CHANDRAKANT BABAN MOTKARI & ORS. versus GOTIRAM LAXMAN MOTKARI (D) BY LRS. & ORS.

Citation: [2019] 11 S.C.R. 780 · Decided: 27-08-2019 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 11 S.C.R.
CHANDRAKANT BABAN MOTKARI & ORS.
v.
GOTIRAM LAXMAN MOTKARI (D) BY LRS. & ORS.
(Civil Appeal No. 2390 of 2011)
AUGUST 27, 2019
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Bombay Tenancy and Agricultural Lands Act, 1948: ss. 32
and 85 – Rights of the tillers – Dispute between the legal heirs of
two deceased brothers, N and L – N and his two uncles took land
on lease for cultivation by execution of Kabuliyatnama, in 1944 –
L was an attesting witness to the Kabuliyatnama, and prior to
execution he had obtained a Government job as a peon – Thereafter,
Act of 1948 was passed and in terms thereof, from 1.4.1957, tenants
who were tilling the land were deemed to have purchased the land
from the owners – Execution of agreement to sell by landowners
and 1/3rd share of this land was agreed to be sold to L and N –
Registration of agreement to sell but it never culminated in a sale
deed – In terms thereof, case of the legal heirs of L that they derived
rights in pursuant to the said document, and payments were made
by N out of the joint family funds – Initiation of proceedings u/s.
32G by the Deputy Collector, wherein certificate was issued in favour
of N and his uncles, and on mutation, N was recognized as individual
owner – Challenge to, by legal heirs of L, however, the claim was
rejected – Thereafter, the legal heirs of N tried to transact the land,
whereas legal heirs of L again claimed rights in the property –
Dismissal of the suit as also first appeal – On appeal, held: Once a
certification has been issued u/s. 32M, there was no need to refer
the matter to the Mamlatdar merely because the plaint alleges that
it was a joint family property – There are concurrent findings of the
trial court and the first appellate court, the latter being the final
court as a court of fact – Findings arrived at are the correct findings
– There is no uncertainty on the issue before the trial court as the
certificate u/s. 32M is final and exists – Provision of s. 85 itself
states that such a certificate, once issued, is final and can only be
assailed in appeal – Thus, there was no occasion for the trial court
to remit the issue to the Mamlatdar.
   [2019] 11 S.C.R. 780
780
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Dismissing the appeal, the Court
HELD: 1.1 Insofar as the main plea is concerned, i.e., the
ouster of jurisdiction of the civil court and the requirement
pleaded for reference to the Mamlatdar, it is pleaded that such a
situation would arise when there was an ambiguity or a
determination required as to whether a tenant is a protected tenant
or not. Once a certification has been issued under Section 32M
of the Bombay Tenancy and Agricultural Lands Act, 1948, there
can be no doubt, and there was no need to refer the matter to the
Mamlatdar merely because the plaint alleges that it was a joint
family property. [Para 14, 18][789-A-B]
1.2 There are concurrent findings of the trial court and the
first appellate court, the latter being the final court as a court of
fact. Even if the reasoning of the two courts is examined, there is
no doubt that the findings arrived at are the correct findings since
the Kabuliyatnama itself, from which the rights of the tenants
were claimed, was never in the name of ‘L’, the elder brother.
That is the reason that the certificate under Section 32M of the
said Act was granted in favour of ‘G’, ‘S’ and ‘N’. Similarly, on
partition of the land, again a mutation was made in favour of ‘N’
alone. In fact, the wife and sons of ‘L’ did contest the partition,
albeit unsuccessfully. The appeal and the revision petition were
dismissed. They chose to remain silent after that. [Para 22][789-
F-G; 790-A]
1.3 The present proceedings in question are what has been
labeled as “side wind”, to re-open the chapter which could not
have been directly challenged, i.e., by challenging the certificate
issued under Section 32M of the said Act. Thus, the ruse of filing
a suit was used by the grandsons of ‘L’, impleading the father as
a supporting party as ‘L’s ‘ wife had since passed away. It is this
endeavour, which is not proved to be successful. [Para 23][790-
B]
1.4 The Agreement to Sell never matured into a sale deed
and the Kabuliyatnama did not record the name of ‘L’. The result
was that the certificate issued under Section 32M of the said Act
also did not include the name of ‘L’, and the subsequent
proceedings to challenge the same resulted in abject failure. [Para
24][790-C-D]
CHANDRAKANT BABA

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