SARASWATIBAI Vs. BHIKAMCHAND PREMSUKHDAS

JUDGEMENT

(1.) FACTS in brief are: One Laxminarayan, father of Kishan Gopal, the second respondent to this petition, was the landholder of suit field, S. No. 90 situate in village Belkhed, taluka Akot, District Akola. He had leased that field to one Bikamchand, respondent no. 1, and the first respondent had acquired the status of a protected lessee under the Berar Regulation of Agricultural Leases Act, 1951 (Act No. 24 of 1951) (hereinafter referred to as the Berar Leases Act), By giving a notice under sub-section (i) of section 9 of the Berar Leases Act, and following the prescribed procedure, Laxminarayan had terminated the tenancy of Bhikamchand and had obtained possession of the aforesaid field on 3rd July 1955. Laxminarayan died on 20th October 1955 and his son Krishna Gopal succeeded to his estate and was in possession of the said field. The State Legislature enacted the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act (Act No. XCIX of 1958) (hereinafter referred to as the new Tenancy Act ). This Act repealed the aforesaid Berar Leases Act in its entirely. It came into force on 30th December 1958. Now on 9th February 1959, Krishna Gopal sold the field to Smt. Saraswatibai, the petitioner before us. Bhikamchand thereafter filed an application before the Tehsildar under section 52 of the new Tenancy Act for being restored to possession on the ground that in selling the field to Saraswati, Krishna Gopal had committed a breach of the provisions of section 52. The Additional Tehsildar rejected this application by his order dated 25th August 1962. The Special Deputy Collector dismissed the appeal. Bhikamchand then preferred a revision application before the Revenue Tribunal, and the revenue tribunal allowed it. Against the aforesaid order of the revenue tribunal the petitioner Saraswatibai had filed a writ petition under Art. 227 of the Constitution.

(2.) TO appreciate the contentions raised before the learned Judge, it is necessary to refer in brief to the material part of section 9 of the Berar Leases Act and section 52 of the new Tenancy Act. Section 9 permits a landholder to terminate the lease of a protected lessee if he requires the land for cultivating it personally, and sub-section (1) requires him to give a notice to that effect to the protected lessee. It is not necessary to deal with sub-sections (2) to (5 ). Sub-section (6) provides:

(3.) NOW, when the matter came up for hearing before the learned single Judge, it was contended by Mr. Jakatdar, learned counsel for the petitioner, that the view taken by the tribunal was erroneous. Mr. Jakatdar argued that in the instant case,. the landholder Laxminarayan on terminating the tenancy under section 9 had obtained possession on 3-7-1955. He and after his death, his son Krishna Gopal, had cultivated the land personally for a period of two years as required by sub-section (6) of section 9 of the Berar Leases Act. His obligation under the said sub-section had, therefore, been fully discharged and no potential right in favour of the former tenant had, after the expiry of the period of two years remained Krishna Gopal had sold the land to the petitioner. The sale, therefore creates no right in favour of the former tenant, respondent No. 1, to be restored to possession. On this line of reasoning, Mr. Jakatdar argued that section 52 had no application. During the course of his date the new Tenancy Act came into force, the landholder was in possession and the period of two years prescribed in sub-section (6) of section 9 had not expired, section 52 may come into play, but where the period of two years of personal cultivation had already been completed prior to the coming into force of the new Tenancy Act section 52 would have no application. Mr. Madkholkar, learned counsel for the first respondent, on the other hand contended that section 52 of the new Tenancy Act would have application where the landholder was in possession on the date the new Tenancy Act came into force irrespective of the fact whether the period of two years had been completed or not, and that is the effect, according to Mr. Madkholkar on the language used in section 52. In support of his contention, Mr. Madkholkar has place reliance on a decision of Mr. Justice Adhyankar in Special Civil Appln. No. 73 of 1964 Krishna Gopal v. Bhikamchand, D/-9-4-1965. It was the argument of Mr. Madkholkar that though sub-section (6) of section 9 had cast an obligation on the landholder to cultivate the land personally for a period of two years only from the date of obtaining possession, the legislature had made that liability onerous by enacting section 52 and casting an obligation on a landholder to personally cultivate the land for a period of 12 years. This obligation is, on the language used in section 52, cast on every landholder who was in possession of land obtained by him on determination of the tenancy under section 9 of the Berar Leases Act. It is indeed true that the decision of Mr. Justice Abhyankar, on which reliance has been placed by Mr. Madkholkar fully supports him. Facts in that case in brief were: The landholder terminated the tenancy of his tenant under section 9 of the Berar Leases Act and had obtained possession of 6-8-1955. He died and his son Krishna Gopal succeeded him. Both the landholder as well as his son Krishna Gopal cultivated the land personally for over two years, and Krishna Gopal continued to cultivate the land personally evern after the new Act came into force. On 29-4-1960, he sold the land, and on 25-1-1962 the tenant filed an application for restoration of possession under section 52 of the landholder had violated the provisions of section 52, inasmuch as he had ceased to cultivate the land personally within the period of 12 years from the date possession had been obtained. The contention had been upheld by the revenue tribunal. Against the decision of the Tribunal, the transferees as well as the landholder had preferred a writ petition under Art 227. It had been argued on behalf of the petitioners before Mr. Justice Abhyankar that the landholder, having discharged the obligation cast on him by sub-section (6) of section 9 of the Berar Leases Act, was free to deal with the land in any manner he liked, as the sale effected by him after the expiry of the period of 2 years was not in any manner vitiated, giving rise to a right in favour of the former tenant to be restored to possession. On behalf of the former tenant, it was contended that section 52 cast on obligation on the landholder, who had obtained possession under Section 9 of the Berar Leases Act, to cultivate the land personally if the landholder was in possession on the date the new Tenancy Act came into operation. The learned Judge accepted the contention raised on behalf of the former tenant. He observed;