RAJMAL CHHOTELAL JAIN Vs. UTTAM ISNAJI INGOLE

JUDGEMENT

(1.) Mainabai widow of Chhotelal Jain was the original petitioner who filed this writ petition under Art. 227 of the Constitution. She died during the pendency of this petition and the present petitioner was brought on record as her heir and legal representative. Mainabai, a widow was the owner of survey No. 3/2, area 13 acres 7 gunthas and survey No. 1, area 15 acres 30 gunthas of village Kadwi in Murtizapur taluq of Akola district. The respondent is the tenant cultivating these fields. Mainabai widow of Chhotelal Jain sent a notice in writing dated 9-1-1967 to the respondent claiming to terminate the tenancy of the respondent on the ground that the widow required the lands for her personal cultivation. This notice recited; "please, therefore, take notice that your tenancy is terminated by this notice. I will start proceedings for possession of the suit fields according to law and you will be responsible for all costs and consequences." This notice was served on the respondent on 13-1-1967. Thereafter, on 16-5-1968 Mainabai filed an application before the Special Tahsildar, Murtizapur for possession of the suit fields. In this application, Mainabai stated; "The cause of action for the present suit has, therefore, arisen when the opponent's tenancy is terminated on 13-1-1967". The respondent, who appeared in the trial Court, opposed the application specifically taking one of the contentions that it was denied that the notice was legal and effective and denying that his tenancy had been terminated as alleged. After recording the evidence, the Special Tahsildar, Murtizapur by his order dated 31-3-1972, allowed the application of Mainabai and ordered the respondent to place her in possession of the suit fields, holding that all the necessary conditions under section 38 of the Bombay Tenancy and Agricultural Lands (Vidarbba Region) Act, 1958, (hereinafter referred to as the Tenancy Act), had been fulfilled. The respondent preferred an appeal to the Sub-Divisional Officer, Murtizapur, who having found all other points in favour of Mainabai, allowed the appeal and dismissed her application on the sole ground that the notice dated 9-1-1967 sent by Mainabai to the respondent terminating his tenancy was not a valid notice under section 106 of the Transfer of Property Act, relying on the observations of this Court in . Mainabai then preferred a revision application to the Maharashtra Revenue Tribunal, but the Maharashtra Revenue Tribunal, by its order dated 28-6-1974 dismissed the revision application. In this writ petition filed under Art. 227 of the Constitution, Mainabai challenged the orders of the Sub-Divisional Officer, Murtizapur and Maharashtra Revenue Tribunal.

(2.) The sole point that arises for determination in this petition is whether the notice dated 9-1-1967 was a valid notice terminating the tenancy of the respondent. In Telsing Vs. Shamsunissa, 1971 Mh.LJ. Note 38, Chandurkar J. held:

(3.) Mr. S.N. Kherdekar has been at pains to convince me that this view of Chandurkar J. is erroneous and this Mr. Kherdekar endeavours to prove on the authority and observations in Zadba Sadasheo Vs. Mah. Rev Tribunal, 1964 Mh.LJ. 559. Zadba's case was in respect of a notice issued under section 39(1) of the Tenancy Act and in that case, a Division Bench of this Court observed: that the provisions of section 106 of the Transfer of Property Act applied only in the absence of a local law. They further observed that section 39 of the Bombay Tenancy and Agricultural Lands (V.R.) Act, 1958 was a local law.The full observations in that case relevant for the purposes of this case are contained in paragraph 4 of the reported judgment, which are as follows: