DINKAR BHAGWANT SALEKAR Vs. RAU BABAJI MAHAMULKAR

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution made by one Dinkar, who has purchased from one Bhiku 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 Section 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 Section 2A of the Bombay Tenancy Act, 1939, and a protected tenant under the provisions of Section 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 Section 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 thoughDinkar redeemed the mortgage, the protected tenancy of Rau did not come to an end upon the redemption. Hence this application.

(2.) 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 Novembers, 1946, the amending Act introducing therein Section 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 Clauses (a) and (b) of that section. It is not indisputed that in this case Rau did not fall within the categories mentioned in Clauses (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 Section 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 Section 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 Section 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 Section 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 Section 3A of the Bombay Tenancy Act, 1939. It is contended consequently that for thepurposes of the 1948 Act Rau is a protected tenant It is said that in that case Rau could not be evicted either under Section 5(2) of the 1939 Act or Section 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 Section 5(2) of the 1939 Act, or Section 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 , I shall revert to the provisions of Section 2A of the 1939 Act. It must be conceded at the outset that Rau was a person who was lawfully cultivating the land in this application and the owner of the land, who in this case must be taken to mean Bhiku, who appears to be a mirasdar, not having made an application to the Mamlatdar within the period of one year after the coming into force of the Bombay Tenancy (Amendment) Act, 1946, Rau must be deemed to be a tenant as he does not fall within the excepted categories (as) and (6) of Section 2A. But the contention raised from this that he was a tenant, though not in the ordinary sense, of Bhiku and entitled to protection as against him is, on the face of it, somewhat startling. One can understand the contention if it was made that Rau was a protected tenant so far as Sakharam is concerned and Sakharam could not evict him as long as that Act remained in force, unless the provisions of Section 5(2) were satisfied and after the 1948 Act came into force Rau had done none of the things mentioned in Section 14 of the 1948 Act. Sakharam would be the landlord, and Rau would be the tenant. But if Rau is to be considered as a tenant of Bhiku under the 1939 Act and after Dinkar purchased Bhiku's rights from him, of Dinkar under the 1948 Act, the result must necessarily be that when Dinkar redeemed the mortgage on May 29,1949, Dinkar could not evict Rau, and it is against the ordinary principle both of the Transfer of Property Act and the English law which governed agricultural leases that a mortgagor should not be able to evict after the redemption of the mortgage a tenant put upon the property by the mortgagee. Even so if Rau was entitled to such a protection under either the 1939 Act or under the 1948 Act, he must of course be given that protection. But we do not think that Section 2A can be construed in this manner. That there was some laxity in the drafting of the section is quite clear from the fact that when the 1948 Act was enacted, to the excepted categories as to who was to be deemed to be a tenant was added a third category (c). That was the mortgagee in possession. This seems to suggest that an oversight was committed in enacting Section 2A which was repaired when subsequently Section 4 of the 1948 Act was enacted. But for it a mortgagee in possession would obviously have tobe regarded as a tenant of the mortgagor, and in that case he could not be evicted even after the redemption of the mortgage. Then again if Section 2A of the 1939 Act was cotistrued as the mortgagee's tenant wants us to construe it, there would be a relationship, a statutory one, of landlord and tenant, for example, between the owner and a purchaser from a mortgagee with possession, or a sub -mortgagee from a mortgagee in possession, or a tenant from a mortgagee in possession, or if a mortgagee in possession was cultivating the land through a servant, then the servant. Now, it appears to us that it could hardly be contended that the Legislature desired when enacting Section 2A of the 1939 Act that the relationship of landlord and tenant should be deemed to be subsisting between the owner and so many persons not having anything to do with the owner but claiming through the mortgagee in possession. Section 2A was in the first instance enacted in order to avoid all disputes after one year of the coming into force of the Bombay Tenancy (Amendment) Act, 1946, between acultivator and the owner of a land as to whether there was a relationship of landlord and tenant between them or not. For the moment I will assume that there is no one else involved except the two persons, the cultivator himself and the owner of the land, for example, a mortgagee or his tenant. If the cultivator could show that his possession was lawful, that means, by the permission or authority of the owner, then ho was entitled to say that he was the tenant, unless within one year from the coming into force of the Bombay Tenancy (Amendment) Act, 1946, the owner had made an application and obtained a declaration from the Mamlatdar upon that application, though not necessarily within a period of one year, that the person who was cultivating the land was not a tenant. Such a provision would necessarily absolve the cultivators, most of whom cultivate lands on what may be called oral tenancies, of the necessity of proving that there was in existence a relationship of landlord and tenant between them and the owner, provided of course they could show that they wore not trespassers upon the land and they were cultivating the land lawfully, that means, either with the permission or the authority of the owner. Nor is any reason apparent for creating an artificial relationship of landlord and tenant between the owner of the land and any person who would be cultivating not with the authority of the owner but with the authority of the mortgagee in possession or someone who claimed through the mortgagee in possession. The principal object of both the Acts appears to be to give protection to the tenants from their landlords. We do not intend to suggest that the Acts did not do anything else. Mr. Vaidya, who appears on behalf of a tenant, has pointed out that the Acts gave protection to the tenants against others also ; for example, there was protection given to the tenants against creditors ; there was also protection given to certain persons who were not tenants when the 1939 Act came into force. If for example they were to be deemed as protected tenants under the provisions of Section 4(1), then they would be protected in spite of the fact that they had ceased to be tenants when the Act of 1939 came into force. He further points out that the 1948 Act makes provision not only for the protection of tenants, statutory or otherwise, from the landlord, again statutory or otherwise, but it makes provision imposing restrictions on the transfer of agricultural lands and its preamble says among other things that it was expedient to make provisions for certain other purposes. That is undoubtedly true. The Act is not confined to giving protection to tenants against their landlords. But the subject -matters of both the Acts show that that was its primary intent, and this is made further clear by the preamble of the 1948 Act, the first paragraph of which says : Whereas it is necessary to amend the law which governs the relations of landlords and tenants of agricultural lands; It is true that here again words ' landlord ' and ' tenant' would include not only a landlord and tenant under the ordinary law, but also the persons who were to be deemed as tenants under the 1948 Act. But the primary intention was to protect tenants against their landlords, and there does not seem to be any object manifest of maintaining the possession of the actual cultivators who were put on the land by persons who had not got an absolute title to the land and who were liable to be defeated not by their own landlords but by someone else claiming under a paramount title.