JUDGMENT
H.W. Dhabe, J.
1. This is a Letters Patent Appeal challenging the order of the learned Single Judge dated 18-3-1982 by which the writ petition filed by the appellant against the order of the tenancy authorities was dismissed by a speaking order at the time of admission.
2. Briefly, the facts are that originally the respondent owned the fields in question i.e. the field Survey No. 90/1 and the field Survey No. 98/1 of village Kuti, Tahsil Hinganghat, District Wardha. There was an agreement of sale dated 20-10-1958 in respect of the above fields between the respondent and one Digamber Thakre under which the respondent had agreed to sell the suit fields to Digambar Thakre for a consideration of Rs. 5,000/-. An amount Rs. 2,000/- was paid in cash at the time of the agreement and the remaining amount of Rs. 3,000/- was agreed to be paid in yearly instalment of Rs. 500/- and after full payment the sale-deed was to be executed. The said Digamber Thakre was put in possession of the suit fields on the date of the agreement. It appears that the said Diagamber Thakre paid only two instalments thereafter.
3. The respondent later found that the fields were in possession of one Manku, the appellant, who according to him was in illegal and unauthorised possession of the suit fields. He also found that the said Manku has entered his name in the revenue record as a tenant of the suit fields. He therefore filed an application for declaration under section 100(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short “Tenancy Act”), claiming declaration that the appellant was not the tenant of the suit filed. It is not in dispute that the declaration was granted by the Additional Tahsildar as affirmed by the Maharashtra Revenue Tribunal (for short, “M.R.T.”) to the effect that the appellant was not the tenant of the suit fileds but was in possession as an agricultural labourer.
4. After the respondent got the declaration from the Tenancy Courts that the appellant was not a tenant of the suit fields he filed the instant application under section 120(c) of the Tenancy Act claiming that in view of the declaration that the appellant was not the tenant of the suit fields he was in its illegal and unauthorised possession, and therefore, he should be evicted from the suit fields and the respondent should be placed in their possession. The appellant resisted the claim of the respondent on various grounds. The learned Sub-Divisional Officer (for short, “the S.D.O.”) directed that the appellant should be evicted from the suit fields and that the possession of the same should be restored to the respondent. A revision was preferred by the appellant before the learned M.R.T. which was dismissed by it. As already stated, a writ petition filed against the aforesaid orders was also dismissed by the learned Single Judge of this Court. Hence, the appellant has filed the instant Letter Patent Appeal in this Court.
5. The learned Counsel for the appellant has urged before us that the instant application for eviction of the appellant and for possession of the suit field by the respondent under section 120(c) of the Tenancy Act is not maintainable. According to him, even as admitted by the respondent he was in possession of the suit fields through Digamber Thakre to whom the suit fields were sold by the respondent as per the agreement of sale dated 20-1-1958. It is his case that unless the appropriate proceedings are taken against Digamber Thakre by the respondent he is not entitled to any relief against him. At any rate it is his submission that he cannot be said to be in illegal and unauthorised possession of the suit fields under the provisions of the Tenancy Act, because even as per the declaration granted by the Tenancy courts he is in possession of the suit fields as an agricultural labourer. It is, however, contended on behalf of the respondent that the respondent need not have initiated any proceedings against Digamber Thakre because the said Digambar Thakre had parted with the possession of the suit fields in his favour and was not in their actual possession. According to him to his Manku was not in possession of the suit fields through the said Digamber Thakre, at any rate after 1967.
6. In considering the rival submission the undisputed facts to be noted are as follows :
There was an agreement of sale between the respondent and the said Digamber Thakre, dated 20-1-1958 pursuant to which and on the date of the agreement the said Digamber Thakre was placed in possession of the suit fields. The said Digamber Thakre had paid an amount of Rs. 2,000/- towards the part payment of the consideration for purchase of the suit fields, the total amount of consideration agreed to between the parties being Rs. 5,000/-. The remaining amount of Rs. 3,000/- was agreed to be paid in yearly instalments of Rs. 500/- each out of which two instalments were paid by Digamber Thakre to the respondent. It is thus not in dispute that out of an amount of Rs. 5,000/- Rs. 3,000/- were paid by the said Digamber Thakre to the respondent. It is then clear from the evidence of the respondent in the instant proceedings that according to him as per the agreement of sale the suit fields were sold to Digamber Thakre for Rs. 5,000/- but the sale deed was not executed as the full payment was not made to him by the said Digamber Thakre. It is further clear from his evidence that the suit fields were given on hire to Manku by the said Digamber Thakre from 1964 to 1967 although it is further stated by him that neither he nor the said Digambar Thakre had leased out the fields to Manku.
6-A It is not stated by him in his evidence in the instant proceeding, that the said Digambar Thakre had relinquished his right in the fields and had parted with their possession even symbolically in his favour. On the contrary his evidence shows that he was to get the fields from the said Digamber Thare since all the instalments were not paid by him. It is also not disputed that he had not taken any step, much less of filing any civil suit against Digamber Thakre claiming possession of the suit fields. On the contrary it is clear from his cross-examination that all the fields are possessed by the said Digamber Thakre to whom they are sold by him which face he had admitted in a statement made by his in his ceiling case. It is further admitted by him in his cross-examination that the appellant is in possession of the fields through the said Digamber Thakare and not through him.
7. At this stage, I may also refer to the declaration granted by the Tenancy Courts in the proceedings taken by the respondent under section 100(2) of the Tenancy Act. The Additional Tahsildar had granted a declaration in the said case that Manku was an hired laboured and not a tenant of the suit land during the years 1964-65 to 1967-68 or in the alternative if he was a tenant during the period 1964-65 he ceased to be a tenant of the suit field on 1-4-1965 and became a trespasser. It may be seen that in above proceedings the said Digambar Thakre was joined as non-applicant No. 2 and it was the case of the respondent himself in that case that during the years 1964-65 to 1967-68 the said Digamber Thakre got the suit lands cultivated by the hired labour of the appellant. Ultimately in the revision preferred by the appellant the declaration granted by the Additional Tahsildar was affirmed by the learned MRT. It also held that the appellant was an agricultural labourer who has employed on hire. It is thus clear from the above orders of the tenancy authorities that the appellant was in possession of the suit fields as an agricultural labourer. It may be that he continued in possession even after 1967 for which it is alleged that he was hired by the said Digambar Thakre.
8. From the oral evidence of the respondent himself and the aforesaid orders of the tenancy authorities it is clear that the appellant was in possession of the suit fields through and on behalf of the said Digamber Thakre. Merely because he was not a tenant of the suit fields it would not follow that his possession of the suit fields was illegal and unauthorised. It is clear from the evidence of the respondent that if according to him the suit fields were sold to the said Digambar Thakre and that in view of the fact that he did not pay all the instalments he was entitled to take back the possession of the suit fields from him and get his title reconveyed it was a matter which he could canvass appropriately by filing a civil suit.
9. Since the appellant is in possession of the suit fields as an agricultural labourer and since as is clear from the evidence of the respondent himself the said possession is for and on behalf of the said Digambar Thakre, it cannot be said that his possession is illegal and unauthorised under the provisions of the Tenancy Act. At any rate in the absence of said Digamber Thakre being a party to the proceedings the possession of the suit fields cannot be handed over to the respondent even assuming that the possession of the appellant is illegal and unauthorised. Further the above facts, at any rate, raise complicated question of fact and law for which the appropriate remedy is a civil suit and not a summary remedy under section 120(c) of the Tenancy Act. The courts below were, therefore, in error in allowing the application of the respondent under section 120(c) of the Tenancy Act. The instant Letters Patent Appeal thus deserves to be allowed.
10. In the result, the instant Letters Patent Appeal is allowed and the impugned orders of the courts below are all set aside and the application of the respondent under section 120(c) of the Tenancy Act is dismissed. However, in the circumstances, there would be no order as to costs.
Letters Patent Appeal allowed.