1. This is an application for revision arising from an application made by the applicant-landlord for possession of lands from the tenant Opponent No.1 on the ground that he had during a period of four years from 1949-50 to 1952-53 sub-let parcels out of the lands let to him to opponents No. 2, 3 and 4. That Opponent No. 1 had sub-let pieces of had to Opponents No.2, 3 and 4 is not in dispute. The principal contention which was taken on behalf of Opponent No.1 which it is necessary to state for the purpose of the present application under Article 227 of the Constitution is that the landlord had failed to apply within a period of two years from the date when there was in the first instance sub-letting by Opponent No.1 in the year 1949-50. It was said that in the case the landlord wanted to apply for possession of the lands from Opponent No.1 on the ground that he had sub-let, he had under the provisions of Section 29 of the Bombay Tenancy and ?Agricultural Lands Act to make an application to the Mamlatdar within a period of two years from the date on which the right to obtain possession of the land is deemed to have accrued to him'. The application which the petitioner-landlord made in this case to the Mamlatdar was on 23-1-1953. It is contended that this was more than two years after the date of the first sub-letting which was in the year 1949-50. Consequently the applicant's application to the Mamlatdar was barred by time. The view which has appealed to the Revenue Tribunal to which the matter ultimately went in revision is that the application to obtain possession made by the landlord was barred by time because the cause of action for the landlord to terminate, the tenancy and claim possession, treating the sub-letting as in valid, arose on 1-4-1950. The learned Members of the Tribunal did not go into the question as to whether the time would begin to run only when the landlord came to know of the sub-letting. They said that the time would begin to run immediately there was sub-letting. In that view of the case inasmuch as the application which was made by the landlord was more than two years after 1-4-1950, they held that the application was barred by time. They therefore allowed the applications for revision and set aside the orders which had been passed by both the Courts below, giving the applicant-landlord possession of the property sub-let by Opponent No.1. He has made this application to this Court under Article 227 of the Constitution.
2. Now, under Section 29(2) of the Bombay Tenancy and Agricultural Lands Act the application by a landlord to obtain possession of land which is let by a tenant to others must be made within a period of two years from the date on which the right to obtain possession of the land is deemed to have accrued to him, and the question is when the right to obtain possession is deemed to have accrued to the landlord.
3. Now, this Court held in Raghouda Paragouda v. Appasaheb 58 Bom LR 64 : AIR 1950 Bom 759 , that even though a landlord's intention to terminate the tenancy may be manifest only from his application under Section 29 (2) the right to obtain possession my be deemed to have accrued earlier and we are prepared to hold that when there is only one breach the right to obtain possession must be deemed to have accrued when there is sub-letting by Opponent No.1 in contravention of the provisions of Section 27, Sub-section (1) of the Act and the landlord comes to know of it. There is a dispute however as to whether it is necessary that the landlord should come to know of this sub-letting before it can be said that there accrued to him a right to obtain possession of the land . In the second instance it is contended that when there are parcels sub-let successively, the right to obtain possession arises when the tenant first sub-lets a portion of the land let to him. It is agreed that in case the tenant sub-lets to him. it is agreed that in case the tenant sub-lets again other parcels of land to other sub-tenants there-after, there are successive breaches of the provisions of Section 27, Sub-section (1). But it is said that no fresh right to obtain possession accrues to the landlord when the tenant successively lets subsequently other pieces of land. Consequently if the landlord fails to make an application to obtain possession of the land within a period of two years from the date when the tenant first sub-lets any portion of the land let to him the landlord's right to obtain possession is barred by the provision of Section 29, Sub-section (2).
4. Now, Section 14, Sub-section (1) interposes a restraint on the right of the landlord to terminate the tenancy. We are concerned with this section as it was before its recent amendment in 1956. The section provides, confirming ourselves to the portion which is material to the present application:
'Notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated unless such tenant .....has sub-let the land or failed to cultivate it personally.'
Section 27, Sub-section (1), provides
'No sub-division or sub-letting of the land or assignment of any interest held by a tenant shall be valid. Such sub-division. sub-letting or assignment shall make the tenancy liable to termination.' Now, a perusal of the working of both the sections shows quite clearly that even though there is a prohibition against a tenant assigning any portion of his interest or sub-letting any portion of the land which is let to him, such assignment or such sub-letting does not automatically bring the tenancy to an end. Under Section 27, Sub-section (1), the tenancy is only liable to termination. Similarly the restraining which is imposed by Section 14. Sub-section (1) in the way of the termination of the tenancy of a tenant (it is conceded in this case that opponent No. 1 is a protected tenant) is removed when the tenant sub-lets the land in contravention of Section 27, Sub-section (1). The result consequently is that in spite of the sub-letting the tenancy continues until it terminated.
5. Now, Section 27(1) of the Tenancy Act of 1948 does not say at whose hands the tenancy will be liable to be terminated which is nothing unusual for that act but as Section 14(1) imposes a restriction upon the power of the landlord unless the tenant sub-lets and removed it upon such sub-letting taking place it would be reasonable to hold that the person at whose hands the tenancy is liable to termination is the landlord. The Act does not make any provision for the termination of the tenancy upon an application made to a Court or the Mamlatdar and it is not possible to understand how the tenancy could be terminated except by an act of the landlord. Consequently when a protected tenant has sub-let the land the landlord gets a right to terminate the tenancy and to obtain possession of it. This is exactly the right of re-entry which is spoken of by English Lawyers. In order to reenter, under the English law it is not necessary for the landlord to give a notice, but he must do some act showing an unequivocal intention to terminate the tenancy. In England, if a writ is taken out that is taken as showing an unequivocal intention to terminate the lease unless the writ is for alternative to possession which again raises a doubt. In India, if a suit is filed that is taken as amounting to show an intention which is unequivocal to bring the tenancy to an end, but the tenancy will not come to an end without some act on the part of the landlord. Now, inasmuch as filing a suit would terminate the tenancy where an application for obtaining possession of the land let by a protected tenant is to be made to the Malatdar, it is obvious that the making of an application of the Mamlatdar will bring an end to the tenancy. The question which then arises is, when does the right to obtain possession of the land accrue? Now, it is obvious that in case in order t terminate the tenancy it is necessary that the landlord should do some act, it is necessary that he should do some act, it is necessary that he should come to know of the sub-letting before he can do some act which would terminate the tenancy. It is obvious that the tenancy cannot be terminated if the landlord does not know that the tenant has sub-let. On the other hand Section 27(1) does not compel a landlord to terminate the tenancy when the tenant sub-lets. He has an, option and he can condone or ignore the contravention by the tenant of that Sub-section. I shall not use the word 'waiver' which is used when a tenant incurs forfeiture for breach of a condition of a tenancy which is intended to protect the interests of the landlord and can therefore be waived by him. The restriction imposed by Section (1) upon the powers of a tenant to sub-let may be actuated by considerations other than the interests of he landlord, e.g., public policy. But the landlord can condone or at leat ignore the contravention and he cannot do either unless he comes to know of it. He cannot similarly exercise the other choice offered to him unless he comes to know of the contravention. It seems to us therefore that the right to obtain possession of land which is let by a sub-tenant in contravention of the provisions of Section 27, Sub-section (1), arises only when the tenant has sub-let the land and the landlord has come to know of the sub-letting.
6. It is true that the tenancy come to an end upon the landlord terminating it but he can do that only by making an application under Section 29(1), an act which he can perform at any time after he comes to know of the sub-letting, as it depends upon his volition the right to obtain possession can be said to have accrued to him immediately he comes to know of the sub-letting.
7. In our view it is not possible to go further even though Section 29(2) uses the words 'deemed to have accrued'. These words are usually used when enacting a legal fiction, e.g., Section 4 of the Tenancy Act. But when they are used to enact a legal fiction the act indicates the circumstances in which the legal fiction arises. Section 29(2) does not do so and does not therefore enact a legal fiction.
8. The next question which arises is whether the right to obtain possession accrues whenever the tenant sub-lets what has been let to him in parcels. It is conceded on behalf of the tenant that whenever the tenant sub-lets parcels of what was let out to him each time that he does so there is a breach of the condition imposed upon Section 27, Sub-section (), that the tenant shall not sub-let the land. It is said however that the right to apply for possession of the land accrues and must be deemed to have accrued only when there is sub-letting first. Subsequently the tenant may have sub-let the land, but there is no fresh right in the landlord to make an application to the Mamlatdar to obtain possession.
9. Now, it has got to be remembered that even though under Section 27, Sub-section (1) protected tenant is prohibited from sub-letting, the landlord is not required to give a tenant a notice, nor is he required to terminate the tenancy. He has got a choice. He can exercise the right which has been given to him and terminate the tenancy provided of course the tenancy is otherwise liable to termination. But he can do also another thing and that is to condone or ignore the breach which has been committed by the tenant. If he does so the result is that the tenancy continues, and if the tenancy continues it is obvious that when subsequently the tenant sub-lets the land again, then inasmuch as the tenancy continues and the tenant has sub-let there is a breach by him of the restriction imposed by Section 27, Sub-section (1), with the result that the landlord will get a right to apply against to the Mamlatdar for possession.'
10. Now the first thing which is clear is that whenever there is a breach after an act of condonation or ignoring the landlord will get a fresh right to apply to the Mamlatdar for possession of the land. He says however that it was not the case of the landlord in the present case that he had condoned or ignored the first breach. it seems to us however that in order that the landlord should again get a right to apply to the Mamlatdar for possession it is not necessary that he should have condoned or ignore the first breach. He might of course do so He might also - may be owing to negligence-allow his right to apply for possession of the land to be barred by limitation. It is obvious that in either case there is no reason whatsoever why if the tenant sub-lets another parcel again, the landlord should not have a right to apply to the Mamlatdar again for possession of the land. Even if his right to obtain possession on the first breach is not time-barred when a second breach takes place he can ignore the first and apply for possession terminating the tenancy for the second breach. Our attention in this connection has been drawn to article 143 of the Limitation Act under which the time for filing a suit by landlord to obtain possession of the land when he has become entitled to possession because of a forfeiture incurred or a condition broken by the tenant starts from the time when the forfeiture is incurred or the condition broken. Now, some cases have taken the view that in such cases inasmuch as it is not necessary under the term so f the Article that the tenancy should have been brought to an end the time starts running when the forfeiture is incurred or he condition is broken. But on the other hand there has been a difference of opinion. Some cases have also taken the view that there is no difference between the cases which are governed by Section 111(g) of the Transfer of Property Act and the cases which do not fall within the provisions of that section. IN all such cases the landlord has got to terminate the tenancy and inasmuch as the tenancy must be terminated the time starts running from the period when the landlord terminates the tenancy. Now, it is not necessary for us to express any opinion as to which of these two views is the correct one. If at all the view which says that it does not make any difference whether the landlord terminates the tenancy is correct, then that must be on the footing that the landlord is entitled to possession immediately the forfeiture is incurred and that under the provisions of Art. 143 of the Limitation Act the time starts running from the point of time when the forfeiture is incurred or the condition is broken. We are not concerned with some words in the case before us; we have got to ascertain when the right to apply for possession accrues or is deemed to have accrued.
11. Then we come to the decision of the Court, to which our attention has been drawn, in : AIR1956Bom759 (A). It appears that in that case the landlord had given a notice. A notice is now required to given under the amendment made in Section 14, Sub-section (1). The case referred to above was however governed by the section as it stood before its amendment. What had got to be found consequently was, when the right to obtain possession of the property was deemed to have accrued. It was held that inasmuch as it was not necessary to give any notice the right to obtain possession must be deemed to have accrued when there was a sub-letting by the tenant. The decision in that case must obviously be read by reference to the facts with which this Court was concerned in that case. The only question which was raised in that case was either it could be said that the time ran from the date of some act which was committed by the landlord. The view which was taken there was there it was not necessary that the landlord should do an act like actual re-entry or giving a notice for the right to obtain possession to accrue. That is the view which we have also taken in the present case. It is perfectly correct that the tenancy cannot be terminated except by the landlord doing some act showing his unequivocal intention to terminate the tenancy; but inasmuch as the act is an act which depends upon the volition of the landlord it is obvious that the right to obtain possession accrues on the date on which the protected tenant having sub-let, the landlord comes to know of that sub-letting. Thereafter he can come to the Court at any time. Therefore the right to obtain possession accrues to a landlord when the tenant has sub-let and the landlord comes to know of the sub-let-ting.
12. We have, however, a difficulty in the present case because it does not appear that the various dates on which there was sub-letting and the date on which the landlord came to know of the sub-letting have been ascertained. In the circumstances, in our opinion, the best thing to do would be to set aside the order which has been passed by the Revenue Tribunal and to remand the case to the Tribunal for further disposal in accordance with law. If necessary they can call for any finings which may be necessary to have in the light of the remarks made in this judgment. Costs of this application will be costs in the application to the Revenue Tribunal.
13. Case remanded.