SHIDDU RAMA SHAGALE Vs. BASAWA RAMAYYA SWAMI

JUDGEMENT

(1.) THIS rivisional application raises a very short point under Section 32 (2) (v) of the Bombay Agricultural Debtors Relief Act. The petitioner is one of the two creditors of Basawa. It appears that on May 22, 1940, a Thevi Patta was passed in favour of the creditor. Subsequently, on April 20, 1943, a mortgage was executed between the same parties and in respect of the same property. The debtor Basawa applied for the adjustment of the debts due to the petitioner and to Parwati Kom Balayya. In these proceedings the petitioner contended that the Thevi Patta amounts to a lease and a mortgage and his argument was that, though the debt due to him from the debtor; can and should be adjusted under the provisions of the Bombay Agricultural Debtors Relief Act, it was not open to the Court administering the provisions of the Act to direct that the property belonging to the debtor should be restored to her. This contention was rejected by the learned Judge. An award has been passed adjusting the debts due from the debtor to her respective creditors and in respect of the petitioner an order has been passed that the property belonging to the debtor should be restored to her. It is this order which the petitioner challenged before the appellate Court. The learned appellate Judge has accepted the view taken by the learned trial Judge and he has held that under the provisions of Section 32, Sub -section (2) (v), of the Bombay Agricultural Debtors Relief Act the Court adjusting the debts of a debtor is authorised to pass an order for the delivery of possession of any property notwithstanding the tenancy rights set up by the creditor.

(2.) MR . Datar for the petitioner contends that the lower appellate Court has misconstrued the effect of the provisions of Section 32, Sub -section (2) (v). It is common ground that the tenancy rights which are set up by the petitioner would be governed by the provisions of the earlier Tenancy Act XXIX of 1939. Section 2A of the said Act defined 'tenant' and it cannot be disputed that underthe definition a mortgagee in possession of mortgaged property would have to be regarded as a tenant. Section 2A had provided that a person lawfully cultivating any land belonging to another shall be deemed to be a tenant and this clause would naturally include even a mortgagee in possession. When Legislature enacted the subsequent Tenancy Act LXVII of 1948, the definition of 'tenant' has been so clarified as to exclude mortgagees in possession. Section 4, Sub -section (c), of the new Act expressly excludes a mortgagee in possession from the class of persons who should be deemed to be tenants. That was not the position under the earlier Tenancy Act of 1939. Mr. Datar is, therefore, entitled to contend that, inasmuch as the petitioner was put in possession of the property by virtue of the terms of the Thevi Patta he became a mortagagee in possession and as such was entitled to be threated as a tenant under Section 2A of the old Act. Mr. Datar then argued that, though, the petitioner did not satisfy the requirements of Section 3 of the earlier Act which defined protected tenants, by virtue of the provisions of Section 3A he was nevertheless entitled to the privileges of a protected tenant. Section 3A had provided that every tenant shall, on the expiry of one year from the date of the coming into force of the Bombay Tenancy (Amendment) Act, 1946, be deemed to be a protected tenant for the purposes of this Act. The Act of 1946 came into force on November 8, 1946 and at the time when the status of the creditor wasindispute the requirements of Section 3A had been satisfied. It must, therefore, be conceded that, so far as the provisions of the earlier Tenancy Act of 1939 are concerned, the creditor was entitled to plead the status of a protected tenant, and if that be so, it must also be conceded that under the relevant provisions of the earlier Tenancy Act he was not liable to be evicted.

(3.) IN the result, the revisional application fails and the rule is discharged with costs.