BHIMA BALU Vs. BASANGOUDA MAMGOUDA

JUDGEMENT

(1.) THIS second appeal raises a short but important question of law under the Bombay Tenancy Agricultural Lands Act, No. 67 of 1948. The facts leading to this point of law are few and they are not in dispute. Krishnarao, who was the owner of s. No. 372, agreed to sell the said property to the plaintiff on October 12, 1948, for Rs. 5,925. In pursuance of this agreement, Rs. 100 were paid as earnest money and a period of three months was fixed for the performance of the contract. On 28-12-1948, the Tenancy Act came into operation. Thereafter, on 6-1-1949, a sale-deed was effected by Krishnarao in favour of the plaintiff. In the present suit filed on September 9, 1949, the plaintiff claimed a declaration that the sale-deed passed in his favour was valid and he asked for recovery of the rent due in respect of the land conveyed to him. The defence substantially was that the sale-deed was void under the provisions of Section 64 of the Tenancy Act and so the plaintiff was not entitled either to the declaration or to the consequential claim for the recovery of rent made in the plaint. The trial Court upheld the defendant's plea and dismissed the plaintiff's suit. On appeal, it has been held that the sale-deed is not affected by the provisions of Section 64 and so the plaintiff's claim has been decreed. That is how the question which falls to be considered in the present appeal is whether the provisions of Section 64 of the Tenancy Act affect the sale in favour of the plaintiff.

(2.) AT the hearing of this appeal, our attention has been invited to the fact that on this point there are two conflicting judgments delivered by Division Benches of this Court. In -- 'shivabhai Chhaganlal v. State of Bombay', Civil Appln. No. 255 of 1951, D/- 17-12-1951 (Bom) (A), the learned Chief Justice and I took the view that an agreement for sale made before the Tenancy Act came into operation was not affected by the provisions of Section 64 and the right accruing to the party under such an agreement to obtain specific performance of the agreement remained unimpaired. It must be added, however, that this point has not been elaborately considered, though the position that Section 64 of the Tenancy Act was prospective and could not affect the rights accrued to the parties under agreements of sale made before the Act came into force was treated as obvious and clear.

(3.) ON the other hand in -- 'appa Ganpat v. K. B. Wassoodew', AIR 1954 Bom 511 (B), the learned Chief Justice and Shah J. appear to have taken a contrary view. Here again, the question which the Court had to consider in the first Instance was whether the petitioner was entitled to a writ, and the learned Chief Justice, who delivered the judgment of the Bench, commenced his judgment by observing that even if the view taken by the Revenue Tribunal on the question as to whether the provisions of Section 64 were retrospective or not was erroneous, that would not justify the issue of a writ, because the said erroneous decision could not be said to involve any question of jurisdiction at all. Even so, the learned Chief Justice proceeded to consider the arguments which were urged before the Bench and in the end he has observed that on the merits they agreed with the view taken by the Revenue Tribunal. In other words, the learned Judges accepted the argument that Section 64 (3) would affect agreements made even before the commencement of the Act and Section 89, Sub-section (2), would not save those rights. In view of these conflicting judgments, it seems to us that this point should better be decided, authoritatively by a larger Bench. Both the learned advocates agree and indeed it is obvious that this point is likely to arise in many cases and it is undesirable that such conflicting expression of opinion should be allowed to create confusion in the minds of the litigants or the Judges who are bound by our decisions.