DHANABHAI RAIJI Vs. UDESING BHAIJI

JUDGEMENT

(1.) The question arising in this petition is a short one but in order to appreciate it it is necessary to state briefly a few facts giving rise to the petition. The petitioner was a tenant of respondent No. 3 in respect of land bearing Survey No. 431 situate in the Sim of Jambusar Taluka Jambusar District Broach. Respondent No. 3 terminated the tenancy of the petitioner by a notice dated 19th March 1949 on the ground that respondent No. 3 required the land bona fide for personal cultivation. The notice was obviously given by respondent No. 3 under sec. 34 of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act) as it stood at the material time. Respondent No. 3 thereafter on 12th April 1950 filed an application under sec. 29 of the Tenancy Act before the Mamlatdar Jambusar for recovering possession of the land from the petitioner. The Mamlatdar by an order dated 13th May 1950 allowed the application and directed the petitioner to hand over possession of the land to respondent No. 3 and pursuant to the order of the Mamlatdar possession of the land was obtained by respondent No. 3 from the petitioner. Respondent No. 3 thereafter cultivated the land personally for a while and then sold the land to respondents Nos. 1 and 2 on 23rd March 1951 On coming to know that respondent No. 3 had ceased to personally cultivate the land and had sold the land to respondents Nos. 1 and 2 the petitioner made an application to the Mamlatdar under sec. 39 read with sec. 37 of the Tenancy Act for obtaining restoration of possession of the land on the ground that respondent No. 3 had ceased to use the land for the purpose for which it was obtained by him from the petitioner within twelve years from the date on which he took possession of the land. To this application besides respondent No. 3 respondents Nos. 1 and 2 were also joined as parties since the relief of possession could not be effective unless it was also granted against respondents Nos. 1 and 2. Respondents Nos. 1 to 3 contested the application on various grounds which are not necessary to mention for the purpose of deciding the present petition. But it may be pointed out at this stage that the application was made after the amendment of sec. 37 by Bombay Act 13 of 1956 which came into force on 1st August 1956 The Tenancy Aval Karkun who heard the application by an order dated 31st May. 1958 decided the application in favour of the petitioner and directed respondents Nos. 1 to 3 to restore possession of the land to the petitioner. Respondents Nos. 1 and 2 thereupon preferred an appeal to the Prant Officer Broach but the Prant Officer dismissed the appeal and confirmed the order of the Tenancy Aval Karkun. Respondents Nos. 1 and 2 thereupon carried the matter in revision to the Revenue Tribunal. Before the Revenue Tribunal a new contention was raised on behalf of respondents Nos. 1 and 2 which was not urged either before the Tenancy Aval Karkun or before the Prant Officer and that contention was that by Bombay Act No. 13 of 1956 sec. 34 was deleted and in its place was substituted sec. 31 and consequent upon this amendment sec. 37 was also amended by substituting the words under sec. 31 for the words under sec. 34 and the effect of this amendment was that after the amendment an application for restoration of possession could not be filed under sec. 39 read with sec. 37 in cases where the landlord had taken possession of the land after terminating the tenancy of the tenant under the old sec. 34. The argument was that since in the present case respondent No. 3 had obtained possession of the land from the petitioner after terminating the tenancy of the petitioner under the old sec. 34 the petitioner was not entitled after the amendment to make an application for restoration of possession of the land on the ground that respondent No. 3 had failed to use the land for the purpose for which he had taken possession of the same. This argument was however sought to be met on behalf of the petitioner by relying on sub-sec. (4) introduced in sec. 37 by Gujarat Act 16 of 1960. It was urged on behalf of the petitioner that by reason of sub-sec. (4) of sec. 37 termination of the tenancy under the old sec. 34 was equated with termination of the tenancy under sec. 31 for the purpose of sec. 37 and the benefit of sec. 37 was extended to a tenant even in cases where his tenancy was terminated by the landlord under the old sec. 34 prior to the introduction of the amended sec. 31. The answer which respondents Nos. 1 and 2 gave to this contention urged on behalf of the petitioner was that sub-sec. (4) of sec. 37 introduced by Gujarat Act 16 of 1960 was not retrospective in operation and did not affect the vested right of respondents Nos. 1 and 2 as purchasers and the petitioner was therefore not entitled to rely on the same for sustaining his claim to restoration of possession. This plea was accepted by the Revenue Tribunal and the Revenue Tribunal took the view that the rights of respondents Nos. 1 and 2 as purchasers from respondent No. 3 had become vested prior to the introduction of sub-sec. (4) of sec. 37 and sub-sec. (4) of sec. 37 did not therefore. have the effect of affecting those rights and in this view of the matter the Revenue Tribunal allowed the Revision Application and set aside the order for restoration of possession of the land to the petitioner. The petitioner thereupon preferred the present petition challenging the view taken by the Revenue Tribunal.

(2.) It is clear from the facts which have just been narrated that respondent No. 3 took possession of the land after terminating the tenancy of the petitioner under the old sec. 34 on the ground that he wanted it bona fide for personal cultivation and after taking possession of the land he used it for personal cultivation for a while but ceased to use it for personal cultivation from 23rd March 1951 when he sold it to respondents Nos. 1 and 2. Now the unamended sec. 37 sub-sec. (1) was in the following terms :-

(3.) The order passed by the Revenue Tribunal dismissing the application must therefore be upheld though for different reasons and the petition must be dismissed and the rule discharged. There will be no order as to costs Petition dismissed.