1. This is an application filed by a tenant against the landlord-respondents challenging the order passed by the Maharashtra Revenue Tribunal in revision against the order passed by the Sub-Divisional Officer who, in his turn, reversed the decision of the Naib Tahsildar in an application made by the landlords for possession of the land in question on the ground of personal bona fide cultivation. The landlords before making the application to the Naib Tahsildar, gave notice to the tenant on 26th March, 1959, under Section 39 (I) of the Bombay Tenancy and Agricultural Lands ( Vidarabhai Region and Kutch Area) Act, 1958 (hereinafter referred to as the Tenancy Act). Thereafter, an application for possession of the land was made to the Naib Tahsildar under Section 36 of the Tenancy Act on 23-7-1959. This application was resisted by the tenant on several grounds. The Naib Tahsildar, however, allowed the landlord's application on 22nd of March 1960 and ordered the tenant to deliver possession to the landlords.
As against this order the tenant took an appeal to the Sub-Divisional Officer who, after considering the evidence recorded in the case and having dus regard to the arguments advanced on both the sides, reversed the decision of the Naib Tahsildar on all the counts and dismissed the landlords' application on 19th July, 1960. The landlords' being aggrieved by the decision of the Sub-Divisional Officer, filed a revision application before the Maharashtra Revenue Tribunal and that application was allowed by the Tribunal on 18-2-1961 and the landlords, accordingly, became entitled to recover possession of the land from the tenant. Following upon this decision of the Tribunal, the tenant filed the present petition in this Court under Articles 226 and 227 of the Constitution and challenged the validity of the order o the Tribunal.
2. It appears that while this writ-petition was pending in this Court, the landlords filed a civil suit in the Court of the Civil Judge, Senior Division, at Yeofmal for the recovery of rents from the tenant for a period of three years, that is to say, for the years 1958-59, 1959-60 and 1960-61. The tenant came to know about the; filing of this suit by the landlords and immediately thereafter, he made an application to this Court on 16-8-1961 for amendment of the petition to the effect that the landlords being the reversioners, by reason of their having filed a suit for rent, should be deemed, as a matter of law, to have ratified the original lease granted by Jani and, therefore, they could not be allowed to claim possession of the field from him. Rule was issued upon this application and it was served upon the landlords in due course. The landlords, however, do not seem to have cared to file any affidavit in reply to this application for amendment. At the time when the rule was issued upon this application it was ordered that it would be heard along with the present petition filed by the tenant. The petition as also this amendment application, accordingly, came up for hearing yesterday before us, and it was urged on behalf of the tenant by Mr. Qazi that in view of the conduct of the landlords in filing the suit for rent for the three years, the landlords had recognized the tenant as a tenant despite the order for possession made by the Maharashtra. Revenue Tribunal as aforesaid and that, accordingly, the landlords must be deemed to have waived their right to recover possession in pursuance of that right. Mr. Kherdekar, on the other hand, urged that 'waiver' was a question of fact and that there was not enough material before us in order to enable us to decide as to whether there was any such waiver on the part of the landlords by reason of their having filed the suit for recovery of rent against the tenant. He also invited our attention to some cases which, however, turned out to be those in which claims for damages were also included. Obviously, where in a suit for ejectment claim for damages is included by way of compensation for use and occupation of the premises after the termination of the tenancy, there could be no question of waiver at all on the part of the landlord. In one of the cases Puran Mal v. Onkar Nath, : AIR1959Pat128 there was a claim both for damages as well as rent--rent in respect of the period prior to the date of: the notice of ejectment and damages in respect of the period subsequent to the notice. In this case also, it was rightly held, with respect, that there could not be any question of waiver because the landlords had not asked for any rent from the tenant in the suit subsequent to the date of the notice. On the contrary, there are decisions wherein it has been definitely held that if in a suit for ejectment a prayer for rent has been included for a period subsequent to the date of the notice of ejectment, the suit itself would be bad and no decree for ejectment could be passed, because, by the very averments in the plaint itself, the plaintiff would be deemed to have waived his right to recover possession. See Abdul Rashid Khan v. Safer Ali, AIR 1918 Cal 552. In the present case, the landlords have not asked for any damages as such. As already stated, the notice of ejectment was given by the landlords to the tenant on 26-3-1959 under Section 39 (1) of the Tenancy Act. The notice required under the section is clearly one which seeks to terminate the tenancy of a tenant.
3. Mr. Kherdekar contended that merely by giving a notice under Section 39 (1), the tenancy was not terminated and that it would be terminated only when an order for possession was made. We are afraid, we cannot accept this contention. The wording of Sub-section (1) of Section 39 of the Tenancy Act is very clear in this behalf and it is as follows:
'39. Right of certain landlords to terminate tenancy for cultivating personally: --
(1) Notwithstanding anything contained in Sections 9, 19 or 38 but subject to the provisions of sub-section (2), a landlord who holds an area not exceeding a family holding, may terminate such tenancy created by him not earlier than the first day of April 1957 as could have been terminated but for the provisions of the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Ordinance, 1957 or the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Act, 1957, by giving to the tenant a notice in writing and making an application for possession as provided in Sub-section (2) of Section 36 before 31-3-1959 if he bona fide requires the land for cultivating it personally.' It is clear from this sub-section that a landlord can terminate the tenancy created by him by giving to a tenant a, notice in writing and making an application for possession as provided in Sub-section (2) of Section 36 within the period prescribed in the sub-section. In this case it is clear that not only the notice to terminate the tenancy was given on 26-3-1959, but also, the application for possession, as referred to in that sub-section, was made on 23-7-1959. With these two preliminaries completed, the tenancy of the tenant was terminated. We cannot, accordingly, accept Mr. Kherdekar's contention that the termination o the tenancy should wait till the order of possession in actually made.
4. The tenancy having thus been terminated, the relationship of landlord and tenant naturally came to an end between the landlords and the tenant in the present case and, therefore, if the tenant continued to remain in possession of the land in question subsequent to the date of the application for possession, the landlords would be entitled to recover from him only damages for the period during which he continues in possession and not rent. During the pendency of the proceedings which started on the application for possession, the tenant, admittedly, continued in possession of the land and the proceedings ultimately came to a close on 18-2-1961 when the Maharashtra Revenue Tribunal allowed the landlords' application for possession. Thus the tenant became liable to pay damages to the landlords for the years 1959-60 and 1960-61. It appears that the order passed by the Revenue Tribunal for recovery of possession from the tenant was not executed by the landlords. Instead, they filed their suit in the Court of the Civil Judge, Senior Division, at Yeotmal, for recovery of rent for the period of three years 1958 to 1961. It is significant to note that in support of their claim which the landlords made in their suit, they have clearly recognized the tenant as their tenant for all those three years., Paragraph 2 of the plaint in that suit is as follows:
'During the life time of Janabai but before her death she had leased out the field to the defendant and he was cultivating it as a lessee lastly in the agricultural year 1958-59. During the agricultural year he has acquired the rights of tenants within the meaning of Section 6 of the Bombay Tenancy Act and after the death of the limited owner Janabai, the plaintiffs had become the owner and landholders of the above said property as the legal heirs after the death of Bapuji Akaji'.
From the averments made in this paragraph it would be abundantly clear that not only the landlords recognized the defendant in that suit, viz. the tenant, as a person having cultivated the land as a tenant for the year 1958-59, but also, as a person who had acquired rights of a tenant within the meaning of Section 6 of the Bombay Tenancy Act in other words, the averments implied that by reason of the defendant having cultivated the land for a period of one year under a regular lease had become a tenant under the Tenancy Act and thereby entitled to the benefits of the provisions of that Act. As a matter of fact, all that the landlords seem to have mainly averred in this paragraph of the plaint is that Janabai, the original lessor, having died, they themselves had become the landholders in respect of the land in question vis-a-vis the defendant who was a tenant to that land, thereby tracing their own title to the land.
5. Paragraph 3 of the plaint is as follows:
'For the agricultural year 1958-59, the defendant has not paid the lease money to the deceased Janabai to the knowledge of the plaintiffs. The defendants has also not paid the lease money to the plaintiffs for the subsequent agricultural years and hence the suit'.
And paragraph 4 gives the details of the amounts claimed for each of the three years, viz. 1958-59, 1959-60 and 1960-61.
6. The recitals in these paragraphs leave no doubt that the landlords had continued even after they became the landholders on the death of Janabai to treat the defendant as a tenant of the land despite the fact that the original lease for one year, that is to say for the year 1958-59, created by Janabai bad expired. The averment in paragraph 3 appear to follow as a necessary corollary to the averments in paragraph 2, where they stated that by reason of the tenancy for a period of one year, the tenant had become a tenant under the Tenancy Act and, therefore, he was liable for payment of the rent for subsequent years in his capacity as a tenant.
7. By filing this plaint, we think, the landlords have clearly indicated their intention to forego their right to recover possession from the tenant as decreed by the Revenue Tribunal and to treat the tenant as a tenant at least up to the end of the year 1961. As stated above, they have claimed the rent from the tenant up to the year 1960-61.
8. Section 113 of the Transfer of Property Act, though not strictly applicable to agricultural leases, may well be brought into consideration so far as the principle laid down therein is concerned, and the principle enacted therein is that where a notice for ejectment is given such notice shall be deemed to have been waived with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. In this case, the matter has not rested only with the notice of ejectment given by the landlords' to the tenant. Proceedings were started by the landlords consequent upon the notice for recovery of possession by filing an application under Section 36 of the Tenancy Act before the Naib Tahsildar and those proceedings ultimately terminated in the decision of the Revenue Tribunal as aforestated. Nevertheless, the act on the part of the landlords in filing the suit for recovery of rent for three years from the tenant as a tenant is certainly inconsistent not only with the notice of ejectment that they originally gave to the tenant in 1959, but also with all the proceedings that they took on the basis of that notice. We have no doubt that the landlords by this act not only waived the original notice of ejectment but also waived the benefit of the order for possession which was eventually made by the Tribunal in their favour.
9. It is true that whether there is a waiver or not is a question of fact. Mr. Kherdekar urged that this Court had so jurisdiction to decide any question of fact and that the question of waiver in his case should be referred to an appropriate Court. We are afraid, we cannot accept this contention. Firstly, WP wonder to what Court we can send a matter for a decision on this question. The question of waiver has been raised for the first time before us in this writ petition by way. of an amendment. The Tribunal is no longer seized of the matter; nor did the question arise before it, nor can the question be referred to any other tribunal in the absence of any proceeding before it. The present writ petition is not an appeal or revision against any order of a subordinate Court. It is an independent proceeding under the Constitution. Accordingly, in our view, if at all this question has got to be decided, it must be decided by us in this Court. We also do not agree with Mr. Kherdekar that we cannot decide any question of fact on a petition such as this. It must be borne in mind that writ petitions are generally decided on affidavits. It is undoubtedly true that where facts are disputed this Court generally refuses to interfere and refers the parties to a separate suit. But where it does become necessary to decide a question of fact for the purpose of disposal of a petition, it is not as if this Court cannot decide that question. As stated above, evidence in the form of affidavits is admissible in these petitions and there is no reason why, if necessity arose, evidence of witnesses cannot be allowed in these petitions. Accordingly, in our view, there is no substance in Mr. Kherdekar's contention that we cannot on this petition decide the question of waiver which is a question of fact.
10. It was further urged by Mr. Kherdekar that, if we allowed, he would try to show that the averments in the plaint did not really mean what they sought to convey. In other words, he urged that, if an opportunity were given to his clients, they would show that their intention was not to claim rent but damages. We are afraid, we cannot accept this contention either. A document must read as it stands and no oral evidence is admissible for the purpose of showing the intention which prompted or underlay that document. The words in the paragraphs of the plaint that we have quoted above are abundantly clear and leave no doubt whatever in our mind that the landlords treated the defendant in that suit as a tenant for all the three years for which the rents were prayed for and that they asserted themselves as land-holders vis-a-vis the land in that suit. Although it is a question of fact, we do not think any further evidence is necessary for the purpose of enabling us to come to the conclusion that the land-holders by filing the suit did an act which amounted to a waiver of their right to claim possession of the land in question from the tenant.
11. Mr. Kherdekar further urged that the land-holders had withdrawn that suit and that, therefore, whatever allegations they might have made in the plaint of that suit should no longer come in their way of recovery of possession of the land from the tenant. In our opinion, there is no substance in this contention. It appears that prior to the withdrawal of that suit the tenant had made the amendment application. If any consent, express or implied, was necessary on the part of the tenant in order that the act of the landlords may operate as a waiver, the very application for amendment of the writ petition made by the tenant was clearly indicative of his consent to the conduct of the landlords in so far as it sought to hold the tenant as a tenant and sought to recover the rents for the three years from him as a tenant. The withdrawal of the suit, therefore, after the date of the amendment application would, we are afraid, be of no avail to Mr. Kherdekar's clients. The averments in the plaint are made on solemn affirmation and form part of the record of the Court. The tenant would be perfectly entitled to avail of them as best as he could. It may be that the landlords might have realised that in filing their suit for recovery of rents, they had committed perhaps the greatest error of their life, but the law, unfortunately, does not help them out of that error and, therefore, it would not matter at all to the claim of the tenant to retain possession of the land even if the suit filed by the landlords was withdrawn, or not withdrawn.
12. For these reasons, we think, the petition filed' by the tenant should be allowed, the order passed by the Revenue Tribunal should be set aside and the order of the Sub-Divisional Officer should be restored. In the light of this decision it is not necessary for us to go into the merits of the decision of the Tribunal. Mr. Kherdekar, undoubtedly, requested us to send the matter back to the Tribunal for reconsideration on the question as to whether the landlords had satisfied the requirements of Section 38(3)(c) of the Bombay Tenancy Act. We do find from the judgment of the Sub-Divisional Officer that although he has adopted the right principle in regard to that clause, he has not actually given the respective figures of income of the land of which possession is sought and the lands already in possession of the respective landlords. The Tribunal, on the other hand, did not accept the principle applied by the Sub-Divisional Officer in regard to that clause and went on the footing of a family holding. In other words, the Tribunal was of the view that what was necessary to consider in cases of applications for possession of land by landlords on the ground of bona fide cultivation was as to whether the landholder had or had no one family holding. If he had no such holding, then, according to the Tribunal, he would be entitled to recover possession from the tenant. In our opinion, this view of the Tribunal seems to be wholly incorrect and it is in direct contravention of the Full Bench decision of our High Court reported in Dattatraya v. Ganpat, : AIR1957Bom193 and also a decision of the Divisional Bench reported in Hasanbhai v. Adambhai, 61 Bom LR 415. Had it not been for the point of waiver on which we are allowing the present petition by the tenant, we would certainly have acceded to Mr. Kherdekar's request and sent the matter back to the Tribunal for reconsideration of the question as to the requirements of Clause (c) of Subsection (3) of Section 38 of the Tenancy Act in the light of the. principle laid down in the aforesaid two Bombay cases. Inasmuch as, however, we hold that the land-holders have waived their right to recover possession of the land in question from the tenant by reason of their having filed a suit for recovery of rents for three years from him as aforesaid, it is not at all necessary to order any such remand.
13. The petition, accordingly, succeeds. Theorder of the Tribunal is set aside and the order ofthe Sub-Divisional Officer is restored, though notfor the reasons mentioned by the Sub-DivisionalOfficer in his order, but for the reasons stated byus hereinabove. There will not be any order as tocosts.
14. Petition allowed.