NARAYANSA DHARAMCHANDSA Vs. LAXMAN MOTIRAM

JUDGEMENT

(1.) The petitioner Narayansa is the owner of a small field Survey No. 112 area 7 acres area 7-Acres 34 Gunthas of Mouza Tondgaon. By a deed of mortgage (hereinafter called the deed) of September 24,1957, he purported to take a debt of Rs. 25000/- for himself and his sons Shankarrao and Digrai who was a minor, and under the terms set out in that document handed over the possession of the said field to the mortgagee Rambhau s/o bauble Cord now represented by respondent No. 2 Pandering his son.

(2.) With regard to this property, certain facts are not in disputes. The mortgagee who took possession purported to induct respondent No. 1 Laxman on this land as a tenant since after the year 1958-1959 . The deed of mortgage is a written deed and was duly executed on September 24, 1957. Name of Laxman having appeared in the crop-statements summate proceedings were initiated under the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act. 1958 (hereinafter also called the 1958 Act) to find out whether the statutory ownership could be conferred on Laxman. The tenancy authorities relying on the decision of the Supreme court rendered in the case of Dahya Lala v. Rasul Mohammed. have concluded the matter against the present petitioner holding that Laxman would be deemed tenant under Section 6 of the 1958 Act and therefore entitled a statutory ownership. These orders are challenged by the present petition.

(3.) The submission of the petitioner are that under the terms of the deed under which possession of agricultural land was parted, there was express intention disclosed that mortgagee was not to part with the possession and was required to take the crops himself and was bound to appropriate the same for a period of three years and thereafter again for a period of two years against the loan advances and was further bound to redeliver the possession to the mortgagor on redemption. It is urged that the terms of the deed have to be understood in the light of the law that governs the relationship of mortgagor and mortgagee as well as the implicit consequence available under the provisions of any other law regarding the tenancies of agricultural lands. It was contended that the property being located in Berar, the relevant law regarding the leases would be initially the Berar Regulation of Agricultural Leases Act. 1`951 followed by the Ordinance IV of 1957 which was made applicable on Sept. 21. 1957 and thereafter by the relevant provisions of the Bombay Tenancy and agricultural Lands Act. 1958 which became the law on 31-12-1958. It was pointed out that by the property shall not be dealt with by the mortgagee in possession in a manner which will make it impossible for the mortgagor to resume its possession after the redemption of the debt due under the deed. So construed, and on the plain wording of the bond it is contended that the mortgagee was prohibited either expressly or impliedly from dealing with the property which will destroy the ownership right or , at any rate right the repossess the property upon redemption and Laxman who was inducted in spite of such prohibition would be a mere trespasser qua the mortgagor. He could not, therefore, be said to be lawfully cultivating the land nor would be a lawful deemed Tenant" as contemplated by Dahya Lal's case decided by the Supreme Court. Reliance was also placed on the provisions of Section 76(a) and Section 76(e) of the T.P. Act. in support of these submissions.