VITHAL SAKHARAM KODRE Vs. GOPALA GANGARAM DAWKHAR

JUDGEMENT

(1.) This is a Special Application under art. 227 of the Constitution by the landlord against the decision of the Revenue Tribunal confirming the order of the District Deputy Collector remanding the case to the Mamlatdar for disposing of the tenant s application for determination of reasonable rent.

(2.) It appears that survey No. 10 of Shrirampur was originally owned by the present opponent, the tenant. The tenant sold it to the landlord on February 28, 1925, but the landlord put his original vendor in possession of the land as his tenant in 1939. Then the landlord, while the tenant was in possession, mortgaged the land to the tenant under a simple mortgage of May 25, 1943, for Rs. 2000. It seems that there was some dispute between the landlord and the tenant, and the latter took two agreements to purchase the land from the separated brother of the landlord. On February 23, 1949, in reply to a landlord s notice the tenant contested the nature of his own sale-deed of 1925 and asserted that it was not a sale out and out, but was a mortgage, and that he was in possession of the land by virtue of the satekhats taken from the landlord s brother. The landlord himself applied to the Bombay Agricultural Debtors Relief Court for taking of accounts of his simple mortgage of 1943, and the Bombay Agriculture Debtors Relief Court held on December 20, 1952, that that mortgage was satisfied. The landlord was directed to secure possession through the civil court, and accordingly a suit was filed at Ahmednagar.

(3.) On January 5, 1954, the present opponent applied to the Mamlatdar for fixing reasonable rent claiming to be cultivating the land as a tenant from 1939 to the date of the application. The petitioner resisted the tenant s application on the ground that the opponent was not a tenant. He contended that the tenant had surrendered possession in April 1943, and had gone into possession again in August 1943 under the mortgage of May 25, 1943, which was a simple mortgage. According to the landlord, the possession of the opponent was that of a mortgagee, and therefore he was not a tenant; and consequently the question of determining reasonable rent did not arise. The Mamlatdar accepted this contention of the landlord. He referred to the fact that the Bombay Agricultural Debtors Relief Court held the mortgage to be satisfied, and he also referred to the reply of the tenant to the petitioner s notice denying the title of the landlord. The Mamlatdar, therefore, held that the present opponent was not in possession as a tenant, and the question of fixing reasonable rent did not arise for consideration. The District Deputy Collector reversed the decision of the Mamlatdar. He held that the opponent was in possession even prior to the mortgage as a tenant. The mortgage itself was a simple mortgage, and the opponent was not cultivating it as a mortgagee, but was cultivating it in the capacity of a tenant, and his status as a tenant did not change. The District Deputy Collector consequently remanded the case to the Mamlatdar for fixing reasonable rent. The landlord went in revision to the Revenue Tribunal. It confirmed the decision of the District Deputy Collector that the opponent, being a simple mortgagee, did not cease to be a tenant. The landlord, however, contended that the opponent s tenancy had come to be forfeited, because of his disclaimer of the landlord s title in reply to the notice of the landlord on February 23, 1949. That contention was negatived by the Revenue Tribunal, on the ground that s. 1ll (g) of the Transfer of Property Act could not apply to this tenancy, and s. 14 of the Tenancy Act of 1948 provided for cases in which the landlord was entitled to terminate the tenancy, and forfeiture incurred by disclaimer was not included therein. Accordingly the Revenue Tribunal confirmed the decision of the appellate authority, and dismissed the landlord s application.