1. This appeal has been referred to a Division Bench by the learned Single Judge of this Court, because he found that there were conflicting views on certain points of law arising under the Bombay Tenancy & Agricultural Lands Act, 1948, (hereinafter referred to as 'the Tenant Act'). The learned single Judge found that in the judgments delivered by Mr. Justice Patel and Mr. Justice Malwankar sitting singly, divergent views have been taken about the starting point when possession of the former tenant becomes unlawful for the purpose of calculating mesne profits and hence he passed the speaking order on 28th September, 1973 and 1st October, 1973, for referring this appeal to a Division Bench.
2. For the purpose of understanding the question involved in this appeal, a few facts may have to be noted. The appellant here is the original plaintiff and he is the landlord; the respondent-defendant is the tenant of an agricultural land. it is not now is dispute that as required by Section 31 read with Section 29 of the Tenancy Act, the plaintiff-appellant landlord terminated the tenancy of the defendants by the end of March, 1957 by a notice served some time in December of 1956 and thereafter an application was filed within time for claiming possession of the agricultural land for bona fide personal cultivation. The Mamlatdar after hearing the parties rejected the application of the landlord by his order dated August 30, 1958. The landlord carried an appeal to the District Deputy Collector, which was decided on January 6, 1960. By his order, the District Deputy Collector accepted the case of the landlord and directed possession of half the agricultural land to the landlord from the tenants. The tenants then preferred a revision application to the Maharashtra Revenue Tribunals, but the said revision application was dismissed and the order of the District Deputy Collector was confirmed by the Maharashtra Revenue Tribunal by its order dated October 7, 1960. A write matter was then instituted in the High Court by the tenants and it was finally decided on April 5, 1961, in favour of the landlord by upholding the orders passed by authorities below, but by giving clear directions with respect to the partition to be effected by the Mamlatdar before possession was delivered. It is after these orders were passed that the landlord-plaintiff has filed the present suit for recovering mesne profits in respect of half the agricultural land for the years 1959-60, 1960-61 and 1961-62. this suit is instituted on March 21, 1963. The said suit was dismissed by the trial Court in its entirety and that decree was confirmed by the District Court. When Second appeal was argued before the learned Single Judge he found that the only point of law that called for decision related to the starting point form which mesne profits can be calculated, if at all. What was accepted as basis formerly established by certain Full Bench judgment of this Court as also the Supreme Court judgment was that the mere notice may ordinarily have the effect of terminating the tenancy from that date under the law of this land. But so far as agricultural lands governed by the Tenancy Act are concerned mere notice is not enough to bring about the termination of tenancy. When the Mamlatdar passes an order under sub-section 92) of Section 29 of the Tenancy Act, the tenancy terminates and the possession of the tenant subsequent to that date becomes unlawful or unauthorized and that shall be the starting point for the purpose of calculating mesne profits.
3. However, various types of orders can be passed by the Tribunal which are dealing with the application under Section 29 92) of the Tenancy Act . In some cases, Mamlatdar may award possession either of the whole or a part of the land by taking into consideration the provisions of Sections 31-A to 31-D of the Tenancy Act. In some cases, the Mamlatdar may reject the application of the landlord and either the Appellant Court or the Revision Tribunal may set aside that order and pass an order in favour of the landlord. In such a case from what point of item does the possession of the tenant become unauthorized or unlawful so as to enable the landlord to claim mesne profits, from the tenant? The learned Single Judge found that there were ample authorities for the proposition that between he period of the termination of the tenancy by notice and the passing of the order by the Mamlatdar the possession of the tenant is lawful or at any rate it is not unlawful and the tenant has an estate in possession which comes to an end only by the order of the Mamlatdar and for such proposition there was ample support in the Full Bench Judgment of this Court as also in the observations of the Supreme Court in some other judgment s to which we will referred in due course. However, he found that Patel. J. sitting singly in Balkrishan Gambhirset Agarwal v. Tukaram Shadhu Mali 1966 68 Bom LR 874, held that the date of the Mamlatdar's order irrespective of its nature is the starting point for calculating mesne profits as possession of the tenant becomes unlawful from that date when the landlord ultimately obtains an order in his favour. in that case the application of the landlord under Section 29 read with Section 34 of the Tenancy Act (present Section 31) was dismissed by the Mamlatdar on October 5, 1955. However, the Prant Officer allowed the appeal and revised the order, which was confirmed later on by the Maharashtra Revenue Tribunal as also by the High Court in a Writ Petition. In spite of the fact that the first Court's order of Mamlatdar was of dismissal, the learned Single Judge held that October 5, 1955, the date of the first order by the Mamlatdar, is the operative tenant must be deemed to be unlawful.
4. As against this Mamlwankar J. in Suryakant Ramachandra v. Shivlinga Vishwanath, : AIR1973Bom252 held that in a proceeding filed by the landlord under Section 31 read with Section 29 (2) of the Tenancy Act, 1948, the terminus a quo for determining the nature of the tenant's possession, will be the final order, whether it is passed by the Mamlatdar or by the Appellate Authority under Section 74 of the Tenancy Act , or by the revision authority under Section 76, and whether these subsequent orders are orders confirming the original orders and/or modifying or setting aside the original orders and substitution their own order as is permitted by the provisions of Section 78 of the Tenancy Act. Thus there is apparent conflict between the two judgments of the Single Judges. The learned Single Judge writing the reference found that the learned Chief Justice sitting singly while deciding Second Appeal No. 1243 of 1965 on April 25, 1973 (Bom.) note this conflict but did not refer the point of law to a larger Bench because he found that the judgment of the Supreme Court in Venkatesh Narhar Katti v. Hajisaheb Khadirsaheb Mulla, : 2SCR215 , covered the point and afforded sufficient guidance. A passage from the judgment is relied upon by the learned Chief Justice in disposing of the said second appeal. The learned Single Judge, however, points out, with respect, that the Supreme Court judgment does not concern itself with the question as to the date on which tenancy must be deemed to have been terminated so as to afford the starting point for calculation of mesne profit in respect of the land. With these observations he referred the matter to a larger Bench.
5. The only point which arises for our consideration is whether in case where the landlord has finally succeeded the tenancy gets terminated and his possession becomes unlawful from the date of the order of the Mamlatdar irrespective of its nature of from the date of the order passed by hierarchy of Tribunals and Courts provided by the Tenancy Act or by other provisions of law like Article 226 and Article 227 of the Constitution. Before we actually consider this question, a brief reference may be made to a part of the argument, which is not in serious dispute. ordinarily when a landlord has right to terminate the tenancy by a notice, he does so from the date from which the tenancy is terminable under the Transfer of Property Act. The provisions of the Transfer of Property Act are made applicable to the Provisions of the Tenancy Act by Section 3 to the extend they are not inconsistent with the provisions of the Tenancy Act. A claim for possession by the landlord can arise either under Section 31 or Section 14 and in either case the landlord is obliged to give notice of termination as contemplated either by Section 31 or by Section 14. We are now dealing with the cases arising out of Section 31 read with Section 29 of the Tenancy Act. Though the notice terminated the tenancy by the end of March 1957, and an application for possession was also filed before that date as required by Section 31, it is being conceded that the tenancy would not get terminated from 1st April, 1957 in terms of the notice served. This is because the notice of termination by itself does not give right of possession to the landlord. He is required to apply under sub-section (2) of S. 29 in a prescribed form and obtain the order of possession from the Mamlatdar. Section 29 (2) provides that save as otherwise provided in sub-section (3A), no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. Unless, therefore, the Mamlatdar passes an order, the right of possession does not materialize and the possession of the tenant in this interregnum period does not become unlawful. it has been so held by the Full Bench of this Court in Ramchandra Anant Joshi v. Janardan Tulsiram Ghuge, : AIR1963Bom79 (FB). The question before the Full Bench was slightly different. The landlord had already given a notice under Section 31 and made an application under Section 29 of the Tenancy Act. This had the effect of postponing the compulsory transfer of title in favour of the tenant. In the meanwhile, for another good reason falling under Section 14, the landlord served a second notice under Section 14 of the Tenancy Act and filed another applicant under Section 29 (2). The question that arose before the Full bench was whether this second notice was lawful. it was, therefore, necessary for them to find out the nature of the possession of the tenant after the termination of his tenancy by the first notice and while the proceedings under Section 31 read with Section 29 were still pending. It may be noted that the proceedings were then pending before the Appellate Court. While pointing out that the second notice is quite valid as it gave another cause of action to the landlord against the tenant, the learned Judges made the following observations, which are subsequently approved by the Supreme Court. At page 641 (of Bom LR) = (at. p. 81 of AIR) of the report, they observed:
'Under the ordinary law, if a tenant continues in possession after his tenancy has been determined, his possessions protected by law and he cannot be ousted except in due course of law, but he has no right to possession after the termination of tenancy. Under the Tenancy Act, however even after his tenancy has been determined by a notice given by his landlord, the tenant has a legal right to continue in possession, until the Mamlatdar has made an order for possession being restored to the landlord. During the intervening period, the tenant has an estate in possession of which he can only be deprived by an order of the Mamlatdar'. The above observations were brought to the notice of the Supreme Court when their Lordships were considering the case of : 2SCR215 . the question before the Supreme Court related to limitation for the application under Section 29 (2) of the Tenancy Act. A tenant defaulted in payment of rent for the year 1951-52, 1953-54 and 1954-55. The landlord served notice dated December 8, 1956, terminating the tenancy under Section 14 (1) (b) of the Tenancy Act after a period of three months from the date of the service of notice. he applied for possession June 24, 1957 before the Mamltdar. When the question of limitation was raised on behalf of the tenants it was being agitated that the application was not within two years from the date of the notice. it was necessary to consider whether the period of notice of three months can be excluded; if that was done the applicant of the landlord was in time. As there was no specific proviso in the Tenancy Act throwing light on the question involved the Supreme Court observed that if you conceive of a starting point of limitation for claiming possession that starting point must coincide with the date when the landlord has a right to claim possessions. Unless and until the landlord has right in his favour from a particular date to claim possession it could not be said that, that particular date should be treated as the starting point of limitation. Termination of tenancy by a particular date by giving three months notice was a statutory requirement under the provisions of the Tenancy Act. simply because the tenancy was terminated on the at date the landlord may not get right to recover possession from the tenant which right might arise only when the order is made in his favour by the Mamlatdar under Section 29 92), when for the purpose of making an application within in limiting that the date when the tenancy is so terminated must be deemed to be the starting point of limitation. While drawing this conclusion in para 5 of the above report, their Lordships of the Supreme Court observed as follows: 'In spite of the termination of the tenancy, the landlord has no right to obtain possession of the land without an order of the Mamlatdar under Section 29 92) the tenant continues to be in lawful possession of the land and is liable to pay rent and not mesne profits, see Ramachandra Anant v. Janardan, : AIR1963Bom79 (FB). Thus on the termination of the tenancy, the right to obtain possession of the land though in reality not accrued to the landlord is by a legal fiction deemed to have accrued to him so that he may immediately apply under Section 29 (2) for an order for possession'.
It is, therefore, clear that by a legal fiction, the Supreme Court assume the date of the termination of tenancy notice as the date for the commencement of limitation. it accepts the Full bench view of this Court that for the purpose of real termination tenancy so as to convert the lawful possession of the tenant into an unauthorized possession the material date is the date of the passing of the order by the Mamlatdar. There is, therefore, no doubt that the character of the tenant's possession does not change simply because the landlord gave notice terminating the tenancy form a particular date in spite of the fact that notice may otherwise be legal and valid. For drawing support for the proposition that the period covered between termination of tenancy by notice and the passing of the Mamlatdar's order the possession of the tenant is lawful, Malwankar J. in his judgment in the case of : AIR1973Bom252 has also relied upon the observations of another Full Bench decision of this Court in Vasant Hariba v. Jagannath : (1969)71BOMLR12 . This judgment also does not apply to the specific question that has arisen before us for determination. Before the Full Bench the position was that the landlord obtained an order for possession on the ground of personal cultivation of the agricultural land but did not cultivate the same for the requests period of 12 years. After some years of personal cultivation he said the land. In the meanwhile the original tenant was dead and his son claimed tenancy on the same terms and conditions under which his father held the less. in these circumstances, the Full Bench observed that on the landlord exercising the right to take possession for his personal cultivation the tenancy was not terminated but pro tanto suspended or held in abeyance and, therefore, the B held that on breach of the condition under which the possession was obtain the tenant had the right of restoration in his favour. To a limited extent this judgment does indicate that tenancy could not be deemed to have been terminated but it remain sin suspense during the 12 years of personal cultivation by the landlord. However, we do not think that this judgment directly assists us in solving the question which has arisen before us. No direct support can also be drawn from the judgment of the Supreme Court in Chunibha v. Narayanrao, : 2SCR328 , for the purpose of drawing the same inference that the tenancy of the tenant or lawful possession of the tenant continues beyond the Tiller's Day when proceedings for possession by the landlord are pending. In this case, the Supreme Court was called upon to consider the effect of a pending applicant of the landlord either under Section 29 read with Section 31 or under Section 29 read with Section 14 of the tenancy Act. Their Lordships observed that in either case the tenant would become purchaser 'on the postponed date', that is to say with the application would be finally rejected, but if the application succeeded the tenant would not become a purchaser. It is, therefore, argued that when the application of the landlord under wither of these sections comes to be rejected the transfer of title takes place In favour of the 'tenant'. In either of these cases the tenancy was required to be terminated by the landlord by notice nut that notice has not the effect of terminating the tenancy because it was only the tenant who can become the owner under the Tenancy Act either on the Tiller's Day or on the postponed date. In view of the above discussion there can hardly be any doubt that a mere notice has not the effect of terminating the tenancy and the character of the tenant's possession an not be deemed to have been changed.
6. We may also point out the two judgments delivered by the Leonard Chief Justice sitting singly in second Appeal No. 468 of 1965 (Bom.) and Second Appeal No. 1243 of 1965 (Bom.). Only one of them was cited before the learned single Jugs made the present reference. In second Appeal No. 1243 of 1965, the learned Chief Justice quoted a passage form the Supreme Court judgment in Venkatesh Narhar v. H.K. Mulla, : 2SCR215 , and observed that the date of termination of tenancy gets postponed until the order by the Mamlatdar is passed under Section 29 92). he also relied on the same report in the judgment in Second Appeal No. 468 of 1965, which was delivered on April 24, 1973, while the other was decided on April 25, 1973. In Second Appeal No 468 of 1965, the learned Chief Justice observed that the Maharashtra Revenue Tribunal passed an order of eviction on January 17, 1962 and the possession of the tenant became unlawful thereafter for the first time. In the other Appeal the Mamlatdar himself had passed the order in favour of the landlord on august 12, 1960, and the learned Chief Justice observed that that would be the starting point form which mesne profits can be calculated. Both seem to create an impression that in one judgment the learned Chief Justice is in agreement with Patel J. while in the other appeal he is in agreement with Malwankar J. it is obvious that the matter does not seem to have been addressed from the point of view form which it has now been addressed to us.
7. What we are required to consider is the effect of Section 29 92) of the Tenancy Act in the proceedings under Section 31 of the Tenancy Act. The undisputed facts of the present case show that the Mamlatdar dismissed the application on August 30, 1958, but the Deputy Collector granted it on January 1, 1960 and that order is confirmed by the Maharashtra Revenue Tribunal on October 7, 1960, and High Court on April 5, 1961. Until the High Court finally disposed of this litigation it was a pending matter before various Tribunals and Courts. When can, therefore, the tenancy of the present respondent-tenant be deemed to have come to an end? Whether on August 30, 1958 as held by Patel J. in (1966) 68 Bom LR 874, or on October 7, 1960 as specifically observed by Malwankar J. in : AIR1973Bom252 or on April 5, 1961 by the logical extension of Malwankar J.'s judgment, though he has specifically kept the question open regarding the orders passed by the High Court in Write matters? There is not the lest doubt that the landlord cannot obtain possession unless he obtains an order form the Mamlatdar under sub-section 92) of Section 29. The language of sub-section (2) of Section 29 is very clear and unambiguous. it is only the order of the Mamlatdar that enables the landlord to obtain possession. However, this order of the Mamlatdar is subjected to appellate and revisions jurisdiction. The order of the Mamlatdar under Section 29 can be appealed against to be Collector under Section 74 (1) of the Tenancy Act and against the order of the Collector under Section 74 revision application is provided to the Maharashtra Revenue Tribunal under Section 76 of the Tenancy Act. Though the Tenancy Act does not so provide the orders passed under this Act are open to be corrected by the High Court in its powers of superintendent under Articles 226 and 227 of the Constitution. In respect of the powers of appellate and Revisions Tribunals the Legislature has made the following provisions in Section 78:
'78 (1) The Collector in appeal and the Maharashtra Revenue Tribunal in appeal under Section 75 and in revision under Section 76 may confirm, modify or rescind the order in appeal or revision or its execution or may pass such other order as may seem legal and just in accordance with provisions of this Act'/
'(2) The orders of the Collector in appeal or of the Maharashtra Revenue Tribunal in appeal or revision shall be executed in the manner provided for the execution of the orders of the Mamlatdar and Tribunal under Section 73'.
The Collector in appeal and the Maharashtra Revenue Tribunal either in appeal or in revision as the case may be have all the powers to confirm, modify or rescind the order under appeal or revision or its execution and they are further entitled to pass such other orders as may seem legal and just according to the provisions of this Act. When the Mamlatdar for instance rejects the applicant of a landlord for possession and the Collector or the Revenue Tribunal sets aside that order and directs the possession being delivered either of the whole property or a part of the property such an order of the higher Tribunal does not fall under the earlier three expressions 'confirm'. 'modify' or 'rescind' the earlier orders. To some extent it can be said that the order is rescinded when positive order for delivery of possession is passed. It is only in the last clause of sub-section 91) of Section 78 that the Tribunals are authorized to pass such other order as may seem legal and just in accordance with the provisions of the Tenancy Act. When, therefore, the Mamlatdar rejects the applicant under Section 31 read with Section 29 and the higher Tribunals make order for delivery of possession, they do so because they consider such an order legal and just in accordance with the provisions of the Act. viz, Section 31 read with Section 29 and no other.
8. Now the question arises as to how the order of the Mamlatdar and the orders passed by the higher Tribunals are to be executed. So far as the Mamlatdar's orders are concerned a provision is contained in sub-section 92) of Section 73. When it deals with the question of possession, the manner of execution is the one provided by Section 21 of the Mamlatdar's Courts Act, 1906, as if it was the decision of the Mamlatdar under the said Act. There is, however, a proviso to which we will refer to a little later. The orders of the higher Tribunals are also executable in the same manner as provided by this sub-section as is clear form the provisions of sub-section (2) of Section 78. even the orders of the higher Tribunals are executable under the provision of Section 21 of the Mamlatdars Courts Act. 1906.
9. Now, what is the nature of these orders so far as execution is concerned? They undoubtedly give the status of being the orders of the Mamlatdar under the provisions of Mamlatdar Court Act. Sub-section (2) of Section 29 requires substantive order of the Mamlatdar is favor of the landlord for obtaining possession. No other provisions have been brought to our notice which deal with the passing of the order in favor of the landlord. if the above provisions are the total provisions, it would be logical and reasonable to hold that the orders passed in appeal or revision are being reacted by the Legislature as orders of the Mamlatdar as required by sub-section 92) of Section 29 of the Act. When the landlord succeeds ultimately irrespective of the fact which particular Tribunal gave him the final order in his favour it must be deemed to be the Mamlatdar order falling under sub-section (2) of Section 29, which enables him to obtain possession under the Tenancy Act.
10. Incidentally, the settled law which we have discussed above also shows that on the passing of the Mamlatdar's order in favour of the landlord the tenancy of the tenant comes to an end and the character of his possession changes format the point of item. he has no authority of any law nor any estate in possession in his favour after an order for possessions passed under the Act in favour of the landlord. Tenancy Act is a social legislation and a departure form normal law of the land. Volition of the landlord to bring about termination of tenancy is taken away even though the landlord has valid ground in his favour for termination of the tenancy. it is the Mamlatdar's order after proper inquiry under the Act that brings about the termination of tenancy. This is in a way special protection given to the tenant again the landlord, who may take advantage of the ignorance of the tenant. The only question is whether on principle and in the absence of any clear proviso in the Tenancy Act. this protection should be extended beyond a reasonable limit. if there are good grounds to be noticed under the provision of the Act itself it could be possible to extend to the length to which these proviso carry the protection. the protection, however, is only till the Mamlatdar's order is passed. We assume that the Legislature had some basis in its mind while affording certain protection to the tenant. in order to make our point of view clear we will take two instances to demonstrate it. Taking the view which Mr. Justice Malwankar has taken would lead to a very incongruous and undesirable position. Assume that there is a landlord who has filed two separate applicants against two different tenants based on identical facts. The Mamlatdar who heard the two application passed identical orders of possession in favour of the landlord. One of the tenants being poor and being straightforward person accepts the legality of the order and does not proceed ahead as he has no wherewithal to spend in the litigation to take up the matter to the appellate and revision Tribunals. Let us assume that the other tenant is a rich person and is also not straight forward like the other one. He files an appeal before the Deputy Collector as also a revision application before the Revenue Tribunal. We may also assume that a dismissal order is passed by the Tribunal and then he makes an attempt before the High Court and files a write petition but ultimately fails. all these proceedings adopted by him may easily consume about 2 or 3 years at least as our usual experience shows. Now, in these two identical cases on facts can it be said that the law is different in these two cases regarding starting point for calculation of mesne profits? Where the tenant is either able to or is inclined to take resort to remedies to higher Tribunal, can the law be made to depend upon his volition? If the tenant avails of further remedies open to him the termination of tenancy gets postponed and if he does not proceed further the point of calculating the meson profits is brought earleir. We see no logic in creating such artificial situation. it is expected that the question of termination will be properly considered by the Mamlatdar and he would pass appropriate order. it is, however, quite possible that his order may not be always correct and it is necessary to provide a machinery for correction by providing appellate and revision tribunals. However, the only orders that is contemplated is one by the Mamlatdar and the orders passed by the higher courts and tribunals would be deemed, in our view, to be the orders of the Mamlatdar required to be passed under sub-section (2) of Section 29, Tenancy Act. if there is an order passed by any other higher Tribunal it must be deemed to be an order passed by the Mamlatdar. On this construction of the provisions of the Tenancy Act we do not understand why the date of the original order of the Mamlatdar should not be deemed to be the effective the irrespective of its nature.
11. The learned Single Judge while making reference has pointed out that in other litigation ordinarily the decision though given alter on relates back to the date of the institution of the suit. that principle is also not available in the cases arising out of the Tenancy Act. As we have already pointed out earlier the law in that behalf is now settled. neither the date of demand notice, nor the date of the applicant of the landlord would be the relevant date; it is only the date of the passing of the order of the Mamlatdar that is made relevant for the provisions of this Act. Since these are statutory provisions and this is only the protection that the Tenancy Act gives to the tenant, we are of the view that when the final order in favour of the landlord is passed awarding him possession that order must be deemed to be the Mamlatdar's order irrespective of the fact which Court of Tribunal passed it, and treat it as the order passed by the Mamlatdar. To postpone the effective date to the date of orders of the higher Tribunals is to put premium on dishonesty of litigants or their capacity to undertake litigation. A tenant having no case in his favour but having wherewithal to fight litigation's might unscrupulously prolong the litigation by filing appeal and revision applications under the Tenancy act. during these 2 or 3 years which he may so gain he is entitled to remain on the land by paying rent, which is normally much higher than rent of agricultural land.
12. So. far as the broad proposition of postponing the date form the date mentioned in the notice is concerned, there seems to be authority and good logical reason for taking it ahead to the date of the passing of the Mamlatdar's order. Even under Section 15 of the Tenancy Act, where surrender by the tenant is permitted the tenancy does not come to an end on the date of the filling of the applicant for surrender. Not only that the surrender is required to be in writing, but it must be verified before the Mamlatdar in the prescribed manner. The termination tenancy either on grounds which the landlord might allege or the termination which is voluntarily brought about by the tenant by surrender must be supported by examination by the Mamlatdar of the bona fides thereof and an appropriate order in that behalf. Once, however, such an order is made it must be deemed to have been made under Section 15 of the Tenancy Act and there seems to be no justification for further postponing the date of termination of tenancy and cessation of legal rights of the tenant. The date of the order of the Mamlatdar under Section 29 92) would be in our view terminus a quo fro converting the nature of the tenant's possession in that behalf. we are in agreement with the vie expressed by Mr. Justice patel in Balkishna's case, (1966) 68 Bom LR 874, which is as follows:
'No doubt, the difficulty would arise if the Mamlatdar refuses possession in which case the landlord has to file and appeal. But then since the terminus a quo is the Mamlatdar's order, the Collector in appeal does nothing but that what the Mamlatdar ought to have done and, in my view, therefore, when, an order of Mamlatdar refusing to deliver possession either on appeal or revision or a further application to the High Court is made, it must relate back to the date of the Mamlatdar's order refusing to deliver possession, and that being so, in effect, therefore, the order must be deemed to have been made when the Mamlatdar made his earliest order'.
This view will obviate all difficulties and would be clearly logical. In view of the absence of any other provision in the Tenancy Act except those contained in Section 29 (2) and Section 78, we are unable to accept the reasoning of Malwankar J. in : AIR1973Bom252 . the learned Judge has observed that it is the date of the final order which determines the termination of tenancy and not the date of the first order. In a given case where neither party goes ahead the order of the Mamlatdar may well represent the final order. However, according to him when further proceedings are undertaken under the Act, it is the date of the final order that should determine the termination of tenancy. We have already pointed out that such view leaves it entirely for the tenant to decide whether he will be able to postpone the date of termination of the tenancy, in spite of the fact that he may have no merits at all in his favour. We do not think that proviso to section 73, sub-section (2) can be pressed in favour of holding that the Legislature itself wanted to postpone the date until the expiry of the period of appeal, Sub-section (2) of Section 73 of Tenancy Act provides how the Mamlatdar's or the Tribunal's orders are to be executed. Having provided the machinery and the method of execution a proviso is added to that sub-section which says that such orders shall not be executed till the expiry of the period of appeal or as the case may be of application for revision as provided in section 79. What is canvassed before us is that the order of the Mamlatdar is not per se executable but the party has to wait until the final order is passed or till the expiry of the period of appeal. In the same manner for the execution of the appellate order the party in whose favour the order is passed must wait until the period for revision application as provided by Section 79 is over what is argued is that the provisions of the Act themselves contemplate filing of the appeal and the revision. When appeal or revision is so filed the appellate of the revision authorities would ordinarily be passing and order staying the execution of the order of the Mamlatdar. Since it is assumed that normally a tenant may not be able to take up further remedies at once a protection has already been statutory granted by granting time for execution. From this alone it does not mean that each tenant or a lessor as the case may be is expected to of ahead or must go ahead for taking advantage of the remedied provided. From this enabling provision alone we do not think that it should be assumed that the date of the termination of tenancy itself gets postponed in spite of the order of Mamlatdar in favour of the landlord. When we are taking this view that might appear to be a view contrary to the one taken by the Division Bench of this Court, in First Appeal No. 458 of 1952 decided on 18-10-1962 (Bom). Malwankar J, in his judgment has referred to the order passed by the Division Bench of this Court consisting of Patel and Palekar JJ. That was an order passed by the Division Bench while summarily rejecting the first appeal. We took out the original judgment from the file and we find that there is no reference to the facts at all. We also do not find what precisely were the points raised by the appellant and what were the dates of the orders passed by various authorities. The other side's point of view had not been heard at all and it appears to be a short order passed upon certain assumptions. It does not appear to be an order passed after exhaustive arguments and after taking into account pros and cons of the question of law involved. A judgment of this type which can be described as pericardium would not constitute a precedent and would not bind subsequent Division benches. In our view there is no effective judgment of the Division bench or of a court having parallel jurisdiction and the judgments which have created conflict are the judgment delivered by the learned Single Judges of this court. For the reasons already stated above were think that the judgment in Balkisan's case (1966) 68 Bom LR 874 lays down the correct law and we are in agreement with it, It would, therefore, follow that in the present case, from the date of the first order passed by the Mamlatdar, i.e. August 30, 1958, the tenancy of the defendant-respondent stood terminated as and from that date, and the character of his possession has changed from the next day, i.e. from 31-8-1958, and the respondent had no legal authority of any kind to remain in possession thereafter and his possession can be described as wrongful. The learned counsel for the respondent pointedly referred to the definition of mesne profits contained in clause (12) of Section 2 of the code of Civil Procedure, 1908, 'Manse Profits' of property means those profits which the person in wrongful possession of such property actually received or might with diligence receive therefrom, together with interest on such profits etc. The essential character of the possession must be wrongful before mesne profits can be ordered against a party. In the view that we have taken, the character of possession of the respondent-defendant became wrongful and he became liable to pay mesne profits to the plaintiff-appellant from that date. In that view of the matter the claim for mesne profits for the years 1959-60, 1960-61 and 1961-62, which is the subject-matter of the suit, is awardable to the plaintiff-appellant and it is in time in its entirety as the suit is filed on 21st March 1963. It appears that the claim of the plaintiff at Rs. 300 per year is reasonable looking to the acreage and the assessment of the land. The plaintiff will be entitled to recover a sum of Rs. 900 from the defendant together with interest at 6 per cent, per annum form the date of the institution of the suit till realization. He will also get his consist in all the courts from the defendant.
13. In the result the appeal is allowed with costs throughout.
14. Appeal allowed.