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Anandrao Bajirao Deshmukh Vs. Mahadeo Raoji Gore - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 481 of 1969
Judge
Reported inAIR1973Bom274; 1973MhLJ620
ActsBombay Tenancy and Agricultural Landa (Vidarbha Region) Act, 1958 - Sections 38 (2), 39-A (3) and 49-A (3)
AppellantAnandrao Bajirao Deshmukh
RespondentMahadeo Raoji Gore
Appellant AdvocateJ. N. Chandurkar, Adv.
Respondent AdvocateM.S. Choundari, Adv.
Excerpt:
.....status of a minor - - similarly he is not a person contemplated by section 39-a, sub-section (3), for to be a landlord of that kind the conditions precedent are to be satisfied being enumerated in sub-section (1) of section 39-a; looking at the problem from any angle, i would lean in favour of a construction to treat such a person to be in physical possession of the land once the earlier proceedings terminated in his favour on 14th december, 1962 or at any rate treating the next date as the continuation of the same proceedings that he was physically put in possession of the land on june 1st, 1963. that being the position and the landlord not being of the categories contemplated by sub-section (3), clearly the statutory ownership passed to the tenant......proceedings are suo motu proceedings started for conferment of statutory ownership upon the tenant mahadeo.5. under section 46 the tillers' date is 1-4-1961 and ownership of all lands held by tenants stood transferred in favour of the tenants. certain exceptions in favour of persons under disability operated upon such statutory transfers and dates were postponed as indicated by first proviso in respect of the persons under disability and by second proviso in respect of the pending proceedings. those tenants who were unlawfully dispossessed before the tillers' date and thereafter were put in possession under the provisions of the act, got their rights transferred to them on the date when the final order restitution possession to them was passed. the present tenant mahadeo answered.....
Judgment:
ORDER

1. The petitioner who is a land-holder questioned the validity of an order made by the Maharashtra Revenue Tribunal holding that the respondent Mahadeo was entitled to be declared as a statutory owner of the entire suit field on and from 1-6-1963 under the provisions of Section 1-6-1963 under the provisions of Section 49-A of the Bombay Tenancy and Agricultural Lands (Vidarbha Region )Act, 1958 (hereinafter called the Act).

2. The facts now found by the authorities lie in a very narrow compass. The disputed field Survey No. 87 area 30.4 acres was originally owned by Narayan. It was properly let out to one Raoji, the adoptive father of Mahadeo since the year 1951-52. Raoji was the protected lessee and the land was tenanted when the Act came into force on December 30, 1958. It appears that Raoji died sometime in the year 1955 and the present respondent Mahadeo succeeded to his interest as his adopted son.

3. The petitioner in this case Anandrao purchased 15.00 acres of land out of Survey no. 87 under a registered sale-deed of June 5, 1957. That land is now sub-numbered as Survey No. 87/3. Petitioner Anandrao was born on September 5, 1956 and when the Act came into force was a minor. It appears that after this transfer the respondent Mahadeo was dispossessed and he initiated proceedings under the Berar Regulation of Agricultural Leases Act, 1951. He was ultimately placed in possession under an order passed by the Tribunal on December 14, 1962, upon his own title as a protected lessee and that order appears to have been executed on 1st June, 1963.

4. The present proceedings are suo motu proceedings started for conferment of statutory ownership upon the tenant Mahadeo.

5. Under Section 46 the tillers' date is 1-4-1961 and ownership of all lands held by tenants stood transferred in favour of the tenants. Certain exceptions in favour of persons under disability operated upon such statutory transfers and dates were postponed as indicated by first proviso in respect of the persons under disability and by second proviso in respect of the pending proceedings. Those tenants who were unlawfully dispossessed before the tillers' date and thereafter were put in possession under the provisions of the Act, got their rights transferred to them on the date when the final order restitution possession to them was passed. The present tenant Mahadeo answered the description of sub-section (A1) of Section 46 in that he was a person who was evicted prior to 1st April, 1961 and the proceedings to put him in possession terminated on December 14, 1962. So if Section 46 was to govern the case of the present respondent Mahadeo, he would be entitled to statutory ownership as on December 14, 1962 , the date of decision of his application by the Maharashtra Revenue Tribunal.

6. He could not, however, get this right, for his landlord was within the excepted category of first proviso to sub-section (1) of Section 46.

7. However, another tillers' date was put on the statute book. That was 1st day of April, 1963 and as contemplated by Section 49-A a person on the land being a tenant on that date was entitled to statutory ownership of the tenanted land. Sub-section (3) of Section 49-A, however, carved out a further exception in favour of certain landlords and the only question is whether the present landlord Anandrao answers the description of sub-section (3) of Section 49-A. If he is not within that sub-section, Mahadeo, the tenant, is a statutory owner under sub-section (1) being a person on land as a tenant on 1-4-1963 or under sub-section (2) having been placed in possession on 1-6-1963.

Sub-section (3) of Section 49-A is in the following term :-

'Where the landlord, belonging to any of the categories specified in sub-section (2) of Section 38, has not given notice of termination of tenancy in accordance with the said sub-section (2) or sub-section (3) of Section 39-A or has given such notice but has not made an application thereafter under Section 36 for possession, such tenant shall be deemed to be the full owner of land held by him on the expiry of the land period specified in sub-section (3) of Section 39-A :

Provided that where the tenancy is terminated and application for possession is made in accordance with the provisions of sub-section (2) of Section 38 or sub-section (3) of Section 39-A, the tenant shall, on the date on which such application is finally decided, be deemed to be the full owner of the land which he is entitled to retain in possession after such decision.'

A plain reading of this sub-section shows that it carves out certain class of land-lords and takes them out fro the effects of sub-sections (1) and (2) of Section 39-A of the Act. The entire sub-section is descriptive of the landlords who can get benefit of that exception. It speaks of landlords who answer the description of the persons mentioned in sub-section (2) of Section 38 and who are capable of giving a notice of termination of tenancy in accordance with that sub-section (2); or under sub-section (3) of Section 39-A. All these conditions are cumulative. It is not sufficient to have the persons under disability as is the case under the first proviso to sub-section (1) of Section 46, but the landlords must further be entitled to terminate the tenancy by initiating proceedings in accordance with either Section 38 or Section 39-A. Those alone are excepted by virtue of sub-section (2) of Section 49-A and none others. Therefore, by reference in the scheme of Section 49-A itself the inhibition available in Section 29 will have to be read.

8. Section 39 plainly does not enable a person who had acquired land by transfer after 1st day of August, 1953 where a protected tenant is already inducted, as is made clear by Section 38 (7) of the Act. In the present case, as the facts found indicate the transfer is after 1st day of August, 1953 and the right of ht tenant is referable to the year 1951-52. Therefore, Anandrao cannot be a person who answers Section 38 (2), for not only sub-section (2) speaks of disabled landlords but they must be the persons beyond the bar of sub-section (7). Anandrao though a minor still is not a person who can pass the test of sub-section (7) of Section 38 of the Act. He is not, therefore, within sub-section 93) of Section 49-A. Similarly he is not a person contemplated by Section 39-A, sub-section (3), for to be a landlord of that kind the conditions precedent are to be satisfied being enumerated in sub-section (1) of Section 39-A; in that the tenure-holder does not hold land exceeding one-third of a family holding and earns his livelihood principally by agriculture or agricultural labour. A landlord or a tenure-holder of this description alone is within the contemplation of sub-section (3) of Section 39-A. These are the categories or classes of landlords who can apply under sub-section (3) of Section 39-A for termination of tenancy of a tenant. To Anandrao, the present petitioner, neither Section 38 nor Section 39-A is available. Therefore, the date of transfer with respect to Mahadeo and the land in question cannot be postponed by referring to the dates mentioned in sub-section (3) of Section 39-A.

9. Only the land-holders capable of initiating proceedings under Section 38 and Section 39-A can claim benefit and seek enlargement of time. Proviso to sub-section (3) of Section 49-A sheds some light in clear terms. Petitioner land-holder only because he is a minor cannot claim any benefit of that exception.

10. However, the learned counsel argues for the petitioner that the terms of sub-section (1) of Section 49-A require that a tenant must be on the land on 1st day of April, 1963 and the land must be in his personal cultivation. In this case, no doubt, the order was made in December, 1962 by the Tribunal and execution took time and the person was placed in physical p[obsession on June 1, 1963. According to the learned counsel, therefore, the statutory ownership is not available to such a person who was not physically on the land on 1st day of April 1963. This no doubt prima facie indicates that sub-section 91) will not be attracted. The effect to, however, of that earlier proceedings taken by the tenant for restoration of possession on the tenant can answer such a poser. The landlord was not entitled to possession which he took from the tenant. The tenant having applied and having found to be entitled to succeed under Section 36 (1), the proceedings terminated on 14-12-1962. As I have indicated that but for the proviso to sub-section (1) of Section 46, that would be the date when rights of statutory ownership would have vested in favour of the tenant whose proceedings for possession terminated under sub-section (A1) (a) of Section 46. The effect in my view is that on the date when the proceeding terminated in favour of the tenant, he would be deemed to be on the land and for the purpose of Section 49-A there would be no difference either in policy or in principle. To read otherwise would mean to defeat an express statutory intendment. This can further be salvaged by taking aid of sub-section (2) of Section 49-A itself. Though the person is not physically on the land on 1st day of April, 1963 and has taken proceedings, he is deemed to be the owner of the of the land on the date when final orders are made upon his application. If this test is applied, then assuming the learned counsel be correct, he was put in physical possession on June 1, 1963 is an execution of the earlier order dated 14-12-1962. Surely that would be the date referable as far as the rights of the tenant under Section 49-A are concerned. Looking at the problem from any angle, I would lean in favour of a construction to treat such a person to be in physical possession of the land once the earlier proceedings terminated in his favour on 14th December, 1962 or at any rate treating the next date as the continuation of the same proceedings that he was physically put in possession of the land on June 1st, 1963. That being the position and the landlord not being of the categories contemplated by sub-section (3), clearly the statutory ownership passed to the tenant. Mahadeo on June 1, 1963. The order made by the Maharashtra Revenue Tribunal in the result was correct, though for different reasons, and therefore, no interference is called for.

11. The petition, therefore, fails and is dismissed; but there will be no order as to costs.

12. Petition dismissed.


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