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Bhailalbhai Tulsidas Patel Vs. Shankerbhai Kilabhai Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1077 of 1957
Judge
Reported inAIR1959Bom16; (1957)59BOMLR1081; ILR1958Bom273
ActsTenancy Law; Bombay Tenancy Agricultural Lands Act, 1948 - Sections 14, 14(1), 27(1) and 29(2); Constitution of India - Article 227
AppellantBhailalbhai Tulsidas Patel
RespondentShankerbhai Kilabhai Patel and ors.
Appellant AdvocateD.V. Patel, Adv.
Respondent AdvocateS.N. Patel, Adv.
Excerpt:
.....and agricultural lands act (bom. lxvii of 1948), sections 29(2), 27(1), 14(1), (d) - tenant sub-letting land--application by landlord for possession under section 29(2)--whether such application to be made within two years from date when landlord came to know of sub-letting or within two years of date of sub-letting.;under section 29(2) of the bombay tenancy and agricultural lands act, 1948, read with section 14(1)(d) of the act, a landlord is required to make an application for possession of the land within two years from when the right to obtain possession is deemed to have accrued to him i.e. in the case of sub-letting of the land by his tenant, from the date when the sub-letting has taken place.;subraya varadappa v. gopal krishna (1956) 59 bom. l.r. 62 dissented from.;rachgouda..........the sub-letting. therefore, for the purposes of an application under section 29(2) of the act the landlord's right to obtain possession of the land which is sub-let by his tenant can be said to have accrued to him immediately the landlord comes to know of the sub-letting.'it is evident that mr. justice bavdekar who delivered the judgment of the court thought that the landlord's right to obtain possession would arise and accrue to him not when the tenant sub-let the land to another, but the landlord's right to obtain possession of the land sub-let by the tenant to another can be said to have accrued to him immediately the landlord comes to know of the sub-letting. now, the decision in subraya varadappa's case is a decision given by a division bench i.e. by a court of co-ordinate.....
Judgment:

Dixit, J.

1. The applicant is the owner of five lands situate in a village, called Sarsa in the Anand Taluka of the Kaira District. Opponent No. 1 to the petition was a tenant of these lands and it is the applicant's case that opponent No. 1 sub-let these lands to opponent No. 2 sometime in 1948-49. It is also the applicant's case that he came to know of the sub-letting sometime in November, 1955 and so he gave a notice to opponent No. 1 terminating the tenancy. He then filed this application on the 9th May, 1956 to obtain possession from opponents Nos. 1 and 2. Opponent No. 1 the tenant admitted the claim but stated that he and opponent No. 2 were jointly cultivating the lands and giving a crop share to the applicant also jointly, The claim of the applicant was resisted by opponent No. 2.

2. Upon the evidence adduced before him, the Mamlatdar held that the suit brought by the application was barred by time and accordingly the suit came to be dismissed. From the order of dismissal an appeal was filed before the Prant Officer, Anand, and the learned Prant Officer held that the lands were leased out jointly to opponents Nos. 1 and 2 and also that the applicant's suit was barred by time. From that order the applicant went in revision before the Bombay Revenue Tribunal and a Bench of that Tribunal dismissed the application holding that the applicant's suit was barred by limitation. It is the correctness of this order which has been challenged upon this petition under Article 227 of the Constitution.

3. Before dealing with the question of limitation, it is necessary to point out that the Bombay Revenue Tribunal did not consider the finding recorded by the Prant Officer to the effect that the lands were jointly given to opponents Nos. 1 and 2 The Bombay Revenue Tribunal proceeded upon the footing that they preferred to examine the case of the applicant from the point of view from which he had pleaded it before the Mamlatdar, namely, that there was sub-letting by opponent No. 1 in favour of opponent No. 2 and that the sole question for decision was one of limitation.

4. The question of limitation has to be considered from the point of view of Section 29 (2) of the Bombay Tenancy and Agricultural Lands Act, 1948, which provides :

'No landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house as the case may be, is deemed to have accrued to him.'

Now, in this case the suit was filed on the 9th May, 1956 and evidently the sub-letting had taken place in 1948-49. Mr. D. V. Patel for the applicant contends that the suit is not barred, because limitation would begin to run not from the date of the sub-letting but from the date when be became aware of the sub-letting which was in November, 1955. Now, the period of limitation prescribed by Section 29(2) is a period of two years and if the starting point of limitation is November, 1955, there can be no doubt that the applicant's claim is well within time. But the view which has been taken by the Bombay Revenue Tribunal is that limitation would not begin to run, as has been contended by Mr. D. V. Patel, from the time when the sub-letting took place. In other words, the short question is : does limitation begin from 1948-49 or does it begin from November, 1955? If it is the first, there can be no doubt that the suit is barred by limitation but if limitation begins from November, 1955, there is again no doubt that the suit is well within time. It may be point out that the Bombay Revenue Tribunal considered two decisions and they were given in Special Civil Appln. No. 1521 of 1955 D/- 27-9-1956 (Bom) (A), and in Special Civil Appln. No. 198 of 1956 D/- 29-6-1956 (Bom) (B). The first of these is reported in Rachgouda Paragouda v. Appasaheb, : AIR1956Bom759 (C). It would be necessary first to refer to that case. It may be observed that the view which has been taken in Rachgouda Paragouda's case is that limitation would begin to run from the date of sub-letting and Mr. D.V. Patel has challenged the correctness of this view. It may also be pointed out that of Mr. Justice Shah who decided special Civil Appln. No. 198 of 1956 (Bom)(B), which go to show that he considered that cause of action or the right to obtain possession would accrue to a landlord on the date of sub-letting. Mr. Patel, however, has strongly relied upon a decision reported in Subraya Varadappa v. Gopal Krishna, : AIR1959Bom13 (D) and it is enough to quote apart of the head-note in order to understand the decision. It is as follows:

'The right of the landlord to obtain possession of the land which is sub-let by a tenant in contravention of the provisions of Section 27(1) of the Bombay Tenancy and Agricultural Lands Act, 1948, arises only when the tenant has sub-let the land and the landlord has come to know of the sub-letting. Therefore, for the purposes of an application under Section 29(2) of the Act the landlord's right to obtain possession of the land which is sub-let by his tenant can be said to have accrued to him immediately the landlord comes to know of the sub-letting.'

It is evident that Mr. Justice Bavdekar who delivered the judgment of the court thought that the landlord's right to obtain possession would arise and accrue to him not when the tenant sub-let the land to another, but the landlord's right to obtain possession of the land sub-let by the tenant to another can be said to have accrued to him immediately the landlord comes to know of the sub-letting. Now, the decision in Subraya Varadappa's case is a decision given by a Division Bench i.e. by a court of co-ordinate jurisdiction and good sense and respect for the decision of a court of co-ordinate jurisdiction require that it should be followed. But we find some difficulty in accepting that view as sound. We propose to indicate our reasons presently.

5. Going back to the provisions of the bombay Tenancy and Agricultural Lands Act. 1948., it is first necessary to refer to Section 27 (1) which 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.'

It follows from this provision that sub-letting is prohibited and that a sub-lease is made invalid under the Act. It is also evident that where sub-letting has taken place, the tenancy is liable to be terminated. Then reference may be made to Section 14 which, so far as material, provides, by Sub-section (1)(d), that 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. There is proviso to this section which says:

'Provided that no tenancy of any land held by a tenant shall be terminated on any of the grounds mentioned in this sub-section, unless the landlord gives three months' notice in writing intimating the tenant his decision to terminate the tenancy and the ground for such termination.'

It may be pointed out that when the sub-letting took place in this case, it was prohibited although the notice to terminate the tenancy was not necessary at that time. In arriving at a correct conclusion in this case it is necessary to determine the scope of Section 14(1)(d) and Section 29(2). According to Section 14, the tenancy of any land held by a tenant cannot be terminated except in case specified in Clause (a), (b), (c), (d) and (e). This shows that the Act, first of all, aims at the security of a tenant's tenure, but if the tenant does any one of the acts mentioned in the several clauses, Section 14 says that such a tenancy is liable to be terminated. It is evident that the section does not confer any right upon a landlord. It is also clear that the section imposes a sort of a restriction upon the activities of a tenant, that is to say, so long as a tenant does none of the acts mentioned in Section 14, his tenancy is secure. But the moment he doe sone of the several acts mentioned in Section 14, he invites the consequence of his tenancy being liable to be terminated at the instance of the landlord. Therefore, Section 14 does not confer any right upon a landlord but merely suggests the consequence of the tenancy being liable to be terminated if a tenant commits any one of the acts mentioned in Section 14. The right is given to a landlord by virtue of Section 29(2) and it says that a landlord shall make an application within a period of two years from the date on which the right to obtain possession of the land (omitting the unnecessary words) is deemed to have accrued to him. The words which require construction are the words 'the right to obtain possession of the land' and the words 'is deemed to have accrued to him'. The words 'is deemed to have accrued to him' would suggest a fiction It is important to bear in mind that the section does not say that two years are to be computed from the date on which the right accrues to the landlord. What the section says is that the period of limitation is 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. This language is, in our view, deliberate, because it may well be that sub-letting may take place at one time and notice may be given by a landlord terminating the tenancy a long time after and in order to make it clear that the right of the landlord would arise when the sub-letting takes place, Section 29(2) provides that the right to obtain possession of the land from a tenant must be taken to have accrued to a landlord from the time when the sub-letting takes place Once the precise scope of Section 14 is properly understood, there is no difficulty in holding that the question of giving notice does not enter into the right possessed by a landlord, much less does the question of knowledge enter into the discussion. The moment a tenant sub-lets the land to another, there is a breach under Section 14. it makes the tenancy liable to be terminated, but before a landlord makes an application for possession against a tenant, it is necessary for the landlord to terminate the tenancy in other words, between the date of the cause of action and the date of making an application for possession there is an intervening stage and that is that the landlord is required to give notice terminating the tenancy. In other words, there is an obstacle or an impediment in the way of a landlord before he applies for possession. Therefore on the construction of Section 29(2) and having regard to the precise scope of Section 14 we are satisfied that a landlord is required to make an application for possession within two years from when the light to obtain possession is deemed to have accrued to him i.e. from the date when the sub-letting has taken place.

6. For the reasons given above, we must hold, with respect to Mr. Justice Bavdekar, that in determining the question of limitation under Section 29(2) the question of knowledge of sub-letting on the part of a landlord doe not really arise and, in our view, the Bombay Revenue Tribunal was right in holding that the applicant's application was barred by time. The application, therefore fails and the rule will be discharged, but there will be no order as to costs.

7. Rule discharged.


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