GAJANAN MAHADEO YEREKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE question which has been referred to us in this proceeding is whether a landlord who has dispossessed the tenant otherwise than in accordance with the provisions of the Tenancy Act and where the right of a tenant to restoration of tenancy is subsisting on the date of sale, a sale by a landlord to a stranger is not in violation of the provisions of Section 91 of the Tenancy Act. The circumstances leading to this reference are briefly these:--

(2.) SURVEY No. 63/2 of mouza Kharwad, Tahsil Warora, District Chanda originally belonged to one Mukund Vithoba. On 17-8-1963 he sold the same to one Mahadeo Yerekar for a price of Rs. 700/ -. On 4-5-1967 Mahadeo died leaving behind Ms son Gajanan, wife Shanti and father Ghularam. When this sale was effected the lease of this land granted in favour of one Nathu Narayan had not been validly terminated in accordance with the provisions of the Bombay Tenancy and Agricultural Lands (Vidar-bha Region) Act, 1958 (hereinafter referred to as "the Tenancy Act") although the tenant had left the land some time at the end of March 1963. Therefore, in May 1966 the village Patwari made a report to the Naib Tahsildar of Warora that the sale of this land effected on 17-8-1963 was effected in respect of a land leased out to a tenant. That naturally led to a proceeding under Section 122 of the Tenancy Act. In that proceeding statements of purchaser Mahadeo and tenant Nathu Narayan. were recorded. The statement of vendor Mukund Vithoba was also recorded and on 28-6-1966, the Naib Tahsildar passed an order declaring the sale of 17-8-1963 to be invalid as being in contravention of the provisions of Section 91 of the Tenancy Act, Mahadeo tried to challenge that decision before the Sub-Divisional Officer but before that appeal was decided he died and the Sub-Divisional Officer passed his order on 9-5-1967, confirming the order of the Naib Tahsildar. Two of Mahadeo's heirs (son and father) made a further attempt to challenge the decision of the Sub-Divisional Officer before the Revenue Tribunal but the Revenue Tribunal by its order dated 7-3-1969 dismissed the revision application. The heirs of Mahadeo thereafter came up to this Court in Special Civil Application No. 492 of 1969. This Special Civil Application came up for hearing before Chandurkar J. At the hearing, an earlier decision of Padhye J. in Spl. Civil Appln. No. 253 of 1965 (Bom), Tulsabai v. State of Maharashtra was then relied upon on behalf of the heirs of Mahadeo. The argument based on that decision was that because tenant Nathu Narayan had already left and was not actually on the land on 17-8-1963 when the sale was effected, the provisions of Section 91 of the Tenancy Act were not applicable to the sale and the tenancy authorities were consequently in error in declaring the sale to be invalid. Although this argument was in keeping with the earlier decision of Padhye J. , Chandurkar J. felt that the view taken in the earlier special civil application was required to be reconsidered and therefore this reference has been made to us.

(3.) MR. Madkholkar, appearing on behalf of the petitioners (heirs of purchaser Mahadeo) was at pains to urge that the earlier view taken by Padhye J. in Special Civil Application No. 253 of 1965 was the right view and it was not necessary to reconsider the same as suggested In the referring judgment of Chandurkar J. While considering his submissions it is in the first place, necessary to examine the provisions of Section 91 of the Tenancy Act. That section provides: