Case Note & Summary
The case involves a second appeal by the original plaintiff, Gajanan s/o Govind Mokalkar, against the respondent, Jagdeo s/o Ganpat Warankar, concerning 3 acres of land out of Survey No.160/3. The suit property was purchased by Shantabai from her husband via a registered sale-deed on 2-5-1968. On the same day, Shantabai executed a consent deed granting divorce to her husband, with a sum of Rs.1,500/- shown as consideration, which never actually changed hands. The husband continued to cultivate the land on behalf of Shantabai and passed the income to her. The defendant later raised an alternative plea of tenancy without providing any details, and did not even refer to the alleged tenancy in his deposition. The trial court framed issue Nos.7 and 8 regarding tenancy and observed that they do not survive, but did not remit them to the Tenancy Court. The appellant challenged this, arguing that the trial court should have remitted the issues. The High Court admitted the appeal on four substantial questions of law: whether the tenancy issue bona fide arises for determination by the Tenancy Court; whether the alternative plea without details and absence of deposition reference warrants remitting the issue; whether the lower court's observations amount to determination or deletion; and whether the trial court had no alternative but to remit the issues. The court held that the tenancy issue was not bona fide as the defendant failed to provide details and did not mention tenancy in his deposition. Therefore, the trial court was not bound to remit the issues, and the observations that the issues do not survive were correct. The appeal was allowed, and the matter was remanded to the trial court for fresh disposal in accordance with law.
Headnote
A) Civil Procedure - Tenancy Issue - Bona Fide Determination - Whether issue of tenancy arises for determination by Tenancy Court - The court considered whether the alternative plea of tenancy without details and absence of reference in deposition warrants remitting the issue to Tenancy Court - Held that the issue of tenancy must be bona fide and based on pleadings; absence of details and deposition reference indicates lack of bona fides, and the trial court was not bound to remit such issues (Paras 1-2).
B) Civil Procedure - Framing of Issues - Survival of Issues - Whether observations of lower court on issue Nos.7 and 8 amount to determination or deletion - The court examined whether the trial court's observation that those issues do not survive amounts to determination - Held that the issues were correctly held not to survive as they were not bona fide, and the trial court was not required to remit them (Paras 1-2).
Issue of Consideration
Whether in the facts and circumstances of the case, an issue as regards tenancy bona fide arises for determination by the Tenancy Court, and whether the trial Court had no alternative but to remit issue Nos.7 and 8 regarding alleged tenancy to the Tenancy Court.
Final Decision
The appeal is allowed. The judgment and decree of the lower appellate court are set aside. The matter is remanded to the trial court for fresh disposal in accordance with law, with the observation that issue Nos.7 and 8 regarding tenancy do not survive and need not be remitted to the Tenancy Court.
Law Points
- Tenancy issue must be bona fide
- Pleadings must contain details of tenancy
- Absence of reference to tenancy in deposition indicates lack of bona fides
- Court not bound to remit issues that do not survive
Case Details
2005 LawText (BOM) (12) 91
Second Appeal No.287 of 1996
Shri V.V. Deo for Appellant, Shri V.K. Paliwal holding for Shri R.L. Khapre for Respondent
Gajanan s/o Govind Mokalkar
Jagdeo s/o Ganpat Warankar
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Second appeal against judgment and decree in a suit for possession of land, where the trial court framed issues regarding tenancy but did not remit them to the Tenancy Court.
Remedy Sought
Appellant sought to set aside the trial court's order and to have the tenancy issues remitted to the Tenancy Court or decided by the civil court.
Filing Reason
The appellant challenged the trial court's failure to remit issue Nos.7 and 8 regarding tenancy to the Tenancy Court, arguing that the issues were not bona fide and should not have been framed.
Previous Decisions
The trial court had framed issue Nos.7 and 8 regarding tenancy but observed that they do not survive, without remitting them to the Tenancy Court. The lower appellate court had confirmed this.
Issues
Whether in the facts circumstances of the case, issue as regards tenancy bona fide arises for determination by the Tenancy Court in view of the law laid down by this Hon'ble Court in 1974 Mah.L.J. page 548 and 1982 Mah.L.J. page 664?
Whether alternative plea of the Defendant alleging tenancy without giving any details thereof, not taken bona fide, and the absence of even a reference to the alleged tenancy in the Defendant's deposition, warrants remitting of an issue regarding tenancy to the Tenancy Court?
Whether the observations of the lower Court on issue Nos.7 and 8 regarding tenancy in para 14 of the judgment, amount to determination of the said issues or deletion of those issues in the face of explicit observation that those issues do not survive?
Whether the trial Court had no other alternative but to remit issue Nos.7 and 8 regarding alleged tenancy to the tenancy Court in view of the observations of this Hon'ble High Court in C.R.A. No.469/74, regarding of the fact that pleadings of the Defendant and other material on record, do not warrant framing of such issues and their survival and regardless of the law laid down by this Hon'ble Court that in such cases, such issues need not be framed and if framed, need not be remitted to tenancy Court as they do not warrant consideration?
Submissions/Arguments
Appellant argued that the tenancy issue was not bona fide as the defendant did not provide any details of tenancy and did not even refer to it in his deposition.
Respondent argued that the trial court was correct in framing the issues and should have remitted them to the Tenancy Court.
Ratio Decidendi
A tenancy issue must be bona fide and based on pleadings; absence of details and reference in deposition indicates lack of bona fides, and the trial court is not bound to remit such issues to the Tenancy Court.
Judgment Excerpts
Whether in the facts circumstances of the case, issue as regards tenancy bona fide arises for determination by the Tenancy Court in view of the law laid down by this Hon'ble Court in 1974 Mah.L.J. page 548 and 1982 Mah.L.J. page 664 ?
Whether alternative plea of the Defendant alleging tenancy without giving any details thereof, not taken bona fide, and the absence of even a reference to the alleged tenancy in the Defendant's deposition, warrants remitting of an issue regarding tenancy to the Tenancy Court ?
Procedural History
The original plaintiff filed a suit for possession. The trial court framed issues including issue Nos.7 and 8 regarding tenancy, but observed that they do not survive. The lower appellate court confirmed this. The plaintiff filed a second appeal, which was admitted on four substantial questions of law.
