ANKUSH HIRAMAN MAGAR Vs. THAKUBAI MARUTI TUPE

JUDGEMENT

(1.) The question that arises for determination in this Second Appeal is, "Whether on an application for an exemption certificate being made under Section 88C of the Bombay Tenancy and Agricultural Lands Act, 1948, (Bom. LXVII of 1948) (hereinafter for the sake of brevity referred to as "the said Act"), during the pendency and final disposal of the said application, the land which is the subject-matter of the said application either does not vest in a tenant under Section 32 of the said Act or if it has become vested, it becomes divested by reason of the making of the said application, so that if, during the pendency of these proceedings, the land is incorporated within the limits of a Municipal Corporation the tenant loses the benefit conferred upon him by the said Section 32?".

(2.) Before discussing this question, it will be convenient first to set out the facts which have given rise to this debate. The appellants are the heirs and legal representatives of one Hiraman. Hiraman and the second respondent were the co-owners of five agricultural plots of land situate in village Hadapsar in Taluka Haveli in the District of Pune, each of them having an equal share therein. The original first respondent, Maruti Narayan Tupe, who died during the pendency of this appeal and whose heirs and legal representatives are respondents Nos. 1A to 1N, was a protected tenant in respect of the said plots of land. After the coming into force of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956, (Bom. XIII of 1956) Hiraman made an application to the Mamlatdar for a certificate of exemption under Section 88C of the said Act on the ground that his holding did not exceed an economic holding as defined in Section 6 of the said Act and that his total annual income including the rent of these plots did not exceed Rs. 1,500. After issuing notice to Maruti and after holding an inquiry as provided by Sub-section (3) of the said Section 88C the Mamlatdar decided that the said plots of lands were exempt from the operation of the provisions of Sections 32 to 32R of the said Act, and issued a certificate of exemption to Hiraman on December 16, 1961. Maruti thereupon filed an appeal to the Collector. During the pendency of this appeal, on Mar. 3, 1962 these lands were inducted within the limits of the Poona Municipal Corporation. The first respondent's appeal succeeded and by his order dated Oct. 14, 1962 the Collector dismissed this application. Thereafter in 1969 the appellants as the heirs and legal representatives of Hiraman filed the suit, out of which this Second Appeal arises, in the Court of the Civil Judge, Junior Division. Poona, against Maruti and the second respondent for partition of the said lands and possession of their one-half share therein. In the suit the appellants contended that Maruti had no right to purchase the said lands by reason of the facts that during the pendency of the proceedings for obtaining the exemption certificate, the lands had become incorporated in the limits of the Poona Municipal Corporation and on the date of such incorporation the certificate of exemption granted by the Mamlatdar was still in force. Thev further contended that the subsequent decision in appeal had no effect because on the date of the incorporation of the said lands into the municipal limits the exemption certificate being in force, a subsequent decision in appeal cancelling it would operate only from the date when it was given on which date the lands formed part of municipal limits. The suit was resisted by Maruti alone. The contentions raised by the appellants found favour with the trial Court and it decreed the appellants' suit. Maruti went in appeal. The learned Vlth Extra Assistant Judge, Poona, who heard the appeal allowed it and dismissed the appellants' suit. It is against this order and judgment of the learned Extra Assistant Judge that this Second Appeal is filed.

(3.) In order to test the validity of the contentions raised in this Second Appeal it is necessary to refer now to the relevant statutory provisions. The said Act was extensively amended by the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956 (Bom. XIII of 1956). Clause (14) of Section 2 of the said Act defines a "protected tenant" as meaning a "person who is recognised to be a protected tenant under Section 4-A". Under Section 4-A a person is recognised to be a protected tenant, if such person has been deemed to be a protected tenant under Sections 3, 3-A and 4 of the Bombay Tenancy Act, 1939. There is no dispute that the first respondent was a protected tenant within the meaning of the aforesaid definition. Sub-section (1) of Section 32 provides as follows:-