JANBA DEAD Vs. GOPIKABAI

JUDGEMENT

(1.) The question involved in this appeal is with regard to the interpretation of Section 50(1) of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as "the Tenancy Act") which inter alia provides that where tenancy is created after 1-4-1963, every tenant holding land under such tenancy and cultivating it personally shall be entitled to purchase during one year from the commencement of the tenancy so much of such land as he may be entitled to purchase under Section 41 and the provisions of Sections 41 to 44 shall mutatis-mutandis apply to such purchase. For this purpose, as provided under Section 43 he is required to make an offer to the landlord stating the price at which he is ready to purchase the land and such price shall not exceed 12 times the rent payable by him. It is the contention of the appellant-tenant that as the respondents-landladies were widows, his right to purchase the land is postponed under Section 41(2) of the Tenancy Act till their disability ceases. As against this, the High Court of Bombay by impugned judgment dated 5-7-1985 in Special Civil Application No. 792/1975 held that Section 41(2) would not be applicable in case of purchase specified under Section 50. That judgment and order is challenged by filing this appeal.

(2.) Before dealing with the contentions raised by the learned counsel for the appellant it is to be stated that during the proceedings, respondent No. 1, Smt. Radhikabai widow of Laxmanrao Wanjari had expired. Civil Misc. Petition No. 19711 of 1986 was filed for deletion of her name stating that Radhikabai had expired leaving behind no person as her legal heir. Her name was deleted at the risk of the appellant vide Court's order dated 15-3-1999 made in the said CMP.

(3.) For deciding the question involved, we would first mention a few facts of the case. On 16-1-1967 respondents who were widows of one Laxmanrao Wanjari applied to the Tehsildar, Kelapur for a declaration that the appellant herein was not a tenant of the land bearing Survey Nos. 1/1, 2 acres 28 gunthas and 3/1-A, 6 acres 39 gunthas of village Hirapur and his possession of the land was illegal and in the alternative for possession under Section 50 of the Tenancy Act as the tenant had not exercised his right of purchase within one year from the commencement of the said provision. The appellant contended that the respondents being widows, his right to purchase stood postponed for two years after the cessation of interest of the respondents in view of Section 41(2) of the Tenancy Act. The matter was considered by various authorities and ultimately reached the High Court in Special Civil Application No. 505 of 1969. The High Court remanded the matter to the Tehsildar for fresh decision. After remand the Tehsildar vide order dated 22-2-1972 held that the appellant was tenant since 1964-65 and that he was not entitled to purchase the said land till after the expiry of two years from the cessation of interest of the widow, hence the application was rejected. In appeal, the Appellate Authority vide its order dated 31-12-1973 held that the appellant had never been a tenant and directed the respondents to seek appropriate remedy for restoration of possession. The Tribunal by order dated 31-12-1974 allowed the revision by restoring the order passed by the Tehsildar and holding that the respondents being widows, the question of extension of time and deemed surrender did not arise at all. The Tribunal further held that since the respondents had not preferred application within six months of the accrual of the cause of action, the application was time barred. Against the said order, Special Civil Application No. 792 of 1975 was filed before the High Court. In the High Court, it was the contention of the appellant that Section 41(2) would be applicable in respect of tenancies to which Section 50 of the Tenancy Act applied. Hence, as the landladies were widows, the right to purchase would stand postponed for two years after the cessation of interest of the widow. On the other hand, counsel for the respondents submitted that Section 50 of the Act was a complete Code in itself and the provisions of Section 41(2) regarding postponement of the right to purchase would not apply. The learned single Judge of the High Court held that the claim for declaration that the appellant was not a tenant was barred by limitation and decided the matter by holding that the tenancy was created after 1-4-1963. The learned single Judge also held that in the facts of the case, Section 50 would be applicable. On the question whether Section 41(2) of the Act applied to such tenancies the learned Judge referred the matter to the Division Bench of the High Court. The Division Bench by the impugned order dated 5-7-1985 held that Section 50 is a complete Code in itself and that the provisions of Section 41(2) would not be applicable to such tenancies. The Court held that the right to purchase having not been exercised by the appellant within one year from the date of tenancy, the respondents were entitled to delivery of possession.