MOTIRAM RAMCHANDRA KHARWADE Vs. MAHARASHTRA REVENUE TRIBUNAL

JUDGEMENT

(1.) THE petitioner, who is a tenant, is challenging the order passed by the Maharashtra Revenue Tribunal holding that opponent No. 3, who is a landholder, is entitled to possession of field survey number 44/1, area 16 acres, 16 gunthas of Navasari, taluq and district Amravati, which was retained by the tenant after the landholder had resumed the remaining portion of that field for personal cultivation. In Revenue Case No. 295/59 (6) of 1960 -61 the landholder, who had started a proceeding for resumption of field survey number 44/1 under Section 3D of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, referred to as the Tenancy Act, was held entitled to resume half the area of this field for personal cultivation by an order passed by the Naib -Tahsildar, Amravati on October 23, 19G1. The appeal against this order filed by the tenant came to be rejected on December 31, 1963 and neither the tenant nor the landholder appears to have agitated this matter further. It is also an admitted position that the landholder was placed in possession of half of this field on March 19, 1964. In the meantime, however, the landholder had served a notice on the petitioner terminating the lease in respect of the entire field on the ground that he was in arrears of lease money for the years 1962 -63 and 1963 -64 and that he had leased out the field to some other person. Before, however, filing an application for possession the landholder had already acquired possession of half the area of the said field and he, therefore, filed an application for possession on June 17, 1964 in respect of the remaining part of the field. This application was granted by the tenancy Naib -Tahsildar who found that the petitioner had granted a sub -lease to one Marotirao, who is also respondent No. 4 in this petition. It appears that the ground of failure to pay lease money was not urged before the Naib -Tahsildar and that matter was not put in issue by him.

(2.) THE petitioner challenged this order by an appeal and the Special Deputy Collector who decided the appeal held that as the petitioner had become the owner of half of the field with effect from April 1, 1961 the application under Section 19 was not maintainable. He also set aside the finding that the petitioner has sublet the field to respondent No. 4. He thus allowed the appeal and this order was challenged by the landholder by revision application before the Maharashtra Revenue Tribunal.

(3.) THE first contention raised by the learned counsel appearing on behalf of the petitioner is that the Tribunal was not justified in holding that the proceeding for possession finally terminated on March 19, 1964. According to the learned counsel, in view of the provisions of the proviso to Section 46 of the Tenancy Act the date of statutory transfer of ownership could be extended only to March 31, 1963 when the appeal filed by the tenant challenging the order under Section 38 passed in favour of the landholder was dismissed. The obvious purpose of canvassing such a construction of the proviso to Section 46(1) is that if the proceeding would be terminated finally on December 81, 1963 the notice under Section 19 issued on March 14, 1964 would be after the date on which the statutory transfer of ownership would take place under Section 46 of the Tenancy Act and therefore, ineffective according to the petitioner. I am, however, not inclined to accept the construction placed on the second proviso to Section 46 by the learned counsel for the petitioner. Section 46(1) and its second proviso are in the following words : 46. (1) Notwithstanding anything in this Chapter or any law for the time being in force or any custom, usage, decree, contract or grant to the contrary, with effect on and from the first day of April 1961, the ownership of all lands held by tenants which they are entitled to purchase from their landlords under any of the provisions of this Chapter shall stand transferred to and vest in, such tenants and from such date such tenants shall be deemed to be the full owners of such lands :... Provided further that where in respect of any such land, any proceeding under sections 19,20,21,86 or 88 is pending on the date specified in Sub -section (1) the transfer of ownership of such land shall take effect on the date on which such proceeding is finally decided and the tenant retains possession of the land in accordance with the decision in such proceeding.(Italics are mine). Under Section 46(1) the ownership of all lands which are held by tenants and which they are entitled to purchase from their landlords stand transferred to and vest in them from April 1, 1961 and from that date the tenants are deemed to be the full owners of such lands. The date of transfer of ownership specified in Section 46(1), however, is extended in cases which are governed by the second proviso to that sub -section. The effect of the second proviso to Sub -section (1) of Section 46 is that if proceedings under any of the 5 sections referred to in the second proviso are pending on April 1, 1961, then the transfer of such ownership is to take place on the date on which such proceeding is finally decided and the tenant retains possession of the land in accordance with the decision in such proceeding. It will be noticed that in a proceeding which is initiated under each one of the five sections specified in the proviso reproduced above, the respective rights of the tenant and the landholder to remain in possession are adjudicated upon and the material date as extended by reason of the pendency of the proceedings referred to in the second proviso to Section 46( 1) is when the tenant retains possession in accordance with a decision in that proceeding. The instant case is concerned with the decision of the question as to when a proceeding for possession under Section 36 started by the landholder in the exercise of his right under Section 38 is finally decided. The relief asked in an application under Section 36 in such a case is that the landholder should be placed in possession of land which he is entitled to resume. The extent of the land of which possession is granted has to be determined under Section 38 and an order finally be passed either granting or rejecting the application of the landholder in whole or in part. If the application is rejected by the Tahsildar or in appeal by the Deputy Collector or in a revision application by the Tribunal it would be the point of time when this proceeding finally terminated, that will be material. In a case, however, where the application of the landholder is wholly or partially granted, merely because an order upholding the right of the landlord to obtain possession from the tenant is passed, it cannot be said that the proceeding in which a prayer for being placed in possession under Section 36 is made comes to be finally decided when such an order is passed by the Tahsildar, or when such an order passed by the Tahsildar is confirmed by the appellate or the revisional authority. Under Section 106 of the Tenancy Act the order passed in favour of the landholder under Section 36 has to be executed and, Section 106(2) of the Tenancy Act lays down the manner in which such an order is to be executed. It provides that an order of the Tahsildar or the Tribunal awarding possession or restoring possession or use of any land shall be executed in the manner provided in Section 21 of the Mamlatdar's Courts Act, 1906 as if it was the decision of the Tahsildar under the said Act. The proviso to Section 106(2) also provides that such an order was not to be executed till expiry of the period of appeal as provided in Section 114. An order or decision of the Tahsildar in execution proceeding under Sub -section (2) is given a finality subject to an appeal, if any, to the Collector. Thus the action which is taken under Section 106(2) by way of execution is really a continuation of the proceeding for possession instituted under Section 36 of the Tenancy Act. A relief which is prayed for under Section 36(2) by the landholder cannot be said to have been effectively and finally granted unless the landholder is placed in possession of the land to which he has been found entitled. It is only when the landholder is placed in possession Of so much of land as he has been found entitled to that the tenant gets a right to retain the possession of the rest of the land in a case where the entire land in possession of the tenant is not resumed. In a proceeding under Section 38, therefore, where out of the total land held by the tenant possession of a part of the land is handed over to the landlord and the remaining land is retained by the tenant or when the landholder's application is rejected, then only there is retention by the tenant of the land in accordance with the decision in a proceeding under Section 38 as contemplated by the second proviso to Section 46(1) of the Tenancy Act. In my view, therefore, in a case where the landlord's application for possession is granted partially the words 'finally decided and the tenant retains possession of the land in accordance with the decision in such proceeding' in second proviso to Section 46(1) do not refer to the point of time when merely by an order passed the rights of the parties are adjudicated upon, but they refer to the point of time when a landlord entitled to possession is finally placed in possession and consequently the tenant retains the remaining land in accordance with the decision under Section 38 of the Tenancy Act. To take an instance : in respect of an order under Section 38 in favour of a landholder a dispute might arise regarding the extent or the quality of the land of which the landholder should take possession. Till this dispute is settled and the landlord is placed in possession of any particular part of the land with the consequent result of the tenant retaining possession of the remaining land, it can hardly be said that the proceeding started for possession under Section 36 has been finally decided. Therefore, the view taken by the Tribunal that the date material for deciding when the proceeding under Section 38 was finally decided was March 19, 1964 was justified.