DATTU BALA NIKAM Vs. VINAYAKRAO SHRIPATRAO PATWARDHAN

JUDGEMENT

(1.) THE petitioner's father was a tenant of two lands belonging to opponents Nos. 1 and 2 (hereinafter referred to as the opponents). As there were defaults in the payment of rent for the years 1951 -52, 1952 -53 and 1953 -54, the opponents gave a notice terminating - the tenancy on December 27, 1954. This notice was served on the petitioner's father on December 29, 1954. It appears that there were further defaults in the payment of rent for the years 1954 -55 and 1955 -56. On March 23, 1957, the opponents made an application under Section 29 of the Tenancy Act for obtaining possession of the lands. The petitioner's father died during the pendency of the proceedings and the petitioner was brought on record as his heir. The Additional Tenancy Awal Karkun who heard the application came to the conclusion that there had been defaults for more than three yeans. He, therefore, directed that possession of the lands should be restored to the opponents. This order has been confirmed in appeal by the Prant Officer and in revision by the Revenue Tribunal.

(2.) MR . Gole, who appears on behalf of the petitioner, has contended that the application made by the opponents for possession of the lands was time -barred. He has relied on the Full Bench decision of this Court in Chimnabai Rama v. Ganpat Jagannath. : AIR1959Bom425 F.B. This decision has been considered by the Revenue Tribunal. The Tribunal was, however, of the opinion that the matter must be decided in the light of the decision of another Full Bench of this Court in Ganpati Appa v. Maruti Bala : AIR1962Bom75 F.B., in which it was held that the right to obtain possession of a land accrues to the landlord on the expiry of the period of notice terminating the tenancy given by him. Under Section 14 of the Tenancy Act a landlord has to give three months notice informing the tenant of his decision to terminate the tenancy, before the tenancy can be terminated on the ground that the tenant has failed to pay the rent due from him. The period of notice expired on March 29, 1955. The application for possession was made by the opponents on March 23, 1957, i.e, within two years from the date on which the notice terminating the tenancy expired. The Tribunal, therefore, held that the application was in time.

(3.) MR . Jahagirdar has urged that the authority of this decision is considerably shaken by Ganpcxti Appa v. Maruti Bala. In that case the Court was not considering the question of limitation under Section 29(2). The Court in that case had to determine the scope of Sub -section (2) of Section 25, as amended in 1956, and whether this section applied to cases in which tenancies had been terminated before August 1, 1956, when the sub -section, as amended, came into force. For the purpose of deciding this question the Court had to consider when the right to obtain possession accrues to a landlord. It was held that it is on the expiration of the period of notice that the tenancy is terminated and the landlord gets a right to obtain possession of the land. Even in the earlier decision of the Full Bench in Chimnabai Rama v. Ganpat Jagannath it was held that the right to obtain possession does not accrue when the sub -letting takes place but only after the landlord has given, a notice indicating his intention to terminate the tenancy. This is clear from the following observations (p. 978) : -.When, does the right to obtain possession actually accrue to the landlord? In view of what we have already said that sub -letting by itself does not bring about a termination and that the tenancy is only liable to be terminated, it is clear that when a tenant sub -lets there is no right in the landlord to obtain possession. Some further act is necessary on his part before, the right to obtain possession can arise and that further act is either the giving of a notice or the taking of some unequivocal act indicating his intention to terminate the tenancy. In our opinion, there is no conflict between Chimnahai llama v. Ganpat Jagannath and Ganpati Appa v. Maruti Bala, nor is the authority of the earlier decision shaken by the later decision. In the first case the question which has been decided is when the right to obtain possession can be said to have accrued to the landlord within the meaning1 of Section 29(2). In the latter case, the question decided is as to when the right to obtain, possession actually accrues to the landlord.