MADHAV VITHOBA WANI Vs. DHONDUDAS BHAUDAS BAIRAGI

JUDGEMENT

(1.) THIS special civil application has been filed under Art. 227 of the Constitution. It was referred by a Single Judge to a Division Bench. The facts involved are very simple. The first respondent is the landlord and the petitioner is the tenant of an agricultural land admeasuring 6 acres and 19 gunthas situate in a village in East Khandesh. The first respondent obtained a certificate under sub-section (4) of S. 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 exempting the land from the operation of Ss. 32 to 32-R of the said Act. Thus the petitioner is an "excluded tenant" and the first respondent a "certificated landlord" as defined by S 33-A of the Act. After obtaining a certificate under S. 88-C (4) the first respondent applied for possession of the land under S. 33-B. It is common ground that on the date when this application was filed the first respondent had no land under personal cultivation and the only land which the petitioner had under his personal cultivation was the land in dispute. The tenancy Aval Karkun who heard the first respondent's application for possession, dismissed it on the ground that the first respondent did not require the land bona fide for cultivating it personally. The first respondent went in appeal to the Special Deputy Collector of Jalgaon, and the Special Deputy Collector allowed the appeal, held that the first respondent required the land bone fide for personal cultivation and made an order under sub-section (5) (b) of S. 33-B that possession of half the leased land should be given to the first respondent. Both the parties went in revision to the Maharashtra Revenue Tribunal from the decision of the Special Deputy Collector. An application was made on behalf of the first respondent before the Maharashtra Revenue Tribunal for the admission of some additional evidence. The additional evidence consisted of a sale deed, which was executed in favour of the petitioner (the excluded tenant) after the decision of the tenancy Aval Karkun and before the decision of the Special Deputy Collector, as a result of which the petitioner obtained an agricultural land admeasuring 5 acres and 20 gunthas for his personal cultivation. The additional evidence was allowed by the Maharashtra Revenue Tribunal. In its final order in disposing of the revision applications the Maharashtra Revenue Tribunal held that the additional piece of land obtained by the petitioner for personal cultivation during the pendency of this litigation should be taken into consideration in determining the extent of the leased land to which the first respondent was entitled under the terms of sub-section (5) (b) of S. 33-B. It is now well established that in deciding the extent of the leased land of which a landlord can be awarded possession under S. 33-B of the Bombay Tenancy and Agricultural Lands Act, 1948, the area of all the other lands, if any, personally cultivated by the landlord and the area of all the other lands, if any, held by the tenant for personal cultivation should be taken into consideration and the landlord should be awarded possession of so much area of the land leased as would result in each of them holding thereafter, so far as possible, equal areas of lands for personal cultivation, In taking into consideration the land purchased by the petitioner during the course of the litigation, the Revenue Tribunal held "the Court can ordinarily take notice of the event which have occurred during the pendency of the action and which are likely to have a bearing on the final order to be made". The Tribunal further observed "the Court can even take into consideration the events that have happened since the institution of the suit and mould its decree according to the circumstances at the time of the final decree". Acting on this principle the Tribunal modified the order of the Special Deputy Collector in favour of the first respondent and directed that the first respondent should get possession of an area of 5 acres and 39 gunthas of the leased land, which, as mentioned earlier, admeasures 6 acres and 19 gunthas. This decision of the Maharashtra Revenue Tribunal is challenged by the petitioner in this special civil application.

(2.) IT seems to us obvious that the principle that a Court can mould its decree according to the circumstances prevailing at the time of the decree can apply only in those cases where the rights of the parties to a litigation have suffered an alteration during the course of the litigation as a result of interventing circumstances. The principle can have no application where the intervening circumstances do not effect any alteration in the rights of the parties as they existed at the commencement of the litigation. The real question, therefore, is whether in deciding the area of the leased land to which a certificated landlord is entitled under sub-section (5) (b) of S. 33-B the legislature intended that the Court should be guided by the circumstances prevailing at the time of the certificated landlord's application for possession or by the circumstances prevailing at the time of the final order.

(3.) THERE can, in our view, be no doubt that the area of the land to the possession of which a certificated landlord is entitled must depend on the circumstances prevailing at the time of the filing of his application for possession, and not on subsequent events. In the first place, the right of the certificated landlord to apply for possession under S. 33-B is not a recurring right. Sub-sections (3) and (4) of S. 33-B provide that except in the case of a minor, a widow or a person subject to any physical or mental disability, a certificated landlord must apply for possession before the 1st day of April, 1962 or within three months of his receiving the certificate under S. 88-C (4), whichever date is later. Even where a certificated landlord is a minor, widow or a person subject to any physical or mental disability the legislature has provided in sub-section (4)a final date after which he cannot file an application for possession. Since the right of a certificated landlord to apply for possession is not a recurring right, and since the right cannot be exercised after a certain date, it would normally follow that the area of the leased land to which he is entitled cannot depend on circumstances which occurred after that date. This view is greatly reinforced by the terms of sub-sections (1) and (5) of S. 33-B. These provisions show that the termination of the tenancy of an excluded tenant takes place on the date when the certificated landlord files his application for possession of the leased land, and that the termination of the tenancy is operative in respect of such area of the leased land as is specified in sub-section (5) (b ). Sub-section (1) of S. 33-B provides that a certificated landlord may "after giving notice and making an application for possession as provided in sub-section (3) terminate the tenancy of an excluded tenant, if the landlord bona fide requires such land for cultivating it personally. ". It is thus clear that where a certified landlord requires the leased land bona find for personal cultivation the termination of the tenancy takes place after giving notice and making an application for possession. Since the notice contemplated by this provision must be given prior to the making of the application for possession, it follows that the termination of the tenancy takes place on the date when the certificated landlord applies for possession of the leased land. Now sub-section (5) (b) of S. 33-B is in the following terms;