KANJI KURJI Vs. KALA GOPAL

JUDGEMENT

(1.) RESPONDENTS Nos. 1 and 2 applied to the Collector of Amreli under Section 84 of the Tenuncy Act of 1948 for eviction of the applicant from Survey Nos. 274 and 288 of village Chakargad. They claimed to be the heirs of the mortgagor of these lands who had redeemed the lands from the mortgagee -one Tryambak Purshottam -on October 10, 1954. The petitioner before us was a tenant of the mortgagee, and the case of the first two respondents before the Collector was that he had ceased to be a tenant upon redemption of the mortgage and had become a trespasser and was, therefore, liable to be evicted summarily under Section 84. The Collector held that the petitioner was a trespasser after redemption of the mortgage and, therefore, granted summary eviction. There was a revision application by the petitioner to the Bombay Revenue Tribunal, and the only question that the Revenue Tribunal considered and decided was whether the petitioner continued to be a tenant after the redemption of the mortgage. The Tribunal came to the conclusion that he did not continue to be a tenant and, therefore, upheld the order of the Collector of Amreli. It is against this decision of the Revenue Tribunal that the present petition has been presented, and it is urged by Mr. Shah on behalf of the petitioner that there is an error apparent on the face of the record in that the Revenue Tribunal has wrongly come to the conclusion contrary to a Full Bench decision of this Court that the petitioner ceased to be a tenant upon redemption of the mortgage.

(2.) NOW , in the first instance, it is necessary to state some history of the Tenancy Act that is relevant. Under the Act of 1939, initially there was no provision with regard to what may be called ' deemed tenants,' that is, persons who were not actually contractual tenants, but who, being in lawful cultivation of land, were deemed to be tenants. But the Act was amended by Act No. XXVI of 1946 and Section 2 -A was incorporated and that section inter alia provided that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant subject to certain exceptions, with which for the moment we are not concerned. Then the Act of 1939 in Section 3 provided that a tenant shall be deemed to be a protected tenant in certain cases, such tenant of course including the deemed tenant under Section 2 -A, Section 3 -A provided that on expiry of one year from the coming into effect of Act No. XXVI of 1946 every tenant shall be deemed to be a protected tenant unless his landlord, within the said period, made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the tenant is not a protected tenant; and Section 4 dealt with tenants evicted after April 1, 1937, and sought to confer upon them the status of protected tenants subject to the provisions of that section. The Bombay Tenancy and Agricultural Lands Act, 1948, by the schedule thereto, repealed the Act of 1939, but saved Sections 3, 3 -A and 4 of the Act of 1939 as modified in the manner indicated in that schedule. Amongst the repealed sections was Section 2 -A, but in the new Act a corresponding section was enacted, which is Section 4, which provided that persons in lawful cultivation of the land shall be deemed to be tenants as Section 2 -A of the Act of 1939 had done, but also incorporated certain exceptions to this rule, and the exception with which we shall be concerned in this case is exception (c), which provides that if such a person is a mortgagee in possession, he shall not be deemed to be a tenant.

(3.) NOW , the question as to whether a tenant of a mortgagee ceases to be a tenant upon the redemption of the mortgage or becomes a deemed tenant or statutory tenant under Section 2 -A of the Act of 1939 came to be considered by a Division Bench of this Court in Dinkar Bhagwant v. Rau Babaji (1956) 59 Bom. L.R. 101. where the Division Bench took the view that the tenancy came to an end upon the redemption of the mortgage by virtue of Section III, Sub -section (c), of the Transfer of Property Act. This decision came to be considered by a Full Bench in a slightly different context in Jasvantrai Tricumlal v. Bai Jivi (1956) 59 Bom. L.R. 168, F.B. The question before the Full Bench actually was whether sub -tenants of a tenant, to whom the land was let out when sub -tenancies were legal, could be said to be lawfully cultivating the land after the termination of the contractual tenancy of the tenant himself, and the Full Bench held that upon the termination of the contractual tenancy the sub -tenant became a statutory tenant of the landlord. In delivering judgment, the learned Chief Justice referred to the decision of the Division Bench to which we have earlier referred, and to the extent to which that decision held that a tenant of a mortgagee ceases to be a tenant upon redemption of the mortgage, the learned Chief Justice held that the Division Bench had corne to a wrong conclusion. The learned Chief Justice observed (p. 175) :.Therefore, with very great respect, we must hold that the view taken by the learned Judge with regard to the position of the tenants of the mortgagees in possession under the old Act of J 939 is not the correct position, and that as far as the old Act is concerned the position of the tenants of the mortgagees in possession and the position of sub -tenants was identical ; they both became statutory tenants, one on the redemption of the mortgage and the other on the termination of the contractual tenancy. Therefore, the question is now concluded by the Full Bench decision that under the Act of 1939 a tenant of a mortgagee does not cease to be a tenant upon redemption of the mortgage, but becomes a statutory tenant after such redemption under Section 2 -A of the Act of 1939. But the Tribunal took the view -and that is the view which is contested before us -that this decision has no bearing on the position as it exists under the Act of 1948 because the Tribunal held that under Section 4(c) of the Act of 1948 any person lawfully cultivating the land, who derives title through a mortgagee in possession, does not become a deemed tenant or a statutory tenant.