2003 Supreme(SC) 1065

2004(1) Supreme 548
SUPREME COURT OF INDIA
(From Bombay High Court)
V.N. Khare, CJI., S.B. Sinha & Dr. AR. Lakshmanan, JJ.
Babu Parasu Kaikadi (Dead) by Lrs. -Appellants
versus
Babu (Dead) through Lrs. -Respondents
Civil Appeal No. 7149 of 1997
Decided on 29-10-2003
Counsel for the Parties :
For the Appellants : Makrand D. Adkar and Vishwajit Singh, S.D. Singh, Vijay Kumar, Anurag Kishore, Advocates.
For the Respondents : M.S. Nargolkar, Sr. Advocate, D.M. Nargolkar, Advocate.

IMPORTANT POINT
Provisions of Sections 15 and 29 of Bombay Tenancy and Agricultural Lands Act are mandatory and possession obtained by landlord in violation of such mandatory provisions would be illegal.

Headnote:(i) Bombay Tenancy and Agricultural Lands Act, 1948-Sections 15 and 29-Appellant was a tenant in respect of suit land since 1948-49 and surrendered land to landlord-Surrender was not in terms of Section 15 and 29 of the Act-Whether voluntary surrender which was not in terms of Section 15 and 29 of the Act was a valid one? No.

       Held : The said Act, therefore, contemplates termination of tenancy by surrender thereof; and consequent liking over possession by the landlord. How such termination of tenancy could take place is provided for in Section 15 of the Act in terms whereof inter-alia a surrender of the tenancy becomes a legal one only when such surrenderis in writing and verified before the Mamlatdar in the prescribed manner. For the said purpose the Mamlatdar is also required to hold an enquiry. It is not in dispute that purported surrender made by the predecessor-in-interest in favour of the respondents herein was although considered to be voluntary but the same did not satisfy the very legal requirement, contained in Section 15 of the Act. Section 29 of the Act, as noticed hereinbefore, postulates taking over of possession by the landlord from the tenant only in accordance with procedure prescribed therefor. In the event, the surrender made by the predecessor-in-interest of the appellant in favour of the respondent is found to be invalid; the possession thereof obtained by the later pursuant to or in furtherance thereof shall also be invalid. In such an event, although the landlord takes a physical possession of the land, the right to possess the same remains with the tenant. He could recover possession of the said land in accordance with law. The said Act is a beneficent statute. It should be construed in favour of the tenant and against the landlord. The protection given to the tenant in terms of the said Act must be given full effect. So construed, the expression possession would also include right of possession. The view which we have taken is fortified by the decisions of this Court in Ramchandra Keshav Adke (dead) by Lrs. & Ors. vs. Govind Joti Chavare & Ors. [(1975) 1 SCC 559], Bhagwant Pundalik & Anr. vs. Kishan Ganpat Bharaskal & Ors. [(1971) 1 SCC 15] and in Abdul Ajij Shaikh Jumma & Anr. vs. Dashrath Indas Nhavi & Ors. [AIR 1987 SC 1626] and this the consistent view had been that the surrender by the tenant for being legal must be in conformity with the provisions contained in Sections 15 and 29 of the Act. (Paras 4 and 5)

       (ii) Bombay Tenancy and Agricultural Lands Act, 1948-Section 32(1B) as amended by Amendment Act 49/69-Appellant was tenant in suit land since 1948-49 and surrendered its possession in 1956 to landlord voluntarily-Landlord mortgaged suit land in 1967-In view of Section 32(1B) inserted in the Act by Amendment Act, 1969, Tehsildar started suo-motu proceedings in 1972 for restoration of possession to appellant tenant-Proceedings were dropped by Tehsildar -Sub-Divisional Officer in appeal directed restoration of possession to appellant-Order set aside by tribunal in revision-High Court in view of Supreme Court judgment in Dhondiram s case dismissed writ-Appeal-Law laid down in Dhondiram s case that any voluntary surrender would be a valid surrender was per incuriam-Even though land was mortgaged by landlord, in absence of any registered document, lawful title as well legal possession of land remained with landlord-Impugned judgment of High Court was liable to be set aside.

       Held : Once it is held that the provisions of Sections 15 and 29 are mandatory, it goes without saying that possession obtained by the landlord in violation of such mandatory provisions would be illegal. A Statute, as is well known, must be read in its entirety. The expression "Dispossession" having regard to the text and context of the Act cannot be given its natural meaning. The High Court arrived at a finding of fact that the appellant herein had satisfied all the requirements as contained in Section 32(1B) of the Act. The High Court, however, relying on or on the basis of the decision of this Court in Dhondiram Totoba Kadam (supra), dismissed the appeal of the appellant. The High Court, as noticed hereinbefore, however, felt that the question raised is of great general importance. Having given our anxious thought, we are of the opinion that for the reasons stated hereinbefore, the decision of this Court in Dhondiram Totoba Kadam (supra), having not noticed the earlier binding precedent of the co-ordinate Bench and having not considered the mandatory provisions as contained in Sections 15 and 29 of the Act had been rendered per incuriam. It, therefore, does not constitute a binding precedent. (Paras 12 and 13)

       It is no doubt true that the Tribunal recorded a finding that the purchaser was in possession. Surprisingly, however, on perusal of the relevant documents, we find that the case set up by the respondent that he has executed an agreement for sale was not correct. In fact it was a mortgage with the right of re-conveyance and as such it was not an agreement for sale. Thus, the mortgagee was in possession of the land on behalf of the landlord because no title or interest was passed on in favour of the mortgagee, in so far as no registered document was executed transferring the interest in the land by the landlord in favour of the mortgagee. In absence of any registered document having regard to the provisions contained in Sections 17 and 49 of the Registration Act, no lawful title could pass on to the mortgagee. Lawful title as well as the legal possession of the land in question therefore remained with the landlord. The so-called mortgagee in the aforementioned circumstances must be held to have merely in permissive possession of the land. Such a possession, on the part of the so-called mortgagee, being not in his own right, the land could have been restored in favour of the appellant. The Appellate Authority correctly analysed the legal position. It is true that the Tribunal while reversing the judgment and order of the Appellate Authority came to a finding that a third party was in possession but such purported finding of fact has been arrived at on apply wrong legal tests and without taking into consideration the effect of the provisions of the Transfer of Property Act and also the Indian Registration Act. In that view of the matter, the finding of the Tribunal was not sustainable. It is only in that premise the High Court arrived at a finding that the appellant has satisfied all conditions laid down under Section 32(1B) of the Act. In view of our findings that the decision in Dhondiram Totoba Kadam (supra) had been rendered per in curiam and did not create a binding precedent, the judgment of the High Court having been rested solely thereon cannot be sustained. It is set aside accordingly. (Paras 19 to 21)