Judgment:
1 This petition is filed challenging the judgment and order passed by the Deputy Accountant cum Tenancy Awal Karkun, Kopargaon on 27th December, 1980, in Tenancy Case No.89 of 1974, judgment and order passed by the Sub-Divisional Officer, Sangamner in Tenancy Appeal No.161 of 1981, dated 16th February, 1985, and the judgment and order passed by the Maharashtra Revenue Tribunal, Pune in Revision Application No. MRT/AH/IV5/85 (Tenancy B94/85), dated 16th September, 1985.
2 The Petitioner is tenant and Respondents are owners / landlords of the suit property. The subject matter of the present writ petition i.e. suit land has been referred to by the learned Tenancy Awal Karkun. Suffice to note that, four small pieces of agricultural lands, situated at village Shirdi, Taluka Kopargaon, District Ahmednagar are the subject matters of the present writ petition. The suit property was allegedly leased out by deceased Jijaba in favour of the Petitioner by registered lease deed dated 18th December, 1963. This document is on record. It was executed in between Jijaba Namdeo Gaikwad and Sau. Kausalya Kisan Chavan. Jijaba, indisputably, was brother of respondents 1 to 4. son of Jijaba, namely; Vinayak being legal heir of Jijaba was impleaded as Respondent No.2 in the proceeding Tenancy Case No.899 of 1974. This lease deed makes a reference to the suit properties and period of the lease as mentioned in the document was for ten years. The possession was, indisputably, handed over to Petitioner – tenant. Reference to existence of well and oil engine installed on the well is made in this document. This document from its contents appears to had been executed amongst the parties for cultivation of the sugarcane.
3 It is not in dispute that the Respondents, in this writ petition, had filed an application for possession of the suit properties on the ground of bonafide personal cultivation, income from the suit land being the principal source of income to maintain their family. This application was allowed and possession was directed to be handed over by the tenants to the Respondents applicants. Thereafter, the Petitioner tenant filed an appeal before the Sub-Divisional Officer, Sangamner Division, Sangamner challenging the order. It was registered as Tenancy Appeal No.16 of 1981. This appeal was dismissed by the Sub-Divisional Officer, Sangamner Division, Sangamner by its judgment and order dated 16th February, 1985. This order was challenged by tenant Kausalyabai by filing Revision Application before Maharashtra Revenue Tribunal, Pune. It was bearing No. MRT-AH-5/85 CTEN-B-94/85). It appears that applicant Sakharam has represented cause of all applicants before the authority i.e. Deputy Accountant Cum Tenancy Awal Karkun. It is not in dispute that, Jijaba had been succeeded by son Vinayak.
Sakharam and Sajan – applicants – were serving as School Teachers. However, when the evidence was recorded, they claimed that, they were retired from the service. Pension of Rs.54/- per month was allegedly being drawn by Sajan. Order of pension in favour of Sajan was placed on record. It was further stated before the authority concerned that, Sakharam was not in service and also was not getting any pension, all the applicants are depending on the income of suit land. The learned counsel for the Petitioner submits that, the pension of Sajan was not Rs.54/- per month but it was Rs.85/- per month i.e. more than alleged by the applicants. From the evidence, it appears that Sakharam had given admission that, his brothers and sons were in service. In the cross also it appears that, the Applicant No.1 had admitted that, apart from the suit land they have other agricultural lands in their cultivation. However, those lands are dry crop lands. The Petitioner tenant was also school teacher and having other agricultural lands in her cultivation and getting the income therefrom. The Deputy Accountant cum Tenancy Awal Karkun, after recording the evidence and after hearing parties, directed possession of the entire lands i.e. suit lands in favour of the applicants after the appeal period is over. He has further observed that, the tenancy of the tenant is terminated and as such her name be deleted from other rights column of 7/12 extract. This order was passed on 27th December, 1980.
4 This order was challenged by tenant Kausalyabai by filing Tenancy Appeal No.16 of 1981 before the Sub-Divisional Officer, Sangamner Division, Sangamner. This appeal, as noted in foregoing paragraph, after hearing the parties, was dismissed on 16th February, 1985. This order was assailed by filing revision before the learned Maharashtra Revenue Tribunal, who dismissed revision application and confirmed the order of the Sub-Divisional Officer. Said judgment in revision is dated 16th September, 1985 and is challenged in the present writ petition.
5 The learned counsel for the Petitioner submitted that, during the pendency of the proceedings, some of the Respondents i.e. Respondent Nos.1, 3 and 5 have expired and their heirs were brought on record and as per the law laid down by the Full Bench of this Court, if the landlord or landlady dies during the pendency of the proceedings, then the requirement comes to an end, if in case the heirs have any requirement, they have to prove their requirement afresh. Therefore, for the said purpose, the matter may be sent back to the trial Court. It is further submitted that, the disputed land is only 2 Acres, 14 Gunthas and hence if it is to be distributed between the different heirs of the original landlord, it will be a fragment because 20 Gunthas is a fragment for sugarcane land and hence, in view of this, the land cannot be allotted to the Respondents. It is further submitted that, the disputed land is included in the town planning area and the Town Planning Scheme is made applicant to ‘Shirdi’, the provisions of Section 43 C of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as “the said Act”) will be attracted and as the provisions of Section 31 are not applicable to the land included in the Municipal or Town Planning Area, the Respondents / landlords will not have any right to resume the land for personal cultivation. It is submitted that, as per the notification dated 12th January, 1989, the area of Shirdi Gaonthan and Survey No.1 to 192 are included in the Municipal Limits of ‘Shirdi’ and as the Petitioner’s land is Survey No.111, naturally it is also included in the Municipal Limits of ‘Shirdi’. It is further submitted that, the disputed land is included in the map of approved development plan of ‘Shirdi’, which was issued to the Petitioner on 21st January, 2005 by Chief Officer, Shirdi Nagar Panchayat, Shirdi. It is further submitted that, the Petitioner is not holding any another land as per the provisions of Section 33 (5) (b) (c) of the said Act the land will have to be allotted to the landlord in such a manner that the holding of the Petitioner and the Respondents will be equal and hence on the face of it, the judgments given by the Authorities below is contrary to law. It is submitted that, the present proceedings are filed for the possession of the land for bonafide personal cultivation under Sections 31, 29 and 43 the said Act alongwith the Government notification dated 13th February, 1958, which was subsequently amended by the Government notification dated 8th October, 1969, the Respondents / landlords have to show a compelling necessity for possession of the land for personal cultivation. The learned counsel further invited my attention to the affidavit of the Petitioner dated 28th June, 2012 and submitted that, the writ petition deserves to be allowed.
6 It is further submitted by the learned counsel for the Petitioner that, in view of the judgment of Full Bench of this Court in the case of Hari Kishan Vs. Krishna Dhanaji, [AIR 1977 Bombay 330 ], the matter is required to be sent back to the trial Court to ascertain the requirement of the legal representatives of the original landlord. The learned counsel submitted that, the Division Bench of this Court in the case of Hariba Keshav Vs. Smt. Motibai, [AIR 1975 Bombay 137] has also taken a view that, if the certificated landlord dies during the pendency of the proceedings, the heirs who were brought on record will have to prove their requirement on the date when they are brought on record, and for the purpose of equalization of holding, the holding of the heirs of the landlord who were brought on record during the pendency of the proceedings will have to be taken into consideration and for that purpose, the matter will have to be remanded to the trial Court. The learned counsel further invited my attention to the reported judgment of the Supreme Court in the case of Gulab Bai Vs. Narsi Vohra, [1991 AIR SCW 1971] and submitted that, in appropriate cases, it is necessary to invoke the jurisdiction under Article 227 of the Constitution of India, even if new facts are brought on record by invoking the provisions of Order XLI, Rule 27 of the Constitution of India. It is further submitted that, in view of the judgment reported in 1994 (2) SCC 316, the subsequent events ought to be taken into account for the purpose of finding out whether the landlord required the premises in possession of the tenant, and if during the pendency of proceedings from Court to Court, subsequent events occur which if noticed would not suit the landlord, the Court has to examine and evaluate the same and mould the decree. The learned counsel also invited my attention to the reported judgment of this Court in the case of Abdul Rehman Vs. Smt Indirabai, [1980 (2) All India Rent Control Journal 337]. In the said judgment, it was held that in a case of personal requirement, when the landlord died during the pendency of the writ petition, it was held that, in a litigation particularly relating to personal requirement, the Court cannot shut its eyes to the important and relevant developments event though they may be subsequent to the institution of the suit. The learned counsel invited my attention to the summary or arguments, which is placed on record on behalf of the Petitioner and submitted that, this writ petition deserves to be allowed. He submitted that, even in Writ Petition No. 3070 of 189 (Bhausaheb Vs/ Kasubai decided on 20th July, 1991), the landlord died during the pendency of the writ petition and hence, all the order of the Authorities below were set aside and the trial Court was directed to consider the matter afresh as per the provisions of the said Act. Therefore, the learned counsel for the Petitioner submits that, this writ petition deserves to be allowed.
7 On the other hand, the learned senior counsel appearing for Respondent Nos.3(a) to 3(h) submits that, there are concurrent finding of facts and all the three Courts below have concurrently order eviction of the writ Petitioner and restoration of the possession to the landlords. Therefore, this Court may not interfere in the concurrent finding of facts recorded by the Courts below. It is submitted that, the tenure of the lease was expired by efflux of time after the contractual period of ten years. In the present case, the development of lease was extended from 18th December, 1963 ending with 17th December, 1973. The lease itself was created after the Tillers day. The agricultural land were let out for cultivation of sugarcane. The lease in question is covered by the provisions of Chapter IIIA i.e. Section 43A (1)(b) i.e. special provisions for lease of land granted for cultivation of sugarcane.
The Respondents issued notice to the Petitioner on 15th September, 1973 for terminating the tenancy and the tenant was asked to restore the possession to the landlords. On 29th July, 1974, eviction case came to be filed from which the present writ petition arises. The proceedings for restoration of possession were initiated on the ground that, the lands in dispute are bonafide required by the landlords. It is a principal source of income to maintain their families. The learned senior counsel invited my attention to the provisions of Section 76 of the said Act and submitted that, the scope and ambit of the revision under Section 76 of the said Act is very limited and therefore, when scope of revision itself was limited before the Maharashtra Revenue Tribunal, any proceedings arising out of the said revision in writ petition, are required to be examined in narrow compass. The learned senior counsel invited my attention to the judgment of the Supreme Court in the case of Vishnu Gulabrao Sakhare Vs. Kokilabai Jagannath Patil, [1995 Supp (4) Supreme Court Cases 567] and Hari Shankar Vs. Rao Girdhari Lal Chowdhury, [AIR 1963 SC 698] and contended that, the scope of revision has been held limited in those authoritative pronouncements of the Supreme Court. The learned senior counsel invited my attention to the authoritative pronouncement of the Supreme Court in the case of Jai Singh and others Vs. Municipal Corporation of Delhi, [(2010) 9 SCC 385] and in particular paragraph Nos. 15, 16 and 42 of the said judgment, in which it is observed that the exercise of jurisdiction under Article 227 of the Constitution of India must, be within the well-recognized constraints. The learned senior counsel for the very same contention also pressed into service the exposition of the Supreme Court in the case of Sadhana Lodh Vs. National Insurance Company, [2003 (3) SCC 524].
The learned senior counsel further submitted that, the first appeal filed by the Petitioner herein raised only one point i.e. principal source of income and bonafide need of personal cultivation of the land. Therefore, it is submitted that, in the first appeal itself, the challenge was confined to the limited issues. The said findings have reached finality. These findings are not even sought to be challenged in the writ petition. The single ground canvassed is the event of occurrence of death of the landlords during the pendency of the writ petition and resultantly, the destruction of the very cause of action itself. In other words, the contention of the Petitioner is based on the maxim “actio personalis moritur cum persona”. The learned senior counsel submitted that, the contention of the Petitioner is that, the heirs were brought on record will have to prove their requirement on the date when they are brought on record. It is further submitted that, all the judgments which are cited by the learned counsel for the Petitioner are wholly inapplicable for the reasons that, there is a striking difference in the facts of the present case. The general proposition does not have universal application. The facts in this case are dissimilar. This rule is inapplicable in the fact situation of this case for the reasons, the four landlords have filed the applications for possession of the lands on the ground that, the lands are required for personal cultivation and being the principal source of income to maintain their families. The trial Court has also observed in its judgment that, the suit lands are required for bonafide personal cultivation and for maintenance of the families of the Respondents. It is also observed by the trial Court that, the Applicant i.e. Respondents have proved that, the other members of his family though earning, lands are getting not so much income to pull on their maintenance. The learned senior counsel relying upon the averments made in the application and findings thereon by the trial Court, would submit that, the claim for requirement of the lands for personal cultivation and the principal source of income was not restricted to the individuals named in the proceeding, but it was a claim on behalf of all the members of the family as well. The claim was adjudicated by the trial Court in relation to the requirement of family. It is submitted that, the four Applicants namely Sakharam Namdeo, Sajan Namdeo, Kisan Namdeo and Dayanand Namdeo were acting as representative heads of their respective families. Thus, the legal representatives which are sought to be substituted now were already represented through “Karta”. The entire estate was represented through “Karta”. Under such circumstances, the death of Sakharam, Sajan, Kisan and Dayanand during the pendency of the writ petition would not alter the cause of action. It is idle to contend that, from the date on which the legal representatives are brought on record, their requirement should be considered inasmuch as the requirement of the present legal representatives has already been considered and adjudicated upon as coparceners of the family.
The learned senior counsel invited my attention to the reported judgment of the Supreme Court in the case of Amritsagar Gupta and others Vs. Sudesh Beharilal and others, [1969 (1) SCC 810] and submitted that, the suit by or against the manager will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property. It is not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager. A ‘Karta’ can represent the family effectively in a proceeding though he is not named as such. Therefore, the learned senior counsel submits that, in the application filed by the original Applicant, the claim of the entire family has been considered and adjudicated as such, by the Tenancy Court. It is submitted that, the landlords have sought the eviction on the ground that, the family of the landlords required the possession for bonafide personal cultivation and for the maintenance of their families. The landlords have not gone to the Court asking for the requirement of the individual such as; the requirement of a professional involving personal skill acquired as gains of earnings. E.g. Surgeon, asking possession for his hospital accommodation. It is submitted that, undisputedly, the lands in question are acquired by inheritance. It is an ancestral property. Therefore, every legal representative has a pre-existing right in the property and therefore, the entire family was making it’s claim for the recovery of possession of the property. The learned senior counsel invited my attention to the provisions of Section 2(11) of the said Act, which defines a ‘person’ includes a joint family. Thus, joint family of the Applicant named in the application asked for the recovery of the possession on the ground of self requirement.
The learned senior counsel pressed into service the exposition of the Supreme Court in the case of Shakuntala Bai and others Vs. Narayan Das and others, [(2004) 5 SCC 772], in which it is held that, after passing of the decree by the trial Court, the original landlord would have got possession of the suit property. But, if he does not and the tenant continues to remain in occupation of the premises, it can only be on account of the stay order passed by the Appellate Court, then the legal representatives of the landlord will be entitled to defend the appeal preferred by the tenant and claim possession on the premises as the same cause of action which had been originally pleaded on the basis whereof, the lower Court had decided the matter and passed the decree for eviction. The learned senior counsel also invited my attention to paragraph Nos.11 of the said judgment and contended that, the Supreme Court has observed that, legal position is well settled that bonafide need of the landlord has to be examined as on the date of the institution of the proceedings and if the decree for eviction is passed, death of the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate.
8 The learned senior counsel further invited my attention to paragraph No.15 of the said judgment and submitted that, if the subsequent event like the death of the landlord is to be taken note of at every stage till the decision attains finality, there will be no end to litigation. The learned senior counsel further pressed into service the judgment of the Supreme Court in the case of Usha P. Kuvelkar and others Vs. Ravindra Subrai Dalvi, [(2008) 1 SCC 330] in which, the view is taken by the Supreme Court that, where death of the landlord occurs after the decree for possession has been passed in this favour, his legal representatives are entitled to defend the further proceedings like appeal and the benefit accrued to them under the decree. Thus, if the death occurs after passing of the decree of eviction, the rights are crystallized and thereafter, the tenant continued to retain the possession only because of the stay orders passed by the Appellate Court. Thus, such interim orders passed by the Appellate Court cannot destroy the right accrued in favour of the landlord.
9 The learned senior counsel further submitted that, there is a specific note on the cause list of the Court that, the notice of the writ petition could not be sent to the legal representatives of the deceased Respondent No.2. The said note states that, the writ Petitioner did not furnish copy of the writ petition hence, notice could not be issued to them. This fact was brought to the notice of the writ Petitioner before commencement of the effective hearing of the writ petition. However, the learned counsel for the Petitioner proceeded to argue the matter at the risk of the Petitioner. It is submitted that, Chapter XVII, Rule 7(iii) of the Bombay Appellate Side Rules provides that, the application to be dismissed in case of default of payment of process fees or failure to supply copies. It is submitted that, since the Petitioner has not complied with the said Rules, the resultant consequences are dismissal of the case on account of default or failure to prosecute. It is submitted that, the Rules also provide for the dismissal of the petition for failure to prosecute on account of default in taking steps for effective proper service of the petition on the concerned parties. The learned senior counsel also invited my attention to list of dates and submitted that, on 21st October, 2010, Review Application No.42 of 2009 was allowed by the Appellate Court and the earlier order dated 16th February, 2009 whereby the writ petition was dismissed earlier was recalled. On 13th December, 2010, the Respondent No.2 – Sajan Namdeo Gaikwad expired. Civil Application No.363 of 2011 was filed for bringing his legal representatives on record. Notices were issued to the proposed Respondent No.2(g) i.e. Indubai Thomas Palande. The learned senior counsel also invited my attention to the orders passed by this Court in Civil Application No.3454 of 2011, which was filed on 15th March, 2011. It is submitted that, though the Civil Application No.363 of 2011 was allowed by this Court on 8th July, 2011, till the July, 2012, there was a long intervening period of one year. During this entire period of one year, the Petitioner continued default in not furnishing copies for completing service on legal representatives of deceased Respondent No.2 even though, the Petitioner had knowledge, the names and address of the legal representatives of deceased Respondent No.2, with a categorical statement that, at the risk of the Petitioner, the writ petition may be heard without making compliance about the service of the legal representatives of deceased Respondent No.2. It is further submitted that, considering the judgment in the matters of Budh Ram Vs. Bansi, reported in [ (2010) 11 SCC 476 (15 and 20) ], the learned Single Judge in Writ Petition No.2094 of 1990, Dhondiram Narayan Halve and others Vs. Pandurang Bhagwant Naik and others dated 17th / 18th January, 2011 has held that, in such situation, the petition in its entirety has to be dismissed. It is submitted that, since the legal representatives of deceased Respondent No.2 are not served, therefore, this is a fatal flaw in the petition, it goes to the root of the matter and on this issue alone, the writ petition deserves to be dismissed. The learned senior counsel also submitted that, the Respondents are seriously disputing the alleged sale agreement. It is submitted that, during the pendency of the writ petition, the Municipal limits are extended and property in dispute is brought within the Municipal limits. This has no effect of challenging Forum or in any way an effect on merits of the matter. The Forum of adjudication has to be decided on the basis of circumstances prevailing as on the date of initiation of the proceedings. Inclusion of the properties in question within Municipal limit would give advantage to the landlord, if the landlord was to initiate further proceedings of eviction flowing from applicability of Section 43C. The said section also, excludes applicability of Sections 32 to 32R of the Tenancy Act which has effect of transferring ownership from landlord to the tenant by operation of law.
It is further submitted that, eviction proceedings are initiated way back on 29th July, 1974. The landlords are gasping for recovering the possession of the property through Court over a period of more than 35 years. Inevitably, the deaths are bound to occur during such long intervening period. Thus, the statutory remedy is likely to be frustrated and rendered illusory for recovering the possession of the property by lawful means. If such technical contentions of the writ Petitioner are accepted, the society would lead to take recourse to extra legal methods. Therefore, relying upon the findings recorded by the Courts below, reply filed by the Respondents and the written notes of arguments i.e. points for consideration on behalf of Respondent Nos. 3(a) to 3(h), the learned senior counsel submits that, the writ petition is devoid of any merits and the same may be rejected.
10 I have given thoughtful consideration to the rival submissions. With the able assistance of the learned counsel for the parties, I have carefully perused the judgments and orders passed by the Courts below, the record made available for perusal, pleadings in the writ petition and annexures thereto, law / provisions involved in the case and also the judgments cited by the learned counsel for the parties. At the outset, it is necessary to mention that, there is a specific note on the cause list of the Court that, the notice of the writ petition could not be sent to the legal representatives of the deceased Respondent No.2. The said note states that, the writ Petitioner did not furnish copy of the writ petition hence, notice could not be issued to them. When the learned counsel for the Petitioner was confronted with the said note, he preferred to argue the matter at the risk of the Petitioner, without compliance of the said note. In short, the learned counsel for the Petitioner without complying note on the cause list, preferred to finally argue the matter at the risk of the Petitioner and accordingly, the matter is taken up for final hearing. Therefore, whatever consequences would follow under relevant rules for non-compliance of not serving Respondent No.2, because the writ Petitioner did not furnish copies of the writ petition to send the notices, will have to be suffered by the Petitioner.
The Court of D.A. Cum Tenancy Awal Karkun Kopargaon upon appreciation of the evidence and facts involved in the case has recorded the following findings:
“On going through the evidence on record that the applicant has beyond doubt proved the bonafide requirement of the suit land and also the principal source of income depends upon the suit land while the opponent has not proved her case that if the suit land is with drawn from he she will be landless as she has already got another land and maintaining very well.”
11 The findings reproduced hereinabove, are confirmed by the Court of Sub-Divisional Officer, Sangamner Division, Sangamner i.e. Appellate Authority. In addition to the aforesaid findings, the Appellate Court has recorded further that,
“The respondent, Shri Sakharam, in his statement before the lower court has admitted the fact that the appellant holds no land except the suit land. That means the appellant has no other land. On the other hand, the respondents are having more than 15 acres of land each of them.”
12 In the present case, the Tenancy Awal Karkun by his judgment dated 27th December, 1980 in Tenancy Case No.89 of 1974, allowed the application filed by the original landlords i.e. Respondents herein. The findings recorded by the Tenancy Awal Karkun are confirmed by the Sub-Divisional Officer, Sangamner Division, Sangamner by his judgment dated 16th February, 1985 in Tenancy Appeal No.16 of 1981 and by the Maharashtra Revenue Tribunal by its judgment dated 16th September, 1985 in Revision Application No. MRT-AH-IV-5/ 85. All the three Courts below have concurrently ordered the eviction of the writ Petitioner and restoration of possession to the landlords. Therefore, there is no scope for interference in the concurrent finding of facts recorded by the Courts below in extraordinary writ jurisdiction of this Court under Article 227 of the Constitution of India and more so, when those findings are not perverse in any manner.
In the present case there are certain undisputed facts. The Respondents herein are the owners / landlords. Lease is one, although there are four landlords. Duration of lease was extending from 18th December, 1963 ending with 17th December, 1973. Thus, the tenure was to expire by efflux of time after the contractual period of ten years. The lease itself was created after Tillers day. The agricultural lands were let out “for cultivation of sugarcane”. The lease in question is covered by the provisions of Chapter IIIA i.e. Section 43A (1) (b) i.e. special provisions for lease of lands granted for cultivation of sugarcane. The landlords / Respondents herein issued notice on 15th September, 1973 for terminating the tenancy and the tenant was asked to restore the possession to the landlords. On 29th July, 1974, eviction case came to be filed from which the present writ petition arises. The proceedings for restoration of possession were initiated on the ground that, the lands in dispute are bonafide required by the landlords. It is a principal source of income to maintain their families.
The writ jurisdiction can be exercised where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. However, this Court cannot lightly or liberally act as an Appellate Court and re-appreciate the evidence. The Supreme Court in the case of Jai Singh and others (supra) while explaining the nature and scope of powers under Article 227 of the Constitution of India in paragraph Nos.15, 16 and 42 observed thus:
“15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well-recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognized constraints. It can not be exercised like a “bull in a china shop”, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.
16. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.
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“42. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in Estralla Rubber V. Dass Estate (P) Ltd., wherein it was observed as follows:
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
13 In the facts of this case and on careful scrutiny of the judgments and orders passed by the Courts below and upon perusal of the entire material brought on record and the original record, there is no manner of doubt that, the findings recorded by the Courts below are in consonance with the evidence brought on record. Therefore, there is no question of interfering in the concurrent finding of facts recorded by the Courts below.
14 The submission of the learned counsel for the Petitioner that, during the pendency of the writ petition, the original landlords i.e. applicants before the Awal Karkun are died and therefore, the matters may be sent back to the appropriate forum for considering / determining their personal need, deserves no consideration for following reasons:
The applications filed by the original Applicants / landlords before the Tenancy Court were filed in the capacity of “Karta” of the respective families. The applications were filed by four applicants on the ground that, the lands are required for personal cultivation and being the principal source of income to maintain their ‘families’. Therefore, there is a reference in the judgment of the Tenancy Court at more than one places that, the suit lands are required for bonafide personal cultivation and for maintenance of the Applicants’ ‘families’. Therefore, the applications filed by the original four landlords were with the prayer that, the suit lands are required for bonafide personal cultivation and for maintenance of their ‘families’. Therefore, when the applications were filed for personal cultivation and being principal source of income to maintain their ‘families’, the question of reexamining the need of legal representatives of the original applications would not arise. There is no question of re-examining the requirement of the legal representatives of the original Applicant for bonafide personal cultivation. The learned counsel for the Petitioner was at pains to argue that, in view of the judgments of this Court in the case of Hariba Keshav (supra), Hari Kishan (supra), Gulab Bai (supra) and other judgments relied upon by the learned counsel for the Petitioner that, the events happening subsequent to making of the application should be taken into account while deciding the claim for possession of the landlord, and the right of the landlord to resume the land is dependent on fulfillment of certain conditions which are in the nature of personal qualifications and, therefore, there continuous existence till final disposal of the application is sine que non for deflecting from the statutory course. Therefore, the case should be sent back to the appropriate Forum to examine the question of bonafide requirement of the legal representatives of the original Applicant. The said argument has no force since, the law laid down by the Full Bench of this Court in the case of Hari Kishan Vs. Krishna Dhanaji (supra) is no more good law in view of the subsequent authoritative pronouncement of the Supreme Court in the case of Shakuntala Bai and others (supra) and Usha P. Kuvelkar and others (supra). The Division Bench of this Court in the case of Hari Keshav (supra) have taken a view that, if the certificated landlord dies during the pendency of the proceedings, the heirs who were brought on record will have to prove their requirement on the date when they are brought on record. However, the Supreme Court in the case of Shakuntala Bai and others (supra), in paragraph Nos.10.1 and 11 held thus:
“10.1 With regard to this category of cases, it was held that the estate is entitled to the benefit which, under a decree, has accrued in favour of the plaintiff and, therefore, the legal representatives are entitled to defend further proceedings, like an appeal, which constitutes a challenge to that benefit. Even otherwise, this appears to be quite logical. In normal circumstances after passing of the decree by the trial Court, the original landlord would have got possession of the premises. But if he does not and the tenant continues to remain in occupation of the premises it can only be on account of the stay order passed by the appellate Court. In such a situation, the well known maxim “actus curiae neminem gravabit” that “an act of the Court shall prejudice no man” shall come into operation. Therefore, the heirs of the landlord will be fully entitled to defend the appeal preferred by the tenant and claim possession of the premises on the cause of action which had been originally pleaded and on the basis whereof the lower Court had decided the matter and had passed the decree for eviction. However in regard to the case before the court it was held that the requirement pleaded in the ejectment application on which the plaintiff founded his right to relief was his personal requirement and such a personal cause of action must perish with the plaintiff. On this ground it was held that the plaintiff's right to sue will not survive to his heirs and they cannot take the benefit of the original right to sue.
11. In Shantilal Thakordas v. Chimanlal Maganlal Telwala a larger Bench overruled the decision rendered in Phool Rani v. Naubat Rai Ahluwalia in so far it held that the requirement of the occupation of the members of the family of the original landlord was his personal requirement and ceased to be the requirement of the members of his family on his death. The court took the view that after the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and occupation of the other members of the family. Thus, this decision held that the substituted heirs of the deceased landlord were entitled to maintain the suit for eviction of the tenant. The ratio of this decision by larger Bench does not in any manner affect the view expressed in Phool Rani that where the death of the landlord occurs after a decree for possession has been passed in his favour, his legal representatives are entitled to defend further proceedings like an appeal and the benefit accrued to them under the decree. In fact, the ratio of Shantilal Thakordas would reinforce the aforesaid view. There are several decisions of this Court on the same line. In Kamleshwar Prasad v. Pradumanju Agarwal it was held that the need of the landlord for premises in question must exist on the date of application for eviction, which is the crucial date and it is on the said date the tenant incurred the liability of being evicted therefrom. Even if the landlord died during the pendency of the writ petition in the High Court, the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any other son. In Gaya Prasad v. Pradeep Srivastava it was held that the crucial date for deciding as to the bonafides of requirement of landlord is the date of his application for eviction. Here the landlord had instituted eviction proceedings for the bona fide requirement of his son who wanted to start a clinic. The litigation continued for a long period and during this period the son joined Provincial Medical Service and was posted at different places. The subsequent event i.e. the joining of the service by the son was not taken into consideration on the ground that the crucial date was the date of filing of the eviction petition. Similar view has been taken in G.C. Kapoor v. Nand Kumar Bhasin. Therefore, the legal position is well settled that the bona fide need of the landlord has to be examined as on the date of institution of proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate.” (Emphasis supplied)
15 In the aforesaid judgments, the Supreme Court has also considered the effect of interim orders passed by the Judicial Forums and their effect on the rights of the legal representatives of the respective parties, in paragraph No.15 of the said judgment the Supreme Court held thus:
“15. ...... If the subsequent event like the death of the landlord is to be taken note of at every stage till the decree attains finality, there will be no end to litigation. By the time a second appeal gets decided by the High Court, generally a long period elapses and on such a principle if during this period the landlord who instituted the proceedings dies, the suit will have to be dismissed without going into merits. The same thing may happen in a fresh suit filed by the heirs and it may become an unending process. Taking into consideration the subsequent events may, at times, lead to rendering the whole proceedings taken infructuous and colossal waste of public time. There is no warrant for interpreting a Rent Control legislation in such a manner, the basic object of which is to save harassment of tenants from unscrupulous landlords. The object is not to deprive the owners of their properties for all times to come.”
Yet in another judgment in the case of Usha P. Kuvelkar and others (supra), in paragraph Nos.13 and 14, the Supreme Court observed thus:
“13. We are convinced that the findings of the learned Additional Rent Controller as also the Administrative Tribunal on the bonafide need of the landlord are correct and the High Court has gravely erred in setting aside the concurrent findings of fact that too without giving any reasons worth the name. Therefore, on that question itself the landlord-appellant (his legal heirs) should succeed.
14. It was tried to be argued by the learned counsel for the respondent that since the landlord had died, the need had expired with him and that the question will have to be examined again regarding the bonafide personal need of the landlord. The question is no more res integra and is covered by the decision of this Court in Shakuntala Bai and Others vs. Narayan Das. This Court has observed:
“11. ... The bonafide need of the landlord has to be examined as on the date of institution of the proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate.”
In the same decision a contrary note expressed by this Court in P.V. Papanna vs. Padmanabhaiah was held to be in the nature of an obiter. This Court in Shakuntala Bai referred to the decision in Shantilal Thakordas v. Chimanlal Maganlal Telwala and specifically observed that the view expressed in Shantilal Thakordass case did not, in any manner, affect the view expressed in Phool Rani vs. Naubat Rai Ahluwalia to the effect that where the death of landlord occurs after the decree for possession has been passed in his favour, his legal heirs are entitled to defend the further proceedings like an appeal and the benefit accrued to them under the decree. Here in this case also it is obvious that the original landlord Prabhakar Govind Sinai Kuvelkar had expired only after the eviction order passed by the Additional Rent Controller. This is apart from the fact that the landlord had sought the possession not only for himself but also for his family members. There is a clear reference in Section 23(1)(a)(i) of the Act regarding occupation of the family members of the landlord. In that view the contention raised by the learned counsel for the respondent must be rejected.”
16 Therefore, it follows from the authoritative pronouncement of the Supreme Court in the aforesaid reported cased that, the bonafide need of the landlord has to be examined on the date of institution of the proceedings and if the decree for eviction is passed, death of the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate. Apart from above, in the facts of this case, it is not in dispute that the suit property is ancestral property. The lands in question are acquired by the Respondents by inheritance. Since it is an ancestral property, every legal representative has a pre-existing right in the property and therefore, the entire family was making it’s claim for the recovery of possession of the property through their “Karta” before the Tenancy Court. Secondly, the applications filed by the Respondents / Applicants, which were filed by the respective Applicants before the Tenancy Court with the averments that, the suit lands are required for “bonafide personal cultivation “or maintenance of their families”.
Therefore, I find considerable substance in the arguments of the learned senior counsel appearing for Respondent Nos.3(a) to 3(h) that, Section 2 (11) of the said Act defines that “person” includes a joint family.
17 Though, the learned senior counsel submitted that, the lease was for sugarcane under Section 43A and the provisions of various Sections of the said Act, would not apply, needs no consideration in view of the fact that, the lease was for sugarcane cultivation and Section 43A has to be read with notification of 1958 and 1989.
18 The other contention raised by the learned counsel for the Petitioner that, the suit land has now come in the Municipal limit deserves no consideration since that development is subsequent facts. This Court has to consider the date on which the proceedings are initiated and the Court has to confine itself to the controversy raised in the original proceedings. There is no effect of merits of the matter of the subsequent fact that, during the pendency of the writ petition, the Municipal limits are extended and the property in dispute is brought within the Municipal limits. Whatever consequences would follow in law in that respect, will have to be faced by the parties. In the present case, the original applicants were alive when the writ petition was filed. In the writ petition, this Court has granted the interim relief and by virtue of the interim order, the Petitioner is continued in possession of the suit land though, the order is passed by the Tenancy Court way back in 1980 directing the Petitioner to hand over possession of the suit land to the Respondents. Therefore, as rightly held by the Supreme Court in the case of Shakuntala Bai and others (supra) in paragraph No.15, if the subsequent event like the death of the landlord is to be taken note of at every stage till the decision attains finality, there will be no end to litigation. Therefore, in my considered opinion, viewed from any angle, the writ petition deserves no consideration. The Supreme Court in the case of Amritsagar Gupta and others (supra) has also taken a view that, the suit by or against the manager will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property. A ‘Karta’ can represent the family effectively in a proceeding though he is not named as such. I find considerable force in the arguments of the learned senior counsel appearing for the Respondent Nos.3(a) to 3(h) that, the proceedings in the writ petition are arising out of the concurrent findings recorded by the Courts below and the scope of revision itself was limited. In the present writ petition, since no case is made out, no further scope of those proceedings can be expanded and more so, when the Petitioner has not challenged the concurrent finding of facts, but only confined his prayer to remand the matter back to the appropriate Forum to determine / consider the bonafide requirement of the legal representatives of the original application.
19 The Supreme Court has rightly observed in paragraph No. 11 in the case of Shakuntala Bai and others (supra) that, bonafide need of the landlord has to be examined as on the date of institution of proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate. In the present case, during the pendency of the writ petition, the original Applicants died. The Petitioner is in possession of the suit property due to interim relief granted by this Court in the writ petition. Therefore, the legal representatives of the said original Applicants, should not suffer and more so, when the said proceedings were initiated by the original Applicants for bonafide requirement and for maintenance of their ‘families’. The Supreme Court has also rightly observed in paragraph No.15 in the case of Shakuntala Bai and others (supra) that, there is no warrant for interpreting a Rent Control legislation in such a manner, the basic object of which is to save harassment of tenants from unscrupulous landlords. The object is not to deprive the owners of their properties for all times to come. Though the right to property is not fundamental right, nevertheless, it is constitutional right under Article 300A of the Constitution of India and therefore, the true owners of the property and in the present case, the Respondents herein, cannot be deprived from restoring the possession of their ancestral property when all the Forums below have held in favour of the Respondents. The proceedings initiated by the Applicants i.e. landlords, were initiated to restore their possession in the suit land for bonafide cultivation and for maintenance of their ‘families’. Therefore, in my considered opinion, when the Respondents are true owners of the suit property and the order to restore their possession is passed way back in the year 1980, on an application filed by the landlords in the year 1974, they cannot be further deprived restoring their possession and enjoyment of the suit property. Therefore, for the reasons aforesaid, the writ petition is devoid of any merits, same stands dismissed. Rule stands discharged. There will be no order as to costs.
20 Non compliance of the office note by the Petitioner of not depositing the spare copies of the memo of the writ petition to send notice to the legal representatives of deceased Respondent No.2, would have its own implications and consequences in accordance with law, however, this Court has not felt it necessary to go into that aspect since the writ petition sans merit.
At this stage, the learned counsel for the Petitioner prays for continuation of interim relief for further six weeks. The said prayer is vehemently opposed by the learned counsel for the Respondents. However, since the interim order has operated during the pendency of the writ petition, it is desirable to continue to said interim order for further six weeks. Accordingly, the interim order, which was operated during the pendency of the writ petition. to operate / remain in force for further period of six weeks from today. However, the Petitioner shall not create any third party rights or alienate the suit property during the said period of six weeks from today. It is made clear that, on expiry of the period of six weeks from today, the order of interim relief will cease to operate.