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IN THE HIGH COURT OF BOMBAY
(B. N. Deshmukh and A. R. Shimpi JJ.)
SITARAM DEOBA MARATHE -Petitioner
v.
HAWADYA PIRAJI and others- Respondents.
Advocate Appeared
For petitioner – S.N. Kherdekar.
For respondent No. 1 - W. N Pimparkar.
None for respondent Nos. 2 and 3.
TENANCY - VIDARBHA TENANCY ACT, 1958 - SECTION 36(1) - APPLICATION FOR POSSESSION - TENANT BECOMING OWNER UNDER SECTIONS 46(1) AND 49A(1) - WHETHER CONTINUES TO BE TENANT FOR PURPOSES OF SECTION 36(1) - INTERPRETATION OF SECTIONS 46(1) AND 49A(1) - SUPREME COURT OBSERVATIONS IN SHRI RAM V. STATE OF BOMBAY AND MADHAORAO V. SHANKAR SINGH - DIVISION BENCH JUDGMENT IN KRISHNA V. GANPAT - HELD, TENANT BECOMING OWNER UNDER SECTIONS 46(1) AND 49A(1) CEASES TO BE TENANT AND CANNOT APPLY FOR POSSESSION UNDER SECTION 36(1).
Fact of the Case:
Respondent No.1, an alleged tenant of the land in question, filed an application under section 36(1) of the Vidarbha Tenancy Act, 1958 (hereinafter referred to as the Vidarbha Tenancy Act) for possession by summary eviction of the persons in possession. The application was dismissed on the ground that the respondent No.1's status as a tenant was in dispute and it was not possible for the Collector under that section to decide that dispute. The respondent No.1 then filed a proceeding under section 36(1) by joining the present petitioner and respondents Nos. 2 and 3 as party opponents. The defense taken up was that the respondent No. 1 was never a tenant, but was a partner in cultivation in the year 1959-60. The Naib Tahsildar held that the respondent No. 1 was a tenant of the land and was in possession in the year 1963-64 and that the application filed on 7-9-1966 was within three years which was the limitation provided by section 36(1) of the Vidarbha Tenancy Act. The present petitioner and respondents 2 and 3 carried an appeal against that order but it was dismissed by the Sub-Divisional Officer. A revision application before the Maharashtra Revenue Tribunal by all of them also failed. Being aggrieved, the purchaser has filed the present writ petition.
Finding of the Court:
The Court held that a tenant who becomes owner under the provisions of sections 46(1) and 49A(1) of the Vidarbha Tenancy Act, either on the 1st of April 1961 or 1st of April 1963 still continues to be a tenant for the purposes of making an application under section 36(1) of the Vidarbha Tenancy Act, if he is dispossessed after the date of vesting of title in him.
Issues: Whether a tenant who becomes owner under the provisions of sections 46(1) and 49A(1) of the Vidarbha Tenancy Act, either on the 1st of April 1961 or 1st of April 1963 still continues to be a tenant for the purposes of making an application under section 36(1) of the Vidarbha Tenancy Act, if he is dispossessed after the date of vesting of title in him.
Ratio Decidendi: 1. The definition of the word "tenant" under section 2(32) of the Vidarbha Tenancy Act shows that either there is an existing contractual relationship of landlord and tenant or there is the fiction of law converting certain lawful possessions into relationship of landlord and tenant. 2. Section 36(1) of the Vidarbha Tenancy Act gives a right to a tenant or an agricultural labourer or artisan entitled to possession of certain lands or dwelling houses or sites etc. to apply in writing for such possession to the Tahsildar. 3. Sections 46(1) and 49A(1) of the Vidarbha Tenancy Act provide for the transfer of ownership of agricultural lands to tenants on and from 1st April 1961 and 1st April 1963 respectively. 4. The vesting of ownership under sections 46(1) and 49A(1) of the Vidarbha Tenancy Act is complete and the tenant becomes the full owner of the land on the specified dates. 5. A tenant who becomes owner under sections 46(1) and 49A(1) of the Vidarbha Tenancy Act ceases to be a tenant and cannot apply for possession under section 36(1) of the Act.
Final Decision: The Court allowed the writ petition and quashed the orders of all the tenancy authorities below.
DESHMUKH J.- This writ petition arising out of the proceedings under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as the Vidarbha Tenancy Act) has been referred by a learned single Judge of this Court (Masodkar J.) to a Division Bench as the learned Judge found that there was a conflict of decisions between his own earlier judgment Madhukar v. Gajanan1, and a judgment delivered by another learned single Judge of this Court (Padhye J.) in Dattatraya v. Rama2.
2. Having heard the learned counsel on both sides and after going through the provisions of the Vidarbha Tenancy Act and the judgments of the Supreme Court as also the Division Bench of this Court, directly and indirectly dealing with these provisions or similar provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Bombay Tenancy Act), we are satisfied that the reference need not have been made. This is a litigation which has commenced with an application under section 36(1) of the Vidarbha Tenrtncy Act by the respondent No.1 Hawadya, who called himself tenant of the land in question. The facts alleged, and which are found by the Naib Tahsildar are that Howdya, respondent No.1, was the tenant of survey No.4 /3, measuring 5 acres 10 gunthas of fnouza Dapori, Tahsil Washim, district Akola and was in physical possession as such till December of 1963. Even while respondent No.1 was the tenant in possession, the respondents Nos. 2 and 3, the original owners of the land and the landlords of respondent No.1, made an agreement of sale in respect of this land dated June 26, 1962. The sale was actually effected in favour of the present petitioner Sitaram on January 16, 1963. The present petitioner before us in this writ petition is the purchaser from the original landlords who are respondents 2 and 3 and who is contesting the litigation against the respondent No.1, the farmer tenant of this land.
3. The' respondent No. 1 alleged before the Naib Tahsildar that he was in possession till December 1963 when he was forcibly dispossessed. He, therefore, filed an application under section 120 (c) of the Vidarbha Tenancy Act for possession by summary eviction of the persons in possession. This was Revenue Case No. 11/59 of 1965-66. This case was decided and the application of the respondent No.1 was dismissed on the short ground that the respondent No.1's status as a tenant was in dispute and it was not possible for the Collector under that section to decide that dispute. The remedy for a tenant was one under section 36 and not under section 120 (c). The application then came to be rejected .. The respondent No.1 was perhaps conscious of the opposition he was going to meet and filed the proceedings leading to the present petition on September 7, 1966 for possession under section 36 (l) by joining the present petitioner and respondents Nos. 2 and 3 as party opponents. The defence taken up was that the respondent No. 1 was never a tenant, but was a partner in cultivation in the year 1959-60. The further defence was that the application was barred by time as the respondent No.1 was not in possession at all since after 1959-60. The Naib Tahsil.ar by his order dated 21st July 1970 held that the respondent No. 1 was a tenant of the land and was in possession in the year 1963-64 and that the application filed on 7-9-1966 was within three years which was the limitation provided by section 36 (1) of the Vidarbha Tenancy Act. The Naib Tahsildar somehow assumed that the sale has taken place on May 4, 1964, though as a matter of fact, it had taken place on January 16, 1963.
4. The present petitioner and respondents 2 and 3 carried an appeal against that order but it was dismissed by the Sub-Divisional Officer by his order dated 26th April, 1971. He confirmed all the findings of the Naib Tahsildar. A revision application before the Maharashtra Revenue Tribunal by all of them also failed. Being aggrieve
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