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1965 Supreme(Bom) 166
IN THE HIGH COURT OF BOMBAY
(B. N. Deshmukh J.)
KASHIRAO (Defendant) -Appellant.
vs.
CHUNNIBAI (Plaintiff) -Respondent.
Advocates Appeared
For appellant- V. R. Padhye.
For respondent-J. N. Chandurkar.
A surrender-deed executed under section 6 of the Berar Regulation of Agricultural Leases Act, 1951 (No. XXIV of 1951) is valid and effective from the commencement of the next agricultural year, and the tenant ceases to be a lessee from that date.
Headnote:
SURRENDER OF LEASE - VALIDITY - PROTECTION FROM EVICTION - INTERPRETATION OF STATUTES - BERAR REGULATION OF AGRICULTURAL LEASES ACT, 1951 (XXIV OF 1951), SECTION 6 - BOMBAY TENANCY AND AGRICULTURAL LANDS (VIDARBHA REGION AND KUTCH AREA) ACT, 1958 (NO. 99 OF 1958), SECTIONS 2(32), 6, 10, 132.
Fact of the Case:
The plaintiff-respondent was the owner of survey No. 613/4 of mouza Yeoda in Daryapur taluq in Amravati district. The defendant-appellant was made a tenant of this land for one year, namely, 1957-58 by a contract of lease, dated 12th June 1957 Exh. P.1. The rent fixed was Re. 180 payable on 15th December 1957. On the same day, namely, 12th June 1957 the defendant executed a surrender- deed Exh. P-2 in favour of the plaintiff. That was a surrender-deed under section 6 of the Berar Regulation of Agricultural Leases Act, 1951 (No. XXIV of 1951) (herein after referred to as the Act of 1951). As a result of this surrender-deed the defendant ceased to be a tenant of the land from 1st April 1958. Since the defendant did not surrender the possession nor paid the lease money, the plaintiff filed this suit on 20th June 1958 for both the reliefs. He claimed possession from the defendant and claimed the lease-money together with interest as stipulated in the contract.
Finding of the Court:
The surrender-deed executed by the defendant was valid and effective from 1st April 1958. The defendant was not entitled to any protection from eviction under Ordinance No. IV of 1957 or Act No. IX of 1958 as he had not paid the arrears of rent before 31st May 1958. The defendant was not a tenant under the provisions of Act No. 99 of 1958 as he was not in lawful cultivation of the land. The plaintiff had acquired a right to obtain possession because of the surrender under section 6 of the Act of 1951 and this right was saved by the provisions of section 132 of Act No. 99 of 1958.
Issues: 1. Whether the surrender-deed executed by the defendant was valid and effective? 2. Whether the defendant was entitled to any protection from eviction under Ordinance No. IV of 1957 or Act No. IX of 1958? 3. Whether the defendant was a tenant under the provisions of Act No. 99 of 1958? 4. Whether the plaintiff had acquired a right to obtain possession because of the surrender under section 6 of the Act of 1951?
Ratio Decidendi: 1. The surrender-deed executed by the defendant was valid and effective as it was executed in accordance with the provisions of section 6 of the Act of 1951 and was not obtained by fraud or undue influence. 2. The defendant was not entitled to any protection from eviction under Ordinance No. IV of 1957 or Act No. IX of 1958 as he had not paid the arrears of rent before 31st May 1958. 3. The defendant was not a tenant under the provisions of Act No. 99 of 1958 as he was not in lawful cultivation of the land. 4. The plaintiff had acquired a right to obtain possession because of the surrender under section 6 of the Act of 1951 and this right was saved by the provisions of section 132 of Act No. 99 of 1958.
Final Decision: The appeal was dismissed with costs.
2. The defendant raised several defences by a written statement. dated 27th December 1958. So far as the lease amount is concerned, it was stated that the defendant being a protected tenant, rent in excess of four times the land revenue cannot be charged. It was further stated that he has paid Rs. 25 towards the payment of land revenue and he should have been given credit for the same. His main defence was that the defendant became a protected tenant because of the contract made in 1957•58. He was in possession for a continuous period of several years from 1951•52 and every year a fresh Kabuliyat was got executed and on some occasions a surrender-deed was also got executed from him. This surrender-deed was a nominal document which was not to be acted upon and this was got executed on giving certain assurances to the defendant that the tenancy will never be terminated in fact and he will be continued year after year. It is also stated that the intention of the plaintiff in getting such surrender-deed was fraudulent as is now apparent from his conduct. It is further stated that the civil Court has no right to decide whether the defendant is a protected tenant or otherwise and the issues relating to the same may be referred to the revenue officers as provided by the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (No. 99 of 1958).
3. On these pleadings, the parties went to trial. The learned Civil Judge came to the conclusion that Act No. 99 of 1958 did not affect this case and the defendants contention that the rent could not be charged in excess of four times the land revenue is not tenable. He, however, accepted the fact that the defendant had paid Rs. 23.41 towards land revenue for which credit was to be given, and for the balance amount together with interest a decree came to be passed. DO far as possession is concerned, the learned Civil Judge rejected the contention of the defendant that the surrender-deed was a nominal one, that it was got executed fraudulently and that it was got executed by exercise of undue influence and fraud. He also held that there was no necessity to refer any of the issues to the revenue officers as mentioned in section 16•A of the Act of 1951 and the defendant never became a tenant under the provisions of Act No. 99 of 1958. The plaintiffs suit for possession was, therefore, decreed. Being aggrieved by this decree, the defendant filed Civil Appeal No. 161.A of 1959. The appeal was confined to the bar of possession only and the money claim was not in dispute in the appeal. It is also not in dispute before this Court. The learned District Judge negatived all the contentions of the defendant and held that the surrender-deed was genuine and it was not got executed by, fraud or undue influence. The defendant had no right of tenancy an
