Section 52 of the new Tenancy Act does not apply to successors-in-title of a landlord who had terminated the tenancy under section 9 of the Berar Regulation of Agricultural Leases Act and sold the land prior to the coming into force of the Act.

Headnote:
TENANCY ACT - SECTION 52 - INTERPRETATION - RESTORATION OF POSSESSION - APPLICABILITY TO SUCCESSORS-IN-TITLE OF LANDLORD - SECTION 10 OF THE ACT - DISTINCTION.
Fact of the Case:

The petitioners purchased agricultural land from the respondent No.2 Udhao on 23rd February 1957. Respondent No.1 Namdeo, a protected lessee, filed an application under section 52 of the new Tenancy Act, claiming restoration of possession, alleging that his tenancy was terminated by Udhao in 1954 for personal cultivation, that Udhao had not cultivated the land for the requisite period of two years, and that he had sold the land to the petitioners. The Naib-Tahsildar and the Maharashtra Revenue Tribunal allowed Namdeo's application, holding that the sale to the petitioners was in contravention of section 9(6) of the Berar Regulation of Agricultural Leases Act and that Namdeo was entitled to restoration of possession under section 52 of the new Tenancy Act.
Finding of the Court:

The High Court held that section 52 of the new Tenancy Act did not apply to the petitioners, who had lawfully acquired the land prior to the coming into force of the Act. The Court interpreted section 52 as applying only to landlords who had terminated the tenancy under section 9 of the Berar Regulation of Agricultural Leases Act and who were in possession of the land on the date of the coming into force of the new Tenancy Act. The Court distinguished section 52 from section 10 of the Act, which provides for restoration of possession to tenants who are dispossessed after 1st January 1953 in certain circumstances, including surrender of tenancy procured by fraud, deceit, false representation, or undue influence.
Issues: 1. Whether section 52 of the new Tenancy Act applies to successors-in-title of a landlord who had terminated the tenancy under section 9 of the Berar Regulation of Agricultural Leases Act and sold the land prior to the coming into force of the Act? 2. Whether the petitioners, who had lawfully acquired the land prior to the coming into force of the Act, were liable to restore possession to the ex-tenant under section 52 of the Act?
Ratio Decidendi: 1. Section 52 of the new Tenancy Act applies only to landlords who had terminated the tenancy under section 9 of the Berar Regulation of Agricultural Leases Act and who were in possession of the land on the date of the coming into force of the new Tenancy Act. 2. The petitioners, who had lawfully acquired the land prior to the coming into force of the Act, were not liable to restore possession to the ex-tenant under section 52 of the Act.
Final Decision: The petition was allowed, and the orders of the Naib-Tahsildar and the Maharashtra Revenue Tribunal were set aside. Namdeo's petition for restoration of possession was dismissed.

JUDGMENT -The petitioners Shamji and Kisan purchased S. No. no, having an area of 23 acres and 20 gunthas situate at village Bechkheda, from respondent No.2 Udhao on foot of a registered sale deed dated 23 -2 -1957. They were in possession of this property when respondent No.1 Namdeo filed an application purporting to be made under section 52 of the new Tenancy Act on 15 -5 -1959. That application is at page 23 of the Paper Book. In that application Namdeo alleged that he was cultivating the field in dispute as a protected lessee for the years 1951 -52 to 1954 -55. The field was let out to him by Udhao, respondent No.2, in his capacity as manager of the joint Hindu family of which his sons Vasant, Shyam and Jayant, respondents 3 to 5, were also members. Actual lease was given by Vasant who was the eldest son because Udhao was then in service in December 1954, which is obviously a mistake; actual date being 24 -1l -1954. Vasant sent a notice under section 9 of the Berar Regulation of Agricultural Leases Act terminating the tenancy of Namdeo on the ground that he needed the land for personal cultivation. In consequence of this notice, possession was given. As a matter of fact, Vasant started proceedings for possession by an application dated 2 -4 -1955 before the Sub -Divisional Officer and during the pendency of this application, on 13 -6 -55, a petition jointly signed by Vasant on behalf of all the landholders, and Namdeo, the tenant, came to be filed stating that the parties had settled the dispute amicably. The landholders gave up the right to lease money for the agricultural year 1951 -55 and the non -applicant had given up the right of cultivation and had placed the field in possession of the landholders. There is no date mentioned in this application when the landholders were placed in possession of the property.

2. The landholders cultivated the land at home for the years 1955 -56 and 1956 -57 and sold it, as already stated, to the two petitioners under a sale deed dated 23 -2 -1957. There is an averment in the written statement filed by the petitioners in paragraph 7 that their vendor, viz. previous landholder, cultivated the land in question personally for two years after it was taken from Namdeo and then it was sold to the petitioners in 1957. On the other hand, the averment of Namdeo in paragraph 4 of his application under section 52 was. to the effect that the landholder sold the said field to opponent No.5, i.e. petitioner No.1, in the year 1956, which he alleged was within two years from dispossession of Namdeo. There is no dispute that this averment, besides being a vague as to the date of delivery of possession, was also wrong with regard to the date of sale. Neither counsel has been able to show from record whether there is any statement or evidence showing the date on which possession was delivered by Namdeo to the previous landlord.

3. In paragraph 8, Namdeo also averred that after termination of the tenancy of Namdeo, the original landholder re -entered upon the land and cultivated it personally for sometime but before the expiry of two years from the date of re -entry, sold it and put the transferee, ie. the petitioner, in possession of the land. Originally, only petitioner No. I was impleaded as non -applicant to this application, but subsequently, petitioner No.2, who was a co -purchaser seems to have been allowed to be impleaded. Namdeo, thus founded his claim to restoration of possession on the basis of the provisions of section 52 of the new Tenancy Act on the allegation that his landholder had obtained possession after termination of his tenancy for personal cultivation, that he had not cultivated for the requisite period of two years, that he had sold the laud to. the petitioners and therefore he was entitled to restoration of possession.

4. Out of the original landholders, non -applicants 1 and 2 Udhao and Vasant, resisted the application on the ground that possession was ta

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1965 Supreme(Bom) 25

IN THE HIGH COURT OF BOMBAY(N. L. Abhyankar J.)SHAMJI DEOJI and another -Petitioners. V. NAMDEO BAPUJI DHANDE and others - Respondents. Advocates AppearedFor petitioner -V. R. Manohar. For respondent No. 1 - C.S. Dharmadhikari. Respondents Nos. 2 to 8 were not represented.

Section 52 of the new Tenancy Act does not apply to successors-in-title of a landlord who had terminated the tenancy under section 9 of the Berar Regulation of Agricultural Leases Act and sold the land prior to the coming into force of the Act.

IN THE HIGH COURT OF BOMBAY
(N. L. Abhyankar J.)
SHAMJI DEOJI and another -Petitioners.
V.
NAMDEO BAPUJI DHANDE and others - Respondents.
Advocates Appeared
For petitioner -V. R. Manohar.
For respondent No. 1 - C.S. Dharmadhikari. Respondents Nos. 2 to 8 were not represented.