Skip to content


Digambar Gopal MaraThe Vs. Vithoba Jogu Hagir - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 112 of 1948
Judge
Reported inAIR1952Bom274; (1952)54BOMLR236
ActsTenancy Laws; Bombay Tenancy Act, 1946 - Sections 4, 4(1) and 5(2); Bombay Land Revenue Code - Sections 84; Small Holders Act
AppellantDigambar Gopal Marathe
RespondentVithoba Jogu Hagir
Appellant AdvocateK.B. Sukhtankar, Adv.
Respondent AdvocateK.N. Dharap and ;M.M. Virkar, Advs.
Excerpt:
.....application of act to district where land situated--whether section 4 (1) retrospective in effect--bombay land revenue code (bom. v of 1879), section 84.; the plaintiff on november 13, 1944, gave a notice to the tenant-defendant terminating his tenancy under section 84 of the bombay land revenue code, 1879. the defendant continued to hold the land notwithstanding the notice. he had been cultivating the land personally continuously for a period of not less than six years immediately preceding april 1, 1944. the plaintiff filed a suit against the defendant on november 14, 1945, to recover possession of the land. the defendant inter alia contended that he was a protected tenant under the bombay tenancy act, 1939, which was made applicable to the district where the land was situated in april..........protection of the bombay tenancy act.[8] there is no doubt that the defendant has been holding the suit land and has been cultivating it personally continuously for a period of not less than six years immediately preceding 1st april 1944. what is particularly important to remember in this case is that the defendant has been still holding the land. his tenancy has been terminated, but he is still on the land. even if be had been actually evicted from the land between 1st april 1944 and april 1946, unless the eviction had been by an order of a competent court on any of the grounds specified in sub-section (2) of section 5 be would still have been deemed to be a protected tenant. clearly therefore the defendant's case is even much stronger than the case contemplated by sub-section (1) of.....
Judgment:

Vyas, J.

[1] This second appeal arises out of a decision of the Assistant Judge, Satara, by which he allowed au appeal of the original defendant, against whom a decree for possession was passed by the trial Court, and ordered the suit of the plaintiff to be dismissed.

[2] The plaintiff who is the present appellant filed Suit NO. 442 of 1945 in order to recover possession of the property in suit, a land at Wai, from the defendant, who is respondent in this appeal, on the allegation that the defendant was his annual tenant, that the agreed rent was Rs. 90 per year and that the said tenancy had been terminated by the plaintiff by giving him (defendant) a notice under Section 84, Bombay Land; Revenue Code. The notice wag given on 13-11-1944, and it is the case of the plaintiff that the tenancy of the defendant was terminated thereby with effect from 31-3-1945. Notwithstanding the termination of tenancy the defendant did not quit the land and hence the present suit was filed by the plaintiff on 14-11-1945, claiming to recover possession of the property from the defendant,

[3] One of the grounds, indeed the principal ground, on which the suit was resisted by the defendant was that ha was a protected tenant under the provisions of the Bombay Tenancy Act. It was contended by him that he had been holding the laud and cultivating it personally continuously for a period of more than six years immediately preceding 1-4-1944, that he had never committed any default in the payment of rent and that accordingly ho was not liable to be evicted from the land. The other defence taken by him was that he was entitled to the protection of the Small Holders Act.

[4] Now, it may be noted that the Bombay Tenancy Act was made applicable to the Satara District in April 1946, and it was held by the trial Court that since the tenancy of the defendant had been terminated and the suit against him had been filed before the Bombay Tenancy Act was made applicable to the District, the protection of the Act could not be availed of by the defendant. It was also held that the defendant could not claim the benefit of the Small Holders Act. In other words, both the defences were rejected by the trial Court and the plaintiff's suit for possession was decreed.

[5] The defendant went in appeal from the decree of the trial Court, and in appeal the learned Assistant Judge, Satara, held that the defendant was entitled to the protection of the Bombay Tenancy Act as, in the learned Judge's opinion, he was a protected tenant, notwithstanding the fact that his tenancy had been terminated and a suit had been filed against him before the application of the Bombay Tenancy Act to the Satara District. In the course of his judgment the learned appellate Judge observed :

'Section 4 of the Act (meaning thereby the Bombay Tenancy Act as finally amended by Act XXVI [26] of 1946) enacts that a tenant who has cultivated a land for a period of not less than 6 years immediately before 1-4-1944, shall be deemed to be a protected tenant even though he was evicted from such land on any of the grounds except those specified in Sub-section (2) of Section 5, i.e., for non-payment of rent. This clearly means that thelegislature has taken away the landlord's right to terminate the tenancy of a protected tenant at his sweet will by giving him a notice under Section 81 of the Land Revenue Code. '

Consistently with those observations, he came to the conclusion that the defendant was a protected tenant as he had been in possession of the land and had been cultivating it personally continuously for not less than sis years immediately preceding 1st April 1944. In view of that finding of his; he allowed the appeal of the defendant, reversed the decree of the trial Court and ordered the suit to be dismissed. This is a second appeal by the plaintiff against that appellate decision.

[6] In this appeal it is argued by Mr. Sukthankar for the plaintiff that the provisions of the Bombay Tenancy Act have no retrospective application, and that as the defendant had already ceased to be a tenant by reason of the termination of his tenancy with effect from 31st March 1945, and as the suit had already been filed against the defendant on 14th November 1945 -- both events happening before the application of the Bombay Tenancy Act to the Satara District in April 1916 -- the protection contemplated by the Act could not be extended to the defendant. In this connection, Mr. Sukthankar has relied on Sudkya Ramji v. Mahammed Isak 52 Bom. L. R. 123, in which it was held that it was a general principle of the common law of England, which was followed in India, that no statute was to be construed so as to give a retrospective operation to it unless its language was such as plainly to require that construction. A point which Mr. Sukthankar has made on the authority of this case is that since there is nothing in the language of the Bombay Tenancy Act to warrant its retrospective operation, its provisions cannot be given a retrospective effect, and that as the defendant had already ceased to he a tenant by the termination of his tenancy before the Tenancy Act was applied to the district, the plea of being a protected tenant could not, in law, be taken by him.

[7] Mr. Sukthankar's contention is not correct. In my view, the language of Section 4, Sub-section (1), Bombay Tenancy Act, and the language of the proviso to that sub-section clearly show that the Legislature must have intended to give retrospective effect to the provisions of this sub-section, The words 'and was evicted from such land on or after such date' occurring in Clause (b) of Sub-section (1) of Section 4 certainly provide that a person who had held any land and cultivated it personally continuously for a period of net less than six years immediately preceding 1st April 1944, shall be deemed to be a protected tenant, notwithstanding the fact that he may even have been evicted from the land (unless of course the eviction was by order of a competent Court on any of the grounds specified in Sub-section (2) of Section 5) at any time between 1st April 1944, and the date on which the Act was made applicable to a particular district. Thelatter part of the proviso to Sub-section (1) of Section 4 also makes it quite clear, I think, that if a person who is deemed to be a protected tenant of a land happens to be even evicted from that land, the said eviction not being by order of a competent Court on any o[ the grounds specified in Sub-section (2) of Section 5 at any time between 1st April 1944, and the date of coming into force of the Bombay Tenancy Act, he, on certain intimation being given to the landlord within a prescribed time, shall be entitled to recover possession of the land. The above mentioned language of Sub-section (1) of Section 4 and proviso to it leaves no doubt that even though a parson who has held a land and cultivated it personally continuously for a period of not leas than six years immediately preceding 1st April 1944, may have ceased to be in possession of the land any time after 1st April 1944, and before the coming into force of the Bombay Tenancy Act in a particular district, he would be entitled to the protection of the Act and would be deemed to be a protected tenant. Even in Sudkya v. Mahammed Isak 52 Bom. L. R. 123, Bavdekar J. had said (p. 129) :

'...it is arguable that when enacting Section 5 (2) the Legislature wanted to give retrospective operation to that section as it has specifically used the language to indicate that that was its intention.'

I feel sure that if the Legislature had not intended to give retrospective effect to the provisions of Section 4, Sub-section (1) of the Act, it would not have used the language which it did in that sub-section. I must accordingly reject Mr. Sukthankar's contention and accept Mr. Dharap's submission that the defendant is entitled to the protection of the Bombay Tenancy Act.

[8] There is no doubt that the defendant has been holding the suit land and has been cultivating it personally continuously for a period of not less than six years immediately preceding 1st April 1944. What is particularly important to remember in this case is that the defendant has been still holding the land. His tenancy has been terminated, but he is still on the land. Even if be had been actually evicted from the land between 1st April 1944 and April 1946, unless the eviction had been by an order of a competent Court on any of the grounds specified in Sub-section (2) of Section 5 be would still have been deemed to be a protected tenant. Clearly therefore the defendant's case is even much stronger than the case contemplated by Sub-section (1) of Section 4 of the Act, and there is no substance in the argument of Mr. Sukthankar that the defendant cannot have the protection of the Act as be has not been evicted from the land between 1st April 1944 and the date of coming into force of the Bombay Tenancy Act in the Satara District. If even a person actually evicted from the land between 1st April 1944, and April 1946 (the date when the Bombay Tenancy Act came into force in the Satara District) could be deemed to be a protected tenant, how much more would a personwho is still on the land be entitled to that protection. There is no doubt that he would be. We must always put a reasonable construction on the Act.

[9] For the reasons stated above, I hold that the defendant must be deemed to be a protected tenant and this appeal must fail and must be dismisses with costs.

[10] Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //