PANDU KHANDU Vs. NARAYAN KRISHNA

JUDGEMENT

(1.) THE defendant was a tenant in the year 1943 of Section Nos. 2 and 234/1. The plaintiff purchased the lands in 1944 from the owner thereof and thereafter served a notice upon the defendant terminating his tenancy as from 1-4-1945. The defendant having failed to vacate and deliver possession the plaintiff filed suit No. 38 of 1945 in the Court of the Mamlatdar under the Mamlatdars Courts Act. The suit was compromised on 12-7-1945, and the defendant was permitted to remain in occupation of the lands till the crops which had been planted by him in the lauds were removed. It was also provided by the decree that the plaintiff was to have possession of the lands after removal of the crops by the defendant. In April 1946 the plaintiff sought to enforce the order of the Mamlatdar after the defendant had removed the crops. But the defendant objected to the delivery of possession. The objection raised by the defendant was then heard by the Mamlatdar and the same was overruled, and warrant for possession was issued. Thereafter the defendant filed suit No. 28 of 1946 in the Court of the Civil Judge, Junior Division at Pen against the plaintiff for a declaration that he was entitled to continue in possession as a tenant and for a perpetual injunction restraining the plaintiff from obtaining possession under the order passed by the Mamlatdar in suit No. 38 of 1944-45. The defendant set up an oral agreement between the plaintiff and himself whereby, he alleged, that he was entitled to continue in possession as a tenant in spite of the order passed by the Mamlatdar in the possessory suit No. 38 of 1944-45. The plaintiff denied the oral agreement set up by the defendant. The trial Court dismissed the suit, and in appeal to the District Court at Thana the decree passed by the trial Court was confirmed. In the meanwhile it appears that the plaintiff filed an assistance suit No. 361 of 1946 for recovery of rent under the Land Revenue Code, and that suit was decreed. During the pendency of suit No. 28 of 1946 the Bombay Tenancy Act of 1939 which had been applied to the area on 11-4-1946 was amended as from 8-11-1946, whereby Section 3a was added to the Act which made it obligatory upon a person to make an application to the Mamlatdar within whose jurisdiction the land was situate for a declaration that the tenant was not a protected tenant. If no such application was made within one year from the date on which the Amending Act came into operation every tenant was to be deemed to be a protected tenant. The plaintiff filed an application being application No. 1516 of 1947 In the Court of "the Mamlatdar at Pen but that application was dismissed as the plaintiff remained absent. Thereafter the defendant filed application No. 1721 of 1950 before the Tenancy Court for an injunction restraining the plaintiff from enforcing the decree passed in suit No. 38 of 1944-45. The Mamlatdar who heard the application granted the same, and entered in the revenue records the name of the defendant as a protected tenant. In appeal to the Collector the order passed by the Mamlatdar was confirmea. A revision application was made against the order passed by the Collector to the Revenue Tribunal and the Revenue Tribunal set aside the order of the Mamlatdar and the collector dismissed the application. Against the order dismissing the application by the Revenue Tribunal Special Civil Application No. 1518 of 1955 was filed in this Court. By a judgment dated 26-9-1955 this Court rejected that application. It is clear from this history of the litigation between the parties that there is in favour of the plaintiff an order of the Mamlatdar passed as early as 1945 whereunder the plaintiff is entitled to obtain possession of the suit lands. There is a further adjudication by the Civil Court that since the order was passed by the Mamlatdar there was no oral agreement under which the defendant was permitted to remain in occupation as tenant. The decree in suit No. 38 of 1944-45 having been passed before the date on which the Bombay Tenancy Act, 1939 was made applicable to the area in which the lands are situate the rights acquired thereunder could not be affected by Section 3a, Bombay Tenancy Act, 1939. It is true that the plaintiff did make an application under that section for obtaining a declaration that the defendant was not a protected tenant; and that application was rejected. But if Section 3a had no application, the right of the defendant having been terminated prior to the date on which the Bombay Tenancy Act, 1939, was made applicable, the mere lodging of an application by the plaintiff and the dismissal thereof cannot confer any rights upon the defendant which supersede the decree passed by the Mamlatdar. It is unnecessary in the circumstances of this case to consider the question whether the order passed by the Mamlatdar in Miscellaneous Application No. 1721 of 1950 which was filed by the defendant for a declaration that the plaintiff was not entitled to enforce the decree in suit No. 38 of 1944-45 was ultra vires. The Revenue Tribunal ? has set aside the order passed by the Mamlatdar and the dismissal of the application by the Revenue Tribunal has been confirmed by this Court in Special Civil Application No. 1518 of 1955.

(2.) IT appears that during the pendency of the proceedings under the Tenancy Act the plaintiff had filed suit No. 265 of 1949 against the defendant for a decree for Rs. 3561/- by way of damages for wrongful occupation of lands Section Nos. 2 and 234/1 of the town of Pen. The learned trial Judge passed a decree in favour of the plaintiff for Rs. 979-3-0 with proportionate costs of the suit on account of arrears of rent for three years 1946-47, 1947-48 and 1948-49. Against the decree passed by the trial Court an appeal was preferred to the District Court at Alibag. In appeal the learned District Judge set aside the decree passed by the trial Court and "declared that the defendant's possession was as a trespasser since 1945-46 and therefore he was liable to the plaintiff for mesne profits for wrongful use and occupation of the land. The learned District Judge therefore remanded the suit to the trial Court for determining the quantum of mesne profits which the plaintiff was entitled to recover from the defendant. Against the order passed by the District Court the defendant has come to this Court in appeal.

(3.) AS I have stated earlier, there is an order passed by the Mamlatdar in suit No. 38 of 1944-45 in favour of the plaintiff, and that order having been passed before the date on which the Bombay Tenancy Act, 1939, was applied to the area in which the lands in question are situate, the defendant's possession was rightly held by the learned District Judge as unlawful. This Court has also in Special Civil Application No. 1518 of 1955 confirmed the view taken by the learned District Judge. In that view of the case, this appeal fails and is dismissed with costs.