VISHNU MAHADEO PENDSE PARASHRAM MAHADEO PENDSE Vs. RAJEN TEXTILE MILLS PRIVATE LIMITED:RAJEN TEXTILE MILLS PRIVATE LIMITED

JUDGEMENT

(1.) These two appeals brought on certificate of fitness granted by the High Court of Bombay arise out of two suits for possession Civil Appeal No. 132 of 1968 has its origin in the suit instituted by appellant Vishnu Mahadeo Pendse as plaintiff. Parashram Mahadeo Pendse, appellant in Civil Appeal No. 133 of 1968, instituted the other suit. The respondents Rajen Textile Mills (P) Ltd., And Shri L. N. Madhwani Director of the Said Company were the defendants in both the suits.

(2.) The facts giving rise to these appeals are briefly these. The lands of Survey Nos.181 and 182 A, owned by Vishnu Mahadeo Pendse, and the lands of Survey Nos. 176, 179 A and 179B owned by Parashram Mahadeo Pendse, situate within the Municipal limits of Barsi in District Sholapur, were leased out by the owners to Barsi Spinning and Weaving Mills Ltd. (hereinafter referred to as Barsi Mills); both leases were for a period of 99 years with effect from January 1, 1943. On an application of a creditor of Barsi Mills, the High Court of Bombay made a winding up order on November 10, 1953, On October 5, 1954 all the assets of Barsi Mills including their tenancy rights in the said lands were sold by auction and purchased by one K. N. Madhwani. At the request of the auction purchaser the liquidator executed a conveyance of the lands in favour of the respondent Rajen Textile Mills (P) Ltd. (hereinafter referred to as the respondent Mills) on August 9, 1955. Some time in 1957 the appellants started proceedings in the Court of the Mamlatdar under Section 31 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the 1948 Act) for possession on the ground that they required the lands for personal cultivation. The Mamlatdar dismissed the application for possession on the view that the respondents were trespassers and as such that court had no jurisdiction. Then in 1961 the appellants instituted suits Nos. 15 and 16 of 1961, out of which these appeals arise in the Court of the Civil Judge, Senior Division at Sholapur, for recovery of possession of the lands and for several other incidental reliefs. The case made in the plaints was (1) that the lease-hold rights of Barsi Mills in the lands were personal rights and not capable of being transferred by a liquidator in winding up proceedings, (2) that the auction sale and the conveyance in favour of the respondent Mills were contrary to the provisions of Sections 27 and 28 of the 1948 Act and therefore invalid, and (3) that the auction purchaser not being an agriculturist, the auction sale and the subsequent conveyance were void under Section 63 of the 1948 Act. The trial court decreed the suits on the view that the auction sale and the conveyance contravened the provisions of Sections 27, 28 and 63 of the 1948 Act. The respondents preferred appeals to the Bombay High Court challenging the decision of the trial court; the High Court allowed the appeals and dismissed the suits. The High Court was of the view that (1) there was no term in the lease prohibiting Barsi Mills from transferring their lease-hold rights nor was there any law prohibiting such transfers, and (2) the lands in dispute were held on lease for the benefit of an industrial undertaking, namely Barsi Mills, within the meaning of Section 88 (1) (b) of the 1948 Act; Section 88 specifies the lands and areas to which the 1948 Act did not apply.

(3.) Mr. Patel, learned counsel for the appellants, raised two contentions:(1) the lands are agricultural lands and as such Section 88 (1) (b) which excluded from the operation of the 1948 Act lands held on lease for the benefit of an industrial or commercial undertaking has no application, and (2) having regard to the proviso to Section 43C of the 1948 Act the auction sale and the subsequent assignment of the lease-hold rights were void .