MOHAMMAD ILLAHAMUDDIN Vs. BHIVASANAND ANOTHER

JUDGEMENT

(1.) This appeal by special leave arises from the decision of the Bombay High Court in an application under Article 227 of the Constitution. Therein the High Court reversed the judgment of the Revenue Tribunal holding that the application of the respondents (who will be hereinafter referred to as tenants) under Section 32 of the Hyderabad Tenancy and Agricultural Lands Acts, 1950 (to be hereinafter referred to as the Act) is barred by limitation and therefore their application for possession of the properties concerned is not maintainable. The High Court allowed the application of the tenants and directed delivery of possession of the lands in dispute.

(2.) The first appellant (to be hereinafter referred to as the land-holder) was the owner of the properties with which we are concerned in this appeal. He had leased out those properties to the tenants. In 1952 the land-holder terminated the tenancy of the tenants and thereafter moved the tenancy court for possession of the leased lands. During the pendency of the said proceedings, the parties entered into a compromise in pursuance of which the lands in question were delivered to the landholder. Under clause (5) of the compromise the parties agreed that after obtaining the possession of the lands, the landholder should cultivate the lands personally and further that if he failed to cultivate them personally, he shall not lease them out to anyone save the respondents. But it appears that in the year 1962, the landholder put those lands in the possession of appellants Nos. 2 to 5 under agreeement to sell the same to them. Thereafter the tenants moved the aforementioned application under Section 32 for possession of those lands on the ground that the landholder had contravened the terms of the compromise. The Tehsildar dismissed the said application on the ground that the same having been made more than two years after the possession was delivered by the landholder, it is barred. His decision was reversed by the Deputy Collector in appeal but the same was restored by the Revenue Tribunal. As mentioned earlier, the High Court reversed the order of the Tribunal.

(3.) The Tehsildar, the Deputy Collector, the Tribunal as well as the High Court have concurrently come to the conclusion that if the tenant's application for possession is held to have been made under Section 32, the same is barred by limitation. That conclusion was not challenged before us. As mentioned earlier, the tenants' application purports to be one under Section 32. But yet the High Court opined that in effect it is an application under Section 46 and consequently, it is not barred by limitation. The application for possession made by the landholder is not on record. Hence we do not know the exact ground urged in support of the relief prayed for therein. The learned Judge of the High Court who decided the case, has mentioned in the order under appeal that it was an application under Section 19 on the ground that the tenants had committed default in the payment of the rent. This conclusion of his conflicts with his latter finding that the landholder's application must have been one under Section 46 (44 ). From the order, it is not possible to find out the basis on which the learned Judge came to the conclusion that the application made by the landholder must have been one under Section 46. It appears from the order of the Revenue Tribunal that it was conceded before it by the learned Counsel for the tenants that Section 46 of the Act in terms does not apply to the present proceedings. But yet, for reasons not stated in his order, the learned Judge of the High Court came to the cosnclusion that it must have been an application under Section 46. A somewhat similar conclusion had been arrived at by the Deputy Collector.