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Dhundiraj Jayaram MaraThe Vs. Dhondu Anaji Pilankar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appl. No. 530 of 1958
Judge
Reported inAIR1959Bom319; (1958)60BOMLR1393; ILR1959Bom590
ActsTenancy Law; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 43C and 84
AppellantDhundiraj Jayaram Marathe
RespondentDhondu Anaji Pilankar and ors.
Appellant AdvocateL.G. Khare, Adv.
Respondent AdvocateT.N. Walavalkar and ;K.B. Parchure, Advs.
Excerpt:
.....of decree--application by tenant under section 84 claiming possession by availing himself of legal fiction introduced by proviso to section 43c--whether such legal fiction available to tenant.;the landlord of certain land situated in a municipal borough constituted under the bombay municipal boroughs act, 1925, after the coming into force of the bombay tenancy and agricultural lands (amendment) act, 1952, filed a suit in a civil court for ejectment against his tenant who was previous to the aforesaid act a protected tenant under the bombay tenancy and agricultural lands act, 1948. a decree was passed on april 22, 1955, in favour of the landlord who in execution of it obtained possession) of the land on april 24, 1955. after the coming into force of the proviso to section 43c of the..........when the decree was passed on the 22nd april 1955, that decree was in conformity with the law. the legal fiction introduced by the proviso was not available to the tenant and inasmuch as the tenancy act did not apply to him the landlord was entitled to the decree. not only the decree has become final inasmuch as no appeal or revision has been preferred against it, but the decree has been executed and possession has been taken by the landlord under that decree. the legal fiction at the highest can be availed of by the tenant in pending proceedings. the tenant can ask a court either of first instance or of appeal or even of revision to pass a decree in conformity with the law which obtains at present. but the legal fiction does not permit the tenant to tell us that although the courts.....
Judgment:

M.C. Chagla, C.J.

1. This is a more extreme case than the one we were considering in the previous Full Bench case, where an attempt is made by the tenant to avail himself of the proviso of Section 43C of the Tenancy Act. The few facts here are that the landlord terminated the tenancy on the 18th December 1953 and filed a suit in the Civil Court for ejectment on the 18th August, 1954. A decree was passed on the 22nd April 1955 by which the landlord was given possession. The landlord executed the decree and a warrant for possession was issued in his favour on the 23rd April 1955, and on the very next day he obtained possession. Then, after the amendment came into force, the tenant applied to the Prant Officer under Section 84 of the Tenancy Act claiming possession from the landlord on the ground that he was a trespasser. That application was rejected by the Prant Officer. There was a revision application to the Revenue Tribunal. The Tribunal concurred with the decision of the Prant Officers; and the tenant has now come in revision.

2. Now, what the tenant is seeking to do is to set aside, decree passed by a competent Court. When the decree was passed on the 22nd April 1955, that decree was in conformity with the law. The legal fiction introduced by the proviso was not available to the tenant and inasmuch as the Tenancy Act did not apply to him the landlord was entitled to the decree. Not only the decree has become final inasmuch as no appeal or revision has been preferred against it, but the decree has been executed and possession has been taken by the landlord under that decree. The legal fiction at the highest can be availed of by the tenant in pending proceedings. The tenant can ask a Court either of first instance or of appeal or even of revision to pass a decree in conformity with the law which obtains at present. But the legal fiction does not permit the tenant to tell us that although the Courts passed judgment in accordance with the law, although that judgment has been executed, in view of the legal fiction introduced thereafter he is claiming certain rights which rights he did not have at the date when the litigation finally ended. In our opinion, no Court has ever taken the view unless the Legislature expressly provides that a particular legal fiction should affect not only pending litigation but decrees passed by a competent Court, retrospective effect of any legislation can be such as to affect or prejudice decrees passed by competent Courts.

3. The result is that the application must fail and is dismissed. No order as to costs.

4. Application dismissed.


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