ISHWARA BHAU SAWANT Vs. PANDURANG VASUDEO KARMARKAR

JUDGEMENT

(1.) THESE two applications have been heard together as they raise a common question of law. The first application No. 1199 of 1964 relates to two lands, which originally belonged to one Pandurang and his two brothers Waman and Vinayak. In 1931 they mortgaged these lands by an ostensible sale -deed to Maruti Sawant alias Rede. The petitioners are the heirs and successors of Maruti. In 1951 Pandurang filed a suit for a declaration that the transaction of 1931 was really a mortgage and for taking accounts under, the Deccan Agriculturists Relief Act. A declaration was made in that suit in 1951 that the transaction was a mortgage and that the amount due on the mortgage was Rs. 2,800. This decision was confirmed in appeal by the District Judge. In 1956 Pandurang filed a suit for redemption of the mortgage and for obtaining possession of the lands. The petitioners contended in that suit that as they were lawfully cultivating1 the lands, under Section 2A of the Bombay Tenancy Act of 1939 they were deemed to be tenants, that they had become protected tenants under Section 3A of that Act, that they continued to be protected tenants under old Section 31 and present Section 4A of the Bombay Tenancy Act of 1948 and that with effect from April 1, 1957, they had become the owners of the lands under Section 32 of the Tenancy Act. The learned trial Judge, therefore, referred to the Mamlatdar for his decision the question whether the petitioners as mortgages -in -possession are protected tenants and whether they had become the owners of the lands since April 1, 1957. The Mamlatdar answered this question in the negative. In appeal the Deputy Collector took a somewhat different view. According to him the petitioners had acquired the rights of tenants and protected tenants, but these rights were in abeyance during the subsistence of the mortgage and that these would revive when the mortgage was redeemed or when it was extinguished. Against the order made by him both the parties, the petitioners and opponents Nos. 1 to 3, applied in revision to the Bombay Revenue Tribunal.

(2.) THE facts of application No. 1449 of 1964 are that the three lands in dispute originally belonged to the husband of opponent No. 1. These lands were mortgaged with possession in 1928 to the petitioner. In 1959 opponent No. 1 filed a suit for redemption of the mortgage. The petitioner contended in that suit that he was a protected tenant of the lands. The Civil Court, therefore, made a reference to the Mamlatdar for deciding the issue whether the petitioner proved that as a mortgagee he had become the tenant of the lands and as such become the owner thereof. The Tenancy Aval Karkun held that the petitioner had acquired the rights of a tenant. This finding was confirmed in appeal by the Deputy Collector. Opponent No. 1 then applied in revision to the Bombay Revenue Tribunal. The matter came up for hearing before a single member of the Revenue Tribunal. As the questions involved were of considerable importance, he referred the matter to a larger Bench.

(3.) THE Bombay Tenancy Act of 1939 as originally enacted gave protection to persons who were tenants under the ordinary law, that is, those who had acquired their tenancy rights under an agreement or contract with their landlords. In fact the Act contained no definition of the word 'tenant'. In 1946 the Act was amended in order to extend its protection to certain classes of persons, who were cultivating the lands lawfully, but who were not tenants under the ordinary law. New Sections 2A and 3A were inserted in the Act. Section 2A was in the following terms: (1) A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not - (a) a member of the owner's family, or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, unless the owner has within one year of the coming into force of the Bombay Tenancy (Amendment) Act, 1946, made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the person is not a tenant,(2) Where an application under Sub -section (1) has been made and the Mamlatdar refuses to make such declaration and the Mamlatdar's decision is not set aside by the Collector in appeal under Sub -section (3) of Section 13 or by the Provincial Government under Section 28, the person shall be deemed to be a tenant for the purposes of this Act. Sub -section (1) of Section 3A provided: (1) 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 and his rights as such protected tenant shall be recorded in the Records of Rights, unless his landlord has within the said period made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the tenant is not a protected tenant. Sub -section (2) of Section 3A was on the same lines as Sub -section (2) of Section 2A.