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1982 Supreme(Bom) 146
IN THE HIGH COURT OF BOMBAY
(Nagpur)
Jamdar M.S. Rele B.J. JJ.
Gulabchand Dipchand Golcha .... Appellant.
Versus
Nimbaji Bhiku Bari .... Respondent.
Second Appeal No. 244 of 1967 decided on 02–05–1982.
Advocate Appeared:
For appellant-S. N. Kherdekar.
For respondent-C. P. Kalele.
The tenancy of a protected lessee stood terminated either when the notice given under section (9)(1) is followed by an order under section 8(I)(g) or when his application under section 9(3) challenging the notice is rejected by an order under section 9(4). This termination gives a right to the landholder to avail of the summary remedy provided by section 19 (1) for evicting the tenant.
Headnote:
BERAR LEASES ACT - AGRICULTURAL LEASES - ACT SECTION 113, 132, 133, 16-B, 19(1), 19(2), 19(3), 8(1)(g), 9(1), 9(3), 9(4) - VIDARBHA TENANCY ACT - SUMMARY - The tenancy of a protected lessee stood terminated either when the notice given under section (9)(1) is followed by an order under section 8(I)(g) or when his application under section 9(3) challenging the notice is rejected by an order under section 9(4). This termination gives a right to the landholder to avail of the summary remedy provided by section 19 (1) for evicting the tenant.
Fact of the Case:
The respondent was a protected lessee under the Berar Leases Act, 1951. The appellant, the landlord, served a notice under section 9(1) of the Act terminating the tenancy of the respondent. The respondent filed an application under section 9(3) of the Act challenging the notice. The Revenue Officer rejected the application and the appellant filed an appeal to the Deputy Commissioner, who dismissed the appeal. The appellant then filed a second appeal to the Revenue Tribunal, which allowed the appeal and held that the notices issued by the appellant under section 9(1) of the Act were bona fide. The appellant filed a suit for possession of the land and mesne profits, but the trial court dismissed the suit. The appellant filed an appeal to the Assistant Judge, who held that the proceedings started by the appellant under section 9(1)(g) of the Act for termination of the tenancy would be governed by the Berar Leases Act and not by the Vidarbha Tenancy Act, and that only the procedural part of the Vidarbha Tenancy Act would apply to these pending proceedings. The Assistant Judge also held that all rights accrued to the original plaintiff under the Berar Leases Act were saved by section 132(2) of the Vidarbha Tenancy Act. The appellant filed a second appeal to the Division Bench.
Finding of the Court:
The Division Bench held that the tenancy of a protected lessee stood terminated either when the notice given under section (9)(1) is followed by an order under section 8(I)(g) or when his application under section 9(3) challenging the notice is rejected by an order under section 9(4). This termination gives a right to the landholder to avail of the summary remedy provided by section 19 (1) for evicting the tenant. The Division Bench also held that the appellant's suit for possession was misconceived because the only remedy he had was to file an application under section 19(1) of the Berar Lease Act.
Issues: 1. Whether the tenancy of a protected lessee stood terminated either when the notice given under section (9)(1) is followed by an order under section 8(I)(g) or when his application under section 9(3) challenging the notice is rejected by an order under section 9(4)? 2. Whether the appellant's suit for possession was misconceived because the only remedy he had was to file an application under section 19(1) of the Berar Lease Act?
Ratio Decidendi: 1. Yes, the tenancy of a protected lessee stood terminated either when the notice given under section (9)(1) is followed by an order under section 8(I)(g) or when his application under section 9(3) challenging the notice is rejected by an order under section 9(4). 2. Yes, the appellant's suit for possession was misconceived because the only remedy he had was to file an application under section 19(1) of the Berar Lease Act.
Final Decision: The appeal was dismissed.
2. The facts leading to this reference are as under :-
The Land Survey No. 95/1, which is the subject matter of the dispute originally belonged to one Poonamchand Gulabchand. This land was leased out to the respondent Nimbaji Bhiku before 1951–52. Nimbaji Bhiku there-fore, became a protected lessee under the Berar Leases Act, which came into force on 15th, November 1951. Punamchand served a notice under section 9(1) of the Berar Leases Act terminating the tenancy of the respondent at the end of the agricultural year (i. e. 31st March 1957). The notice, which was dated 21st December, 1956 was served on the respondent on 26th December 1956. On receipt of this notice, the respondent submitted an application to the Sub Divisional Officer (the Revenue Officer contemplated by section 9 of the Berar Leases Act) under section 9 (3) of the Berar Leases, Act for a declaration that the notice was not bona fide and had no effect. *The Revenue case No. 93/51-B of 1956–57, which was commenced on the basis of this application, was decided by the Sub Divisional Officer, on 17th July 1957 along with Revenue Case No. 222/51-B/56–57 which was commenced on an application filed by Punamchand under section 8(1) (g) of the Berar Leases Act for orders terminating respondent's tenancy. Punamchand's application was dismissed, while respondent's application was-allowed and it was held that the notice dated 21st December 1956 was not bona fide. Being aggrieved by this order, Punamchand preferred two appeals-, one against the order passed under section 9 (4) and the other against the order passed under section 8 (1) Both these appeals were dismissed by the Deputy Commissioner on 30th August, 1958. Punamchand, therefore, filed second appeal to the Revenue Tribunal. Both these appeals bearing Appeal Nos. 152, 153/51-B/1958–59 were decided along with other appeals preferred by Punamchand against the orders passed in proceedings taken out by him against the other tenants. The Maharashtra Revenue Tribunal allowed the appeals, which arose out of the proceedings taken by the tenants under section 9 (3) of the Berar Leases Act and held that the notices issued by Punamchand under section 9 (1) of the Berar Leases Act were bona fide. A a necessary corollary of this decision, the three appeals i. e. 150, 153, and 155, which arose out of the application filed by Punamchand under section 8(l)(g)r were also allowed. The Maharashtra Revenue Tribunal, however, gave the following direction in the proceedings commenced by Punamchand under section 8(1) (g) of the Berar Leases Act;-
“As these are proceedings for termination of leases, it is obvious that they are governed by Sub section (3) (a) of section 132 of the Bombay Act No. 99 of 1958 and will have to be disposed of by the corresponding authority (Tahsildar or Naib Tahsildar having jurisdiction) in accordance with the provisions of that Act.”
3. After the second appeals were filed but before these appeals were •decided by the Maharashtra Revenue Tribunal, the Vidarbha Tenancy Act came into force on 30th December 1958 and by virtue of section 133 of the said enactment, the Berar Leases Act stood completely repealed with effect from that date.
4. After the decision of the Second Appeals, Punamchand filed Civil Suit No. 87 of 1961 against the respondent for possession of the land in question and also for recovery of mesne profit amounting to Rs. 154/-. Pu
