PANDURANG SAKHARAM JADHAV Vs. NAGO HIRU GHARAT

JUDGEMENT

(1.) THE petitioner is the owner of the two lands in dispute. On January 17, 1944, he sold these lands to one Govind Khandu Patil, who in turn sold them to Parsharam Atmaram Vichare. After Vichare purchased the lands, they were given on lease to Govind Khandu Patil, who cultivated them till 1947 -48. Since 1948 -49, opponent No. 1, hereinafter referred to as the opponent, has been cultivating the lands. From the admissions made by the petitioner in his evidence, it appears that the opponent had been introduced on the lands as a tenant by Vichare in 1948 -49. On June 25, 1947, the petitioner' made an application under the Bombay Agricultural Debtors Relief Act, in which he contended that the transaction between him and Govind Khandu Patil was a mortgage. He prayed for redemption of that mortgage. In that proceeding, it was held that the transaction was a mortgage and an order was made for possession of the lands being restored to the petitioner on his paying the amount found due. On December 27, 1956, the petitioner gave a notice to the opponent terminating his tenancy. In that notice he stated that he was giving this notice without prejudice to his legal rights. Subsequently, the petitioner also made an application for obtaining possession of the land under Section 31 read with Section 29 of the Tenancy Act of 1948, but that application was withdrawn. On August 9, 1957, the petitioner passed a receipt for the rent received by him for the year 1956 -57. In that receipt it is stated that he had accepted the rent under protest and without prejudice to his contention that the opponent was not a tenant. On September 11, 1957, the petitioner made an application to the Mamlatdar for obtaining a declaration that the opponent was not a tenant of the lands. The opponent relied on the conduct of the petitioner in giving a notice to him for termination of his tenancy and in accepting rent from him, and contended that the petitioner had thereby recognised him as his tenant. These contentions were accepted by the Mamlatdar, who accordingly held that the opponent was a tenant of the lands. The order made by the Mamlatdar was set aside by the Prant Officer. He referred to the fact that in the rent receipt passed by the petitioner, he had stated that he was accepting the rent, without prejudice to his contention that the opponent was not a tenant 0f the lands. The Prant Officer came to the conclusion that after the redemption of the mortgage, the petitioner had not allowed the opponent to hold over and that on the other hand he had disputed his title as a tenant. He, therefore, held that the tenancy came to an end when the mortgage was redeemed. Against this order, the opponent applied in revision to the Bombay Revenue Tribunal. Before the Tribunal the opponent raised what the Tribunal has described as a new point and it was that, as he was a tenant of the mortgagee in 1948 -49, i.e. before the coming into force of the Bombay Tenancy and Agricultural Lands Act, 1948, in December 1948, he must be deemed to be a tenant under the Act of 1948. This contention was accepted by the Tribunal. The Tribunal accordingly set aside the order of the Prant Officer and restored the order of the Mamlatdar, Against the order made by the Revenue Tribunal, the petitioner has filed the present application.

(2.) MR . Patil, who appears on behalf of the petitioner, has raised various points. He lias urged that the Tribunal should not have allowed the opponent to make out a new case in the revision application filed by him. He has contended that, under Section 32(2)(v) of the Bombay Agricultural Debtors Relief Act, the award made in favour of the petitioner will prevail over the rights, if any, acquired by the opponent to continue in possession of the lands under the Tenancy Act. Another argument advanced by Mr. Patil is that the lease of the lands by Vichare to the opponent cannot affect the petitioner's right to obtain possession of the land, as it took place during the pendency of his application under the Bombay Agricultural Debtors Relief Act. The last point, which Mr. Patil lias urged, is that the opponent is not entitled to the protection of the 1948 Act after the redemption of the mortgage, as he was not a protected tenant under the Act of 1939.

(3.) MR . Rege, who appears on behalf of the opponent, has relied on the definition of the word 'tenant' contained in Clause (18) of Section 2 of the Act of 1948, as it stood in 1948, according to which'tenant' means an agriculturist who holds land on lease and includes a person who is deemed to be a tenant under the provisions of thisAct. Section 4 of the Act states that A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant, if such land is not cultivated personally by the owner and if such person is not - ... (c) a mortgagee in possession. It has been held in Kanji Kurji v. Kala Gopal : (1957)59BOMLR846 that the words 'mortgagee in possession' in Section 4(c) include all persons, who derive title under a mortgagee in possession, and that, therefore, a tenant from a mortgagee inpossession, who derives title through him, cannot acquire the status of a deemed tenant or a statutory tenant under the Act. The opponent cannot, therefore, be deemed to be a tenant under Section 4 of the Act. Section 3 of the Act makes the provisions of Chapter V of the Transfer of Property Act applicable to tenancies and leases of agricultural lands in so far as they are not inconsistent with the provisions of the Act. The opponent had been brought on the land by the mortgagee. Under s.111(c) of the Transfer of Property Act, his lease came to an end when the interest of the mortgagee in the land terminated, i.e. when the mortgage was redeemed. Thereafter he cannot be deemed to be a tenant under Section 4. He cannot also be recognised to be a protected tenant under Section 31, as he was not a protected tenant under the Act of 1939. There is also, no other provision in the Act, under which the opponent is entitled to continue in possession of the lands as a tenant of the petitioner,