NARSANG MEGHRAJ Vs. SHAH RANCHHOD KUBERDAS

JUDGEMENT

(1.) THIS is a revisional application which raises a short question under Section 64; Bombay Tenancy and Agricultural Lands Act (Act 67 of 1948), The property in dispute consists of five agricultural pieces of land. They had been mortgaged with the petitioner with possession. In 1951 the mortgagor sold the equity of redemption to the mortgage In the present proceedings, which arise under Order 21, Rule 58, the petitioner claimed that he was in possession of the property as owner and so the property was not liable to be proceeded against as belonging to his mortgagor. The defence was that the sale in favour of the petitioner was invalid under Section 64 of the Tenancy Act. This plea has been accepted by the learned trial Judge, with the result that the application made by the petitioner under Order 21, Rule 58, has been rejected.

(2.) MR. Karlekar for the petitioner contends that, in applying Section 64 to the sale in favour of the petitioner, the learned Judge has failed to consider the fact that the sale of agricultural land which is hit by Section 64 must be a sale of agricultural land by a landlord; and, according to Mr. Karlekar, the sale of the equity of redemption in favour of the petitioner cannot be described as a sale by a landlord. This argument is based upon the definition of the word "tenant" as contained in Section 2, Sub-section (18 ). Section 2, Sub-section (18) defines a "tenant" as meaning "an agriculturist who holds land on lease" and includes a person who is deemed to be tenant under the provisions of this Act. " The definition then adds: "the word 'landlord' shall be construed accordingly". Section 4 Sub-clause (c) makes it clear that a mortgagee in possession cannot be deemed to be a tenant under this Act. I may add that under the corresponding provisions of the earlier Tenancy Act a mortgagee in possession could have been regarded as a tenant. The position then is that the petitioner, who is a mortgagee in possession of agricultural lands, is not a tenant within the definition of Section 2 Sub-section (18) and cannot also be deemed to be a tenant under Section 4; and if the person in possession of the lands cannot be deemed to be a tenant, the mortgagor cannot claim to be a landlord in respect of the lands.

(3.) MR. Karlekar has also invited my attention to the fact that in Section 2 Sub-section (21) of the Tenancy Act it has been provided that if words and expressions used in the Act are not defined in the Act, their definitions in the Bombay Land Revenue Code may be taken into consideration; and the definition of the word "landlord" in Section 3 Sub-section (15), land Revenue Code provides that "landlord" means a lessor. It is, therefore, clear that a mortgagor cannot be said to be a landlord even within, the definition contained in Section 3, Sub-section (15), Land-Revenue Code.