Y.S. Tambe, J.
1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner Lal Jugalkishore seeks to get quashed the order of the first respondent, the Bombay Revenue Tribunal, dated 8-8-1957, and the order of the Deputy Commissioner, Amravati, the second respondent, dated 5-1-1957. He further prays that the respondents be directed to put him in possession of the fields in question.
2. This case has a very chequered history. The petitioner is a landlord of certain fields. He had given them on lease to the third respondent Ratanlal. The lease was to expire on 1-3-1952. Ratanlal, Thus being a lessee of the fields in the Agricultural was 1951-52, was entitled to claim the status of a protected lessee, under Section 3 of the Berar Regulation of Agricultural Leases Act, 1951 (hereinafter referred to as the Act). On 31-3-1952 Ratanlal made an application to the Sub-Divisional Officer, Amravati, praying that he be declared a protected lessee and for determination of reasonable lease money in respect of those fields. The petitioner Lala Jugalkishore also made an application to the Sub-Divisional Officer on 16-5-1952 praying that the tenancy of the respondent No.3 be terminated. Though it is not mentioned in the petition, Shri Phadke, learned counsel for the petitioner, states that the application was made under Section 8 of the Act on the ground that Ratanlal was not taking proper care of the fields and that he had contravened the provisions of Section 8(1)(b) of the Act. The Sub-Divisional Officer sent both these applications to the Tahsildar for enquiry and report. It appears that the lands leased out by the petitioner to the third respondent admeasure about 84 acres.
2a. Sub-section (1) of Section 4 of the Act provides that no person shall, at any time, be deemed to be a protected lessee in respect of any area in excess of fifty acres. Sub-section (2) of the said section further provide that if the area in which a lessee is entitled under Section 3 to be deemed to be a protected lessee at any time together with any other area, if any, held by him as protected lessee, exceeds fifty acres, he shall select so much only of the first mentioned area as would make the total area to be held by him as protected lessee equal to fifty acres, and he shall give an intimation in writing to the landholder or landholders, as the case may be, and to the Revenue Officer and thereupon he shall be deemed to be a protected lessee of the area so selected. The third respondent had not made a selection of fifty acres as required by Sub-section (2) to Section 4 of the Act. The Tahsildar therefore, by his report to the Sub-Divisional Officer stated that as the third respondent Ratanlal had failed to make the selection, he could not claim the status of a protected lessee, and therefore, his application for declaration that he is a protected lessee and for determination of a reasonable rent should be dismissed. He also recommended that as Ratanlal was not entitled to claim the status of a protected lessee, his landlord Lala Jugalkishore also had no right to make an application under Section 8 of the Act. Accepting the report of the Tahsildar the Sub-Divisional Officer, on 10-7-1952, rejected both the aforesaid applications of the landlord and the tenant. It appears that the Sub-Divisional Officer then sent his order dated 10-7-1952 to the Tahsildar for compliance. The Tahsildar then ordered that the intimation of this order be given to the parties. It is not known how, but it appears that a parwana was issued directing that the present landlord Lala Jugalkishore be delivered possession of the fields and under the parwana possession was obtained by Lala Jugalkishore on 13-7-1952. Against the order of the Sub-Divisional Officer dated 10-7-1952 both the landlord as well as the tenant took an appeal to the Deputy Commissioner. It appears that the landlord's appeal was, for one reason or the other kept pending till 11-3-1954 and was dismissed. The tenant's appeal was disposed of by the Deputy Commissioner on 9-8-1952. The Deputy Commissioner took the view that it was incumbent on the revenue officer to make a selection of fifty acres, and after making such a selection, grant the status of a protected tenant to Ratanlal in respect of that area. He, therefore, set aside the Sub-Divisional Officer's order and remanded the case for determination of the area up to fifty acres for which Ratanlal should be deemed to be a protected lessee. The landlord Lala Jugalkishore them took an appeal against the decision of the Deputy Commissioner to the Board of Revenue. It is necessary to mention at this stage certain steps taken by the tenant Ratanlal. On 14-8-1952 he made an application to the Sub-Divisional Officer intimating to him the selection of fifty acres made by him under Section 4, Sub-section (2) of the Act, and that application was pending when the matter came up for decision be fore the Board of Revenue. The Board of Revenue disagreed with the view of the Deputy Commissioner that it was fr the revenue authorities to make the selection. The Board of Revenue, therefore, set aside the order of the Deputy Commissioner. The Board of Revenue, however, observed that it was still open to the tenant Ratanlal to make a selection of fifty acres. The case was again dealt with by the Sub-Divisional Officer in the light of the observations made by the Board of Revenue. It appears that soon after the order of the Board of Revenue, the tenant Ratanlal made another application on 26-6-1953 making a selection of fifty acres once again under Sub-section (2) of Section 4 of the Act. The Sub-Divisional Officer held that it was not open to Ratanlal to make a selection of fifty acres and claim the status of a protected lessee in respect of that area. On this view of the matter he dismissed the application on 31-3-1954. Ratanlal then took an appeal against the order of the Sub-Divisional Officer, dated 31-3-1954, to the Deputy Commissioner. The Deputy Commissioner held that the Sub-Divisional Officer was in error in not allowing Ratanlal to make his choice as indicated by him in his application dated 14-8-1952 and 26-6-1953. It appears that a third application to the same effect had also been made on 4-1-4954. The Deputy Commissioner, therefore, by his order dated 3-7-1954, set aside the order of the Sub-Divisional Officer and remanded the case of the Sub-Divisional Officer for fresh disposal in the light of the observations made by the learned Deputy Commissioner. The learned Deputy Commissioner further, by his order , held that the parwana issued on 12-7-1952 under which possession was delivered to Lala Jugalkishore, was wrongly issued. He observed that the order directing delivery of possession was not only illegal but also mischievous. He, therefore, directed that Ratanlal be put back in possession of all the lands of which he was disposed under the parwana of 12-7-1952. The landlord Lala Jugalkishore took an appeal against this order of the Deputy Commissioner and dismissed the appeal on 4-8-1954. The landlord Lala Jugalkishore then made an application in the High Court of Judicature at Nagpur under Article 226 of the Constitution of India praying that the aforesaid orders of the Deputy Commissioner and the Board of Revenue be quashed.
3. AT this state, it is necessary to note amendment introduced to Section 4 of the Act by the Amending Act of 1953 by adding Section 4-A thereto. This amendment came into force from 28-12-1953. This section provides that-
'Notwithstanding anything to the contrary in Section 4, every person who, in consequence of his failure to give intimation regarding the land selected by him in accordance with the provisions of Section 4, has failed to acquire rights of a protected lessee in such land shall, if he is in possession of such land on the 1st day of August 1953 and gives intimation as required by Section 4 before the 1st day of February 1954, be deemed to be a protected lessee of the land described in the intimation with effect from the date on which but for such failure he would have acquired the rights f a protected lessee, any decree or order of the Civil Court to the contrary notwithstanding.'
By virtue of this amendment, then another chance was given to a tenant to give intimation about the sections of fifty acres under Sub-section (2) of Section 4 of the Act up to the 1st day of February 1954 on certain terms and conditions mentioned in Section 4-A. The aforesaid petition of Lala Jugalkishore made to the High Court was disposed of by a Division Bench of the High Court on 26-7-1955. The view taken by the High Court was that before it was ordered that possession should be given back to the tenant, it was necessary for the revenue authorities to decide whether really Ratanlal was entitled to the status of a protected lessee, and that question scold have been decided first before possession was ordered to be restored. It is necessary at this stage to mention that though the Deputy Commissioner had ordered delivery of possession by his order dated 3-7-1954 to Ratanlal, in fact, possession was not delivered on account of the stay obtained by Lala Jugalkishore, both from the Board of Revenue as well as from the High Court. The High Court, therefore, set aside the orders both of the Board of Revenue and the Deputy Commissioner and directed that the case be dealt with again in the light of the observations made in the order. The case was then dealt with by the Deputy Commissioner and was disposed of by his order dated 5-1-1957. By this order, he held that 49 acres and 29 gunthas of land was duly and legally selected by Ratanlal under Section 4 Sub-section (2) of the Act, and an intimation thereof was duly given to the landlord Lala Jugalkishore on 7-1-1954. The parwana under which possession was delivered to Lala Jugalkishore was wrongly issued and the possession obtained by Lala Jugalkishore thereunder was illegally obtained. Ratanlal should, in the eye of law, be deemed to be in possession of these lands since the day he was dispossessed, and in this view of the matter, he set aside the order of the Sub-Divisional Officer dated 31-3-1954, and declared Ratanlal to be a protected lessee of the 49 acres and 29 gunthas of land selected by him his application dated 4-1-1954. Lala Jugalkishore then took an appeal against the said order of the Deputy Commissioner to the Revenue Tribunal Bombay (successor of the Board of Revenue, Madhya Pradesh). The Revenue Tribunal by its order dated 8-8-1957, affirmed the order of the Deputy Commissioner and dismissed the appeal. The landlord Lala Jugalkishore, therefore, has made an application to this Court under Articles 226 and 227 of the Constitution of India seeking the reliefs already stated above.
4. Shri M. N Phadke first contends that Ratanlal is not entitled to avail himself of any benefit conferred by Section 4-A of the Act introduced by the amendment because he was no in possession on 1-8-1953. The possession contemplated under Section. 4-A of the Act is actual possession. The Legislature had not intended to confer this benefit on a trespasser. Reliance was placed on a decision of this Court reported in Mangilal v. Suryabhan, 1957 Nag LJ 561: 1958 Bom LR 75. He further contends that the rights conferred by Section 4-A of the Act interfere with the rights of ownership of the landlord. The provisions therefore, should be strictly construed, and the meaning to be given to the word 'possession' should be the narrower meaning, namely, actual possession. It is not possible for us to accept this contention of Shri Phadke. The Legislature has not used the word 'actual possession' in enacting that section. It would, therefore, be not open to us to so read the word 'actual' in the section unless we find that it is necessary to do so to give effect to the intention of the Legislature. In our view, in enacting Section 4-A of the Act, the intention of the Legislature was to confer certain benefits on a lessee entitled under Section 4 to make a selection, but who had unwittingly failed to make a choice or selection of fifty acres and intimating that selection to his landlord within the given time. The preamble of the Act shows that the main object and intention of the Legislature are to provide for long-term leases of agricultural land to ensure fixity of tenure in the interest f efficient agriculture in Berar. The provision of Sections 3 and 4 indicate that the Legislature intended that the lessees, who were in possession of lands as lessees in the year 1951-52 or thereafter, should continue to be the lessees of the land, of course, if they so desire, for a period of five years (by amendment the period is increased to eight years). The Legislature, however, intends that, in the event, the lessee is in possession of more than fifty acres, the fixity of tenure to be ensured for him should only be to the extent of fifty acres and the lessee should have a choice of making a selection and should be allowed To retain possession of fifty acres of land selected by him on giving intimation thereof to the Revenue Officer and the landholder not less than two months before the commencement of the agricultural year next following. It is well known that the agricultural class sadly lacks in education. It appears that the Legislature noticed that the benefits conferred on that class did not get sufficiently known amongst that class and had, therefore, extended the period of making the selection up to 1-2-1954 by introducing Section 4-A in the Act by way of amendment. The intention of the Legislature thus in enacting Section 4-A in our view is to grant relief to those lessees holding more than fifty acres of land, who out of their ignorance have failed to avail themselves of the benefits conferred on them by Section 4 of the Act. The benefit conferred, however, is subject to following two conditions. (1) lessee is in possession of the land on the 1st day of August 1953, (2) intimation under Section 4 should be given before 1st day of February 1954. Now, Section 4-A came into force on 28-12-1953. It is intended to benefit lessees of the years 1951-52 and 1952-53. Section 4-A has come into force nearly twenty months after the termination of the agricultural year 1951-1952. It must be in the contemplation of the Legislature that during the intervening period, in certain cases, the possession of the lessees or landholders would be unauthorisedly interfered with. It cannot be assumed that the Legislature was ready to recognise the unauthorised dispossession of landholders of lessees during that period. The Legislature, therefore, appears to have used the expression 'possession' and not 'actual possession'.
5. In the instant case, Ratanlal was a lessee in the year 1951-52. He would, therefore, be entitled to remain in possession of that land at his option for a period of five years (now eight years). He, however, under the lease, was in possession of 84 acres of land. He was entitled to remain in possession of only fifty acres of land and not eighty four acres. He had to make a choice in respect of those fifty acres, and if he had made that choice before 1-2-1952, he certainly would have acquired the right of the protected lessee in the land chosen by him. He admittedly had failed to make the choice by 1-2-1952 but has made it by his applications dated 14-8-1952, 26-6-1953 and 4-1-1954. Admittedly he was not in actual possession of the land on 1-8-1953. If the contention of Shri Phadke is to be accepted that the word 'possession' used in Section 4-A is actual possession, then certainly Ratanlal can claim no benefit thereunder. But then, here what has happened is that Ratanlal has been dispossessed not under any order made by any revenue authority but only under a parwana wrongly issued by the Tahsildar. Now, it was not competent for the Tahsildar to issue a parwana, which was in excess of the order made by the Sub-Divisional Officer. According to the findings of both the Courts below, there is room to doubt about the genuineness of the parwana itself. The Revenue Tribunal has observed:
'The circumstances in which the parwana came to contain the direction regarding delivery of possession are so suspicious that we are convinced that there was an abuse of process of the Court.'
The possession thus obtained by Lala Jugalkishore or the dispossession of Ratanlal under the parwana of 12-7-1952 was the result of very suspicious tactics employed, which, in the opinion of the Revenue Tribunal, is an abuse of process of the Court. It is not possible for us to assume that the Legislature intended that a person, who is otherwise entitled to the benefit conferred by Section 4 and 4-A of the Act, should be deprived of those benefits in the event of lessee is dispossessed by a method which is not lawful but which amounts to an abuse of process of the Court. In our opinion, therefore, the word 'possession' used in Section 4-A of the Act means possession, which in the eye of law, should be deemed to be the possession of the lessee. The decision relied on by the learned counsel does not support the contention raised by him, but, in our opinion, it supports the conclusions reached by us.
6. The facts of that case 1957 Nag LJ 561: 1958 Bom LR 75 , were that a lease was for the year 1951-52. The area under the lease was in excess of fifty acres. After the expiry of the lease on 31-3-1952, the landlord peacefully entered into possession. Thereafter the lessee obtained possession of about 30 acres of the land under a wrong order of the Sub-Divisional Officer made on 19-4-1953. He continued to be in actual possession and was, in fact, in actual possession on 1-8-1953. He also, while in actual possession, selected those 30 acres of land and gave intimation thereof to the landlord. All the revenue authorities held that in these circumstances the lessee was entitled to claim the rights of a protected lessee in respect of that thirty acres of land. On a petition by the landlord under Article 226 of the Constitution, a Division Bench of this Court to which one of us, Badkas J., was a party set aside the orders of the revenue authorities. The view taken was that the possession taken by the lessee being under a wrong order of the Sub-Divisional Officer could not be deemed to be the possession of the lessee within the meaning of Section 4-A of the Act. The rule that flows from this decision, in our opinion, is that whether the lessee is in actual possession of the field or not is of little consequence in working out the rights under Section 4-A of the Act. What has to be seen is whether, in the eye of law, the lessee should be deemed to be in possession of the field at the relevant period.
6a. Further, the view taken by us is in consonance with the well-established principle of law that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any o the suitors. Jai Berham v. Kedar Nath ILR Pat 10 : AIR 1922 PC 269 . Shri Phadke, however, contends that this principle would not come into play in the instant case as the lessee Ratanlal was a trespasser. His lease had come to an end by March 1952. He was dispossessed on 13-7-1952. He just being a trespasser since the termination of his lease in March 1952 and the delivery of possession being to the rightful owner Lala Jugalkishore, who was entitled to possession thereof, the rule of restitution cannot come into play. This contention again cannot be accepted, because, in our opinion, Ratanlal was not a trespasser on 13-7-1952, the date on which he lost possession. No doubt, original lease granted by Lala Jugalkishore to Ratanlal had come to an end in March 1952, but then the conduct of Lala Jugalkishore himself in making an application on 16-5-1952 for termination of the tenancy of Ratanlal indicates that Lal Jugalkishore had accepted him (Ratanlal) as his tenant for the agricultural year 1952-53. Had it not been so, it was not necessary for him to seek the permission of the Revenue Court to terminate the lease. He would have then sued in the Civil Court for obtaining possession of the field. An already stated, the application of Lal Jugalkishore for terminating the tenancy of Ratanlal was dismissed. In the circumstances, it will have at least to be taken that on 13-7-1952 Ratanlal was a lessee holding over with the consent of Lala Jugalkishore, and therefore, it cannot be said that the possession of Ratanlal was that of a trespasser. As already stated, there was no very of possession. The parwana, which was issued, was not in accordance with any order of the Court. The possession obtained by Lala Jugalkishore under the parwana, therefore, was not lawfully obtained, and Ratanlal was not dispossessed under due process of law but was illegally dispossessed under a parwana wrongly issued by the Tahsildar. It was a nullity and has to be ignored.
7. Shri Phadke then contends that because the petitioner had obtained possession of the property under the parwana, he did not sue Ratanlal, and now to hold that Ratanlal was in possession would act prejudicially to his interest. This contention, in our view, has no force. The finding of the Court is that the parwana was a suspicious document. This indicates that the petitioner must have had some hand in getting the parwana issued. Apart from it, the petitioner well knew or must be deemed to have known That he had obtained possession not lawfully. The petitioner cannot be allowed to take advantage of either his own wrong or the wrong parwana issued by the Tahsildar. In our opinion, therefore, Ratanlal must be deemed to be in possession of the land leased, on 1-8-1953, within the meaning of Section 4-A of the Act.
8. Shri Phadke then contends that the second condition required to be fulfilled under Section 4-A namely, giving intimation of the selection to the landlord before the 1st day of February 1954 was also not fulfilled. To appreciate this contention, some more facts have to be stated. Ratanlal had sent this intimation to Lal Jugalkishore by a registered letter acknowledgment due sometime about the 5th of January 1954. That letter was returned to Ratanlal through the Post Office with an endorsement thereon 'refused'. That letter is filed on record. It is properly addressed. Shri Phadke contends that the filing of this letter with an endorsement thereon 'refused' is not a sufficient proof of giving an intimation within the meaning of section 4(2) of the Act. It was incumbent on Ratanlal to examine the postman as his witness to prove that he had tendered the letter to Lala Jugalkishore and he refused to accept it. Reliance is placed on the observations made in Jankiram v. Damodar, 1956 Nag LJ 441 : AIR 1956 Nag 266 and Butto Kristo v. Gobindaram : AIR1939Pat540 . No doubt, the observations on which reliance is placed support the contention raised by Shri Phadke. Those observations in 1956 Nag LJ 441 : AIR 1956 Nag 266 are:
'In the instant case, the registered cover has come back with endorsements which cannot and do not prove themselves, and unless so proved, would be inadmissible in evidence. It was for the plaintiff to have established by proper evidence that the notice which has been returned undelivered to him by postal authorities was tendered personally to the defendant, or to one of his family or servants at his residence.'
9. We find it difficult to hold that the aforesaid observations would be of general application to each and every case.
10. Section 16 of the Evidence Act provides:
'When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.'
Illustration (b) of this section is in the following terms:
'The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Dead-Letter Office, are relevant.'
11. Dealing with the question, their Lordships of the Privy Council in Harihar Banerji v. Ramsashi Roy 45 Ind App 222 : AIR 1918 PC 102 , observe:
'.....If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed. That presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precaution to register.....'
Thus, it would be seen that the presumption that arises is founded on the regular course of business of the Post Office, and it is twofold. Proving the fact that a letter was posted raises a presumption that it reached its destination, and the fact that it was not returned to the sender raises a presumption that it was received by the addressee. True, in the aforesaid decision, their Lordships were dealing with a case where a registered letter had not been returned to the sender as refused, but that in our opinion, would make no difference in application of its principle to the facts of the present case. The principle, in our opinion, is that the Courts may ordinarily presume that the employees of the Post Office duly observe the regular course of business of the Post Office. In this connection we may refer to the rules of business of the Post Office relating to the registered articles contained in the Post and Telegraph Guide. Rule 107 assures the public that registration makes transmission of an article more secure, as it passes through the hands of postal officers, under special precaution. Rule 21 enjoins a duty on a postman not to deliver any registered letter without obtaining the signature of an addressee or his agent on the receipt and acknowledgment. Rule 32(e)(2) further provides that refused uninsured registered articles are returned to the Post Office from which it was posted for purposes of delivering those articles to the sender. Rule 114(1) further provides that if the sender of registered article pays at the time of posting the article a fee of one anna in addition to the postage and registration fee there will be sent to him on delivery of the article a form of acknowledgment signed by the addressee and if the addressee refuses to sign will be accompanied by a statement to the effect that the addressee has refused to sign. It is common knowledge that the endorsement 'refused' by the postal department on returned registered articles means that the addressee refused to sign the receipt. In the absence of any evidence to the contrary there is no reason why presumption should not be drawn that the aforesaid regular course of business was followed by postal employees when an acknowledgment-due registered letter is received back by the sender with an endorsement 'refused' even if the author of the endorsement 'refused' is not examined as a witness in the case.
12. No doubt, the presumption that arises is one of fact; it is not obligatory on the Court to raise it and the Court may refuse to raise it if the material on record or the circumstances of the case raise any doubt. For example, the addressee may prove that the letter was never tendered to him and he had never refused it or that at the material time the addressee was absent from his usual place of residence, or at the material time disturbed conditions prevailed etc.
13. Facts and circumstances of this case raise no doubt in our mind; on the other hand, looking to the previous history of the case it appears most probable that lal Jugalkishore had refused to accept the notice. We are, therefore, of the opinion that the failure on the part of Ratanlal to examine the postman is not a sufficient ground to refuse to draw the presumption that this particular letter was tendered to Lala Jugalkishore in due course and was refused by him. Lala Jugalkishore has led no evidence to rebut this presumption. In these circumstances, in our view, it cannot be said that Ratanlal has failed to establish that he had given intimation in writing to Lal Jugalkishore about the selection of fifty acres of land as required by Sub-section (2) of Section 4 of the Act. The view taken by us finds support in the decision in Baluram Ramkissen v. Bai Pannabai ILR 35 Bom 213 and the decisions of other Courts reported in Bachcha Lal v. Lachman, : AIR1938All388 ); Nirmalababa Debi v. Provat Kumar, 52 Cal WN 659 ; Bapayya v. Venkataratnam, : AIR1953Mad884 and Jogendro Chunder Ghose v. Dwarka Nath, ILR 15 Cal 681 .
14. We may as well mention that the decision in Gobinda Chandra Shah v. Dwarka Nath 19 Cal WN 489 : AIR 1915 Cal 313 , which was relied on in 1956 Nag LJ 441 : AIR 1956 Nag 266 and : AIR1939Pat540 , has not been followed and is dissented from in 52 Cal WN 659 (H).
15. In this view of the matter, in our view, no case is made out for interference with the orders of the respondents Nos. 1 and 2.
16. In the result, this petition fails. The rule is discharged. The petitioner shall bear his own costs as well as that of the respondents.
17. Petition dismissed.