HANMANTA DAULAPPA NIMBAL Vs. BABASAHEB DAJISAHEB LONDHE

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the High Court at Bombay in Special Civil Application No. 277 of 1972 dated 8th September, 1977. The respondent-landlord filed Civil Suit No.10/68 in the Court of Civil Judge, J.D. at Akkalkot. Since the appellant raised plea of oral tenancy for the year 1968-69, the Civil Court referred the issue: "Does the defendant prove tenancy over the suit land thereon" to the Tehsildar who in his proceedings held that in respect of Survey No.3 to the extent of 16 acres 26 Gunthas situated in Mirajgi village belongs to the respondent and the appellant had not proved oral tenancy. Thereon, the appellant carried the matter in appeal to the Special Deputy Collector, Tenancy Appeals, Sholapur, who held that oral tenancy was established. Even otherwise, the appellant is a deemed tenant under Section 4 of the Bombay Tenancy and Agricultural Land Act, 1946 (for short, "Tenancy Act"). On revision, Maharashtra Revenue Tribunal, Pune, confirmed the findings. A writ petition was filed under Article 227 of the Constitution.

(2.) The learned Single Judge of the High Court, while holding that since the issue referred to the Tribunal under the Tenancy Act is only the contractual tenancy for the year 1968-69, the Tribunals could not have gone into the question of deemed tenancy under Section 4. On the question of tenancy, the High Court came to the conclusion that the oral tenancy has not been proved on the grounds that the entries in the revenue records for the year 1968-69 were made without notice to the landlord. When the parties were litigating their rights, it cannot be said that the landlord had agreed for creating oral tenancy in favour of the appellant. Thus on that premises, reversed the orders of the Tribunals below, accepted the finding of the Tehsildar and referred the matter to the Civil Court for decision according to the finding of the Tehsildar. Thus, this appeal.

(3.) The only question that arises for consideration is whether the appellant is in lawful possession of the property. Admittedly, their is no written lease granted in favour of the appellant. He claimed that the landlord had agreed for an oral lease for the year 1968-69. The admitted facts are that the landlord was a minor and was prosecuting his studies and his maternal uncle was looking after the properties. The suit property was subject of hypothecation and the mortgagee had inducted one Somanna who remained in possession and cultivated the land till 1964-65. Thereafter, the maternal uncle of the respondent claimed to have been in possession and cultivated the land. The question whether who cultivated the land upto year 1967-68 is not material for the reason that the appellant is not laying any claim for that period. In view of the admitted position that the respondent is the owner and, being minor, his maternal uncle must be deemed in law to be in possession.