CHIMANABAJ RAMA NAIK Vs. GANPAT JAGANNATH NAIK

JUDGEMENT

(1.) A very short question as to limitation arises for our determination in this Full Bench, and the question depends upon the proper construction to be given to S. 29 (2) of the Bombay Tenancy and Agricultural Lands Act.

(2.) THE facts briefly are that on 4-11-1954 the landlord made an application for possession of the lands held by his tenant on the ground that he had sub-let one of the lands contrary to the provisions of S. 27 of the Bombay Tenancy and Agricultural Lands Act. The landlord contended that he was not aware of this sub-letting until November 1953. On the facts found it is clear that the sub-letting took place more than two years before 4-11-1954, and the question that arises is whether if the subletting took place more than two years before the date of the application, which is 4-11-1954, the application of the landlord to obtain possession is barred by limitation.

(3.) NOW, we have to consider a few sections of the Tenancy Act in order to decide this question, and the first section is section 14 which provides: "notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated unless such tenant ? (and the relevant sub-clause is sub-clause (d)) ? (d) has sub-let the land or failed to cultivate it personally. . . . . . . . . " it is clear from this section that the sub-letting by itself does not lead to an automatic termination of the tenancy. The Tenancy Act has put impediments in the way of the landlord from terminating the tenancy of his tenant and S. 14 removes these impediments and lays down the various cases in which he can terminate the tenancy, and one of the cases is where the tenant has sub-let the land or failed to cultivate it personally. Therefore, under S. 14 the tenancy of a tenant is liable to be terminated in the event of his sub-letting the land. There is no obligation upon the landlord to take possession. There is no obligation upon him to terminate the tenancy. He has merely a right to terminate the tenancy, which right he may or may not exercise. He may ignore or overlook the breach constituted by the sub-letting, in which case the tenancy would not be terminated and the tenant could continue to hold the land as the tenant of the landlord. Now, a proviso was added to this section by Bombay Act XXXIII of 1952 and that proviso requires a statutory notice to be given by the landlord. That statutory notice was given by the landlord. The proviso provides the method to be adopted by the landlord for terminating the tenancy. If he intends to terminate the tenancy, he must give a statutory notice of three months' duration. Before the proviso the section did not lay down the mode of terminating the tenancy. But it is clear that the landlord had to terminate the tenancy by some conscious act. He must show his clear unequivocal intention that in view of the subletting by the tenant he wanted to terminate the tenancy.