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Dhanse Deosa Kalal Vs. Vasudeo Shioram and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 862 of 1966
Judge
Reported inAIR1971Bom151; (1971)73BOMLR293; ILR1971Bom530; 1970MhLJ965
ActsTenancy Law; Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 - Sections 2(18), 2(31), 2(32), 4, 6, 6(1), 7, 8, 9, 19, 29, 36, 36(2) and 37; Transfer of Property Act, 1882 - Sections 52; Constitution of India - Article 227; Code of Criminal Procedure (CrPC) - Sections 145; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 2(18), 4, 14 and 29(2); Bihar Tenancy Act, 1885 - Sections 5(2), 5(3), 20 and 21; Hyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 5; Tenancy Act, 1939 - Sections 3-A
AppellantDhanse Deosa Kalal
RespondentVasudeo Shioram and ors.
Appellant AdvocateS.N. Kherdekar and ;V.S. Sirpurkar, Advs.
Respondent AdvocateT.L. Junankar and ;B.A. Masodkar, Advs.
Excerpt:
bombay tenancy and agricultural lands (vidarbha region) act (xc1x of 1958), section 6 - lessee of land from maintenance holder having right to be in possession and entitled only to lease land--whether such lessee a deemed tenant under section 6 vis-a-vis owner of land--transfer of property act (iv of 1882), section 52.;a person holding under a lease from a maintenance holder having a right to be in possession of the land only during her lifetime and without any other right of alienation except the right to lease, can claim the right or status of a deemed tenant under section 6 of the bombay tenancy and agricultural lands (vidarbha region) act, 1958, as against the owner or tenure-holder of the land.;dahya lala v. rasul (1962)65 bom. l.r. 328, s.c. : s.c. [1962] n.l.j. 682,.....kotval, c.j.1. by his order of reference dated 17-9-1968. abhyankar, j. referred two questions stated in his order; but having heard counsel, we think that the questions ought to be reframed in order to bring out more precisely the controversy between the parties. accordingly, we have re-framed the questions which are as follows:(1) whether a person holding under a lease from a maintenance holder having a right to be in possession of the land only during her lifetime, without any other right of alienation except the right to lease, could claim the right or status of a deemed tenant under section 6 of the new tenancy act as against the owner or tenure-holder of the property? and(2) whether the doctrine of lis pendens applies to the facts of this case? the alteration and its significance.....
Judgment:

Kotval, C.J.

1. By his order of reference dated 17-9-1968. Abhyankar, J. referred two questions stated in his order; but having heard counsel, we think that the questions ought to be reframed in order to bring out more precisely the controversy between the parties. Accordingly, we have re-framed the questions which are as follows:

(1) Whether a person holding under a lease from a maintenance holder having a right to be in possession of the land only during her lifetime, without any other right of alienation except the right to lease, could claim the right or status of a deemed tenant under Section 6 of the new Tenancy Act as against the owner or tenure-holder of the property? and

(2) Whether the doctrine of lis pendens applies to the facts of this case? The alteration and its significance will appear as we state the facts out of which the reference arises and the points argued and to be decided.

2. Survey No. 11/1 of mouza Dhangarkheda, tahsil and district Amravati, belonged to one Namdeo son of Karayan Kunbi. Namdeo's mother was one Gayabai. She was entitled to maintenance and therefore on 17-1-1942 Namdeo executed a Vyavasthapatra in her favour. By this Vyavasthapatra the field Survey No. 11/1 was put in her possession along with some other rights in Mango trees with which we are not concerned. She was permitted to enjoy the usufruct of the field in lieu of maintenance till her death. The Vyavasthapatra has been translated and the translation is not in dispute before us today. Inter alia it provides:

'I have no objection to your enjoyment but you will have no right to transfer either the field or the mango trees by mortgage, sale or gift or in any other manner. After your death the above mentioned fields and mango trees will revert back to me. You are entitled to let the field to others. I will be responsible for any action in the Court.'

Under this Vyavasthapatra Gayabai cultivated the field personally till the year 1956, but from the agricultural year 1956-57 she commenced to lease the field to respondent Wasudeo on an annual lease and thus Wasudeo continued in possession of the field from the year 1956-57 till 1960-61. Gayabai however passed away some time in December 1960.

3. We may now state the circumstances under which the petitioner Dhansa Deosa Kalal came into the picture. Namdeo, who was the owner of the field which he had given to Gayabai for her maintenance as per the Vyavasthapatra of 17-1-1942, sold the field to three persons Daolatsingh, Atmaram and Ganpat on 16-2-1943. This sale was obviously subject to the rights in favour of Gayabai, under the Vyavasthapatra. The petitioner before us, Dhansa, was the co-occupant of a neighbouring field (a pothissedar) and therefore he was entitled to pre-empt the sale in favour of the three vendees from Namdeo. He gave notice of pre-emption and filed a suit Civil Suit No. 54-A of 1944. In that suit, he had made Gayabai a party defendant. The suit came to be decreed in favour of Dhansa on 27-3-44, and the decree directed the plaintiff Dhansa to deposit the pre-emption price and that title to the field would accrue to him on such deposit. It further provided

'and the plaintiff (Dhansa) shall be entitled to possession after the death of defendant No. 4 (Gayabai) who is to remain in its possession till her death.'

The amount was deposited by the pre-emptor plaintiff Dhansa and therefore title to the field ultimately accrued to him. This position of the parties continued from 1944 till the date of the death of Gayabai when the dispute between the parties began.

4. Dhansa who had obtained his decree in Civil Suit No. 54-A of 1944 sought to execute it and it is his case that on 11-3-1961 he was given possession by the Civil Court of the field in dispute. On the other hand, it is the case of the tenant Wasudeo that he was in possession on the date of the death of Gayabai and always has been in possession till today. These being the rival claims to the possession of the field, inevitably a clash between Dhansa on the one hand and the tenant Wasudeo on the other must have occurred for it appears that proceedings under Section 145 of the Code of Criminal Procedure were started against both of them by the Police. We have not many details about these criminal proceedings but we do know the fact that these proceedings terminated in favour of Wasudeo, the tenant, that is to say, it was held in those proceedings that Wasudeo was in possession and that Dhansa may, if he chose, establish his possession by filing Civil Suit as required by that section, Dhansa accordingly filed Civil Suit No. 481 of 1962 in the Court of the Joint Civil Judge, Junior Division, Amravati, on 21-9-1962 and that suit might have been decided by now if its decision had been left to the Civil Court. But Wasudeo raised an issue in that suit that he was a tenant and therefore in accordance with the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, the issue of tenancy of Wasudeo was referred to the Revenue Authorities. It is out of that reference that the present proceedings have arisen after the Revenue Authorities decided the issue and the present Special Civil Application had been filed in this Court.

5. Now, the Naib Tahsildar, before whom the issue came for decision, held, on an interpretation of the recitals in the Vyavasthapatra in favour of Gayabai and the provisions of the new Tenancy Act, that Wasudeo was in possession of the field as a tenant. The petitioner Dhansa took the matter in appeal before the special Deputy Collector who reversed the decision. The Special Deputy Collector held that the Vyavasthapatra gave Gayabai no right to sell, mortgage or gift the field, and so far as the lease in favour of Wasudeo was concerned, it was created by a person who has a limited or restricted right in the land by virtue of the terms of the Vyavasthapatra and therefore Gayabai could not confer upon Wasudeo a higher title than she herself had. Wasudeo could not thus be said to have acquired the rights of a tenant. The Special Deputy Collector relied upon a decision of the Supreme Court in Mahabir Gope v. Harbans Narain, : [1952]1SCR775 and upon a decision of the Maharashtra Revenue Tribunal reported in Bhaurao v. Ramrao 1963 M LJ 329 (Mah. Rev. Tri.--Bom).

6. In an application for revision to the Revenue Tribunal preferred by Wasudeo, the Tribunal has reversed the decision of the Special Deputy Collector and restored the decision of the Naib Tahsildar. The Tribunal held that according to the terms of the Vyavasthapatra Gayabai was given the right to lease the field and that right was in fact exercised by Gayabai during her lifetime when she gave the lease to Wasudeo, the tenant. This she did continuously from 1956-57 to 1959-60, (actually also for the year 1960-61 though that has not been mentioned in the order of the Tribunal). Now, at the close of the year 1958, the new Tenancy Act came into force on 30-12-1958 and on that date Wasudeo was in lawful cultivation of the field and he therefore acquired the status of a deemed tenant under Section 6 of the new Tenancy Act. The Tribunal negatived the contention advanced on behalf of Dhansa that Wasudeo was a mere licensee and held that he was a tenant. The Tribunal also referred to its own Full Bench decision in Bahenabai v. Shankar 1966 M LJ 34 (Mah. Rev. Tri.--Nag). It was this order which wag challenged in the special civil application before the learned Single Judge and which has resulted in the reference before us.

7. First and foremost, it must be noted that upon a clear translation of the Vyavasthapatra, the right to lease the field was given by Namdeo to Gayabai under the Vyavasthapatra. The word used was ^^ ykxo.k **] and at one stage there was some dispute whether it referred to the right to cultivate or the right to let, but that question is now settled by the agreed translation of the Vyavasthapatra. The translation shows that it was the right to let the field to other that was given to Gayabai. That dispute being settled, it was clear to us that the words 'except having the cultivation done through another person' occurring in the first question referred to us as framed by the learned Judge did not accurately represent the facts and therefore we have substituted those words by the words 'except the right to lease' in the question as framed by us which we have quoted above. So far as the second question is concerned, we felt that the invocation of the doctrine of lis pendens was only in so far as it applied to the facts of the present case and therefore the question as framed by the learned Judge was somewhat wider in amplitude and might give rise to arguments which were purely academic. We therefore limited the question to whether the doctrine of lis pendens applies to the facts of the present case.

8. On the first question, the main contention of Mr. Kherdekar on behalf of the pre-emptor the petitioner Dhansa has been that even assuming that Gayabai had a right to lease by virtue of the Vyavasthapatra in her favour, her right could not enure beyond her own life because the Vyavasthapatra in terms has limited it. He particularly emphasised the words 'You may enjoy them (the fields and other rights given) till your death' and the words 'After your death the above-mentioned fields and Mango trees will revert back to me.' Counsel therefore urged that Wasudeo could get no higher or greater right than Gayabai herself had, and whatever rights Gayabai created in favour of Wasudeo ceased upon the very terms of the Vyavasthapatra on her death. That was also the view taken by the Special Deputy Collector in the present case.

9. The reasoning of the Naib Tahsildar which has been upheld by the Tribunal, however, was not based upon any term of the Vyavasthapatra at all but upon the specific provisions of the new Tenancy Act, namely, the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, which had come into force by then. As we have said, Gayabai began to lease the field to Wasudeo only from 1956-57 but at the end of the year 1958 the new Tenancy Act came into force on 30-12-1958, and the question is what was the effect of that new law upon the mutual rights of the parties, particularly of Wasudeo, the tenant, vis-a-vis the landlord.

10. The landlord of this field at one time was undoubtedly Namdeo, but Namdeo having sold the field to Daolatsingh and others on 16-2-1943, the petitioner Dhansa had claimed pre-emption. Dhansa obtained a decree for pre-emption and the decree in terms gave him title to the field but he was to receive possession only upon the death of Gayabai. The title in the field having vested in Dhansa by the pre-emption decree, undoubtedly he became the landlord instead of Namdeo. It is now settled law that the right of pre-emption is only a right of substitution in place of the owner who has parted with his field and therefore it must be held Dhansa was substituted in place of the original landlord Namdeo. Dhansa must therefore be regarded, for the purposes of the Tenancy Act, as the landlord. The question then is, was or was not Wasudeo his tenant?

11. Section 2 (31) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, defines 'tenancy' to mean the relationship of landlord and tenant, and Section 2 (32) defines 'tenant' as follows:

' 'tenant' means a person who holds land on lease and includes--

(1) a person who is deemed to be a tenant under Sections 6, 7 or 8.

*****(We are not concerned with the rest of the definition)

Clause (32) also says that the word 'landlord' shall be construed accordingly.'

12. Now, who is a person deemed to be a tenant is indicated in Section 6 by the words: 'A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not .................. a member of the owner's family', a servant or a mortgagee in possession. The Vyavasthapatra clearly gave Gayabai the right to lease the land, though no doubt during her lifetime. Therefore, if Gayabai leased the land to Wasudeo on an annual lease, Wasudeo was cultivating under a lawful title and therefore it must be held that his possession was a lawful possession. He was thus lawfully cultivating the field. He was neither a member of Gayabai's family nor a servant on wages nor a mortgagee in possession and therefore would not fall under the excepted categories in Section 6 (1). Every requirement of Section 6 (1) therefore was fulfilled in his case, and having regard to the provisions of Sub-section (1) of Section 6, Wasudeo must therefore be deemed to be a tenant. Once we come to that conclusion, the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act in all its force would become applicable and Wasudeo would be entitled to its protective provisions, such as Sections 9, 19, 29, 36 and 37. If once Wasudeo is held to be a tenant under the provisions of the Tenancy Act, then irrespective of the provisions of the Vyavasthapatra he would receive such statutory protection that the landlord cannot get back, possession of the field except under the provisions of that Act, and it is not in dispute that the provisions of that Act have not been complied with in so far as Dhansa has claimed possession from Wasudeo. Neither the want of his consent nor of authority of the landlord Dhansa would avail him to get back the field.

13. That this is the true position in law is clear from the recent decision of the Supreme Court in Dahya Lala v. Rasul Mahomad, : [1963]3SCR1 . The principle as laid down by the Supreme Court, after considering some provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, has been stated at p. 682 (of Nag LJ) - (at pp. 1322-1323 of AIR) as follows:

'The Act of 1948, it is undisputed, seeks to encompass within its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from the owners but persons who are deemed to be tenants also. The point in controversy is whether a person claiming the status of a deemed tenant must have been cultivating land with the consent or under the authority of the owner. Counsel for the appellants submits that tenancy postulates a relation based on contract between the owner of land, and the person in occupation of the land, and there can be no tenancy without the consent or authority of the owner to the occupation of that land. But the Act has by Section 2 (18) [in the Vidarbha Act it is Section 2 (32)] devised a special definition of tenant and included therein persons who are not contractual tenants. It would therefore be difficult to assume in construing Section 4 [in the Vidarbha Act it is Section 6] that the person who claims the status of a deemed tenant must be cultivating land with the consent or authority of the owner. The relevant condition imposed by the statute is only that the person claiming the status of a deemed tenant must be cultivating land 'lawfully'. It is not the condition that he must cultivate land with the consent of or under authority derived directly from the owner. To import such a condition is to rewrite the section, and destroy its practical utility. A person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a 'deemed tenant'. Persons such as licensees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to others, but it cannot be assumed therefrom that they are the only persons who are covered by the section. The Act affords protection to all persons who hold agricultural lands as contractual tenants and subject to the exceptions specified all persons lawfully cultivating lands belonging to others, and it would be unduly restricting the intention of the legislature to limit the benefit of its provisions to persons who derive their authority from the owner, either under a contract of tenancy, or otherwise. In our view, all persons other than those mentioned in Clauses (a), (b) and (c) of Section 4 who lawfully cultivate land belonging to other persons whether or not their authority is derived directly from the owner of the land must be deemed tenants of the land.'

14. The principle thus laid down by the Supreme Court clearly indicates that if the requirements of Section 4 read with the definition of 'tenant' in the Act are fulfilled, irrespective of the terms of the contract between the landlord and the tenant, the tenant would get all the rights which the statute confers upon the tenant, so long as it can be held that he is a person deemed to be a tenant. In order to attract the applicability of the provisions of the Act to such a 'deemed tenant' the authority or consent of the landlord or owner of the field is not necessary. In other words, the statutory provisions would override the terms of the contract and it is those statutory provisions and the rights and obligations created under those provisions that we must look at thereafter.

15. No doubt, the decision In Dahya Lala's case, : [1963]3SCR1 was under provisions of the Bombay Tenancy and Agricultural Lands Act. 1948, but the provisions of the Act applicable to the Vidarbha Region, namely, the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, are in pari materia, if not exactly identical. The Supreme Court relied for its decision upon Sections 2 (18), 4, 14 and 29 (2) of the Bombay Act of 1948, and the equivalent provisions of the Bombay Act of 1958 applicable to Vidarbha are Sections 2 (31) and (32), 6, 19 and 36 (2). No doubt also, Dahya Lala's case, : [1963]3SCR1 was a case where a mortgagee in possession had created tenancy rights in a third party. But it was held in that case that the creation of those contractual tenancy rights was in the ordinary course of management of the property by the mortgagee in possession and under authority derived from the mortgagor. Therefore, at the time when they were created, they were lawfully created and the possession and cultivation of the tenant was lawful. We have already shown that in the case before us also the same is the position. Here instead of there being a mortgagee in possession there is a person in possession under a right of maintenance. But when Gayabai created annual leases in favour of Wasudeo, we have shown that she inducted the tenant on to the land in the ordinary course of management of that land and under authority expressly derived from the Vyavasthapatra. The rights of the landlord then passed to the petitioner Dhansa by the decree in the pre-emption suit and the latter was substituted in place of Namdeo. Therefore, the position in the present case is exactly the same as it was in Dahya Lala's case. : [1963]3SCR1 . We do not think therefore that although that was a case where a mortgagee in possession had created a tenancy, the principle of that case will not apply in the present case. It applies with equal force.

16. What we have so far said would be sufficient to dispose of the first question referred to us; but it is necessary to notice some cases on which reliance was placed on behalf of the petitioner Dhansa. Two cases of the Supreme Court, : [1952]1SCR775 and Harihar Prasad v. Deonarain Prasad AIR 1956 SC 305, were relied upon. Both these cases laid down the principle that under the general law a mortgagee in possession cannot confer upon a lessee praetor rights than the mortgagee himself possessed. Therefore, no lease can be created by a mortgagee in possession which is to enure beyond the tune that the mortgagee himself is to remain in possession. But in both the cases an attempt was made on behalf of the persons holding possession to get out of that principle of general law by urging that the occupants in both those cases had become either occupancy tenants or tenants under the Bihar Tenancy Act (8 of 1885). In both the cases, however, the Supreme Court held, on an examination of the position and status of the tenants that they had not acquired any rights under Sections 20 and 21 of the Bihar Tenancy Act. They pointed out in the second of the two cases mentioned above that before the person can claim occupancy rights under Section 21 of the Bihar Tenancy Act, he must establish that he is a raiyat as defined in Section 5 (2) and (3), and as the defendants were not raiyats as defined in Section 5 (3), they could not claim any right under Section 21. In the first case, a similar finding is given in para. 11 at p. 207. Once that issue was decided against the tenant, the normal principle of law that a mortgagee in possession cannot create a lease which is to enure beyond the term of the mortgagee's own possession becomes applicable. In the present case, we have shown that the contractual rights between Gayabai who claimed under the landlord and the tenant Wasudeo were not alone operative but that Wasudeo had on the coming into force of the new Tenancy Act become a deemed tenant under Section 6 and therefore the statutory rights which he had acquired as a statutory tenant (the deemed tenant under Section 6) would override the contractual relations. The very fact which was not found in the two cases before the Supreme Court has been found in the present case both by the Naib Tahsildar as well as the Revenue Tribunal, and in our opinion, rightly. The cases relied on, therefore, will not apply in the present case.

17. Another decision of the Supreme Court in Lachaiah v. Subrahmanyam, : [1967]3SCR712 was relied upon. But here again, the facts were entirely different. One Kaveramma who was a widow, had adopted a son to her deceased husband Ramaliangayya. Disputes arose between the widow and the adopted son. The adopted son filed a suit for possession against Kaveramma. During the pendency of the suit, the widow was prohibited by an injunction from dealing with the lands in suit in any way. Nevertheless, she inducted on to the land certain persons who were the appellants before the Supreme Court and who claimed that they were tenants under the Hyderabad Tenancy and Agricultural Lands Act (21 of 1950). The Supreme Court negatived this contention of those so-called tenants. In para. 4 they observed:

'The appellants before this Court never were the tenants of Ramalingayya. They were inducted on the land by his widow after the decree of the suit for declaration of title and possession in favour of the adopted son. After the passing of the decree, the possession of the widow could not be that of a trespasser and it was not open to her to create any right in the land in favour of anybody. It was argued however both before the High Court and before this Court that the appellants were entitled to the benefit of Section 5 as they were lawfully cultivating the land and should therefore be deemed to be tenants of such land. [It may be noted that Section 5 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. is in similar terms to Section 6 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act]. It was contended that the word 'lawfully' was to be taken in conjunction with the words 'cultivating' and the legislature intended to protect the actual tillers of the soil even if the person who put them in possession was found not to have any title to the land. This would indeed be a very strange provision of the law and would, if upheld, amount to encouraging trespass on the land by persons who had no shadow of title and creating rights in favour of others although they themselves had no title to the land.'

The crucial difference between that case and the present one was that in that case the person who inducted the tenants on to the land in dispute had no title in herself whatsoever, whereas in the present case, we have already shown, Gayabai had ample title to induct Wasudeo on to the land, and therefore Wasudeo's cultivation must be held to be lawful cultivation which in the case before the Supreme Court it was not. In our opinion, the present case would clearly fall within the principle laid down by the Supreme Court in Dahya Lala's case : [1963]3SCR1 and accordingly we must answer the first question referred to us in the affirmative.

18. Then we turn to the second question, namely, whether the doctrine of lis pendens would apply on the facts of this case. We will assume for the sake of considering this point that a lis was pending. Civil Suit No. 54-A of 1944 was decreed on 27-3-1944 and by that decree the petitioner Dhansa had been given title to the land in dispute upon his depositing the pre-emption price. It has been stated before us that an execution proceeding was also pending and ultimately the Civil Court gave possession to Dhansa on 11-3-1961. For want of any documents pertaining to the execution proceedings we have not been able to verify the facts but as we have said, we will assume that a lis from the commencement of Civil Suit No. 54-A of 1944 sometime in the year 1944 till 11-3-1961 was pending. The short question is whether the other requirements of Section 52 of the Transfer of Property Act have been fulfilled. One of the requirements is that laid down in Section 52 by the words 'so as to affect the rights of any other party thereto under any decree or order which may be made therein.' In other words, the transfer which is hit by the provisions of Section 52 must be a transfer which affects the rights of the other party claiming under any decree or order. Now, in this respect, we have already recounted the facts. We have shown that Namdeo had granted rights to Gayabai under the Vyavasthapatra and when Dhansa filed his suit for pre-emption against Daolat Singh and others, he made Gayabai a party to the pre-emption suit. Gayabai had there pleaded that she was in possession of the field in satisfaction of her claim for maintenance and the decree which was ultimately passed in favour of Dhansa expressly made a reservation in her favour by providing that 'the plaintiff (Dhansa) shall be entitled to possession after the death of the defendant No. 4 (Gayabai)' who was to remain in its possession till her death. Therefore, the decree was in terms subject to the rights of Gayabai under the Vyavasthapatra.

19. If the decree in favour of Dhansa was subject to the rights which Gayabai had under the Vyavasthapatra, then no question can arise of Gayabai affecting the rights of Dhansa by the grant of the lease to Wasudeo so long as Gayabai was alive. In fact, we have already shown that when Gayabai leased out the land to Wasudeo, she acted in terms of and under the authority given to her by the Vyavasthapatra, subject to which Dhansa had taken his decree. Therefore, the one essential re-requirement of Section 52 that the property cannot be transferred 'so as to affect the rights of any other party thereto under any decree' has not been made out in the present case and lease given by Gayabai was a valid lease on the date on which it was given. The doctrine of lis pendens therefore would not apply.

20. Reference was made in this respect to a decision of this Court in Ramdas Popatlal v. Fakira Pandu : AIR1959Bom19 . No doubt, it was laid down in that case that any leases which are affected by the doctrine of lis pendens embodied in Section 52 of the Transfer of Property Act do not enable the lessee to claim the statutory rights of a tenant under the Bombay Tenancy and Agricultural Lands Act, 1948. In that case, the mortgagor had granted a lease pending a suit which was filed by the mortgagee and it was held that the lessee could not claim rights under the Tenancy Act in derogation of the mortgagee's rights. No doubt, that decision supports the petitioner's contention if the doctrine of lis pendens applies but we have shown that the doctrine cannot apply in the present case at all.

21. Moreover, in that case, we find that counsel on behalf of the lessee did not rely on Section 4 of the Bombay Tenancy and Agricultural Lands Act 1948, at all, nor did he take the stand which has been taken in the present case that the lessee had become a deemed tenant under the provisions of Section 6 (in that case Section 4 of the Bombay Act of 1948). This is clear when we consider the argument as put at p. 49 (of Bom LR) = (at p. 21 of AIR) of the report, which is to the following effect:

'Now, Mr. Desai, who appears on behalf of the tenant, points out that in this case it was the mortgagor who let the property to opponent No. 1. He failed to make an application within the time mentioned in Section 3-A of the Tenancy Act of 1939 for a declaration that the tenant was not a protected tenant. The result was that the tenant became a protected tenant under the provisions of Section 3-A of the old Act, and such a person is to be regarded as a protected tenant for the purposes of even the 1948 Act.'

The contention there advanced therefore was that the tenant had acquired the status of a protected tenant under the Act of 1939 and the Act of 1948 recognised that status, and therefore, the tenant in that case should be held to be a protected tenant. It was never argued that quite apart from the protected status under the old Act, by virtue of provisions of the new Act itself, the tenant being in lawful possession must be deemed to be a tenant. It is that argument which is in the way of the petitioner in the present case, and it is that argument which, in our opinion makes Wasudeo a tenant in this case having regard to the principle laid down in Dahya Lala's case : [1963]3SCR1 . If lawful possession alone makes a person a tenant under the Act and if being a tenant under the Act, all the protective provisions thereof are attracted and he cannot be dispossessed except as provided in the Act, it is doubtful if the doctrine of lis pendens which is a doctrine of general law can apply. This argument however was never advanced in Ramdas Popatlal's case : AIR1959Bom19 . The report also does not show that there was any finding given of lawful possession of the tenant in that case. We cannot therefore regard that case as a decision upon the contention now advanced in this case on the basis of Dahya Lala's case, : [1963]3SCR1 that Wasudeo must be held to be a deemed tenant under the provisions of Section 6 of the new Tenancy Act. We hold that upon its terms the principle of Section 52, T. P. Act cannot apply to the present case.

22. Quite apart from this, the contention that the transfer in favour of Wasudeo by Gayabai by way of lease was voidable because of the operation of the doctrine of lis pendens has no where been adumbrated in the petition out of which this reference arose and we do not think that the petitioner is therefore entitled to urge that point in this petition. However, since the learned single Judge whose attention was not invited to this lacuna in the petition proceeded to consider the contention, we have dealt with it above. We may also say that other points arising out of the provisions of Section 52 of the Transfer of Property Act were raised, but since, in our view, upon the ground which we have set forth, Section 52 does not apply. We need not go into any further grounds. We answer question No. (2) in the negative.

23. We may also say so far as the petitioner is concerned that Mr. Kherdekar did attempt to argue several other points of law, but since those points did not arise upon the question referred we declined to hear him on those points.

24. With these answers, the papers will be returned to the learned Single Judge for disposal of the Special Civil Application. Costs shall be costs in the Special Civil Application.

25. Answered accordingly.


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