VITHAL DATTATRAYA KULKARNI Vs. SHAMRAO TUKARAM POWER

JUDGEMENT

(1.) In respect of an extent of ten acres and 23 guntas of land in Survey No. 215 of Village Nathare, Haranax, one Tukaram Patla Power was a protected tenant under the provisions of the Bombay Tenancy Act, 1939, as amended by Act 26 of 1946. The landlords, vithal Kulkarni, Vasudeo Kulkarni and Krishnaji Kulkarni gave a notice to Tukaram on 8th March, 1948 under S. 7 (1) of the Bombay Tenancy Act, 1939, alleging that they required the land for their personal cultivation. In Dec. 1948, the Bombay Tenancy Act, 1939 was repealed and replaced by the Bombay Tenancy and Agricultural Lands Act (57 of 1948). Thereafter, on 25th April, 1949, the Kulkarni brothers filed Tenancy Case No. 102 of 1949, before the Aval Karkun to recover possession of the land from Tukaram. The application was dismissed by the Aval Karkun on 29th August, 1949 but in Tenancy Appeal No. 20 of 1950 filed by the landlords, the Collector of South Satara, Sangli, by his order dated 9th May, 1950 directed that possession of the land should be given to the Kulkarni brothers. The landlords accordingly recovered possession of the land on 18th June, 1950. Tukaram died on 31st August, 1951. On 18th April, 1961, Vasudeo Kulkarni executed a deed of conditional sale in favour of Sopan Power in respect of a joint 1/9th share in the land. It was recited in the deed that possession was delivered to Sopan but that was disputed. However, on 27th June, 1962, Sopan executed a deed of recognveyance in favour of vasudeo Kulkarni. On 16th April, 1962, Vithal Kulkarni executed a deed of sale in respect of his 1/3rd share in the land in favour of Bapu Bhau More and Vilas Ganpati More. On 7th July, 1962, Tukaram's heirs filed Tenancy Case No. 87 1962 against the Kulkarni brothers and their alienees, under S. 37 and S. 39 of the Bombay Tenancy and Agricultural lands Act alleging that the landlords had ceased to cultivate the lands personally within twelve years from the date of dispossession of the tenant (Tukaram) and, therefore, they were entitled to recover possession of the land. The Aval Karkun made an order in favour of Tukaram's heirs on 26th Nov. 1963. The order was confirmed by the Special Deputy Collector on 31st March 1964. The landlords and their alienees preferred a Revision Applications before the Maharashtra Revenue Tribunal. The Revenue Tribunal allowed the Revision Applications on 27th Oct. 1964, and dismissed the application of Tukaram's heirs filed under Ss. 37 and 39 of the Bombay Tenancy and Agricultural Lands Act. Tukaram's heirs invoked the jurisdiction of the High Court under Art. 226 of the Constitution. The High Court of Bombay by its judgment dated 11th Nov. 1968 allowed the writ Petition, quashed the order of the Tribunal and restored the order of the Aval Karkun as affirmed by the Special Deputy Collector. The three Kulkarni brothers, Bapu Bhau More and vilas Ganapati More, have preferred this appeal by special leave.

(2.) Shri M. C. Bhandare, learned Counsel for the appellants argued that the right of a protected tenant whose tenancy had been determined and who had been disposessed of the land under Section 39 of the Bombay Tenancy and Agricultural Lands Act was a right which was personal to the tenant himself and, which could not for that reason be exercised by that tenant's heirs. He argued that whatever may be the right of the heirs of a protected tenant dying subsequent to the Amending Act of 1956, the heirs of a protected tenant who died before the commencement of the 1956 Amending Act had no right to recover possession from that landlords. He urged that there was a substantial difference between S. 40 of the Bombay Tenancy and Agricultural Lands Act as it stood before and after the 1956 amendment. He submitted that the decision of the Full Bench of the High court of Bombay in Vasant Hariba v. Jagannath Ramchandra (1969) 71 Bom LR 12 applied to cases where the tenant died after the Amending of 1956 and not before. Some other contentions were also raised to which it is unnecessary to refer.

(3.) Shri. A. N. Karkhanis, learned Counsel for the respondents, who presented the case of the respondents extremely well, drew our attention to the provisions of the Bombay Tenancy Act and the Bombay Tenancy and Agricultural Lands Act before and after it was amended in 1956. He submitted that a comprehensive view of the provisions of the Act showed that the right given to the protected tenant was heritable and, therefore, the heirs of Tukaram were entitled to exercise the right given to the tenant under S. 37 of the Act. He submitted that the position was not different even under S. 40 of the Bombay Tenancy and Agricultural Lands Act as it stood before the 1956 amendment. He also advanced some other minor contentions which we do not consider necessary to mention here. The Bombay Tenancy Act, 1939 preceded the Bombay Tenancy and Agricultural Lands Act, 1948, Chapter III of the Bombay Tenancy Act 1939 (Sections 13-A to S. 26) dealt with tenants generally, while Chapter II (Ss. 3 to 13) of the Act dealt with a special class for tenants described in the Act as protected tenants. S. 3 classified a tenant as a protected tenant in respect of any land if he had held such land continuously for a period of six years immediately preceding 1st January 1938 to 1st January, 1945 and had cultivated such land personally during the aforesaid period. S. 3-A was introduced by way of amendment in 1946 and it provided that every tenant shall be deemed to be a protected tenant for the purpose of the Act, on the expiry of one year from the date of coming into force of the amending Act S. 5 enumerated the rights and liabilities of a protected tenant and it was expressly provided that the tenancy of land held by a protected tenant shall not be terminated unless the tenant failed to pay the arrears of rent for a specified period or before the specified date or had done any act which was destructive or partly injurious to the land or had subdivided or sublet the land or failed to cultivate personally or had used the land for a purpose other than agricultural. S. 7 (1) invested the landlord with a special right to determine protected tenancy by giving the protected tenant one year's notice in writing on the ground that he bona fide required the land for the purpose of cultivating the land personally or for a non-agricultural purpose. S. 7 (2) provided that if after taking possession of the land after the termination of the tenancy the landlord failed to use it for the purpose for which he had obtained possession within one year from the date on which he took possession or ceased to use it for that purpose at any time within twelve years from the date on which he took possession, the landlord shall restore possession of the land to the tenant whose tenancy was terminated by him unless the tenant had refused in writing to accept the tenancy on the same terms and conditions as before or that the tenant, on an offer being made to him in writing, had failed to accept the offer within three months of the receipt thereof. Explanation II to S. 7 provided. "For the purposes of this Section a tenant shall include his heir as specified in sub-section (3) of S. 9". S. 9 (3) specified that the lineal male descendents of a protected tenant or his adopted son, or, in absence of any lineal male descendant or an adopted son, his widow shall be deemed to be his heirs for the purposes of this section. S. 9 (1) provided that if a protected tenant died, the landlord should continue the tenancy on the same terms and conditions on which the protected tenant was holding it at the time of his death to such one of his heirs who, within four months of the death of such tenant, gave notice in writing to the landlord that he is willing to hold the land on such terms and conditions.