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IN THE HIGH COURT OF BOMBAY
(R. D. Tulpule J.)
BALU HRIPATI PATIL and another -Petitioners.
v.
BANDU TATOBA CHINCHWADE and another -Respondents.
Advocates appeared
For petitioners-V. V. Divekar.
For respondent No. I-Bhimrao N. Naik.
BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - SECTION 32 (1 B) - POSSESSION OF LANDLORD - INTERPRETATION - RESTRICTION ON SUCCESSORS-IN-INTEREST - LIMITED APPLICATION - ACTUAL POSSESSION AND RIGHT TO POSSESSION REQUIRED.
Fact of the Case:
A dispute arose over the possession of agricultural land between a tenant, Bandu Tatoba, and the landlords, Balu Shripati and Nana Dada. Bandu claimed to have been dispossessed from the land prior to April 1, 1957, and sought restoration of possession under section 32 (1 B) of the Bombay Tenancy and Agricultural Lands Act, 1948. The Special Tahsildar and the Maharashtra Revenue Tribunal found in favor of Bandu, but the Sub-Divisional Officer reversed the order, holding that Bandu had failed to prove the relationship of landlord and tenant between himself and the petitioners.
Finding of the Court:
The High Court held that the word "possession" in section 32 (1 B) of the Act should be interpreted in a restricted manner, requiring not only actual physical possession but also a present right to possession in the landlord. The Court found that the landlords were in actual possession of the land but did not have a present right to possession as they had leased the land to a mortgagee-in-possession. Therefore, the Court held that the third condition for the attraction of section 32 (1 B) did not subsist in the present case and the tenant was not entitled to take advantage thereof.
Issues: 1. Whether the word "possession" in section 32 (1 B) of the Bombay Tenancy and Agricultural Lands Act, 1948, means only actual possession or also includes constructive possession. 2. Whether the landlord must have a present right to possession in addition to actual possession for the application of section 32 (1 B). 3. Whether the possession of a landlord who has leased the land to a mortgagee-in-possession satisfies the requirement of possession under section 32 (1 B).
Ratio Decidendi: 1. The Court interpreted the word "possession" in section 32 (1 B) in a restricted manner, considering the background, history, import, and restrictive intendments of the section. 2. The Court held that the landlord must have not only actual physical possession but also a present right to possession for the application of section 32 (1 B). 3. The Court found that the landlords in the present case did not have a present right to possession as they had leased the land to a mortgagee-in-possession. Therefore, the Court held that the third condition for the attraction of section 32 (1 B) did not subsist in the present case.
Final Decision: The High Court allowed the petition filed by the landlords, Balu Shripati and Nana Dada, and set aside the orders of the Special Tahsildar and the Maharashtra Revenue Tribunal. The Court held that the tenant, Bandu Tatoba, was not entitled to restoration of possession under section 32 (1 B) of the Bombay Tenancy and Agricultural Lands Act, 1948.
2. The facts leading to the dispute are these ;_
Survey No. 405/1 of village Kurundwad in Shirol tahsil, District Kolhapur, admeasuring 8 acres 17 gunthas admittedly belonged to two persons Balu Shripati and Nana Dada. There is also no dispute that the land was leased to Bandu Tatoba-the present respondent as a tenant some time in the year 1951. Bandu cultivated this land as tenant and his name came to be entered in the Record of Rights for the years 1951-52, 1952-53, 1953-54, 1954-55 and 1955-56 as tenant. His name seems to have disappeared from the year 1956-57. The Special Tahsildar, Shriol commenced suo motu proceedings in regard to this land under section 32 (I B) of the Tenancy Act in the year 1971 and issued notices to the landlords, Balu Shripati and Nana Dada to appear before him and to show cause why possession should not be taken from them and hand it over to the tenant Bandu.
3. In the course of enquiry, the Special Tahsildar raised three issues before him, viz. whether tenant Bandu was in possession on the appointed day i. e. June 15, 1955 and whether he was illegally dispossessed before the Tillers' day viz. April 1, 1957. Second issue framed was whether the land was in possession of the landlords Balu Shripati and Nana Dada, and the third was whether the land has been put to non-agricultural use. In the issues framed by the Tahsildar, the name of Balu does not appear. It appears at some places in the Record and the judgment. The subject matter of the proceedings is shown as half portion of Survey No. 405/1 and it is not clear therefore whether the inquiry related to whole of the land or part. The orders direct possession of only half portion of Survey No. 405/1. It is not clear as to how this reference to half portion of the land has occurred inasmuch as the name of tenant appeared to the entire Survey No. 405/1 admeasuring 8 acres 17 gunthas. In view of the or am passing in this case, this error and misconception is however of limited consequence.
4. The Tahsildar held that Bandu was in possession of the land on June 15, 1955 viz. the appointed day; that he was dispossessed otherwise than in the manner provided and by an order of the Tahsildar. According to hi m, Bandu was dispossessed prior to April 1, 1957. It was also the finding of the Tahsildar that the landlords were in possession of the land in suit. In that view of the matter, since the land was not put to non-agricultural use, the Tahsildar directed possession to be handed Over to Bandu.
5. Aggrieved with the judgment and order, Balu and Nana preferred an appeal before the Sub-Divisional Officer, Karvir Division. The Sub. Divisional Officer, Karvir reversed the order passed by the Special Tahsildar, and seems to have held that Bandu had failed to prove that there was any relationship of landlord and tenant between himself and Balu and Nana. He did not record a positive finding as to whether Bandu was in possession of the land on June 15, 1955, nor also whether he was dispossessed prior to April I, 1957. Since he came to a conclusion that Bandu had not proved that he was a tenant of the land, he allowed the appeal, dismissed the proceedings and set aside the order passed by the Special Tahsildar.
6. Bandu carried a Revision Application to the Maharashtra Revenue Tribunal being No. MR T. KP. 169/74. The Tribunal reversed the order passed by the Sub-Divisional Officer and came to the conclusion similar to that which was reached by the Tahsildar. It held that Bandu was in possession of the land on June 15, 1955 and as he was dispossessed prior to April I, 1957 and the land was in possession of the landlords. It held, therefore, that the land was liable to be restored to the tenant. It is aggrieved by this finding, that Balu and Nana have approached this 'Court by way of this petition.
7. Mr. V. V. Divekar,
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