appearing for Respondents in both the Appeals would oppose them and support the order passed by the Trial Court as well as first Appellate Court. He would submit that there are concurrent findings recorded by both the Courts below and therefore this Court would be loathe in interfering in such concurrent findings in Second Appeal. He would submit that the evidence produced before the Trial Court proves that the agricultural lands were cultivated by grandfather Babi Naik and that the same were purchased in the name of Ganesh Babi Naik on behalf of joint family. That, Ganesh Babi Naik was not exclusively cultivating the land as tenant thereof. That, after the death of Babi Naik, the tenanted lands were cultivated jointly by all the family members. That, therefore, mere conduct of proceedings in the name of one of the coparceners under Section 32G of the Tenancy Act and mere issuance of certificate under Section 32G in the name of such coparcener does Neeta Sawant 12 /55 SA-284-19 @ SA-390-19-LFC not make such purchased land exclusive property of such coparcener under Section 32M. In the present case, purchase of property is for the whole family and not exclusively for Ganesh Babi Naik. That, the Civil Court has jurisdiction to decide the issue as to whether other co-parceners have share in the tenanted property of joint family which is purchased under Section 32G and 32M. He would submit that the issue of entitlement of share cannot be decided under the Tenancy Act and that such dispute can be decided by the Civil Court alone. In support of his contention, Mr. Khaladkar would rely upon the Judgment of this Court in Sarjerao Maruti Sathe Vs. Pralhad Laxman Sathe & Ors.12, Rajaram Mahadu Dahatonde (D) thr. LRs. V/s. Babu Mahadu Dahatonde & Ors.13 and Adam Mohmad Darwajkar and Ors. V/s. Appa Daud Darwajkar and Ors.14.

14. Mr. Khaladkar would take me through statements of Ganesh Babi Naik recorded by the Agricultural Lands Tribunal (‘ALT’) as well as evidence of Shrirang Ramchandra Dhopeshwarkar to demonstrate that the agricultural lands were cultivated by the entire family both before and after purchase under Section 32M. That, Ganesh Babi Naik specifically admitted that the properties are of the entire family. That, therefore, the 12 2010(2) ALL MR 544 13 2016(2) ALL MR 326 14 2007(2) Mh.L.J. 340 Neeta Sawant 13 /55 SA-284-19 @ SA-390-19-LFC Appellant-Ramakant is precluded from raising contentions contrary to the admissions given by his father-Ganesh. He would pray for dismissal of the Appeals.

E. REASONS AND ANALYSIS

15. The principal issue which arises for consideration in the present Appeals is whether the Civil Court has jurisdiction to decide the entitlement of other family members to a share in properties purchased in the sole name of one family member under the Tenancy Act.

16. In the present case, the documents placed on record would indicate that one Shri. Shrirang Ramchandra Dhopeshwarkar was the landlord in respect of the land bearing old Survey No.274, Hissa No.2 and new Survey No.170, Hissa No.2 and Shri Ramchandra Vinayak Dhopeshwarkar was landlord in respect of the land bearing Survey No.37 (old No.156), Hissa No.31. It appears that in pursuance of Notice issued under sub-section (1) of Section 32G of Tenancy Act, statement of Ganesh Babi Naik was recorded by the ALT on 31 May 1974. In his statement, Ganesh Babi Naik stated that the land bearing Survey No.274, Hissa No.2 (new Survey No.170, Hissa No.2) was owned by Shrirang Neeta Sawant 14 /55 SA-284-19 @ SA-390-19-LFC Ramchandra Dhopeshwarkar to which his name is mutated as tenant. He further stated that the said land had been in his family from the time of his ancestors. It thus appears that Ganesh Babi Naik alone participated in the proceedings under Section 32G when in fact he had 2 brothers Shankar and Shantaram. It is not known as to whether Shankar was alive as on 31 May 1974 but Shantaram was apparently alive on that day. The statement of Ganesh Babi Naik recorded on 31 May 1974 records that the land bearing Survey No.170, Hissa No.2 was in possession of joint family for several years. Similar is the position in respect of other land bearing Survey No.37, Hissa No.31.

17. Thus, the factual position appears to be that both the agricultural lands were cultivated by grandfather Babi Naik as tenant. However, Ganesh Babi Naik alone participated in the proceedings under Section 32G and got the purchase price fixed in respect of the tenanted land. Consequently, upon deposit of purchase price, 32M certificates have been issued solely in the name of Ganesh Babi Naik on 16 June 1975 and 31 July 1980. The issue that arises is whether such purchase of tenanted lands by Ganesh Babi Naik was for himself or was for the entire family. The next question is whether the Civil Court has jurisdiction to decide this issue.

18. To examine the issues, it would be necessary to discuss Neeta Sawant 15 /55 SA-284-19 @ SA-390-19-LFC the statutory framework Tenancy Act. E.[1] STATUTORY FRAMEWORK OF MAHARASHTRA TENANCY AND AGRICULTURAL LANDS ACT, 1950 (‘TENANCY ACT’)

19. The statutory framework of the Tenancy Act is such that a tenant can file proceedings under Section 32G of the Tenancy Act for determination of purchase price of the land. A willing tenant can approach the ALT for purchase of tenanted land by paying purchase price to the landlord fixed as per the provisions of Section 32G of the Tenancy Act. Upon payment of such purchase price, the ALT is required to issue certificate of purchase of the tenanted land in the name of the purchaser.

20. Under Section 32 of the Tenancy Act, on the tillers’ day on first day of April 1957, every tenant is deemed to have purchased the tenanted land from his landlord. Under Section 32G, the Tribunal publishes a public notice in each village calling upon all tenants who deemed to have purchased the land under Section 32, landlords and other persons interested to appear before it. After their appearance, the Tribunal conducts inquiry by recording statement of tenant as to whether he is willing to purchase the land held by him as tenant. In the event of tenant willing to purchase the land, the Tribunal holds an inquiry and determines purchase Neeta Sawant 16 /55 SA-284-19 @ SA-390-19-LFC price of the land in accordance with the provisions of Section 32H and 63A(3) of the Tenancy Act. On deposit of the purchase price or the last installment of purchase price, the ALT is required to issue a certificate of purchase in prescribed format to the tenant – purchaser. Thus, statutory scheme of Section 32, 32G and 32M of Tenancy Act is such that while there is a deeming fiction of purchase of tenanted land under Section 32, the tenant will have to pay the purchase price for issuance of certificate of purchase under Section 32M. Under Section 32G, the ALT simply issues notices to the persons who it believes are tenants and invites their willingness for purchase of tenanted land. Thus, the ALT does not conduct an inquiry into entitlement of family members to claim shares in respect of the tenanted land. If tenant shows willingness, purchase price is fixed and upon payment of purchase price, certificate of purchase under Section 32M is issued.

21. For better understanding of this statutory framework of the Maharashtra Tenancy Act, it would be apposite to reproduce the provisions of Section 32, 32G and 32M as under:

32. Tenants deemed to have purchased land on tillers' day. (1) On the first day of April, 1957 (hereinafter referred to as "the tillers" day) every tenant shall, [subject to the other provisions of this section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if- Neeta Sawant 17 /55 SA-284-19 @ SA-390-19-LFC (a) such tenant is a permanent tenant thereof and cultivates land personally; (b) such tenant is not a permanent tenant but cultivates the land leased personally; and

(i) the landlord has not given notice of termination of his tenancy under section 31; or

(ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29 for obtaining possession of the land; [or]

(iii) the landlord has not terminated his tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29 for obtaining possession of the lands: Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Maharashtra Revenue Tribunal under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as "the postponed date". Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub-section (3) of section 31 shall be deemed to have purchased the land on the 1st day of April, 1958, if no separation of his share has been effected before the date mentioned in that proviso. (1A) (a) Where a tenant, on account of his eviction from the land by the landlord, before the 1st day of April, 1957, is not in possession of the land on the said date but has made or makes an application for possession of the land under sub-section (1) of section 29 within the period specified in that sub-section, then if the application is allowed by the Mamlatdar, or as the case may be, in appeal by the Collector or in revision by the [Maharashtra Revenue Tribunal], he shall be deemed to have purchased the land on the date on which the final order allowing the application is passed. (b) Where such tenant has not made an application for possession within the period specified in sub-section (1) of section 29 or the application made by him is finally rejected under this Act, and the land is held by any other person as tenant on the expiry of the said period or on the date of the final rejection of the application, such other person shall be deemed to have purchased the land on the date of the expiry of the said period or as the case may be, on the date of the final rejection of the application.] (1B) Where a tenant who was in possession on the appointed day and who on account of his being dispossessed before the 1st day of April, 1957 Neeta Sawant 18 /55 SA-284-19 @ SA-390-19-LFC otherwise than in the manner and by an order of the Tahsildar as provided in section 29, is not in possession of the land on the said date and the land is in the possession of the landlord or his successor-in-interest on the 31st day of July, 1969 and the land is not put to a non-agricultural use on or before the last mentioned date, then, the Tahsildar shall, notwithstanding anything contained in the said section 29, either suo motu or on the application of the tenant, hold an inquiry and direct that such land shall be taken from the possession of the landlord or, as the case may be, his successor-in-interest, and shall be restored to the tenant; and thereafter, the provisions of this section and sections 32A to 32R (both inclusive) shall, in so far as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased that land on the date on which the land is restored to him: Provided that, the tenant shall be entitled to restoration of the land under this sub-section only if he undertakes to cultivate the land personally and of so much thereof as together with the other land held by him as owner or tenant shall not exceed the ceiling area. Explanation.- In this sub-section, "successor-in-interest" means a person who acquires the interest by testamentary disposition or devolution on death.] (2) Where by custom, usage or agreement or order of a Court, any warkas land belonging to the landlord is used by the tenant for the purpose of rab manure in connection with rice cultivation in the land held by him as tenant,- (a) the whole of such warkas land, or (b) as the case may be, such part thereof as the Tribunal may determine in cases where such warkas land is jointly used by more persons than one for the purpose of rab manure. shall be included in the land to be deemed to have been purchased by the tenant under sub-section (1): Provided that in cases referred to in clause (b) the Tribunal may determine that such warkas land shall be jointly held by persons entitled to use the same, if in the opinion of the Tribunal, the partition of such warkas land by metes and bounds is neither practicable nor expedient in the interest of such persons.] (3) In respect of the land deemed to have been purchased by a tenant under sub-section (1), - (a) the tenant-purchaser shall be liable to pay to the former landlord compensation for the use and occupation of the land, a sum equal to the rent of such land every year, and (b) the [former landlord] shall continue to be liable to pay to the State Government the dues, if any, referred to in clauses (a), (b),

(c) and (d) of sub- section (1) of section 10A, where [the tenant-

Neeta Sawant 19 /55 SA-284-19 @ SA-390-19-LFC purchaser] is not liable to pay such dues under sub-section (3) of that section. until the amount of the purchase price payable by [the tenant-purchaser] to the [former landlord] is determined under section 32-H. (4) Where any land held by a tenant is wholly or partially exempt from the payment of land revenue and is deemed to have been purchased by him under sub-section (1) or under section 32-F, section 32-0 or section 33-C then, - (a) the tenant-purchaser shall in respect of such land, be liable to pay the full land revenue leviable thereon, and (b) the State Government shall, with effect from the date on which the tenant is deemed to have purchased the land, but so long only as the tenure on which the land was held by the landlord continues and is not abolished, pay annually to the former landlord,

(i) where such land is wholly exempt from the payment of land revenue, a cash allowance of an amount equal to the full land revenue leviable on such land; and

(ii) in other cases, an amount equal to the difference between the full land revenue leviable on such land and the land revenue payable thereon immediately before the said date. 32G. Tribunal to issue notices and determine price of land to be paid by tenants (1) As soon as may be after the tillers' day the Tribunal shall publish or cause to be published a public notice in the prescribed form in each its jurisdiction calling upon, - (a) all tenants who under section 32 are deemed to have purchased the lands, (b) all landlords of such lands, and

(c) all other persons interested therein, to appear before it on the date specified in the notice. The Tribunal shall issue a notice individually to each such tenant, landlord and also, as far as practicable, other persons calling upon each of them to appear before it on the date specified in the public notice. (2) The Tribunal shall record in the prescribed manner the statement of the tenant whether he is or is not willing to purchase the land held by him as a tenant. (3) Where any tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective: Neeta Sawant 20 /55 SA-284-19 @ SA-390-19-LFC Provided that if such order is passed in default of the appearance of any party, the Tribunal shall communicate such order to the parties and any party on whose default the order was passed may within 60 days from the date on which the order was communicated to him apply for the review of the same. (4) If a tenant is willing to purchase, the Tribunal shall, after giving an opportunity to the tenant and landlord and all other persons interested in such land to be heard and after holding an inquiry, determine the purchase price of such land in accordance with the provisions of section 32-H of subsection (3) of section 63: А [Provided that where the purchase price in accordance with the provisions of section 32-H is mutually agreed upon by the landlord and the tenant, the Tribunal after satisfying itself in such manner as may be prescribed that the tenant's consent to the agreement is voluntary may make an order determining the purchase price and providing for its payment in accordance with such agreement. (5) In the case of a tenant who is deemed to have purchased the land on the postponed date the Tribunal shall, as soon as may be after such date determine the price of the land. (6) If any land which, by or under the provisions of any of the Land Tenures Abolition Acts referred to in Schedule III to this Act, is regranted to the holder thereof on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding such land on lease created before the regrant 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 regrant. 32M. Purchase to be ineffective on [tenant-purchaser's] failure to pay purchase price. (1) On the deposit of the price in lump sum or of the last instalment of such price, the Tribunal shall issue a certificate of purchase in the prescribed form, to the [tenant-purchaser] in respect of the land. Such certificate shall be conclusive evidence of purchase [In the event of failure of recovery of purchase price as arrears of land revenue under sub-section (3) of section 32K, the purchase price shall be ineffective and the land shall be at the disposal of the Tribunal under section 32P and any amount deposited by such tenant purchaser towards the price of the land shall be refunded to him. [(2) Where the purchase of any land has become ineffective for default of payment in time of the price in lump sum or in instalments, but the tenantpurchaser has nevertheless continued in possession at the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1964, then the purchase of the land shall not be deemed to be ineffective, until the Tribunal fails to recover the amount of the purchase price under subsection(3) of section 32K. Neeta Sawant 21 /55 SA-284-19 @ SA-390-19-LFC

22. Under 67 of the Tenancy Act, Agricultural Lands Tribunal (ALT) is constituted and Section 68 provides for the duties of the Tribunal. Section 68 provides thus:

68. Duties of the Tribunal. It shall be the duty of the Tribunal–– (a) to determine the value of the site of a dwelling house under section 17; (b) to determine the purchase price of land under section 32G, 63A or 64

(c) to decide any dispute under sections 32 to 32R (both inclusive)

(d) to dispose of land under section 32P

(e) to perform such other functions in carrying out provisions of this Act, as may be prescribed or as may be directed by the 6 [State] Government.

23. Section 85 of the Tenancy Act provides for bar of jurisdiction of Civil Court to decide any question which can be decided under the Act. Section 85 reads thus:

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.

24. Section 85-A of the Tenancy Act mandates making a reference by the Civil Court of any issue which can be decided under Neeta Sawant 22 /55 SA-284-19 @ SA-390-19-LFC the Act to the Tenancy Court. Section 85A reads thus: 85A. Suits involving issues required to be decided under the Act. (1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the “competent authority”), the Civil Court shall stay the suit and refer such issues to such competent authority for determination. (2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto E.[2] POSITION OF RIGHT OF HEIRS TO CLAIM SHARE IN PURCHASED LAND UNDER TENANCY ACT

25. Appellants’ case of conclusiveness of certificate of purchase under Section 32M and bar of Civil Court’s jurisdiction is premised on an assertion that the ALT can decide all disputes relating to purchase of tenanted land under Section 32G as per Section 67 and that therefore Respondents ought to have agitated the dispute with regard to purchase of suit properties by Appellant-Ramakant in his individual capacity only before ALT. This is how bar of jurisdiction of Civil Court is urged on behalf of Appellant. No doubt, ALT has jurisdiction to decide deputes relating to Section 32 to 32R of the Tenancy Act. The only issue is whether duty imposed upon ALT under Section 68 (c) ‘to decide any dispute under sections 32 to 32R’ would encompass the duty to decide the dispute amongst members of Neeta Sawant 23 /55 SA-284-19 @ SA-390-19-LFC joint family to succeed to the tenancy right of their father? Under Section 40 of the Tenancy Act, the tenancy continues even after death of the tenant and his legal heirs are entitled to continue the tenancy. Section 40 reads thus:

40. Continuance of tenancy on death of tenant (1) Where a tenant (other than a permanent tenant) dies, the landlord shall be deemed to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy. (2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have a charge for maintenance on the profits of such land.

26. Thus, tenancy right is inheritable and upon death of a tenant, his heir or heirs are entitled to inherit the tenancy rights and can then apply under the provisions of Section 32-G for fixation of purchase price. The right to inherit tenancy is conferred on ‘such heir or heirs of the deceased tenant as may be willing to continue the tenancy’. However, if a dispute arises amongst multiple legal heirs to succeed to the tenancy right of their father, the issue is whether the ALT is clothed with jurisdiction to go the issue of ‘succession right’ of claimants who claim right to succeed to the tenancy rights of the original tenant. To my mind, upon plain reading of various provisions of the Tenancy Act, such a dispute would be a dispute of civil nature and cannot be exclusively tried by ALT alone. In a given case, all children of a deceased tenant may approach ALT who can fix purchase price and issue purchase certificate in their joint names. Neeta Sawant 24 /55 SA-284-19 @ SA-390-19-LFC However where only one heir clandestinely obtains purchase certificate on death of original tenant to the exclusion of other heirs, the land so purchased by him, in that sense, becomes the estate of the deceased, which is inherited by that heir. After such purchase, if another heir is to raise claim to have a share in that land, the ALT, in my view, is not expected to hold a trial about right to succeed to the estate of original tenant.

27. Thus a purchase certificate issued under Section 32M, may become conclusive as against the whole world, particularly qua the landlord or neighboring land occupiers or against a person claiming adverse title, however the same would not destroy the right of other legal heirs to claim a share in such purchased land. To paraphrase, the act of ‘purchase’ is cemented and cannot be questioned, however, right to claim a share in such purchased land by other heirs continues to survive.

28. To have a clearer picture, it would be necessary to refer to the precedents on the issue. E.[3] JUDGMENTS SUGGESTING BAR OF CIVIL COURT’S JURISDICTION IN TENANCY DISPUTES

29. Mr. Walawalkar has submitted that the ALT alone has jurisdiction to decide any dispute between the family members of a tenant and that jurisdiction of Civil Court is specifically barred under Neeta Sawant 25 /55 SA-284-19 @ SA-390-19-LFC Section 85 of the Tenancy Act. He has relied upon several judgments in support of his contention about exclusive jurisdiction of ALT to decide inter-se dispute between the members of a family to acquire ownership rights in pursuance of the joint family tenancy. While law laid down in all the judgments relied upon by Mr. Walawalkar is discussed in paragraphs to follow, two judgments of the Apex Court in Mudakappa and Saraswatibai Trimbak Gaikwad and of Single Judge of this Court in Pushpalata Narayan Thorbole would need slightly detailed discussion to examine applicability of ratio therein to the issue involved in the present case. I accordingly proceed to examine the various judgments cited by Mr. Walawalkar in support of his contention.

30. In Mudakappa V/s. Rudrappa, the Supreme Court has decided Appeal arising out of judgment of Division Bench of Karnataka High Court (Mudakappa V/s. Rudrappa AIR 1978 Karnataka 136). The judgment is based on interpretation of provisions of Karnataka Land Reforms Act, 1962 as amended by Karnataka Act-1 of 1974. In that case, Plaintiff instituted a suit for permanent injunction against the Defendants to restrain them from interfering with his possession of the three suit lands. Mudakappa had four sons Virupaxappa, Rudrappa, Chinnappa and Basappa. Partition took place in the year 1963 amongst four sons in which family properties were divided. The partition did not cover suit lands of which lease was held by Virupaxappa, as a sole lessee. After Neeta Sawant 26 /55 SA-284-19 @ SA-390-19-LFC Virupaxappa’s death, Plaintiff inherited leasehold rights in respect of the suit land and claimed that the other brothers of Virupaxappa did not have any right, title or interest in the suit lands. On the other hand, the Defendants pleaded that the leasehold rights were in respect of joint family property consisting of four sons of Mundakappa and that therefore the suit lands were jointly held by all four brothers as lessees. The suit was dismissed by the Trial Court holding that the Plaintiff was not in exclusive possession of the suit lands. In Appeal, the suit was remanded for fresh trial on account of amendment in Karnataka Land Reforms Act, 1962 by Karnataka Act 1 of 1974. By the amended Act, Section 44 was introduced under which the lands held by tenants vested in the State Government and right was created in favour of the tenants to get registration as occupants under Section 45 of the Act. The scheme of the Amendment Act is being discussed separately. Suffice it to say at this juncture that after coming into force of Karnataka Act 1 of 1974, the Plaintiffs and Defendants made applications before the Tribunal constituted under Section 48A and by Order dated 31 March 1977, four brothers were jointly held to be entitled for leasehold rights and were registered as joint occupants in respect of the suit land. The Order dated 31 March 1977 of the Tribunal was challenged by the Plaintiff in Writ Petition which remained pending. Aggrieved by the order of remand passed by the lower Appellate Court, Plaintiff filed Misc. Second Appeal under Order 43 Rule 1 of the Civil Procedure Code, 1908 before the Single Judge of Karnataka High Court, which came to be referred to Neeta Sawant 27 /55 SA-284-19 @ SA-390-19-LFC Division Bench. The Division Bench of the Karnataka High Court dismissed the Appeal of the Plaintiff, holding that the lower Appellate Court was right in remanding the suit for being decided in accordance with Section 133 of the Karnataka Land Reforms Act especially in the light of the order passed by the Tribunal holding all four brothers to be joint occupants.

31. Aggrieved by the Judgment of Division Bench of Karnataka High Court, the Plaintiff filed Civil Appeal No.2 of 1979 before the Supreme Court contending that Civil Court has jurisdiction to decide the question of exclusive leasehold rights of the Plaintiff. The Apex Court dismissed Plaintiff’s Appeal holding that the Tribunal constituted under Section 48A of the Act has exclusive jurisdiction to decide the inter-se disputes between the family members about joint tenancy rights. The Apex Court, in its judgment has reproduced various Sections of the Karnataka Land Reforms Act 1962 as amended by Karnataka Act 1 of 1974 and it would therefore be apposite to reproduce substantial portion of the Judgment with a view to understand the context in which various findings are recorded by the Apex Court. The relevant portion of the judgment reads thus: Section 44 of the Act in Chapter III reads thus:-

44. “Vesting of land in the State Government-(1) All lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under S. 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government, Neeta Sawant 28 /55 SA-284-19 @ SA-390-19-LFC (2) Notwithstanding anything in any decree or order of or certificate issued by any court or authority directing or specifying the lands which may be resumed or in any contract, grant or other instrument or in any other law for the time being in force, with effect on and from the date of vesting and save as otherwise expressly provided in this Act, the following consequences shall ensue, namely- (a) all rights, title and interest vesting in the owners of such lands and other persons interest in such lands shall cease and be vested absolutely in the State Government free from all encumbrances;

3. Other sub-ss. are not relevant. Hence omitted.

4. Provided that the State Government shall not dispossess any person of any land in respect of which it considers, after such enquiry as may be prescribed that he is prima facie entitled to be registered as an occupant under this Chapter.

5. S. 45 reads thus: “Tenants to be registered as occupants of land on certain conditions - (1) Subject to the provisions of the succeeding sections of this Chapter, every person who was a permanent tenant, protected tenant or other tenant or where a tenant has lawfully sub-let, such sub-tenant shall with effect on and from the date of vesting be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant, protected tenant or other tenant or sub-tenant before the date of vesting and which he has been cultivating personally.”

6. Section 48A creates forum for enquiry which reads thus:

48. A. “Enquiry by the Tribunal etc. (1) Every person entitled to be registered as an occupant under S. 45 may make an application to the Tribunal in this behalf. Every such application shall, save as provided in this Act, be made (before the expiry of a period of six months from the date of the commencement of S. 1 of the Karnataka Land Reforms (Amendment) Act, 1978). (2) On receipt of the application, the Tribunal shall publish or cause to be published a public notice in the village in which the land is situated calling upon the landlord and all other persons having an interest in the land to appear before it on the date specified in the notice. The tribunal shall also issue individual notices to the persons mentioned in the application and also to such others as may appear to it to be interested in the land. (Emphasis supplied) Neeta Sawant 29 /55 SA-284-19 @ SA-390-19-LFC (3) to (4).. … (5) Where an objection is filed disputing the validity of the applicant’s claim or setting up a rival claim, the Tribunal shall, after enquiry, determine, by order, the person entitled to be registered as occupant and pass orders accordingly: Section 112(B) Duties of Tribunal (a) to make necessary verification or hold an enquiry (including local inspection) and pass orders in cases relating to registration of a tenant as occupant under S. 48A; (b) to decide whether a person is a tenant or not; (bb) to decide whether the land in respect of which application u/S 48A is made or in respect of which any question of tenancy is raised or involved, is or is not an agricultural land; (bbb) to decide questions referred to it under S, 133 (Emphasis supplied) Section 133 Suits, Proceedings etc. involving questions required to be decided by the Tribunal (1) Notwithstanding anything in any law for the time being in force -

(i) No Civil or Criminal Court or officer or Authority shall, in any suit, case or proceedings concerning a land decide the question whether such land is or is not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st March, 1974;

(ii) Such Court or officer or Authority shall stay such suit or proceedings in so far as such question is concerned and refer the same to the Tribunal for decision; (iii). ……………………… (iv)the Tribunal shall decide the question referred to it under clause (1) and communicate its decision to such Court, Officer or Authority. The decision of the Tribunal shall be final. (2) Nothing in sub-sec. (1) shall preclude the Civil or Criminal Court or the officer or authority from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in that sub-section. Section 2(3) “Agriculturist” means a person who cultivate land on one’s own account - Neeta Sawant 30 /55 SA-284-19 @ SA-390-19-LFC......... Section 2(11) “to cultivate personally" means to cultivate land on one's own account:

(i) by one's own labour, or

(ii) by the labour of any member of one's family or;

(iii) by hired labour or by servants on wages payable in cash or kind, but not - in crop share, under the personal super vision of oneself or by member of one's family; Explanation I. Explanation II - In the case of a joint family, the land shall be deemed to - be cultivated personally, if it is cultivated by any member of such family; Section 2(17) “Joint family" means in the case of persons governed by Hindu Law, an undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence; Section 2(34) "tenant" means an agriculturist who cultivates personally the land he holds on lease from a landlord and includes -

(i) a person who is deemed to be a tenant under S. 4;

(ii) a person who was protected from eviction from any land by the Karnataka Tenants (Temporary Protection from Eviction) Act, 1961; (iia) a person who cultivates personally any land on lease under a lease created contrary to the provisions of S. 5 and before the date of commencement of the Amendment Act;

(iii) a person who is a permanent tenant; and

(iv) a person who is a protected tenant.

Section 4. Persons to be deemed tenants - A person lawfully cultivating any land belonging to another person shall be deemed to be tenant if such land is not cultivated personally by the owner and if such person is not - (a) a member of the owner's family, or (b) a servant or a hired labourer, on wages payable in cash or kind but not in crop share cultivating the land under the personal supervision of the owner or any member of the owner's family, or

(c) a mortgagee in possession:

Neeta Sawant 31 /55 SA-284-19 @ SA-390-19-LFC Provided that if upon an application made by the owner within one year from the appointed day -

(i) the Tribunal declares that such person is not a tenant and its decision is not reversed on appeal, or

(ii) the Tribunal refuses to make such, declaration but its decision is reversed on appeal. Such person shall not be deemed to be a tenant."

7. In Chapter III heading is conferment of ownership on tenants. A conspectus of the provision establishes the gamut of operation of the Act, namely, conferment of ownership of tenancy rights of the lands vested in the State Govt. The pre-existing right, title and interest of the landlord in relation to the lands in possession of the tenant, even against whom a decree or order for eviction or a certification for assumption was made or issued immediately prior to the date of the commencement of the Amendment Act other than the lands held by them under leases permitted under S. 5, with effect on and from the said date, ie. March 1, 1974 stand transferred to and vested in the State Government. In other words the preexisting relationship of the tenant with the landlord stood extinguished from the date of vesting in the State Govt. By operation of non obstante clause of sub- s. (2) of S. 44, the lands which were resumed by or in any contract, grant or other instrument or in any other law for the time being in force with effect on and from the date of vesting and save as otherwise expressly provided in the Act shall cease. The consequences enumera ted thereunder shall ensue, namely, all rights, title and interest held by the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Govt. free from all encumbrances. Consequently the pre-existing right, title or an interest of the owners of such lands shall cease and be vested absolutely in the State Government free from all encumbrances. Pending finalisation of the registration with the State Govt. of a tenant, his possession of the land is protected and he should not be dispossessed. Section 45 gives right to the tenant to be registered as an occupant of land on specified conditions enumerated in S. 45 and the provisions of the succeeding Chapter. Every tenant who is personally cultivating the land shall, with effect from the date of vesting, be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant, protected tenant or other tenant or sub-tenant before the date of vesting. The pre-existing tenancy rights with predecessor landlord have been extinguished and new rights have been created by the statute which would be ensued under the Act creating direct tenancy relationship with the State as a tenant. Section 48A constitutes the forum and enjoins it to enquire into the application registered by it. It should direct every person entitled to be registered as an occupant under S. 45 to make an application to the Tribunal in that behalf within the time specified thereunder. On receipt of such application, the Tribunal should publish or cause to be published a public notice in the village in which the land is situated calling upon the landlord and all other persons having an interest in the land to appear before it on the specified date, personal notice shall be served on the persons named in the application or otherwise found to be Neeta Sawant 32 /55 SA-284-19 @ SA-390-19-LFC entitled to be heard, By operation of Explanation II to 5, 2011) if the land is being cultivated by or on behalf of the joint family or by any one of the members of the joint Tamily, it should be deemed that the Joint family is personally cultivating the land. The joint family is, therefore, the tenant and the land is lawfully in occupation of the joint family as a “tenant”, Subsection (5) of S. 48A postulates that when an objection is filed disputing the validity of the applicant's claim or set up a rival claim, the Tribunal shall, after enquiry, deter mine, by order, the person entitled to be registered as tenant and pass orders accordingly. Therefore, when rival claims were set up for tenancy right and entitlement for registration, it is incumbent upon the Tribunal to enquire into the dispute and to decide the same in the prescribed manner. Thereon an order should accordingly be made by the Tribunal and it would become final Thereby it is clear that the Act extinguishes the pre-existing right, title and interest of the land owners as well as those who were inducted into possession by the erstwhile land holders. The new rights have been created in the Act itself in favour of the tenants in personal cultivation to claim registration as tenants so as to continue to enjoy the occupancy right as a tenant as enumerated under S.

45. A forum was created and the forum is enjoined to enquire into not only the nature of the land but also the entitlement for registration as a tenant. When inter se rival claims for tenancy rights have been set up, it has been empowered with jurisdiction to decide that question as to who is the tenant in possession of the land prior to the date of vesting and entitled to be registered as a tenant with the State Govt. and its decision shall be final. The Civil Court's jurisdiction under S. 9 of CPC by necessary implication therefore, stood excluded.

8. It is seen that the words ‘tenant', 'the Tribunal', and 'the joint family' have been defined under the Act. If one of the members of the family cultivates the land, it is for and on behalf of the joint family. Under these circumstances pending the suit, when the question arose whether the appellant or Joint family is the tenant, that question should be decided by the Tribunal alone under S. 48A read with S. 133 and not by the Civil Court. It is needless to mention that when the Tribunal constituted under the Act has been invested with the power and jurisdiction to determine the rival claims, it should record the evidence and decide the matter so that its correctness could be tested either in an appeal or by judicial review under Article 226 or under Art. 227, as the case may be. But that cannot, by necessary implication, be concluded that when rival claims are made for tenancy rights, the jurisdiction of the Tribunal is ousted or its decision is subject of the decision once over by the Civil Court. It is clear from S. 48A(5) and S. 112B(bbb) read with S. 133, that the decision of the Tribunal lis final under S. 133 (iii). The Civil Court has power only to decide other issues. It is, therefore, difficult to accept the contention that the rival claims for tenancy rights or the nature of the tenancy are exclusively left to be dealt with by the Civil Court.

32. To apply the Judgment of the Apex court in Neeta Sawant 33 /55 SA-284-19 @ SA-390-19-LFC Mudakappa to the present case, it is necessary to understand the statutory framework of the Karnataka Land Reforms Act. Under Section 44 of the Act, all lands held in possession of tenants stand transferred to and vested in the State Government. After such vesting, the tenants are entitled to file application under Section 45 for getting themselves registered as occupants in respect of the land of which they were tenants. Thus, the concept of the Act is such that the tenanted land’s ownership vests in the State Government, the land owner looses title of such land and the tenants merely gets occupancy rights by seeking registration as occupants under Section

45. Section 48A has created a forum for conducting enquiry to decide the application for registration of a tenant as an occupant, filed under Section 45. Section 48A provides for manner of conduct of enquiry by issuance of public notice and calling upon the landlord and other persons interested in land for hearing. The Tribunal, after such enquiry passes an order in favour of a person entitled to be registered as Occupant. Under Section 133 of the Act, jurisdiction of the Civil Court is barred. Section 133 also provides for stay of suits and for reference of the question whether such land is or is not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land to the Tribunal. In Mudakappa, after coming into force of the Karnataka Act 1 of 1974, all the four brothers made applications before the Tribunal under Section 48A and sought registration as occupants under Section 45. While the Plaintiff claimed registration in his exclusive name, the other brothers claimed Neeta Sawant 34 /55 SA-284-19 @ SA-390-19-LFC registration as joint tenants. The Tribunal passed Order dated 31 March 1977 holding that all four brothers were jointly entitled to be registered as Occupants under Section 45. The said order attained finality on account of dismissal of the Writ Petition filed by the Plaintiff.

33. It is in the light of the above statutory framework of Karnataka Land Reforms Act as well as the fact of Tribunal’s order declaring four brothers as joint occupants attaining finality that the Apex Court held that jurisdiction of the Civil Court was barred to decide rival claims for tenancy rights. However, when one considers the statutory framework of the Maharashtra Tenancy Act, there is a conceptual difference as compared to the provisions of the Karnataka Land Reforms Act. Under the Maharashtra Tenancy Act, there is a deemed fiction under Section 32, whereunder the tenants are deemed to have purchased the land in their occupation on the Tillers Day of 1 April 1957. There is no concept of vesting of land in the State Government under the Tenancy Act, which is the case under Section 44 of the Karnataka Land Reforms Act. Furthermore, while a tenant becomes a mere occupant and can be registered as an occupant under the provisions of Section 45 of the Karnataka Land Reforms Act, the tenant becomes an owner under the Maharashtra Tenancy Act under Section 32 thereof. As against the concept of conducting enquiry for registration of occupant by the Tribunal under Section 48A of the Karnataka Land Reforms Act, under Section 32G of the Maharashtra Neeta Sawant 35 /55 SA-284-19 @ SA-390-19-LFC Tenancy Act, the Tribunal is required to publish a public notice calling upon all tenants who under Section 32 are deemed to have purchased the lands on tillers’ day and all other persons interested to appear before it. The Tribunal conducts an enquiry by recording statement of the tenants to ascertain whether he is or is not willing to purchase the land held by him as tenant. The Tribunal thereafter proceeds to determine the purchase price in the manner provided under Section 32H or Section 63A(3) of the Maharashtra Tenancy Act. After payment of the purchase price or the last installment thereof, the Tribunal issues Certificate of ownership under the provisions of Section 32M. Thus here is conceptual difference between the statutory framework of the Karnataka Land Reforms Act and the Maharashtra Tenancy Act. Therefore, it is difficult to apply the ratio of Mudakappa to the facts of the present case which are governed by all together different statute in the form of the Maharashtra Tenancy Act. Also, in Mudakappa, all four brothers had got adjudicated their right of joint tenancy before the Tribunal, which is not the case here. The first Appellate Court has rightly considered this position and has held in para-13 of its judgment in Regular Civil Appeal NO. 81 of 2015 that the provisions of the Karnataka Land Reforms Act are not pari materia with the provisions of the Maharashtra Tenancy Act. On the contrary, the first Appellate Court has taken into consideration various decisions of this Court interpreting the provisions of the Tenancy Act of which, reference is made in the latter portion of the judgment. I am therefore of the view that based on Neeta Sawant 36 /55 SA-284-19 @ SA-390-19-LFC Apex Court’s judgment in Mudakappa it cannot be held that Civil Court’s jurisdiction is barred in a case where no inquiry is conducted by ALT about issue of individual or joint tenancy.

34. In Saraswatibai Trimbak Gaikwad (supra), one Narayan Motiwale was the owner of the land and had son named, Dattatraya and daughter named Tarabai. On Narayan’s death, his son-Dattatraya became owner of the properties and by Deed of Settlement, he gave certain properties to his sister-Tarabai whose name was entered in the revenue records as Kabjedaar. Dattatraya and Tarabai entered into consent decree before the Appellate Court in which Tarabai agreed not to lease out any piece of land. After Dattatraya’s death, Tarabai executed a lease-deed in favour of the Appellants on 6 September 1980 and the Appellant gave a notice under Section 32-O of the Tenancy Act to Tarabai and the Land Tribunal for purchase of the suit land. Respondent Nos.[1] and 2 filed suit against Tarabai and the Appellant for a declaration that Tarabai had no authority to lease the suit land and prayed for recovery of possession. After Tarabai’s death, the suit proceeded against the Appellant which was decreed holding Appellant to be trespasser. Parallelly in the application filed under Section 32-O of the Tenancy Act, which was opposed by the Respondent Nos.[1] and 2, the Tribunal fixed the purchase price which was paid by the Appellant and Certificate of Ownership was issued in their favour in the execution proceedings filed by Respondent Nos.[1] and 2. To execute decree Neeta Sawant 37 /55 SA-284-19 @ SA-390-19-LFC passed in their suit, the Appellant raised a defence that he had become the owner of the land in proceedings conducted under Section 32-O and 32-G in his favour. The application was rejected by the Executing Court. The Appellant’s Appeal was rejected and this is how the dispute reached the Apex Court. In the light of this factual position, the issue that arose before the Apex Court was whether the Decree passed by the Civil Court can be executed if Certificate of Ownership has been granted under the provisions of the Tenancy Act. The Apex Court held in paras-24 and 25 as under:

24. Faced with this position Mr Lalit submitted that in this case there was a decree, after contest, between the appellant and Respondents 1 and 2. He submits that that decree is binding on the appellant and can be executed against the appellant. We have read the decrees/orders of the civil court. In passing the decree and holding the appellant to be a trespasser the civil court has not considered the provisions of the said Act. The conclusion that the appellant is a trespasser is dehors the rights of the appellant under the said Act. Mr Lalit submitted that the appellant never claimed before the civil court that she was a deemed tenant. He submitted that the appellant could have contended before the civil court that she was a deemed tenant under the said Act. He submitted that as the appellant has not taken this contention before the civil court she is now debarred from raising a claim under the said Act. We see no substance in this submission. The appellant had already made an application under Section 32-O before the suit was filed by Respondents 1 and 2. Respondents 1 and 2 were also parties to those proceedings and were contesting those proceedings. These are not questions which could be raised before a civil court. Therefore, rightly, neither Respondents 1 and 2 nor the appellant took up this question before the civil court. Even if the question had been raised, the civil court could not have decided it. The civil court would have had to refer the issue to the appropriate authority and then abide by its decision. A decree passed without the consideration of the provisions of the said Act must be subject to orders of the appropriate authority in the proceedings under the said Act.

25. Thus so long as the certificate stands the decree cannot be executed against the appellant. It is only if Respondents 1 and 2 succeed in getting the certificate set aside, in their pending revision, that they can execute the decree. It would be open for Respondents 1 and 2 to pursue the revision filed d by them against the order dated 23-11-2000. We realise that a revision is on limited grounds. We have noticed that the Appellate Authority dismissed the appeal of Respondents 1 and 2 merely on the ground that this Court had Neeta Sawant 38 /55 SA-284-19 @ SA-390-19-LFC stayed the operation of the decree passed by the civil court. If the revisional authority so desires it may remit the matter back to the Appellate Authority for a decision on merits in accordance with law. We, however, clarify that the decision of the revisional authority or the Appellate Authority must be based only on the provisions of the said Act. Findings given by the civil court dehors the provisions of the said Act, and any observation made by us on that question cannot be taken into consideration in deciding whether the appellant is a deemed tenant.

35. In my view, the factual situation in Saraswati Trimbak Gaikwad was entirely different. The issue before the Apex Court was whether the Executing Court can ignore the certificate of ownership issued by the ALT. While answering this issue, the Apex Court held that Civil Court did not have jurisdiction to decide the correctness of the Certificate issued by the ALT. In my view, the judgment in Saraswati Trimbak Gaikwad (supra) deals with the issue of binding effect of certificate of ownership issued by the ALT qua outsiders. It does not deal with the issue of creation of ownership rights individually in favour of one family member or jointly in favour of the entire family. The Judgment therefore does not assist in determination of issue involved in the present case.

36. The next judgment relied upon by Mr. Walawalkar is of Single Judge of this Court (A.M. Dhavale, J.) in Pushpalata Narayan Thorbole (supra). In that case, when reliance was placed on 32M Certificate, the Trial Court framed an issue about legality of the said Certificate and proceeded to hold that Civil Court has supervisory jurisdiction over the statutory authorities to verify Neeta Sawant 39 /55 SA-284-19 @ SA-390-19-LFC whether proper procedure was followed while issuing the certificate. This Court therefore framed an issue as to whether Civil Court can set aside or refuse to rely upon 32M Certificate. This Court framed substantial question of law in para-10 and answered the same in paras-19 and 20 as under:

10. The substantial question of law formulated with my finding is as under: Whether the Civil Court can set aside or refuse to rely on the certificate issued by the Tenancy Authority under section 32-M of the Bombay Tenancy and Agricultural Lands Act, 1948? In the negative.

19. In Bhima vs. Thakubai (supra) in para 10 it is held that the Civil Court has no jurisdiction to examine the questions which are required to be dealt with and settled under the provisions of the BT and AL Act. There is bar of jurisdiction under provisions of section 85 of the BT and AL Act to deal with any question, including a question whether a person is or waas 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. Obvioyusly, the Civil Court could not have gone into the question as to whether deceased defendant NO.1 alone was entitled to purchase the suit land or that it was purchased by him for and on behalf of joint Hindu family for himself and his brothers. The Civil Court could not have examined whether it was a joint tenancy of the four brothers or that it was exclusive tenancy created in favour of deceased defendant No.1-Bhima.

20. Considering all these rulings, it is crystal clear that the Certificate issued under section 32-M must be accepted as a document of title, so long as it is not set aside by the competent authority. The view expressed in Laxman Pote vs. Shri. Govindrao Koregaonkar Dharmadaya Sangh Managing Trustee, 1981 Mh.L.J. 338 = AIR 1981 Bombay 33 is no more good law in the light of Apex Court judgment in Saraswatibai vs. Damodhar (supra) followed and as interpreted by th is Court in judgmets referred above. The Civil Court has no supervisory jurisdiction over the Tribunal under the BTAL Act and if the decision is given without following the procedure of law, prescribed or without giving opportunity of hearing, the same can be challenged before the competent Appellate Authority under the said Act only.

37. The issue in Pushpalata Narayan Thorbole was entirely different. This Court framed substantial question of law about jurisdiction of the Civil Court to set aside or refuse to rely upon Neeta Sawant 40 /55 SA-284-19 @ SA-390-19-LFC 32M Certificate. The issue was framed and the Trial Court went into the correctness of procedure followed while issuing 32M Certificate and held that the finality of the Certificate does not oust the jurisdiction of the Civil Court. It is in light of the peculiar factual position that this Court held that Civil Court does not have jurisdiction to determine validity of 32M Certificate issued under the Tenancy Act. Though this Court has made some observations in para-19 about entitlement of one family member to purchase the suit land and jurisdiction of the Civil Court to examine the issue of joint tenancy, since the issue before this Court was completely different, the observations made in para-19 of the Judgment cannot be read as if the said observations lay down an absolute proposition of law that in every case once the land is purchased by one of the members of the joint family under Section 32G and 32M of the Tenancy Act, the Civil Court looses its jurisdiction to decide a partition suit qua that property by going into the issue whether such purchase was individually for that member or for the entire family. In my view, the ratio laid down by the judgment in Pushpalata Narayan Thorbole will have to be restricted to lack of jurisdiction of Civil Court to determine validity of Certificate issued under Section 32M of the Tenancy Act. The Judgment will have no relevance to the issue involved in the present Appeal.

38. Mr. Walawalkar has relied upon four more judgments of this Court in Rajaram Totaram Patel, Shrikant Gangaram Neeta Sawant 41 /55 SA-284-19 @ SA-390-19-LFC Teli, Bhima Aba Rade and Ramkuwar Ramkishan Pallod (supra). However, none of the four judgments have any bearing on the exact issue involved in the present Appeal. In Rajaram Totaram Patel, the issue was about jurisdiction of Mamlatdar to decide whether a party is co-tenant or not. In Shrikant Gangaram Teli, the Single Judge of this Court (R.M. Lodha, J. as he then was) held that Certificate issued under Section 32M is conclusive proof of purchase and that its legality can be challenged only in Appeal against the order granting the Certificate. In that case, the Tehsildar had given a declaration that 32M Certificate was a nullity and this is why this Court held that 32M Certificate is a conclusive evidence of purchase and that the same can be set aside only in Appeal and not by the Tehsildar. In Bhima Aba Rade (supra), the issue was about validity of surrender of tenancy rights and this Court held that Civil Court does not have jurisdiction to decide correctness of the order certifying the surrender of tenancy. In Ramkuwar Ramkishan Pallod (supra), the petition arose out of challenge to the order of the Maharashtra Revenue Tribunal challenging the declaration of deemed purchase on Tillers day. In the context of that challenge, this Court held that Certificate issued under Section 32M is conclusive against the landlord and once the rights of the tenants are crystallised, the landlord cannot be permitted to adduce additional evidence to prove personal cultivation of the land. Thus none of the four judgments relied upon by Mr. Walawalkar would have any relevance to the issue involved in the present appeals. Neeta Sawant 42 /55 SA-284-19 @ SA-390-19-LFC

39. Mr. Walawalkar has relied upon the judgment of Apex Court in Cheeranthoodika Ahmmedkutty in support of his contention that the Certificate issued under Section 72K of the Kerala Land Reforms Act, 1963 is a conclusive proof and would forbid other evidence from being adduced for the purpose of contradicting or varying its conclusiveness. The issue before the Apex Court was entirely different. The issue was about delinking of land obtained vide Certificate under Section 72-K and which was gifted to a Masjid for the purpose of computing all holdings under the provisions of the Land Ceiling Act. The judgment therefore will have no application to the issue involved in the present case. In A. Samikkutty (supra), the Apex Court has dealt with a case where Defendants therein were declared as Tenants of land admeasuring 11.88 Acres of land by the Tenancy Court and the landlord applied for modification of the order on a plea that the Defendants be declared as tenants only in respect of 10 acres of land. Thus, the Plaintiff therein admitted before the Tenancy Court that Defendants were tenants in respect of 10 acres of land. The said prayer of the Plaintiff was rejected and a purchase certificate came to be issued in favour of the Defendant in respect of the land admeasuring 11.88 acres. Subsequently, Plaintiffs filed suit for declaration of purchase certificate as null and void and later the suit was amended by restricting the same for mandatory injunction alone. It is in the light of this fact that the Apex Court held that the Certificate issued by the Tenancy Court is a conclusive proof. The facts and issue before the Apex Court in A. Samikkutty were thus Neeta Sawant 43 /55 SA-284-19 @ SA-390-19-LFC completely different and the judgment has no application to the facts of the present case.

40. Having considered various judgments cited on behalf of Appellants in support of their contentions, it is now time to consider the decisions which takes a view opposite to what is sought to be propounded on their behalf.

41. Thimmappa Rai (supra) is the judgment of Apex Court, which would throw light on issues involved in the present Appeals. It must be clarified here that Thimmappa Rai is relied upon by Mr. Walawalkar to suggest that Civil Court’s jurisdiction is ousted. However on careful consideration of facts of the case and the ratio laid down therein, and also slight distinction made by the Apex Court with Judgment in Mukadappa, two important propositions can be traced in the judgment viz.

(i) that in case where the Tenancy Tribunal has not determined the issue of joint tenancy by family members, suit for partition would be maintainable and (ii) that the entire joint family, who was cultivating tenanted land jointly, would be entitled to tenancy in respect of that land, notwithstanding issuance of occupancy certificate in the name of only one family member. On issue of maintainability of suit for partition, the Apex Neeta Sawant 44 /55 SA-284-19 @ SA-390-19-LFC Court held in para-19 as under:

19. A certificate of registration granted in favour of a tenant as an occupant under Section 55(1) of the Karnataka Land Reforms Act, 1961 and Rule 21 of the Karnataka Land Reform Rules, 1974 as specified in Form 10 also is not of much significance. Submission of Ms. Suri that the civil courts have no jurisdiction in this behalf cannot be accepted. It may be true that in terms of Section 48-A of the 1961 Act, the Tribunal has jurisdiction to go into all questions of tenancy, grant or refusal of occupancy right and rival claims in respect of their leasehold right, but this would not mean that although there had been no determination as such by the learned Tribunal and the parties proceeded on the basis of admission made by the appellant himself that Schedule B properties were jointly possessed by the parties, a suit for partition would not be maintainable. (emphasis supplied)

42. Thus, on the issue of maintainability of suit for partition of land in respect of which occupancy certificate is issued, the judgment in Thimmappa Rai, far from assisting the case of the Appellants, actually militates against them. The Apex Court in Thimmappa Rai has held that even if the Tribunal under the Karnataka Land Reforms Act has jurisdiction to go into the question of tenancy, the same does not mean that a suit for partition would not be maintainable where there was no determination of an issue by the Tribunal of issue of individual or joint possession of tenanted properties by parties. Thus, the judgment in Thimmappa Rai infact suggests that in the event of non-determination of the issue by the Tribunal under the Karnataka Land Reforms Act, about individual or joint tenancy of property, the suit for partition would still be Neeta Sawant 45 /55 SA-284-19 @ SA-390-19-LFC maintainable.

43. Going further on the issue of joint tenancy rights of a family, in Thimmappa Rai the Apex Court has considered the judgment of Karnataka High Court in Veerabhadrappam V/s. Veerupaxappa Totappa Bilebal ILR 1998 Kar 2508 and has held in paras-21 and 22 of its judgment as under:

21. On the other hand, in Veerabhadrappam vs. Virupaxappa Totappa Bilebal, ILR 1998 Kar 2508, it was categorically held

2. Definitions. (6) “to cultivate personally” means to cultivate land on one’s own account–

(i) by one’s own labour, or

(ii) by the labour of any member of one’s family, or ( iii) under the personal supervision of oneself or any member of one’s family, by hired labour or by servants on wages payable in cash or kind but not in crop share, being land, the entire area of which–– (a) is situate within the limits of single village, or (b) is so situated that no piece of land is separated from another by a distance of more than five miles, or

(c) forms one compact block.

(i) which does not exceed twice the ceiling area,

(ii) upto twice the ceiling area, if such land exceeds twice the ceiling area.

Explanation I.–– A widow or a minor, or a person who is subject to physical or mental disability, or a serving member of the armed forces shall be deemed, to cultivate the land personally if such land is cultivated by servants, or by hired labour, or through tenants. Neeta Sawant 53 /55 SA-284-19 @ SA-390-19-LFC Explanation II.–– In the case of a joint family, the land shall be deemed to have been cultivated personally if it is cultivated by any member of such family; (emphasis supplied) In fact, identical Explanation -II in definition of the term ‘to cultivate personally’ under Section 2(11) of the Karnataka Land Reforms Act, made all four brothers entitled for joint occupancy registration, which is confirmed by the Apex Court in Mudakappa.

50. Mr. Walawalkar has attempted to draw an inference on the basis of the averments made by the Respondents in their Regular Civil Suit No. 52 of 2003 that Ramakant’s name was mutated to the revenue record as tenant of the suit land. I am unable to agree. In para-3 of the plaint, in Regular Civil Suit No. 52 of 2003, Respondents herein pleaded as follows:

3) दावा जममिनीतील 'अ' ममिळकत ही मिुळची श्रीरं्रग्र रामिचं्रद धोपेशरकर यां्रच्या क ु टुं्रबाच्या मिालकीची होती. व सदर जमिीन ही वादी यां्रचे आजोबा बाबी यां्रचेकडे सं्ररकक्षित क ु ळपणास चालत होती त्यां्रचे मिृत्यु पश्चात सदर दावा ममिळकत 'अ' चा क ु ळपणा त्यां्रचे मिुलग्रे ग्रणेश, शं्रकर, शां्रतारामि यां्रना पाप झाला. परं्रतु या कतघां्रमिध्ये ज्येष् ग्रणेश असल्यामिुळे सातबारा मिध्ये रेकॉडर ऑफ राइटला क ु ळ म्हणू्न ग्रणेश म्हणजे पकतवादी नं्र. १ याचे -5 - वडील यां्रचे नावे लाग्रले. व त्यानं्रतर सदरची जमिीन ही क ु ळकायदा कलमि ३२ग्र खाली मवमक्रित झाली. व सुं्रदर दावा ममिळकतीचे वादी व पकतवादी हे मिालक झालेले आहेत. तसेच बाबी यां्रचा मिुलग्रा शं्रकर हा मनवरश मियत झाल्याने त्याचा महस्सा वादी व पकतवादी यां्रना पाप झालेला आहे. त्यामिुळे दावा ममिळकत 'अ' मिध्ये वादी यां्रना १/२ महस्सा पाप झालेला आहे. तसेच पकतवादी यां्रना १/२ महस्सा पाप झालेला आहे. Perusal of the above pleadings would show that Babi was the original Neeta Sawant 54 /55 SA-284-19 @ SA-390-19-LFC tenant after whose death, the rights were inherited by Ganesh, Shankar and Shantaram and that since Ganesh was the eldest brother, he got his name mutated to the record of rights as tenant and that he purchased the land under Section 32G of the Tenancy Act. It is specifically pleaded that all family members became owners of the suit property after such purchase. I am therefore unable to agree that there is an admission on the part of the Respondents that Ganesh was a tenant in individual capacity in respect of the suit lands.

51. After having considered the entire evidence on record, I am of the view that there is no error committed by the Trial Court or the first Appellate Court while delivering the impugned judgments. I accordingly proceed to answer questions of law formulated by this Court as under: (i)Mere purchase of suit property by Ganesh Babi Naik in his individual name under the provisions of Section 32G and 32M of the Tenancy Act does not make him an exclusive owner thereof and the same continues to be a joint family property.

(ii) Civil Court has jurisdiction to decide entitlement of coparceners for shares in the tenanted properties purchased by one of the co-parceners under the provisions of Section 32G and 32M of the Tenancy Act in the event of nonconduct of any enquiry into that issue by the ALT. Neeta Sawant 55 /55 SA-284-19 @ SA-390-19-LFC

F. ORDER

52. I therefore do not find any merit in both the Appeals filed by the Appellant. Both the Appeals are accordingly dismissed. With dismissal of the Appeals, Civil/Interim Applications taken out therein also stand disposed of. There shall be no order as to costs.

SANDEEP V. MARNE, J.

53. After the Judgment is pronounced, the learned counsel appearing for the Appellants would request for continuation of the interim order granted by this Court. The request is opposed by the learned counsel appearing for the Respondent. Considering the fact that interim order is operational for substantial period of time, the same is extended by a period of 8 weeks from today.

SANDEEP V. MARNE, J.