Paragraph numbers below are the court’s original numbering, recovered from the source text.
18. Mr. Lalit submitted that Tarabai had no power or authority to lease the suit land. He submitted that the consent decree dated 7th October 1971 B provides that Tarabai had no authority to lease out any piece of land. He submitted that thereafter the suit filed by Tarabai had been dismissed on 25th June, 1976. He submitted that there were thus two decrees of competent court against Tarabai. He submitted that both these decrees provided that Tarabai had no right to lease out any piece of land. He submitted that the lease C created in favour of the Appellants on 6th September, 1980 was illegal and could not be enforced against Respondents 1 and 2. He submitted that in view of the decrees of the court it could not be said that the Appellant was lawfully cultivating the suit land. He submitted that as the Appellant was not lawfully cultivating the suit land she could not be deemed to be a tenant ·under Section 4. He submitted that the Appellant was merely a trespasser. He D submitted that a suit for possession against a trespasser lay in a civil court. He submitted that Respondents l and 2 had filed such a suit and they had succeeded in that suit. He submitted that once the civil court held that the Appellant was a trespasser, the Appellant could not take advantage of the proceedings adopted by her under the said Act. He submitted that the executing E court, the Appellant Court and the High Court had rightly rejected the claim of the Appellant.
19. Mr. Lalit strongly relied on the case of Latchaiah v. Subramaniam, reported in [1967] 3 SCR 712. In this case the Respondent (therein) had obtained a decree in his favour declaring that he was the owner of the land F and that the wife of his adoptive father had no title to the suit land. During pendency of the suit the widow was in possession of the land. After the decree was passed she executed a lease in favour of the Appellant (therein). The question was whether the Appellant could be said to be lawfully cultivating the land. This Court held that after the decree the widow was trespasser and G thus could not create any right in the land in favour of anybody. Mr. Lalit submitted that tl!e ratio laid down in this case fully applies to the facts of our case. We are unable to agree. In our case there is no decree holding that Tarabai had no right or title to the suit land. Tardbai admittedly had a limited interest and was recorded as a Kabjedar. The relevant term of the Deed of Settlement, set out hereinabove, shows that Tarabai had during her lifetime H A a right to be in possession and to cultivate the suit land. The consent Decree did not take away that right. Tarabai was not a trespasser on the suit land.
20. Mr. Lalit also relied on the case of Gopala Genu Wagale v. Nageshwardeo, reported in [1978] 2 SCC 47. In this case the question was whether a sub-tenant can be deemed to be a tenant under Section 4 of the said B Act. This Court held that creation of a sub-tenancy was prohibited by Section 27 of the said Act and that Section 14(l)(a)(iii) provided that the tenancy could be terminated ifthe tenant had sublet. This Court held that as subletting was not lawful, a sub-tenant could not claim to be a deemed tenant. In our view this authority is based on the provisions of the said Act which expressly C provide that sub-letting shall not be valid. In the said Act there is no provision that a person with a limited interest cannot permit somebody else to cultivate the land.
21. On the other hand, Mr. Bhasme has relied on a Constitution Bench judgment of this Court in the case of Dahya Lal and Ors. v. Rasul Mohammed D Abdul Rahim, reported in [ 1963] 3 SCR I. In this case the question was · whether a tenant of the mortgagee could be evicted by the mortgagor after the property was redeemed. With reference to Section 4 of the said Act it was held as follows: "The Act 1948, it is undisputed, seeks to encompass within its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from the land owners but persons who are deemed to the tenants also. The point in controversy is whether a person claiming the status of a deemed tenant must have been cultivating land with the consent or under the authority of the owner. Counsel for the appellants submits that tenancy postulates a relation based on contract between the owner of land, and the person in · occupation of the land, and there can be no tenancy without the consent or authority of the owner to the occupation of that land. But the Act has by s. 2( 18) devised a special definition of tenant and included therein persons who are not contractual tenants. It would therefore be difficult to assume in construing s. 4 that the person who claims the status of a deemed tenant must be cultivating land with the consent or authority of the owner. The relevant conditions imposed by the statute is only that the person claiming the status of a deemed tenant must be cultivating land "lawfully": it is not the condition that he must cultivate land with the consent of or under authority derived ·'-.. ….. SAU SARASWATIBAI TRIMABAK GAIKWADv,DAMODHARD. MOTJWALE (VARJAVA, J_j directly from the owner. To import such a condition it is to rewrite A the section, and destroy its practical utility. A person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a "deemed tenant". Persons such as licencees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to B others, but it cannot be assumed therefrom that they are the only persons who are covered by the section. The Act affords protection to all persons who hold agricultural land as contractual tenants and subject to the exceptions specified all persons lawfully cultivating lands belonging to others, and it would be unduly restricting the intention of the Legislature to limit the benefit of its provisions to C persons who derive their authority from the owner, either under a contract of tenancy, or otherwise. In our view, all persons other than those mentioned in els. (2), (b) and (c) ofs. 4 who lawfully cultivate land belonging to other persons whether or not their authority is derived directly from the owner of the land must be deemed tenants of the land."
22. Mr. Bhasme bas also relied on the case of Rukhamanbai v. Shwram, reported in [1981] 4 SCC 262. In this case the facts were almost identical. The question was whether a lessee of a person with a limited estate acquired the status of deemed tenant under Section 4. A three Judge Bench held that E the lessee acquired the status of a deemed tenant and the Tribunal was justifie_d in determining the purchase price under Section 32-G.
23. Faced with this position Mr. Lalit submitted that in this case there was a dec.ree, after contest, between the Appellant and Respondents I and 2. He submits that that decree is binding on the Appellant and can be executed F against the Appellant. We have read the decrees/orders of the civil court. In passing the decree and holding the Appellant to be a trespasser the civil court has not considered the provisions of the said Act. The conclusion that the Appellant is a trespasser is dehors rights of the Appellant under the said Act. Mr. Lalit submitted that the Appellant never claimed, before the civil court that she was a deemed tenant. He submitted that Appellants could have G contended before the civil court that she was a deemed tenant under the said Act. He submitted that as the Appellant has not taken this contention before the civil court she is now debarred from raising a claim under the said Act. We see no substance in this submission. The Appellant had already made an applicati9p under Section 32-0 before the suit was file~ by the Respondents H A I and 2. Respondents I and 2 were aware that the Appellant had made such an application. The Appellant was pursuing her remedy under the said Act before the appropriate authority. Respondents 1 and 2 were also parties to those proceedings and were contesting those proceedings. These are not questions which could be raised before a civil court. Therefore rightly neither B Respondents 1 and 2 nor the Appellant took up this question before the civil court. Even if the question had been raised the civil court could not have decided it. The civil court would have had to refer the issue to the appropriate authority and then abide by its decision. A decree passed without the consideration of the provisions of the said Act must be subject to orders of the appropriate authority in proceedings under the said Act. c
24. Thus so long as tlie certificate stands the decree cannot be executed against the Appellant. It is only if Respondents I and 2 succeed in getting the Certificate set aside, in their pending Revision, that they can execute the decree. It would be open for Respondents 1 and 2 to pursue the Revision filed by them against the order dated 23rd November 2000. We realise that D a Revision is.on limited grounds. We have noticed that the Appellate Authority dismissed the Appeal of Respondents 1 and 2 merely on the ground that this Court had stayed the operation of the decree passed by the civil court. If the revisional authority so desires it may remit the matter back to the AppeUate Authority for a decision on merits in accordance with law. We, however, E clarify that the decision of the Revisional Authority or the Appellate Authority must be based only on the provisions of the said Act. Findings given by the Civil Court, dehors the provisions of the said Act, and any observation made by us on that question cannot be taken into consideration in deciding whether Appellant is a deemed tenant. · F
25. For the aforesaid reasons this Appeal is allowed. The impugned Judgment dated 23rd August 199( as well as the Order passed by the Appellate Authority on 28th June 1999 and the Order passed by the Executing Court on 12th February 1999 are set aside. We hold th.at so long as the Certificate stands the decree, obtained by Respondents 1 and 2, cannot be executed against the Appellant. We clarify that if Respondents 1 and 2 succeed in the G Revision filed by them, then they would be at liberty to apply for execution of the decree obtained by them.
26. The Appeals stand disposed of accordingly. There will no order as to costs. H ·K.K.T. Appeal allowed.