SHANKAR RAOJI PATIL Vs. MAHADU GOVIND CHAWAN

JUDGEMENT

(1.) RESPONDENT No. 1 filed an application before the Mamlatdar contending that he had been dispossessed by his landlord, that the landlord had put the petitioners in possession, and as he was a protected tenant, he was entitled to an order restoring possession to him. The Mamlatdar held that the landlord had not dispossessed respondent No. 1 but he held on a plea taken by the petitioners that they were the sub -tenants of respondent No. 1 and therefore he dismissed respondent No. 1's application. Respondent No. 1 went in appeal to the Prant Officer. The Prant Officer upheld the finding of the Mamlatdar that the landlord had not dispossessed respondent No. 1, but he differed from the Mamlatdar with regard to the issue of sub -tenancy and held that the petitioners were not the sub -tenants of respondent No. 1 but they were trespassers and passed an order of possession in favour of respondent No. 1. The petitioners went in revision to the Ravenue Tribunal and the Revenue Tribunal has upheld the order of the Prant Officer and the petitioners have now come on a petition under Article 227 to us.

(2.) AN interesting question has been raised and argued by Mr. Kulkarni before us and his contention is that on the finding of the Prant Officer that the petitioners were trespassers he had no jurisdiction to award possession to respondent No. 1 under Section 29(1) of the Tenancy Act. His contention is that once it is established that the party in possession is a trespasser, it is only a civil Court that can deprive the trespasser of his possession and give possession to the party claiming it against the trespasser.

(3.) IF it is open to the Mamlatdar to determine the question as to whether the petitioners were the tenants of respondent No. 1 or not, it must follow that impliedly he had jurisdiction also to decide that they were not sub -tenants and therefore were trespassers. That is the view I have taken sitting singly in a case reported in Trimbak Sopana v. Gangaram (1952) 55 Bom. L.R. 56, and that view has been accepted by a judgment of a division bench reported in Dhondi Tuharam v. Dadoo Piraji. (1952) 55 Bom. L.R. 663. But it is urged on the strength of the judgment in Dhondi Tuharam v. Dadoo Piraji that even though the Mamlatdar may impliedly hold that the petitioners are trespassers, he has no jurisdiction to grant a relief to respondent No. 1 and order possession against trespassers. The contention is that it is only when the tenant wants possession from his landlord that under Section 29(1) the Mamlatdar can pass an order for possession in his favour, but when the tenant is seeking possession against a trespasser, the Tenancy Act confers no jurisdiction upon the Mamlatdar to give him possession and the tenant must be relegated to his rights in a civil Court, and what is urged is that since the Prant Officer came to the conclusion that the petitioners were trespassers,, he should have directed respondent No. 1 to file a suit in a civil Court and not order possession. Now, the view taken by the division bench in Dhondi Tuharam v. Dadoo Piraji was that if a suit is filed by a landlord in a civil Court for possession and the defendant raises the contention that he is a tenant the issue must be decided by the Mamlatdar and the suit must be stayed. If the Mamlatdar holds that the defendant is a tenant, then the suit must be dismissed. If the Mamlatdar holds that the defendant is not a tenant but is a trespasser, then the civil Court must go on with the suit on the basis of the defendant being a trespasser. Now, one important fact must be borne in mind in considering the decision of the division bench, and that is that it was a suit filed by a landlord against a tenant and not by a tenant against a landlord. The case that we have here is not a case of a landlord seeking possession from his tenant but it is a case of a tenant who has been dispossessed and who wants his possession to be restored. Now, it is from this point of view that one must look at the provision made in Section 29 with regard to the right of a tenant to obtain possession and the right of the landlord to obtain possession. Section 29(2) provides that a tenant entitled to possession of any land or dwelling house under any of the provisions of this Act may apply in writing for such possession to the Mamlatdar ; and Sub -section (2) of Section 29 provides that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. The distinction between the two sub -sections will immediately be apparent. Whereas in the case of a landlord the Legislature has expressly provided that he can only obtain an order of possession in respect of a land held by his tenant, Sub -section (1) when dealing with a tenant does not impose any similar restriction. Construing the plain language used by the Legislature in Sub -section (1) it gives a right to the tenant to obtain an order of possession from the Mamlatdar in every case where he is entitled to possession under any of the provisions of the Tenancy Act, and the reason for this distinction is obviously based on principle. The Tenancy Act was put on the Statute Book for the protection of tenants and it would be difficult to believe that the Legislature intended that after a tenant had gone to the Mamlatdar for possession against a party who was in possession and the Mamlatdar had tried the issue as to whether that party was a sub -tenant or not the Mamlatdar should have no right to give relief to the tenant but should drive the tenant to a civil Court asking him to start a new litigation and then obtain possession by the rather dilatory method of a suit. The clear object of the Legislature in enacting Section 29(1) was that if the Mamlatdar was satisfied that the tenant was entitled to possession by reason of the Tenancy Act, then it was his duty to protect that possession and order any one who had dispossessed the tenant to restore possession to him.