BAJIRAO MARUTI DHUMAL Vs. SHANKAR YALLAPPA MANE

JUDGEMENT

(1.) This is a reference made by one of us (Kotwal, J.) to the Division Bench, for a correct interpretation of section 32(1-B) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act"). Another learned Single Judge (Tulpule, J.) has taken the view that the mortgages from the landlord is not a successor-in-interest of the landlord and hence the dispossessed tenant is not entitled to the restoration of the land under the said provision. With this view my brother Kotwal, J., has differed and by his reasoned judgment has referred the matter for answering the following two questions---

(2.) In order to appreciate the point involved, it is necessary to state the relevant admitted facts. The respondent was a tenant of the agricultural land in question belonging to the petitioner and was in possession and cultivation of the same as such tenant on 15-6-1956 i.e. the appointed day. Some time prior to the tillers day i.e. 1st April, 1957 he was dispossessed by the petitioner otherwise than in accordance with the provisions of section 29 of the Act. After taking possession of the land the petitioner on 17th December, 1955 took a loan of Rs. 3500/- from the Land Mortgage Bank and executed a deed of possessory mortgage of the land of the Bank. Under the deed, the petitioner agreed to repay the loan by 16 equal annual instalments of Rs. 325.92 Ps. each. Simultaneously he executed a lease deed in respect of the land in favour of the Bank and purported to take the land for cultivation from the Bank on the annual rent equivalent to the payment of the loan instalment of Rs. 325.92 Ps. The result is that after the dispossession of the tenant, petitioner has throughout been in possession of the land.

(3.) After section 32 of the Act was amended by addition of sub-section (1-B) thereto, the tenant made an application to the Tahsildar for restoration of the land under the provisions of the added sub-section contending that he answered the description of the dispossessed tenant under the said provisions. The landlord was in possession of the land on 31st July, 1969 and the land was also not put to any non-agricultural use before the said day. The application was resisted by the petitioner-landlord on the ground that before 31st July, 1969, he had as stated earlier, already executed a possessory mortgage in favour of the Bank and it was the Bank as the mortgagee, who was in possession of the land and the Bank being not a successor-in-interest as defined in the said sub-section, the tenant was not entitled to the relief.