SHAMJI DEOJI Vs. NAMDEO BAPUJI DHANDE

JUDGEMENT

(1.) THE petitioners Shamji and Kisan purchased S.N. 110, having an area of 23 acres and 20 gunthas situate at village Bechkheda, from respondent No. 2 Udhao on foot of a registered sale deed dated February 23, 1957. They were in possession of this property when respondent No. 1 Namdeo filed an application purporting to be made under Section 32 of the new Tenancy Act on May 15, 1959. That application is at page 23 of the Paper Book. In that application Namdeo alleged that he was cultivating the field in dispute as a protected lessee for the year 1951 -52 to 1954 -55. The field was let out to him by Udhao, respondent No. 2, in his capacity as manager of the joint Hindu family of which his sons Vasant, Shyam and Jayant, respondents Nos. 3 to 5, were also members. Actual lease was given by Vasant who was the eldest son because Udhao was then in service in December 1954, which is obviously a mistake; actual date being November 24, 1954. Vasant sent a notice under Section 9 of the Berar Regulation of Agricultural Leases Act terminating the tenancy of Namdeo on the ground that he needed the land for personal cultivation. In consequence of this notice, possession was given. As a matter of fact, Vasant started proceedings for possession by an application dated April 2, 1955, before the Sub -Divisional Officer and during the pendency of this application, on June 13, 1955, a petition jointly signed by Vasant on behalf of all the landholders, and Namdeo, the tenant, came to be filed stating that the parties had settled the dispute amicably. The land -holders gave up the right to lease money for the agricultural year 1954 -55 and the non -applicant had given up the right of cultivation and had placed the field in possession of the landholders. There is no date mentioned in this application when the landholders were placed in possession of the property.

(2.) THE land -holders cultivated the land at home for the years 1955 -56 and 1956 -57 and sold it, as already stated, to the two petitioners under a sale -deed dated February 23, 1957. There is an averment in the written statement filed by the petitioners in para. 7 that their vendor, viz. previous landholder, cultivated the land in question personally for two years after it was taken from Namdeo and then it was sold to the petitioners in 1957. On the other hand, the averment of Namdeo in para. 4 of his application tinder Section 52 was to the effect that the land -holder sold the said field to opponent No, 5, i.e. petitioner No. 1, in the year 1956, which he alleged was within two years from dispossession of Namdeo. There is no dispute that this averment, besides being vague as to the date of delivery of possession, was also wrong with regard to the date of sale. Neither counsel has been able to show from record whether there is any statement or evidence showing the date on which possession was delivered by Namdeo to the previous landlord.

(3.) OUT of the original land -holders, non -applicants Nos. 1 and 2 Udhao and Vasant, resisted the application on the ground that possession was taken as a result of the compromise between the parties after termination of the tenancy and by a notice under Section 9(2) of the Berar Regulation of Agricultural Leases Act and that they had cultivated the field for two years 1955 -56 and 1956 -57. In para. 5 they averred that it was not. necessary for the then land -holders to obtain any refusal from the ex -tenant prior to the sale to the petitioners because there was no such law in existence when the sale of the field was effected, that the sale was legal and valid and its validity could not be challenged in the present proceedings. They reiterated that respondents Nos. 1 and 2 had used the land for the purposes stated in the notice for the requisite period from the date possession was given. They raised an alternative contention that the tenancy was terminated not by notice under Section 9 of the Berar Regulation of Agricultural Leases Act but as a result of the compromise between the parties after which they cultivated the land for two years before the sale in 1957 to the petitioners.