SAU. SARASWATIBAI TRIMABAK GAIKWAD versus DAMODHAR D. MOTIWALE AND ORS.

Citation: [2002] 2 S.C.R. 755 · Decided: 22-03-2002 · Supreme Court of India · Bench: S.S.M. QUADRI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

SAU. SARASWATIBAI TRIMABAK GAIKWAD 
v. 
DAMODHAR D. MOTIWALE AND ORS. 
MARCH 22, 2002 
[SYED SHAH MOHAMMED QUADRI AND S.N. V ARIA VA, JJ.] 
Tenancy Laws: 
Bombay Tenancy and Agricultural Lands Act, I 948: 
Sections 4 and 32-0-Land-lease of-Purchase by tenant-Grant of 
ownership certificate by Tribunal-Civil Court's decree against tenant-
Execution of decree-Held. decree not executable after grant of ownership 
certificate. 
A 
B 
c 
Section 85-Jurisdiction-A<{judication of questions required to be D 
decided by authority under the Act-Held, Civil Court is barred from 
a<{judicating such question-Even if the same is raised before the Civil Court, 
ii would refer the same to the authority under the Act. · 
land-Lease by owner having limited right-Legality of-Held, the lease E 
would not be illegal, since the person with limited interest is not prohibited 
by the Act to permit somebody to cultivate the land 
Words and Phrases: 
"fenant'-Meaning of in the context of Section 2(18) of Bombay Tenancy 
and Agricultural Lands Act, 1948. 
By a settlement deed, 'T' was given limited right to be in possession 
and to cultivate the property in question by predecessor of respondents 1 and 
2. 
F 
In litigation between 'T' and predecessor of respondents I and 2, consent 0 
decree was passed, wherein 'T' had agreed not to lease out the land. Another 
suit by 'T' claiming to be absolute owner of the land, was dismissed in view 
of the consent decree. 
'T' executed lease deed in favour of appellant. Respondents I and 2 filed H 
755 
756 
SUPREME COURT REPORTS 
[2002] 2 S.C.R. 
A suit against 'T' and appellant, for declaration that 'T' had no authority to 
lease the suit land the suit was decreed on the ground that 'T' had no 
authority to lease out the land in view of her earlier consent decree and thus 
appellant was a trespasser. Ultimately in second appeal, High Court confirmed 
the decree in favour of respondents 1 and 2. 
B 
Appellant had already made an application u/s 32-0 of Bombay Tenancy 
and Agricultural Lands Act, 1948 before filing of the above suit. Respondent 
Nos. 1 and 2 were also parties in the applications. During pendency of the 
suit tribunal fixed the purchase price. Finally certificate of ownership was 
issued to the appellant. Appeal against the order of the tribunal was dismissed 
C and revision against the same is still pending. 
Respondents 1 and 2 applied for execution of the decree. Appellants 
objected to the same. Executing court held that it was bound to execute th~ 
decree. Appellant's appeal against the order of the executing court was 
dismissed. Writ petition against the appellate court's order was also dismissed. 
D Hence the present appeal. 
Respondents contended that the lease created in ~avour of the appellant 
was illegal as 'T' had no authority to lease out the suit land in view of the 
previous litigations between 'T' and predecessor or respondents 1 and 2; and 
since appellant .was not lawfully cultivating.the suit land, she could not be 
E deemed to be tenant under S.4 of the Act and thus was a trespasser; that once 
a civil court held the appellant to be trespasser, appellant could i,ot take 
advantage of proceedings under the Act; an~ that she was debarred from 
raising claim as a deemed tenant under the Act as she had not taken such a 
plea before civil court. 
F 
The issue for consideration before this Court was whether a decree 
passed by a civil court can be executed if a certificate of ownership has been 
granted under the provision of the Act. 
Allowing the appeal, the Court 
G 
HELD: 1. The decree cannot be executed against the appellant so long 
as the certificate stands~ It is only if respondents 1 and 2 succeed in getting 
· the certificate set aside, in their pending Revision, they can execute the decree. 
[766-C] 
2.1. A civil court does not have jurisdiction to decide matters which.are 
H required to be dealt with by the tribunal under Bombay Tenancy and 
,. 
SAU_ SARASWATIBAITRIMABAKGAIKWADv_ DAMODHARD_ MOTIWALE 
757 
Agricultural Lands Act, 1948. Thus it is only the tribunal which can decide A 
whether a person is deemed to be a tenant and whether he is entitled to 
purchase the land held by him. The civil court has no jurisdiction to decide 
such a question. Even if such a question was to be raised in a proceeding before 
it, the civil court would have to refer th~ issue to the authority under the Act. 
The suit would then have to be disposed of in accordance with the deci

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