VITHAL RANGANATH GAIKWAD Vs. MURLIDHAR VAMAN DHAVALE

JUDGEMENT

(1.) The question raised in this Special Civil Application (NO. 2104 of 1970) pertains to the applicability of Section 37 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called the Tenancy Act( to proceedings taken and orders passed under Section `15 read with Section 29 of the Act, and since on this aspect, there is a conflict of decisions, the matters has been referred to a Division Bench.

(2.) The question arises in these circumstances: The property involved in this litigation is Survey No. 446 admeasuring 26 acres and 1 guntha with a pot-kharaba of 15 gunthas, assessed at Rs. 34, situate at village Newasa Budrrk, Dist, Ahmednagar, petitioner No. 1 was the landlord of this land, while opponent No. 1 was the tenant. Sometime prior to 2nd of September 1957 opponent No. 1 surrendered the land in favour of petitioner No. 1 who at that time was a minor represented by his guardian, opponent No. 2. On 2nd of September 1957 the tenant made an application under Section 15 of the Tenancy Act intimating the Tenancy Awal Karkun of Newasa that he had voluntarily surrendered possession of the land leased to him. The application was registered as Tenancy Case No. 47 of 1957. On verifying that the surrender made by the tenant was a voluntary one and by the tenant was a voluntary one and the tenant had, of his free will, relinquished all his rights as a tenant, the Tenancy Awal Karkun accepted the said surrender and after further satisfying himself that the landlord bona fide required the land for his personal cultivation and the total acreage fell within the ceiling area, he ordered that possession of the entire land be givne to the landlord. This order was passed by the Tenancy Awal Karkun on 30th of September 1957. On 24th of March, 1958, the land was actually put in possession of the guardian of the minor landlord, petitioner No. 1 Sometime in 1964 - 65, petitioner No. 1 sold the land to petitioners Nos. 2 to 4 who entered in possession of the land k from the date of purchase . On 28th of November, 1967 opponent No. 1 tenant filed an application for restoration of possession of the land to him under k Section 37 read with Section 39 of the Tenancy Act on the ground that the landlord had failed to cultivate the land personally, and this application was numbered as A. L. THE. Case No. 4 of 1968. The application was resisted by the landlord and his purchasers principally on the ground that since possession of the land had been obtained by the landlord under Section 15 of the Act after a voluntary surrender had been duly verified by the Tenancy Awal Karkun the provisions of Section 37 of the Act were not applicable . The was attracted and the tenant was entitled to restoration of possession. he accordingly by his order dated 14th of March 1969 directed restoration of possession of the land under Section 37(1) of the Tenancy Act to the tenant and further directed that compensation amounting to Rs. 4,000/- for four years from 1964-65 to 1967- 1968 and further compensation of Rs. 1,000 per annum till actual delivery of possession shoudl be paid to the tenant. Against this order passed by the Additional Tehsildar, the petitioners (the landlord and his purchasers) carried an appeal to the Collector being Tenancy Appeal No. 42 of 1969. The Sub-Divisional Officer who heard the appeal confirmed the view of the Tehsildar and dismissed the appeal on 22nd of July 1969. The revision application that was preferred by the petitioners' to the Maharashtra Revenue Tribunal was dismissed on 16th of March 1970. Against the decision of the Tribunal, the present Special Civil Application has been filed by the petitioners challenging the view that S. 37 of the Act was applicable to the facts of the case and further challenging the finding the there was a condition surrender under the proceedings that took place under Section 15 of the Act.

(3.) On behalf of the petitioners. Mr. Limave contended before us taht in view of the fact that the landlord had obtained possession of the land under Section 15 of the Act upon a voluntary surrender having been verified by the Tenancy Awal Karkun in Tenancy Case No. 47 of 1957. Section 37 could not be invoked by the tenant. He pointed out that in terms, Section 37 of the Act was applicable to cases where the landlord had obtained possession of the land after termination of the tenancy under Section 31 or Section 33-B or Section 34 of the Act as it stood immediately before the commencement of the Amending Act, 1956 and had failed to use the land for l any of the purposes specified in the notice given under either of the aforesaid sections. He pointed out that Section 15 of f the Act. which provided for termination of tenancy by a surrender on the part of the tenant and consequent recovery of possession by the landlord pursuant to an order that may be passed by the Mamlatdar under that section had not been mention din Section 37 at all. he, therefore, urged that the provisions of Section 37 were not attracted to the facts of the case, and the lower authorities were in error in invoking the provisions of Section 37 and passing an order for restoration of possession in favour of the tenant. He also contended that the finding of the Additional Tahsildar, which was confirmed by the Sub-Divisional Officer and the Tribunal will have to be regarded as perverse being contrary to the express language used in the application preferred by the tenant under Section 15 of the Act and the deposition given by him before the Additional Tahsildar. He pointed out that neither the proceedings nor the final order of the Additional Teahsildar under Section 15 of the Act showed that there was any conditional surrender, that is to say, surrender on condition that the landlord should personally cultivate the land after obtaining possession thereof. In support of his contention that Section 27 of the Act could not be attracted to a case governed by Section 15 of the Act, he relied upon the judgment of Mr. Justice Abhayanker in Uttamrao Vithalrao More v. Nivruti Subhana Chambhar, Special Civil Appln. No. 1372 of 1966, decided on 28-3-1969 (Bom).