CHHANA KIKA Vs. KALA CHHIMA

JUDGEMENT

(1.) This revision application raises a short question of interpretation of section 32(2) (v) of the Bombay Agricultural Debtors Relief Act 1947

(2.) The property in question is survey No. 153/1 admeasuring about five bighas and situate in the village Chandravasan Supa District Surat. The village Chandravasan Supa was at first in Jalalpur Taluka Surat District but after the merger of Baroda when the Baroda territory in Navsari was merged into the State of Bombay there was re-distribution of Taluka boundaries and the village Chandravasan Supa was transferred to the Navsari Taluka in Surat District. It is not in dispute and this fact has been expressly admitted before us by Mr. Vidhyarthi that the village Chandravasan Supa did not at any time form part of the Baroda territory and was all along part of British India and thereafter the Indian Dominion and now the Union of India. On July 22 1922 the father of the opponent executed a deed of sale in respect of the property in question in favour of Messrs. Laldas Fakirdas. In 1950 the opponent filed an application for adjustment of his debts under the Bombay Agricultural Debtors relief Act 1947 in the Court of the learned Civil Judge Junior Division Navsari alleging that the transaction entered into by his father with the said firm of Messrs. Laldas Fakirdas was in the nature of a mortgage and was not a sale. On April 15 1954 a compromise was arrived at between the parties to the aforesaid application under which it was agreed that the opponent should pay Rs. 2 500 to the said firm. It was also agreed that the said transaction was in the nature of a mortgage and that if the sum of Rs. 2 500 was paid by the opponent the mortgage was to be deemed to have been redeemed. It was further agreed that if the opponent paid Rs. 1000/the said firm should hand over possession of this land to the opponent. The said land however was not in actual possession of the firm but in possession of the petitioners who claimed to be the tenants and as they declined to hand over possession of the land the opponent took out a Darkhast being Darkhast No. 30 of 1958 on March 17 1958 claiming that he had paid the sum of Rs. 1000/as provided by the compromise decree and had therefore become entitled to possession of the land in question. The petitioners obstructed the delivery of possession of the land in question claiming that they were protected tenants and that the Court had no jurisdiction to direct them to hand over possession except under the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 The learned Judge relying upon the Pull Bench decision of the High Court at Bombay in Jasvantrai Tricumlal Vyas v. Bai Jivi 59 B. L. R. 168 held that the petitioners were the tenants of the mortgagees-in-possession since 1933 that therefore the Tenancy Act of 1939 applied to them and to the land in question that the petitioners were protected tenants that under sec. 4 of the Tenancy Act of 1948 they were persons deemed to be tenants and therefore they could not be evicted under the Darkhast proceedings taken out by the opponent. The learned trial Judge dismissed for these reasons the Darkhast proceedings against the petitioners. The opponent thereupon filed an appeal before the learned District Judge Surat who set aside the order of dismissal of the Darkhast passed by the trial Court and allowing the appeal remanded the matter directing the trial Court to proceed with the Darkhast. The learned District Judge thought that the decision in Kanji Kurji v. Kala Gopal 59 B. L. R. 846 was applicable because the petitioners being the tenants of the mortgagee-in-possession were excluded from being protected tenants by reason of section 4(c) of the Tenancy Act of 1948. He arrived at this result because of the fallacy that he made in considering the village Chandravasan Supa as formerly belonging to the Baroda territory and having merged at the time when the territory of the former Baroda State merged. On this fallacious basis he held that the Tenancy Act of 1939 was not applicable at any time to land situate in the village Chandravasan Supa and that the first time that the Tenancy Act was made applicable to this village was when the Tenancy Act of 1948 was applied. As pointed out earlier and it is not a fact in dispute between the parties that Chandravasan Supa was never part of the former State of Baroda and that since the tenancy commenced from the year 1933 it was governed by the Tenancy Act of 1939. That being the admitted position it would be the decision in Jasvantrai Tricumlal Vyas v. Bai Jivi (59 B. L. R. 168) that would be applicable to the facts of this case and that being so the petitioners were at all material times protected tenants and were entitled to the protection of the Tenancy Act. This position is not disputed by Mr. Vidhyarthi. Prima facie therefore it would appear that the petitioners could not be evicted by the Darkhast proceedings taken out by the opponent.

(3.) Mr. Vidhyarthi however contended that even though the petitioners were protected tenants and entitled to the benefit of the protection of the Tenancy Act the award passed by the Court would prevail even as against them as section 32(2) (v) of the Bombay Agricultural Debtors Relief Act 1947 would override the provisions of the Tenancy Act. In support of his contention Mr. Vidhyarthi relied upon a decision of Mr. Justice Gajendragadkar in Shiddurama Shagale v. Basawa Ramayya Swami 58 B.L.R. 1. The facts there were that on May 22 1940 Thevi Patta was passed in favour of the creditor by the debtor and subsequently in 1943 a mortgage was executed between the same parties in respect of the same property. The debtor applied for adjustment of the debts due to the creditor and in these proceedings the creditor contended that the Thevi Patta amounted to a lease and a mortgage and though the debt due to him could be adjusted under the provisions of the Bombay Agricultural Debtors Relief Act 1947 it was not open to the Court to direct that the property belonging to the debtor should be restored to her It was common ground that the tenancy rights set up by the creditor were governed by sec. 2A and 3A of the Tenancy Act of 1939. On these facts Gajendragadkar J. held that so far as the provisions of the Tenancy Act of 1939 were concerned the creditor was entitled to plead the status of a protected tenant and therefore under that Act he was not liable to be evicted. But he held that the rights which the creditor could set up under the Tenancy Act did not avail him in the proceedings before him because sec. 32(2) (v) of the Bombay Agricultural Debtors Relief Act 1947 expressly authorised the Court to deliver possession of the property of the debtor notwithstanding any law or contract to the contrary. He also held that the policy underlying the provisions of section 32(2) (v) of the Bombay Agricultural Debtors Relief Act was clear viz. that when debts of agricultural debtors are being adjusted on terms favourable to the debtors on grounds of social justice the Legislature desired that after the debts were adjusted and awards were made embodying the terms on which the debts should be adjusted it was essential that the agricultural debtors should be put in possession of their agricultural lands and in order to make this provision effective the Legislature took the precaution of laying down that an order for possession of their agricultural lands should be passed in favour of debtors though there may be provisions to the contrary in some other laws or though there may be contracts to the contrary between the parties. Basing his contention upon these observations Mr. Vidhyarthi urged that section 32(2) (v) of the Bombay Agricultural Debtors Relief Act would prevail over the provisions of the Tenancy Act and that being so the petitioners were not entitled to resist his demand for possession under the award passed by the Court.