NAMDEO VISHNU JOSHI Vs. RAGHUNATH GANU KADAM

JUDGEMENT

(1.) THIS appeal has been referred to a Division Bench by the learned Single Judge of this Court, because he found that there were conflicting views on certain points of law arising under the Bombay Tenancy and Agricultural Lands Act, 1948, (hereinafter referred to as "the Tenant Act" ). The learned single Judge found that in the judgments delivered by Mr. Justice Patel and Mr. Justice Malwankar sitting singly, divergent views have been taken about the starting point when possession of the former tenant becomes unlawful for the purpose of calculating mesne profits and hence he passed the speaking order on 28th September, 1973 and 1st October, 1973, for referring this appeal to a Division Bench.

(2.) FOR the purpose of understanding the question involved in this appeal, a few facts may have to be noted. The appellant here is the original plaintiff and he is the landlord; the respondent-defendant is the tenant of an agricultural land. it is not now is dispute that as required by Section 31 read with Section 29 of the Tenancy Act, the plaintiff-appellant landlord terminated the tenancy of the defendants by the end of March, 1957 by a notice served some time in December of 1956 and thereafter an application was filed within time for claiming possession of the agricultural land for bona fide personal cultivation. The Mamlatdar after hearing the parties rejected the application of the landlord by his order dated August 30, 1958. The landlord carried an appeal to the District Deputy Collector, which was decided on January 6, 1960. By his order, the District Deputy Collector accepted the case of the landlord and directed possession of half the agricultural land to the landlord from the tenants. The tenants then preferred a revision application to the Maharashtra Revenue Tribunals, but the said revision application was dismissed and the order of the District Deputy Collector was confirmed by the Maharashtra Revenue Tribunal by its order dated October 7, 1960. A write matter was then instituted in the High Court by the tenants and it was finally decided on April 5, 1961, in favour of the landlord by upholding the orders passed by authorities below, but by giving clear directions with respect to the partition to be effected by the Mamlatdar before possession was delivered. It is after these orders were passed that the landlord-plaintiff has filed the present suit for recovering mesne profits in respect of half the agricultural land for the years 1959-60, 1960-61 and 1961-62. this suit is instituted on March 21, 1963. The said suit was dismissed by the trial Court in its entirety and that decree was confirmed by the District Court. When Second appeal was argued before the learned Single Judge he found that the only point of law that called for decision related to the starting point form which mesne profits can be calculated, if at all. What was accepted as basis formerly established by certain Full Bench judgment of this Court as also the Supreme Court judgment was that the mere notice may ordinarily have the effect of terminating the tenancy from that date under the law of this land. But so far as agricultural lands governed by the Tenancy Act are concerned mere notice is not enough to bring about the termination of tenancy. When the Mamlatdar passes an order under sub-section 92) of Section 29 of the Tenancy Act, the tenancy terminates and the possession of the tenant subsequent to that date becomes unlawful or unauthorized and that shall be the starting point for the purpose of calculating mesne profits.

(3.) HOWEVER, various types of orders can be passed by the Tribunal which are dealing with the application under Section 29 92) of the Tenancy Act. In some cases, Mamlatdar may award possession either of the whole or a part of the land by taking into consideration the provisions of Sections 31-A to 31-D of the Tenancy Act. In some cases, the Mamlatdar may reject the application of the landlord and either the Appellant Court or the Revision Tribunal may set aside that order and pass an order in favour of the landlord. In such a case from what point of item does the possession of the tenant become unauthorized or unlawful so as to enable the landlord to claim mesne profits, from the tenant? The learned Single Judge found that there were ample authorities for the proposition that between he period of the termination of the tenancy by notice and the passing of the order by the Mamlatdar the possession of the tenant is lawful or at any rate it is not unlawful and the tenant has an estate in possession which comes to an end only by the order of the Mamlatdar and for such proposition there was ample support in the Full Bench Judgment of this Court as also in the observations of the Supreme Court in some other judgment s to which we will refere in due course. However, he found that Patel. J. sitting singly in Balkrishan Gambhirset Agarwal v. Tukaram Shadhu Mali, 91966) 68 Bom LR 874, held that the date of the Mamlatdar's order irrespective of its nature is the starting point for calculating mesne profits as possession of the tenant becomes unlawful from that date when the landlord ultimately obtains an order in his favour. in that case the application of the landlord under Section 29 read with Section 34 of the Tenancy Act (present Section 31) was dismissed by the Mamlatdar on October 5, 1955. However, the Prant Officer allowed the appeal and revised the order, which was confirmed later on by the Maharashtra Revenue Tribunal as also by the High Court in a Writ Petition. In spite of the fact that the first Court's order of Mamlatdar was of dismissal, the learned Single Judge held that October 5, 1955, the date of the first order by the Mamlatdar, is the operative tenant must be deemed to be unlawful.