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Moro Kashinath Joshi Vs. Ganesh Hari Bagul - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberCivil Revisional Application No. 395 of 1926
Judge
Reported inAIR1928Bom243; (1928)30BOMLR683
AppellantMoro Kashinath Joshi
RespondentGanesh Hari Bagul
DispositionApplication dismissed
Excerpt:
.....courts act (bom. ii of 1906)-suit for possession-dispossession of tenant-relinquishment of tenancy-landlord can sue to recover possession.;in march 1926, while the plaintiff was in possession of his land through a tenant, the defendant dispossessed him. in april 1926 the tenant relinquished his tenancy and gave back the land to the plaintiff. on july 23, 1926, the plaintiff sued to recover possession from the defendant, under the mamlatdars' courts act:-;that, under the circumstances, the plaintiff was entitled to maintain the suit.;goma v. narsingrao (1895) i.l.r. 20 bom. 260 f.b. and deu dada gavli v. sitaram (1907) i.l.r. 32 bom. 46 s.c. 9 bom. l.r. 1179 distinguished.;jagannatha charry v. rama rayer (1904) i.l.r. 28 mad. 238 followed. - - a tenant in a case like the present..........does not apply to the present case so as to prevent the mamlatdar having jurisdiction in the suit. a tenant in a case like the present would obviously not be inclined to sue the alleged trespasser, and it would be very hard upon the landlord to hold that merely because a dispossession had taken place before the tenancy had terminated, although he brought his suit within six months of the dispossession, he is not entitled to the summary relief which can be given under the manalatdars' courts act. a similar point has arisen in regard to section 9 of the specific relief act, and it has taen hald in jajannatha chatty v. rama rayer i.l.r. (1904) mod that, where a tenant was in possession at the time of the dispossession but at the time of the suit the tenancy had ended and therefore the.....
Judgment:

Fawcett, J.

1. The applicant's main contention is that as the suit is brought in respect of a disposseasion of plaintiff's tenant by the defendant in March J 926, it should, in accordance with the Full Bench decision in Goma v. Narsingrao I.L.R. (1895) Bom. 260, f.b. have been brought by the tenant so that the Mamlatdar had no jurisdiction to pass an order in favour of the plaintiff, To this it is replied that the Mamlatdar has found that the plaintiff's tenant relinquished his tenancy and gave back the land into the plaintiff's possession in April 1926, and also that the alleged dispossession was within sis months of the suit being brought by the plaintiff on July 23, v. 1926, so that the. plaintiff could bring the suit. The support of this the plaintiff's pleader relies upon Deu Dada Gavli v. Sitaram I.L.R. (1907) Bom. 46,: 9 Bom. L.R. 1179 We do not think that this ruling quite applies to the present case. That was a case whore the plaintiff was suing two tenants to recover possession' upon the termination of the tenancy and it was held that, although their possession had been disturbed by a trespasser during the continuance of the tenancy that did not affect the plaintiff's right to recover immediate possession of the land on the determination of the tenancy. That is quite a different case to the present where the plaintiff is suing a trespasser and not a tenant who has been dispossessed. On the other hand, the present case differs from that of Goma v. Narsingrao in this respect that in that case the tenants were still in possession and were entitled to retain possession of the land under the terms of their lease, as seems clear from the remark of Farran J. reported at page 262 'you are not entitled to possession, because under the terms of the rent-note the tenants are to remain in possession for ten years.' The main argument in the judgment was that the plaintiff in that case was not entitled to immediate possession and that the tenants could not be said to be in possession on behalf of the landlord. But in the present case, the facts found by the Mamlatdar show that at the time the suit was brought the tenant had relinquished his tenancy, and therefore, the plaintiff would be entitled to immediate possession on his own account. The tenancy does not come in his way. In these circumstances we think that the Full Bench ruling does not apply to the present case so as to prevent the Mamlatdar having jurisdiction in the suit. A tenant in a case like the present would obviously not be inclined to sue the alleged trespasser, and it would be very hard upon the landlord to hold that merely because a dispossession had taken place before the tenancy had terminated, although he brought his suit within six months of the dispossession, he is not entitled to the summary relief which can be given under the Manalatdars' Courts Act. A similar point has arisen in regard to Section 9 of the Specific Relief Act, and it has taen hald in Jajannatha Chatty v. Rama Rayer I.L.R. (1904) Mod that, where a tenant was in possession at the time of the dispossession but at the time of the suit the tenancy had ended and therefore the landlord alone was the person deprived of possession by the wrongful act, the landlord could sue the defendant under Section 9 of the Specific Relief Act. It is remarked in the judgment at page 239: 'To hold that the landlord in those circumstances was not entitled to bring the action would 1) 3 to take away the right given by Section 9 of the Specific Relief Act in every case where the interest or the inclination of the tenant led him to declins to bring the action,' We do not say that the landlord can bring a suit under the Mamlatdars' Courts Act in every case of that sort, because that would offend against the Full Bench ruling in Goma v. Narsingrao. But in a case like the present where the tenancy has in fact terminated and the landlord brings his suit within six months of dispossession, the ruling in. Narsingrao does not, in our opinion, prevent the Mamlatdar having jurisdiction. The mere omission of the plaintiff to state all the facts in his plaint does not suffice to invalidate the Mamlatdar's order. There was evidence given upon the point, and the defendant had notice of the contention that the tenancy had terminated and cross-examined witnesses upon the point. Having regard to these circumstances, we do not think that there is any sufficient reason for our interfering in the exercise of our extraordinary powers of revision. The application is dismissed with costs.

Mirza, J.

2. I agree.


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