RAMCHANDRA ANANT JOSHI Vs. JANARDAN TULSHIRAM GHUGE

JUDGEMENT

(1.) The petitioners landlords had given a notice to their tenant opponent No. 1 before 3ist December, 1956 under Section 31 of the Bombay Tenancy and Agricultural Lands Act terminating the tenancy on the ground that they requited the lands bona fide for personal cultivation. Subsequently before 1st March 1957, they made an application to the Mamlatdar for obtaining possession of the lauds on the ground that they required them for personal cultivation. That application has not yet been finally disposed of and the matter is pending in appeal before the Deputy Collector. During the pendency of that application on 17th July 1958, the petitioners gave another notice to opponent No. 1 under Section 14 of the Act terminating the tenancy on the ground of defaults in the payment of rent. On nth December 1958, the petitioners made an application under Section 29 read with Section 14 to the Mamlatdar for obtaining possession of the lands on the ground that there were defaults in the payment of rent for the years 1953-54 to 1957-58. The Tenancy Aval Karkun directed that possession of the lands should be restored to the petitioners. His order was set aside in Appeal by the Deputy Collector, as according to the Deputy Collector the second application made for possession by the petitioners on nth December 1958 was not maintainable. The order of the Deputy Collector has been confirmed in revision by the Revenue Tribunal. Against that order, the present special Civil Application has been filed.

(2.) The Division Bench, before which this application came up for hearing, has referred the following two questions to the Full Bench:

(3.) In regard to the first question, the principal argument, which has been advanced on behalf of the tenant, is that the tenancy having been already terminated by a notice given under Section 31, there was no tenancy in existence thereafter, which could be terminated by the second notice and that consequently the second application, in which possession was claimed on the basis of termination of a tenancy, which did not exist, was not maintainable. There does not appear to be much force in this argument. It assumes that a notice given by the landlord always results in determination of the tenancy. If the notice is for any reason detective, it will have no effect and the tenancy will cotinue. The landlord may also waive the notice in some cases with the assent of the tenant and in others, like those involving forfeiture, without such assent. For instance, if after giving a notice under Section 31, the landlord does not follow it up with an application for possession to the Mamlatdar, the notice will be deemed to have been waived. The consequence of waiver is to revive or restore the old tenancy, see Mulla's Transfer of Property Act, p. 696, fourth edition-The giving of a notice determining the tenancy will not therefore preclude the landlord from giving another notice. It is also clear from the provisions of Section 113 of the Transfer of Property Act and Illustration (b) to this section that under the ordinary law a second notice for terminating the tenancy can be given. Clause (h) in Section 111 of the Transfer of Property Act provides that a lease of immovable property determines on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. Section 113 states that a notice given under Section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Illustration (b) to this section is as follows :