RAGHUNATH DATTATRAYA VADEKAR Vs. RATNABAI JINAPPA UPADHYE

JUDGEMENT

(1.) THE learned Single Judge while dealing with these two matters had occasion to notice the effect of section 32 (1-A) (b) not considered at all by the Division Bench of this Court when they decided the matter that is reported in (Bajirao Maruti Dhumal v. Shankar Yalleppa Mane), 1987 (1) Bom. C. R. 522 : 89 Bom. L. R. 4. The Division Bench was considering the effect of newly introduced sub-section (1b) in section 32 of the Bombay Tenancy and Agricultural Land Act, 1948. This was introduced by an amending Act No. 49 of 1969.

(2.) AS rightly held by the learned Single Judge in his order dated 2-2-1989, making the reference, in the case reported in the said Bombay Law Reporter in the matter between Bajirao Maruti Dhumal v. Shankar Yalleppa Mane, the word possession as used in the aforesaid newly introduced sub-section (1-B) was interpreted to include a constructive possession of the landlord. This was done on the basis that as per the general law of property, owner of a property is taken to be in possession for all times to come till his ownership is extinguished. As a direct corollary thereto, it is obvious that even though actual physical possession is of a third party like a tenant or lessee, the landlord will have a constructive possession through the said third party.

(3.) THE new sub-section (1-B) reads as under: where a tenant who was in possession on the appointed day and who on account of his being dispossessed before the 1st day of April, 1957 otherwise than in the manner and by an order of the Tahsildar as provided in section 29, is not in possession of the land on the said date and the land is in the possession of the landlord or his successor-in-interest on the 31st day of July, 1969 and the land is not put to a non-agricultural use on or before the last mentioned date, then, the Tahsildar shall, notwithstanding anything contained in the said section 29, either suo motu or on the application of the tenant, hold an enquiry and direct that such land shall be taken from the possession of the landlord or, as the case may be, his successor-in-interest, and shall be restored to the tenant; and thereafter, the provisions of this section and sections 32-A to 32-R (both inclusive) shall, in so far as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased the land on the date on which the land is restored to him.