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1979 Supreme(Bom) 194
IN THE HIGH COURT OF BOMBAY
(Nagpur bench)
Mohta V., J.
Rashjdkhan Osmankhan and another.... Appellant.
Versus
Maltibai W/0 Sawai Madhaorao Deshpande .... Respondent.
Spl. Civil Appln. No. 332 of 1974 with SpI. Civil Appln. No 386 of 1974, decided on 8-9-1979 and 10-9-1979.
Advocates appeared:
V.G. Palshikar. for petitioners.
V.R. Taluqdar. for respondent
Section 38(7) of the Bombay Tenancy and Agricultural Lands(Vidarbha Region) Act, 1958, does not bar a tenure-holder who has acquired land by succession or devolution from terminating the tenancy of a protected lessee.
Headnote:
TENANCY - TERMINATION - BONA FIDE OCCUPATION - SECTION 38(7) OF THE BOMBAY TENANCY AND AGRICULTURAL LANDS(VIDARBHA REGION) ACT, 1958 - INTERPRETATION - ACQUISITION OF PROPERTY BY SUCCESSION OR DEVOLUTION NOT COVERED - TENANT'S RIGHT TO TERMINATE TENANCY NOT AFFECTED.
Fact of the Case:
The respondent, Smt. Maltibai, became the exclusive owner of two fields in 1947. In 1957, she created a tenancy in favor of petitioner Gulab's father. In 1958, she gave notice terminating the tenancy on the ground of bona fide personal cultivation. The Tahsildar granted possession of 1/3rd of a family holding to the respondent in 1962. In 1961, the respondent partitioned the fields with her legal heirs, allotting one field to petitioner Rashid Khan. The respondent gave notice terminating Rashid Khan's tenancy in 1961. The Maharashtra Revenue Tribunal held that section 38(7) of the Act was no bar to the maintainability of the application for possession. The Tahsildar and Sub-Divisional Officer granted possession of half of the area to both tenants. The Maharashtra Revenue Tribunal restored the order granting possession of 1/3rd of a family holding to the respondent. The tenants challenged the order in writ petitions.
Finding of the Court:
The Court held that section 38(7) of the Act, which bars a tenure-holder who has acquired land by transfer after August 1, 1953, from terminating the tenancy of a protected lessee, does not include acquisition by succession or devolution. The Court found that the respondent had no right in the property before her father's death in 1960 and acquired an unspecified share only after his death. The Court held that the partition in 1961 did not change the position as the respondent had a pre-existing right in the property. The Court also held that the order passed by the revenue authorities permitting termination of tenancy on the ground of bona fide occupation to the extent of half area in the case of tenant Rashidkhan was correct.
Issues: Whether section 38(7) of the Bombay Tenancy and Agricultural Lands(Vidarbha Region) Act, 1958, bars a tenure-holder who has acquired land by succession or devolution from terminating the tenancy of a protected lessee.
Ratio Decidendi: The Court interpreted section 38(7) of the Act strictly, holding that it only applies to transfers or partitions and does not include acquisition by succession or devolution. The Court reasoned that the Legislature's intention was to protect tenants from eviction by landlords who voluntarily acquire property after August 1, 1953, but not to protect tenants from eviction by landlords who acquire property through involuntary means such as succession or devolution.
Final Decision: The Court quashed the order of the Maharashtra Revenue Tribunal in the case of tenant Gulab and maintained the order of the Sub-Divisional Officer granting possession of half of the area to the respondent. The Court dismissed the petition in the case of tenant Rashid Khan, upholding the order granting possession of half of the area to the respondent.
2. The respondent, Smt. Maltibai became an exclusive owner in respect of field Survey No. 24/1 measuring 6 acres 35 gunthas and 25/1 measuring 4 acres and 36 gunthas both of village Akot in District Akola by virtue of a sale deed dated 4-12-1947. Petitioner Gulab son of Puran in Special Civil Application No 31-6 of 1974 is concerned with those fields On 1-4-1957 the respondent created a tenancy in respect of these two fields in favour of one Shri. Puran, the father of the petitioner Guiab. On 28-12-195R notice was given by the respondent terminating the tenancy on the ground of bona fide personal cultivation. This was followed by, an application dated 30-9-1959 under section 36(2) read with section 39 of the Bombay Tenancy and Agricultural Lands(Vidarbha Region) Act, 1958 (hereinafter referred to as “the Act”) filed before the Tahsildar, Akot, for possession. This was Revenue Case No. 173-59(10-F) /60.61 decided on 9.4-1962. The order was in favour of the respondent holding that the need was established. Inasmuch as on the date of the application this was the only land with the respondent possession in respect of 1/3rd of a family holding that is 8 acres was granted in terms of section 38(4), (a) (i) of the Act. It may be mentioned that total area of the two fields comes to II acres, 31 gunthas.
3. Inasmuch as few events have occurred between the date of the filing of the application and the order dated 9-4-1962, their reference at this very stage will be necessary. These events are that father of the respondent Shri Dattatraya died on 29-12-1960 leaving behind him as his legal heirs his widow and two married daughters out of them Maltibai being one. Thus, these legal heirs of Dattatraya succeeded to the estate of Dattatraya and the estate included agricultural fields. On 6-2-1961 these 3 legal heirs effected a partition and in that partition some agricultural fields were allotted to the share of the respondent and one such property is field survey No. 242 measuring 6 acres and 7 gunthas of Mauza Sarfabad, taluq Akot. The petitioner Rashid khan son of Usmankhan in Special Civil Application No. 332 of 1-l74 is concerned with that property. The respondent gave a notice on 10-2-1961 terminating the tenancy of this land on the ground of bona fide personal cultivation and proceedings for possession against the said Rashid khan who was a tenant on the field were initiated before the Tahsildar Akot on 22-3-1961. This is Revenue Case No. 158/59(1) of 60-61. The case filed against tenant Gulab, after receiving some jolts in remand. reached the Maharashtra Revenue Tribunal which vide order dated 15-10-1965 came to the conclusion that the position of the landlord as on the date of the filing of the application should be considered without any reference to the lands acquired subsequently and, therefore, ordered delivery of possession of 8 acres-an area equivalent to 1/3rd of the family bolding which was more than half of the total area of the two fields which came to 11 acres 31 gunthas. Aggrieved by the order passed by the Maharashtra Revenue Tribunal, petitioner Gulab moved the High Court under Article 227 of the Constitution of India by filing Special Civil Application No. 150 of 1966. By judgment dated 14-3-1968 the petition came to be allowed and the matter was remanded back balding that position as regards the acreage of the land as emerged not on the date of the application but on the date of the order should be considered. The High Court observed as under in the remand order of the revision: -
“Hence the additional land which the respondent No; 4 got on partition had to be taken into consideration for granting the relief on the view taken by the Division Bench of this Court. Thus, on the date of the order the respondent No. 4 having more than a family holding, she was not entitled to any re
