KISHAN YESHWANT DHIRADE Vs. SONABAI BAPPU LOHAR

JUDGEMENT

(1.) The appellant is the dissatisfied tenant who parted with the possession of agricultural land bearing Survey No. 250, measuring acres 13 guntas 5 situated at Belpimpaltaon Taluq, newasa, Distt. Ahmednagar. He is in appeal before us, by special leave, against the judgment and order dated June 23, 1994 of the high Court of Judicature at Bombay in Writ petition No. 3099 of 1989 which was initially filed before the Bombay Bench as Writ Petition no. 3742 of 1981 but was later transferred to the Aurangabad Bench and renumbered.

(2.) The facts relevant for disposal of this appeal may be noted in brief. The respondent is the widow of late Bapu Lohar who was the landlord of the said land. The case of the appellant before the Tenancy Awal Karkun was that the possession of the said land was handed over to the husband of the respondent by him in proceedings initiated under. Section 31 of the Bombay Tenancy and Agricultural Lands act, 1948 (hereinafter referred to as 'the Act') and that before the expiry of the statutory period of twelve years she had leased it out to one Damu Kalu Suryavanshi on March 21, 1969, therefore, he was entitled to restoration of possession. The respondent defended the application on two grounds first, that she, being a widow, is entitled to cultivate the land personally which includes through a tenant as provided in Section 2 (6) of the Act and there is no scope to invoke Section 37 so as to give the appellant right to claim restoration of possession, secondly, it was pleaded that he had surrendered the land under Section 15 of the act in which case the provisions of Section 37 of the Act would not be attracted and the question of restoration of possession did not arise.

(3.) The Tenancy Awal Karkun found that the possession of the land was handed over to the husband of the respondent in proceedings initiated by him under Section 31 of the Act as per the order of the Mamlatdar dated May 6, 1957. He also found that in view of subsequent leasing out of the land by the respondent before twelve years from the date of taking possession of the land, the appellant became entitled to resume the land. Appeal against the said order of the Tenancy Awal Karkun before the Sub-Divisional Officer having been unsuccessful, the respondent filed a revision before the Maharashtra Revenue Tribunal. It was held by the Tribunal: (i) the surrender pleaded under section 15 was a valid surrender, therefore, the appellant was not entitled to get back the possession, (ii) as the respondent was a widow she was entitled to the benefit of cultivating the land through a tenant as provided in section 2 (6) of the Act and her right to be in possession of the land was not lost. The Tribunal thus allowed the appeal of the respondent on January 31, 1981. That order of the Tribunal was assailed by the appellant in the writ proceedings, referred to above, in the High court. By the order, impugned in this appeal, the High Court dismissed the writ petition of the appellant which led to filing of this appeal. Ms. Promila, learned counsel for the appellant, contends that in view of the finding of the Tribunals below that there was termination of tenancy under Section 31 and recovery of possession of the land in question by the respondent for personal cultivation which is supported by the order of the Mamlatdar passed on May 6, 1957 and leasing out the land by her to another tenant within twelve years. Section 37 is attracted and the appellant cannot be denied restoration of possession, therefore, the orders of the Tribunal and the High Court are liable to be set aside.