1. This is a tenants' petition under Article 227 of the Constitution challenging an order of the Maharashtra Revenue Tribunal holding that the respondents Nos, 3 and 4 were entitled to restoration of possession of two fields, Survey Nos. 56 and 72/2 of mouza Kasarkhed, tahsil Bala-pur. District Akola. The litigation has had a chequered career and it will be necessary to trace a few facts.
2. These two fields were cultivated by Suryabhan who had acquired the rights of a protected lessee under the Berar Regulation of Agricultural Leases Act, 1951. Digambar the predecessor-in-title of the respondents Nos. 3 and 4 gave a notice under Section 9(1) of the Leases Act terminating the tenancy of Suryabhan, On the basis of this notice, two proceedings came to be started, one by Suryabhan and another by Digambar. Digambar started proceedings under Section 8 (1) (g) of the Leases Act challenging the order terminating the lease and Suryabhan's ap placation registered as Revenue Case No. 94/59/56-57 in which he challenged the bona fides of the notice under Section 9 (3) of the Leases Act. Both the applications were considered and tried together and disposed of by a common order dated 20-8-1957. A copy of this order was filed in the subsequent proceedings before the Naib-Tahsildar. The Sub-Divisional Officer held that the notice was valid and bona fide. He allowed the ap placation of Digambar and terminated the lease of Survey Nos. 56 and 72/2 under Section 8 (1) (g) of the Leases Act and rejected the ap placation of Suryabhan in Revenue Case No. 94/59/56-57,
3. Suryabhan apparently did not file a separate appeal challenging that part of the order under Section 8 (1) (g) of the Leases Act, terminating the lease, but he challenged by an appeal before the appellate authority the decision of the Sub-Divisional Officer holding that the notice was bona fide. This appeal was dismissed in default by the appellate authority. Against this order, Suryabhan preferred a second appeal which was disposed of by the Bombay Revenue Tribunal by its order dated 31-3-1960. The Tribunal held that Suryabhan was not entitled to any reliefs. Thus. Suryabhan's ap placation under Section 9 (S) was finally disposed of by the order of the Tribunal dated 31-3-1960.
4. Thereafter on 5-5-1960 Digambar commenced by an ap placation of that date proceedings for possession of the property on the basis of the order in his favour in the proceedings under Section 8 (1) (g) ofthe Leases Act. During the pendency of those proceedings the original tenant Suryabhan died and the petitioners who are the legal representatives of Suryabhan were brought on record. Suryabhan and after him, the petitioners contested the applacation for possession on several grounds, but only two grounds survive for consideration in this petition, namely, that the ap placation of Digambar was barred by limitation under Section 36 (2) of the Bombay Tenancy and Agricultural Lands ( Vidarbha Region) Act, 1958, and that Digambar by his conduct had accepted the petitioners as tenants inasmuch as he had filed a suit in the Civil Court claiming lease money for the years 1957-58 and 1959-60 and obtained a decree therefor.
5. The ap placation was allowed by the Naib-Tahsildar rejecting both the contentions of the petitioners. Against this order the petitioners preferred an appeal. The appellate authority accepted the contention of the petitioner on both points, and allowing the appeal ordered dismissal of the ap placation of Digambar,
6. Against this reversing order in appeal, the present respondents 2 and 3 preferred a revision before the Man. Rev, Tribunal. The Tribunal has allowed the revision application, repelling the contentions of the petitioners on both the points in these proceedings, namely, on the ground of limitation and waiver. It is this order of the Tribunal which is under challenge.
7. In support of their, objection that the ap placation filed on 5-5-1960 was barred by limitation, the petitioners' contention is that the right to possession accrued in favour of Digambar on 20-8-1957. This ap placation under Section 36 (2) has been filed by Digambar more than two years after the right to possession accrued i.e., more than two years from 20-8-1957, and, therefore, should be treated as barred by limitation, it will be useful to deal with this contention first.
8. On behalf of the contesting respondents, reliance has been placed before the Tribunal as well as in this Court on the provisions, firstly, of Sections 3 and 4 of the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Ordinance, 1957 (No. IV of 1957), and also on the provisions of Sections 3, 4 and 5 of the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Act, 1957 (No. IX of 1958). The provisions of the Act and the Ordinance being identical, reference will be made to the provisions of the Bombay Act No. IX of 1958. The contention of the learned counsel for the petitioners is that in order to claim the benefit of this Act or the Ordinance, it was necessary for his client either to have tendered the lease money due to the landlord in respect of the land for the agriculturalyear ending 81-3-1958 and to show a willingness to hold land thereafter on the same terms and conditions, or for the landlord to make an ap placation for possession and in such proceedings it was for the tenants, i,e., the petitioners to deposit within such time as may have been prescribed by the Court, the rent or lease money due to the landlord for the agricultural year ending 31-5-1958. Thus, according to the petitioners, unless the conditions in Section 3 by voluntary tender of lease money for the years 1957-58 or by depositing the same amount if the landlord were to make an ap placation for possession, were satisfied, the landlord could not get the benefit of either of these two provisions of law.
9. I do not think this contention is well founded. Besides Sections 3 and 4 of the Bombay Act 9 of 1958, there is another blanket provision in Section 5 (1) of the same Act to the following effect:--
'Any right, privilege, obligation or liability acquired, accrued or incurred under any enactment, judgment, decree or order of any Court or Tribunal or authority or by any contract between the parties immediately before the commencement of this Act, or which may be acquired, may accrue or be incurred during the period for which this Act remains in force, but the enforcement of which has been stayed by the provisions of this Act, shall immediately on such provisions ceasing to have force, revive and be enforceable as if such provisions had not come into force.' The intention of the Legislature in making provision like Section 5 (1) of the Act is obvious. Section 3 gives a right to a careful tenant to protect himself By making a tender of the amount of lease money due, so that for a period of two years from the date of the commencement of this Act, such tenant is saved from any botheration of eviction or termination of tenancy. Section 4 prima facie applies to pending proceedings or proceedings which may be instituted, and if any such proceedings by way of execution or for eviction or for termination of tenancy are pending or instituted after the coming into force of the Act, provision is made for stay of such proceedings on terms. But apart from such cases, the Legislature enjoined that any right, privilege, or liability acquired, accrued or incurred under any order or decree of the Court revives and becomes enforceable after the provisions cease to have effect. Tofive full effect to this provision, it must be held that even in those cases where neither the landlord nor the tenant or ex-tenant has taken any steps, the Legislature intended that no such proceedings should be taken by the landlord for eviction of a tenant or for termination of tenancy of a tenant, and in case of such a landlord, he was assured that the right will become enforceable as soon as the provision ceases to have force. The plain meaning of this provision is that the rights which had accrued were, as itwere, kept in a state of suspended anima-tion. They were not to be enforced during the period this Act was in force and became enforceable as soon as the Act ceased to be in force. Therefore, in case of rights of the landlord who had acquired such rights like the respondent to obtain possession of the property--and in this case nothing else had to be done except to make anap placation for possession--the right couldbe enforced in terms of the provisions of Section 5 (1) of the Act itself as soon as the Act ceases to be in force. The Act ceased to be in force on 31st December 1958, and if an ap placation is made within two years of that date I do not see how the ap placation could still be resisted on the ground of limitation.
10. There is yet another aspect of this matter which cannot be lost sight of. The petitioners themselves had challenged the order holding that the notice was bona fide by an appeal and later by a second appeal before the Tribunal. That appeal was dismissed. But under the normal rule of construction, whenever an order of a subordinate authority is challenged in superior Courts by an appeal or a further appeal, such order of the original authority gets merged in the final order. The right to enforce the benefit of the order, therefore, would accrue only after the order has reached finality, namely, as a result of the decision of the second appeal in this case. The second appeal filed by the petitioners was disposed of by the Tribunal on 31-3-1960. The ap placation for possession made on 5-5-1960 by the respondents could I hardly be resisted as barred by limitation even on this aspect of the matter. There is no substance in the plea of limitation raised and it has been rightly rejected.
11. The second ground on which the ap placation was resisted was the alleged waiver on the part of the landlord because he filed a suit for lease money for the years 1958-59 and 1959-60 during which time the petitioners were in possession and enjoyment of the property. The learned counsel for the petitioners wanted to support this plea calling in aid the provisions of Section 113 of the Transfer of Property Act. In the first instance, that section in terms is restricted to a notice given under Section 111 (h) of the Transfer of Property Act, namely, the consequences of waiving a notice to determine the lease or to quit the property. No such waiver is implied by conduct or by some other acts showing an intention to treat the lease as subsisting. This provision cannot be applied to the facts of this case. Then reference was made to Section 112 under which a forfeiture under Section 111(g) may be waived if the landlord accepts rent. The conditions of this section are also not satisfied and the plea has rightly not been pressed too far. In the case of a statutory lessee, he is bound to pay the amount of lease money not only till the statutory leaseconies to an end by order of the Court but until possession is given. The right being created by statute, the corresponding obligation to pay the statutory rent until possession is delivered is implicit in such a situation. The petitioners, therefore, were bound to pay the lease money as provided in the statute. In fact, it is not the lease money in the true sense of the term at all but it is a statutory solatium which a lessee protected by the statute is required to pay to the landlord. It has hardly any element of a contractual liability. It will, therefore, not be proper to apply the provisions of the Transfer of Property Act in case of statutory tenant's rights and obligations which must be work-ed under the statute which creates the lessee's rights and not under ordinary law. This plea also, therefore, is equally not available to the petitioners and has been rightly rejected.
12. No other point was urged. The order of the Tribunal is correct. The petition fails and is dismissed with costs.
13. Petition dismissed.