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1972 Supreme(Bom) 50
IN THE HIGH COURT OF BOMBAY
Malvankar P.S., J.
Appellants: Suryakant Ramchandra Mudake
Vs.
Respondent: Shivlinga Vishwanath Ghongade
Appeal No. 135 of 1965 Decided On: 12.04.1972
Counsels:
For Appellant/Petitioner/Plaintiff: H.H. Lalit, Adv. for U.R. Lalit, Adv.
For Respondents/Defendant: M.B. Kadam, Adv.
Important Points
Subject
Property Law - Landlord and Tenant
Act Referred
Headnote
TENANCY ACT - SECTION 31, 29(2) - SUMMARY SUIT FOR MESNE PROFITS - WRONGFUL POSSESSION - TERMINUS A QUO - FINAL ORDER OF TRIBUNAL - MESNE PROFITS FROM DATE OF FINAL ORDER.
Fact of the Case:
The plaintiff filed a suit for mesne profits in respect of half of the land, for the years from 1957-58 to 1961-62. The plaintiff alleged that he had filed Tenancy Case No. 288 of 1957 against the defendant, who was his tenant in respect of the whole of the land, for possession on the ground that he required the land bona fide for personal cultivation. The notice terminating the tenancy was issued with effect from 31st December 1956 and thereafter he filed the application under Section 31 read with Section 29 (2) of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter called "the Act") for possession. The Mamlatdar dismissed the application on 31st August 1957. The plaintiff then went in appeal to the Deputy Collector and the Deputy Collector in appeal ordered delivery of possession of half of the suit land, that is to say, 5 acres and 17 1/2 gunthas, on 7th June 1958. The defendant then went in revision to the Revenue Tribunal. The Tribunal confirmed the order of the Deputy Collector on 14th October 1960. The plaintiff obtained possession of the land on 21st January 1962.
Finding of the Court:
The court held that the possession of the tenant becomes wrongful and the landlord becomes entitled to mesne profits from the date of the final disposal of such application under Section 29 (2), whether the disposal is by the Mamlatdar under Section 29 (2) or by the appellate authority or by the revising authority under Section 78 (1) read with Section 29 (2) of the Act.
Issues: 1. Whether the possession of the tenant becomes wrongful from the date of the order of the Mamlatdar under Section 29 (2) of the Act? 2. Whether the terminus a quo for determining the nature of possession of the tenant is the final order disposing of the application made under Section 31 read with Section 29 (2) of the Act?
Ratio Decidendi: 1. The court held that the order of the Mamlatdar on an application under Section n31 read with Section 29 (2) of the Act cannot be treated to be a terminus a quo for the purpose of ascertaining the nature of possession. The tenants possession would continue to be lawful in such cases even after the order passed by the Mamlatdar under Section 29 (2) of the Act. 2. The court held that the correct view consistent with the observations of the Supreme Court and this Court in Full Bench decisions cited above would be that if an application under Section n31 read with Section 29(2) of the Act is filed by a landlord after terminating the tenancy the possession of the tenant becomes wrongful and the landlord becomes entitled to mesne profits from the date of the final disposal of such application under Section 29 (2), whether the disposal is by the Mamlatdar under Section 29 (2) or by the appellate authority or by the revising authority under Section 78 (1) read with Section 29 (2) of the Act.
Final Decision: The appeal is partially allowed. The decree passed by the trial Court as confirmed by the lower appellate Court is hereby set aside, and the following decree is passed:- The defendant do pay Rs. 350 to the plaintiff on account of mesne profits with future interest of 4 per cent, per annum from the date of the suit till realisation and proportionate costs throughout.
2. The learned trial Judge, relying on Brigadier K. K. Varma v. The Union of India, 56 Bom LR 308 came to the conclusion that the defendant could not be held to be a trespasser and that his possession being juridical the plaintiff was not entitled to mesne profits. He, therefore, dismissed the suit with costs. The plaintiff then went in appeal to the District Court in Civil Appeal No. 615 of 1963. The learned appellate Judge also took the view that in view of the provisions of Section 31 read with Sections 29 and 73 of the Act and the decision in 56 Bom LR 308, the possession of the defendant could not be said to be wrongful and, therefore, the plaintiff was not entitled to mesne profits. The learned appellate Judge, therefore, confirmed the decree of the trial Court and dismissed the appeal with costs. Being aggrieved by this judgment and decree, the plaintiff has come in second appeal to this Court.
3. Now, the learned Counsel Mr. J. R. Lalit, appearing on behalf of the appellant-plaintiff has relied upon Balkissan v. Tukaram (1966) 68 Bom LR 874, and has argued that though he has claimed mesne profits from the date of termination of the tenancy, in view of the decision of this Court, the possession of the defendant became wrongful from the date of the order of the Mamlatdar passed under Section 29 (2) of the Act and, therefore it is from this date that the plaintiff would be entitled to mesne profits. I have already pointed out that in the instant case, the application of the plai
