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1976 Supreme(Bom) 16
IN THE HIGH COURT OF BOMBAY
(S.M. Hajarnavis and B. Lentin JJ.)
NAGNATHAPPA TATYA HALGE - Petitioner
Versus
SHRINIVAS BADRINARAYAN MUNDADA and another - Respondents
Advocates appeared
In Spl. C. A. No. 344 of 1971:-
For petitioner – H.G. Vaishnav and Bhimrao N. Naik.
In Spl. C. A. No. 548 of 1971:-
For petitioner – S.J. Deshpande and D.Y. Lovekar.
For opponent No. 1 - H.G. Vaishnav, Bhimrao N. Naik and A.H. Vaishnav.
Actual possession is required for the grant of occupancy right under section 6 (1) (a) of the Hyderabad Abolition of Inams Act.
Headnote:
HYDERABAD ABOLITION OF INAMS ACT - SECTION 6 (1) (A) - HYDERABAD TENANCY AND AGRICULTURAL LANDS ACT - SECTION 2 (1) (J), 5 - TENANCY - OCCUPANCY RIGHT - ACTUAL POSSESSION REQUIRED FOR GRANT OF OCCUPANCY RIGHT - SUB-TENANT DEEMED TO BE TENANT UNDER SECTION 5 OF HYDERABAD TENANCY ACT - ILLEGAL SUB-TENANCY NOT PROTECTED.
Fact of the Case:
The dispute arose between the petitioner (Srinivas) and the Inamdar (Nagnathappa) regarding the grant of occupancy right over two plots of land. Srinivas claimed tenancy rights based on a sub-lease granted to him by Nagnathappa in 1949, while Nagnathappa argued that he was the actual tenant and in constructive possession of the land.
Finding of the Court:
The court held that Srinivas was a deemed tenant under section 5 of the Hyderabad Tenancy Act, as he was in possession of the land as a sub-tenant before the amendment to the Act came into force. Therefore, he was entitled to occupancy rights under section 6 (1) (a) of the Hyderabad Abolition of Inams Act.
Issues: 1. Whether Srinivas was a tenant of the Inamdar for the purposes of section 6 of the Hyderabad Abolition of Inams Act? 2. Whether actual possession is required for the grant of occupancy right under section 6 (1) (a) of the Hyderabad Abolition of Inams Act?
Ratio Decidendi: 1. The court held that the provisions of the Hyderabad Tenancy Act, including the definition of 'tenant' under section 2 (1) (j), are applicable to the Hyderabad Abolition of Inams Act, even though the suit lands were service inam lands. 2. The court held that actual possession is required for the grant of occupancy right under section 6 (1) (a) of the Hyderabad Abolition of Inams Act. Constructive possession is not sufficient.
Final Decision: The court dismissed both petitions, upholding the Commissioner's order that granted occupancy rights to Srinivas in respect of the plot he had leased from Nagnathappa, but rejected his claim for occupancy rights in respect of the plot he had sub-leased from Ramgopal.
HAJARNAVIS J.-These two petitions are directed against an appellate order passed by the Commissioner. Aurangabad, who partly allowed the appeal filed by the occupant of the suit lands viz. the petitioner in Special Civil Application· No. 548 of 1971 against the order passed by the District Deputy Collector, Land Reforms, Bhir.
2. Survey Nos. 41 and 42 .of village Parli were community service in am lands. The inams were abolished on 1st July 1960 under the Hyderabad Abolition of Inams and Cash Grants Act, 1954 (hereinafter called as the "Hyderabad Abolition of Inams Act"). Before the abolition of the inam, the Inamdar had granted lease for 20 years of Survey Nos. 41 and 42 to Nagnathappa (Petitioner in Special Civil Application No. 344 of 1971) in 1944 by a registered lease deed. Nagnathappa sub· let a plot admeasuring 300'x500' to Srinivas (petitioner in Special Civil Application No. 548 of 1971) on 14th April 1949 by a registered Lease Deed for 18 years. On the same day, he sub-let another plot admeasuring 200' x 300' to one Ramgopal for 18 years by a registered deed. This Ramgopal, in his turn, sub-let this plot to Srinivas on 6th June 1965. After the Hyderabad Abolition of Inams Act came into force, a dispute arose between Srinivas and Nagnathappa regarding the grant of occupancy right. The District Deputy Collector by his order dated 17th April 1970 held that Nagnathappa was entitled to be declared as an occupant under section 6 (1) (a) of the Hyderabad Abolition of Inams Act in respect of Survey Nos. 41 and 42 including the two plots leased out by him.
3. Being aggrieved by this decision, Srinivas filed an appeal before the Commissioner, Aurangabad, who after hearing the parties, held that he was deemed to be a tenant of the Inamdar in respect of the lease that was granted to him by Nagnathappa and as he was in actual possession of that land, he was entitled to the grant of occupancy right in respect of that plot. So far as the second land was concerned, he held that he hag obtained the lease from Ramgopal on 6th June 1965 and as he was not in possession of the land as sub-tenant on or before the date of amendment of section 5 of the 'Hyderabad Tenancy and Agricultural Lands Act (hereinafter called as the "Hyderabad Tenancy Act") he could not be deemed to be a tenant under the 1st proviso to section 5 of the Hyderabad Tenancy Act and, therefore, could not be called as a tenant under section 2 (1) (j) of the Hyderabad Abolition of Inams Act. He could not be said to be in posse3sion of that land as a tenant of the Inamdar on the relevant date and was not entitled for the grant of occupancy right of the land. He, therefore, partly allowed the appeal and declared him a tenant of land Admeasuring 300' x 500' from Survey Nos. 41 and 42 of village Parli under section 6 (I) (a) of the Hyderabad Abolition of Inams Act. He dismissed his claim for grant of occupancy right in respect of the plot of which he had obtained lease from Ramgopal. It is against this order that both Nagnathappa and Srinivas filed these two petitions.
4. Mr. Vaishnav, the learned counsel for Nagnathappa tooks us through the relevant provisions of the Hyderabad Tenancy Act and also of the Hyderabad Abolition of Inams Act. He also took us through the orders passed by the authorities below. He submitted that the Commissioner has committed an error in holding that Srinivas was a tenant of the Inamdar. He also urged that Nagnathappa was a tenant of the Inamdar and he was in constructive possession of the suit land inasmuch as it is he who had granted sub-lease to Srinivas and, therefore, Srinivas's possession could be deemed to be his possession and that it is not necessary for the purposes of section 6 of the Hyderabad Abolition of Inams Act that the person claiming occupancy right should be in actual possession. Mr. Vaishnav also urged that the Commissioner has committed an error in holding that Srinivas was Ii tenant of the Inamdar on the basis of the
