DINKAR BHAGWANT SALEKAR Vs. RAU BABAJI MAHAMULKAR

JUDGEMENT

(1.) This is an application under art. 227 of the Constitution made by one Dinkar, who has purchased from one Bhilai his mirashi rights in property ; redeemed a mortgage effected upon the property i.e. the mirashi rights on June 5, 1923, by Bhiku and his brother Rango,and then sued for possession the mortgagee s tenant Rau and obtained a decree for possession, and actual possession in execution of the decree on April 20, 1954, The original mortgagee was Khashaba, and he sold his mortgagee rights to one Sakharam in the year 1931-32. Sakharam let the property to Rau in the year 1934-35, since when Rau has been in possession of the property, till he was evicted in execution of a decree of the civil Court on April 20. 1954. When Rau was evicted by the civil Court on April 20, 1954, he made an application to the Mamlatdar under the provisions of s. 29 of the Bombay Tenancy Act claiming that he was, as a tenant, entitled to the possession of the property and he should be put back into possession of the property from which he was evicted by an order of the civil Court on April 20, 1954. The Mamlatdar held that Rau had failed to prove that he was a protected tenant of the land and dismissed his application. The Prant Officer, Satara Division, to whom he went in appeal, held however that Rau was a tenant of the land, because the mortgagee in possession was entitled to let the land, and a tenant to whom the land is let by him being a person lawfully cultivating the land of another person, he must be deemed to be a tenant of the land under s. 2A of the Bombay Tenancy Act, 1939, and a protected tenant under the provisions of s. 3A of the Act of 1939 as no application under that section had been made and not liable to be evicted under the provisions of s. 14 of the 1948 Act. Dinkar went in revision to the Bombay Revenue Tribunal, who, following a full bench decision of that tribunal given recently, have held that even though Dinkar redeemed the mortgage, the protected tenancy of Rau did not come to an end upon the redemption. Hence this application.Now, it appears from the evidence that when Sakharam let the land in the present application to Rau, he let it to him as an annual tenant. The Act of 1939 came into force on April 11, 1946, and on November 8, 1946, the amending Act introducing therein s. 2A of that Act which provided that if the owner had not, 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, then 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 does not fall within the categories mentioned in cls. (a) and (b) of that section.

(2.) It is not in dispute that in this case Rau did not fall within the categories mentioned in cls. (a) and (b). It is also not in dispute that the owner, that means in this case Bhiku, did not make an application to the Mamlatdar within one year after the coming into force of the Bombay Act of 1946 for declaring that Rau was not a tenant. It is contended that consequently Rau must be deemed to be a tenant under the provisions of that Act. Then s. 3A of the Bombay Tenancy (Amendment) Act provided that unless a landlord of a tenant made an application to the Mamlatdar under the provisions of s. 3A of the Act for a declaration that the tenant was not a protected tenant within a period of one year from the date of the coming into force of the Bombay Tenancy Act, 1946, he shall be deemed to be a protected tenant for the purpose of the Act. It being common ground that Rau s landlord, that is. Sakharam, did not make an application to the Mamlatdar under the provisions of s. 3A, and that the owner did not make one either it is contended that Rau became a protected tenant upon the expiry of one year of the coming into force of the Bombay Tenancy (Amendment) Act, 1946. Then we come to Bombay Act LXVII of 1948. That Act came into force on December 28,1948, and under s. 31 of that Act, for the purposes of the Act, a person shall be recognised to be a protected tenant if such person is deemed to be a protected tenant under among others s. 3A of the Bombay Tenancy Act, 1939. it is contended consequently that for the purposes of the 1948 Act Rau is a protected tenant. It is said that in that case Rau could not be evicted either under s. 5(2) of the 1939 Act or s. 14 of the 1948 Act, unless Rau had done one of the things referred to in those provisions. It is common ground that Rau had not done any of the things referred to in s. 5(2) of the 1939 Act, or s. 14 of the 1948 Act. It is contended that consequently in spite of the fact that Dinkar redeemed the mortgage, Rau s tenancy could not be terminated.

(3.) Now, it is quite true that under s. 2A of the 1939 Act a person who fell within the purview of the description given in that section and was not included in the excepted categories is to be deemed to be a tenant. Similarly, even under the provisions of s. 4 of the 1948 Act a person who fell within the purview of the description given in that section was to be deemed to be a tenant, unless he fell within the categories (a), (b) and (c) of that section, the last category being a fresh category added by the 1948 Act excluding the mortgagee in possession. Then if a person was to be deemed to be a tenant, then just as a tenant could not be evicted except in certain cases under the provisions of s. 5(2) of the 1939 Act, a person deemed to be a tenant could also not be evicted, unless he had done one of the things referred to in the provisions of s. 5(2) of that Act. This was made however further clearer, if it was necessary to do so, by the new Act. The new Act provided that a tenant meant an agriculturist who holds land on lease and includes a person who is deemed to be a tenant under the provisions of the 1948 Act. There is no dispute in this case that Rau is an agriculturist. The definition in s. 2(18) in the Act of 1948 made it quite clear that a person who was deemed to be a tenant was included in the word tenant wherever it was used in the 1948 Act, and a person was to be regarded as a protected tenant under the provisions of s. 31 of the 1948 Act if he was to be deemed to be a protected tenant under s. 3A of the 1939 Act. But the principal questions in this case are whether prior to the passing of the 1948 Act Rau was to be deemed to be a tenant who was entitled to the protection of that Act and after the coining into force of the 1948 Act he was a tenant and entitled to the protection of the latter Act, and whether such protection could be availed of by him both against his own landlord, that is, Sakharam, the mortgagee, and also against the mortgagor after the mortgagor had redeemed the property.