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Dadaji Vishwanath Gohane Vs. Shamrao and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 103 of 1969
Judge
Reported inAIR1973Bom229; 1973MhLJ363
ActsBombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 - Sections 120
AppellantDadaji Vishwanath Gohane
RespondentShamrao and ors.
Appellant AdvocateJ.N. Chandurkar, Adv.
Respondent AdvocateR.R. Deshpande, Adv.
Excerpt:
.....the present petitioner on his personal behalf as well as on behalf of his co-owner ganpat were entitled to treat shamrao as trespasser and the application filed by them was tenable. one stage is clearly contemplated. the process visualised by section 120 is well known process of eviction. in civil law the term has this well-groomed complete meaning and no departure need be postulated with reference to a right and remedy under revenue law. the term 'eviction' takes in the concept of 'dispossession of one person by another having a better one person by another having a better title of possession in land'.in townend upton v. ' the process of eviction by title paramount is well known to english as well as indian law. the process of eviction contemplated by that provision therefore is a..........the present petitioner on his personal behalf as well as on behalf of his co-owner ganpat were entitled to treat shamrao as trespasser and the application filed by them was tenable. the learned member further made the order that such an application can only be in the interest entitled to the possession of land and its enjoyment and accordingly made an order.4. an exception is taken to the latter part of the order in this petition. it is submitted that section 84 of the bombay tenancy and agricultural lands act, 1948 had been considered by the supreme court in the reported decision of vallabhbhai v. bai jivi, : [1969]3scr309 and in effect thereof, the tenant must take the remedy only under section 29 of that act, the parallel provision of the vidarbha act (i.e. the act of 1958) being.....
Judgment:
ORDER

1. An interesting question is raised in this petition by one of the co-owners, i.e., the petitioners herein having interest in Survey No. 142/1, area 3.29 acres of Ralegaon. The facts found by the courts below are that Nagorao was the tenant on the land and he inducted one Shamrao upon the land as a sub-tenant.

2. The sub-tenancy of Shamrao was hit by the provisions of Section 33 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act 1958, for it is a prohibition against sub-letting and the Law states that such sub-lease shall not be valid. The possession of Shamrao, therefore, was unlawful.

3. Both the courts below have come to the finding that, that is the effect. The learned Member of the Maharashtra Revenue Tribunal treated the matter to be one governed by Section 120 (c) and held that the present petitioner on his personal behalf as well as on behalf of his co-owner Ganpat were entitled to treat Shamrao as trespasser and the application filed by them was tenable. The learned Member further made the order that such an application can only be in the interest entitled to the possession of land and its enjoyment and accordingly made an order.

4. An exception is taken to the latter part of the order in this petition. It is submitted that Section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 had been considered by the Supreme Court in the reported decision of Vallabhbhai v. Bai Jivi, : [1969]3SCR309 and in effect thereof, the tenant must take the remedy only under Section 29 of that Act, the parallel provision of the Vidarbha Act (i.e. the Act of 1958) being Section 36. It is contended that tenant cannot be let in possession under Section 120 for he has an alternate ample remedy under Section 36 (1) and the order is patently erroneous and without jurisdiction. Similarly, a decision of this Court reported in 1966 Revenue Rulings Note No.1, being Special Civil Appln., No. 444 of 1963 decided on 10-12-1964 (Bom.) is pressed in aid to submit that it is the land-holder who can only claim possession and should be restored to possession after ejecting the trespasser Shamrao.

5. The attack therefore in this petition is two-fold. First, it is contended that there is no jurisdiction under Section 120 to restore possession at all. That is a matter which must be worked out under different provisions of the Act. Secondly, it is submitted that tenant having no right to apply under Section 120, no possession could be restored to him.

6. Section 120 is a summary remedy against persons unauthorisedly occupying or continuing wrongfully in possession of any agricultural land. It enables the Collector to cause eviction of such a person after an enquiry as he may deem fit to hold. It is plain enough that eviction from land is eminently postulated and in fact commanded. One stage is clearly contemplated. The power of Collector can reach the trespasser so as to remove him from the land. The question is whether it is only at stage the legislative machinery is intended to halt?

7. Surely, it cannot be imputed to the Legislature that Collector the authority which can clear the land of unauthorised persons, would be left powerless to make consequential orders. The process visualised by Section 120 is well known process of eviction. It takes in removal of persons who are not entitled to hold the land and must necessarily follow reinstating the persons who are entitled to immediate reversion of the possession or enjoyment of the land. Both postulates are the part of the legal term 'evict'. It is a composite process of removal and restitution. In civil law the term has this well-groomed complete meaning and no departure need be postulated with reference to a right and remedy under revenue law. The term 'eviction' takes in the concept of 'dispossession of one person by another having a better one person by another having a better title of possession in land'. In Townend Upton v. Greenless, (1855) 17 CB 30 = (25 LJ CP 44 (51) Jervis, C. J. observed the course of the term 'eviction' in the following words : -

'It is extremely difficult at the present day to define with technical accuracy what is an eviction. Latterly, the word has been used to denote that which formerly it was not intended to express. In the language of pleading, the party evicted was said to be expelled, moved and put out. The word eviction - from evincere, to evict, to dispossess by a judicial course - was formerly used to denote an expulsion by the assertion of a title paramount, and by process of law.'

Similarly in Oxford English Dictionary (Vol. 3). various meanings of 'evict' have been noticed and one that is legally understood is : 'To recover (property or the title to property) or in virtue of a superior title.' The process of eviction by title paramount is well known to English as well as Indian law. Eviction by title paramount is understood to mean removal due to the fact that the lessor has no title to grant the term and the paramount title is the title paramount to the lessor which destroys the effect of the grant, and with it the corresponding liability for payment of rent. (Vide - Lord Buckmaster in Matthey v. Curlling. 19220 2 AC 180. That is how the connotation of the word 'evict' is understood in law and there is no compelling reason to understand the said term differently in Section 120 of the Act. The process of eviction contemplated by that provision therefore is a composite process of dispossessing a person who has no authority or title and to put a person having a better and immediate title to be in possession with regard to the concerned land. The argument that the power of the Collector must merely halt at removing the person from land would leave the provision nugatory.

8. It is well-known construction of the statutes which are enabling in nature that even if certain details are not expressly stated which are of great importance, the Court can for the proper and effectual performance of the obligation for which the statute enacts a particular provision infer that that is the duty contemplated by law. In such matters, rules of interpretation permit to imply by necessary intendment certain powers which must always be held to be in contemplation of a provision which enables the authority to dispossess a trespasser. (See 'Craies on Statute Law' Chapter III, page 105 - Implication where enabling statute omits some details). Another rule of interpretation that can be alluded to is to put which must accord with convenience, reason, justice and known legal principles and it should in all cases of true one as well an intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available. (See 'Max-well on Interpretation of Statutes', Twelfth Edition. P. 199 - Presumption against intent).

9. If the construction of the power to evict is to be limited by the literal meaning given to the term 'evict', it would defeat the obvious intention of this legislation and would also lead to unwholesome results and unnecessary complexities. Though the Collector may remove from the land unauthorised persons he would leave the land to no one. It will remain vacant as he cannot take its management nor can direct any other process. Similarly the persons who are under law entitled would not enter upon it and must according to the submission, again follow the process of Section 36 of the Act. All these are not surely not intended results by the law which speaks of speedy and summary remedy. I am, therefore, satisfied that the term 'evict' must be so construed not only to enable the Collector to dispossess a person who is unauthorisedly occupying or wrongfully holding the land under the Act but also enabling the Collector to put a person in possession who is immediately entitled to hold that land under that law. This construction alone effectuates the purpose for which the power vests in Collector and the result would also be just and convenient.

10. Here, admittedly, Nagorao was the tenant. Though provisions of Section 19 permit determination of tenancy on the ground of sub-letting, that recourse had not been taken by the petitioning landlord. In law the tenancy of Nagorao continued. During the continuance of such a tenancy even the landlord is not entitled to enter upon the land and be in possession. On the ground of sub-letting he has to follow a procedure as indicated by Section 19 and then apply for an order to the Tahsildar. Unless that order is made in favour of the landlord, he is not at all entitled to enter upon the land.

11. The only person who could in law be held entitled and had immediate rights with respect to this land was the tenant Nagorao. The order directing restoration of possession to the tenant therefore was the only order that could be made by the Collector while evicting a trespasser. Whether such an order ought to have been made with reference to Section 120 (a) or (c) need not be decided in this case nor the question whether the tenant can apply under Section 120 (a) or (c) be noticed for the facts speak for themselves that Shamrao was unauthorisedly occupying the land. Upon this eviction, Nagorao was entitled to enter upon the land and the order is just and proper.

12. The petition therefore fails and is dismissed. Under the circumstances, however, there will be no order as to costs.

13. Petition dismissed.


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