Judgment

R.M.SAHAI, J.

(for Thommen, J. and himself)

(1) THE short question of law that arises for consideration in this appeal, by grant of special leave under Article 136 of the Constitution of India, is if a tenant under the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter referred to as the Act) who surrendered the tenancy can be said to have been dispossessed so as to claim benefit under Section 32(1-B) of the Act added, in 1969 in Ch. III, dealing with Special Rights and Privileges of Tenants and Provisions for Distribution of Land for Personal Cultivation.

(2) FOR this purpose it is necessary to state facts in brief. A suit was filed by Respondent 1 - plaintiff (referred to as plaintiff) against Respondent 2 - defendant (referred to as the defendant) and the appellant-defendant 2 (referred to as the appellant), on the allegation that a conditional mortgage was executed by the plaintiff in favour of defendant in 1952 after getting the land surrendered from the appellant but since the defendant was not willing to hand over possession despite offer of paying the mortgage amount, a declaration may be granted that he was the owner of the land in dispute on payment of the mortgage amount to the defendant. In the written statement filed by the defendant it was claimed that he was the owner of the land in dispute. Apart from that, one of the pleas raised was that the land in dispute was let out by him to the appellant who was in possession since then. On the pleadings one of the questions that arose was whether the appellant was the tenant of the land in dispute. Since the question of tenancy could be decided by the revenue authorities only, two issues were framed to the following effect:

1. Does defendant 2 prove that he was a tenant over the suit land since prior to mortgage transaction dated 23/06/1952.

2. Does defendant 2 (present applicant) further prove that he is the tenant of defendant 1 over the suit land since 1952. The issues were referred for decision to the Sub-Divisional Officer. They were decided in favour of the plaintiff against which the appeal filed by the defendant and appellant was dismissed. The appellate authority held that the appellant was the tenant even in 1949 but he surrendered his tenancy at the time of mortgage by the plaintiff. It was further held that he was not the tenant from 1952 to 1968. And his claim was falsified by absence of his name in revenue records from 1956 to 1968. It was supported by drawing an inference against the appellant as the defendant did not refer to his tenancy in the reply sent by him to the notice sent by the plaintiff in 1969. The Revenue tribunal, however, allowed the revision, setting aside the order passed by the two authorities and answered the issues referred to it in the affirmative in favour of the appellant. It found that the appellant had not surrendered in 1952. It was held that there was no iota of evidence to support it. In respect of second surrender in 1956 the tribunal even after recording the finding that there was little doubt that the appellant had surrendered the possession held that the relationship of landlord and tenant between the appellant and the defendant did not cease. It was further held that surrender having been entered in revenue records in December 1956 and the law having been amended in August by Act XIII of 1956 making it obligatory for surrender to be in writing the surrender by the appellant was invalid. Consequently it found that as appellant was in possession of the land as tenant on 15/06/1955 and was dispossessed before 1/04/1957 otherwise than in the manner and by an order of the Tahsildar as provided in Section 29 he was entitled to benefit of Section 32(1-B) of the Act. The two issues were answered thus:

"ISSUE No. 1. Defendant 2 (i.e. the present revision applicant) does prove that he was a tenant over the suit property since prior to the mortgage transaction dated 23/06/1952.