H.K. Chainani, C.J.
1. The petitioner's father was a tenant of two lands belonging to opponents Nos. 1 and 2 (hereinafter referred to as the opponents). As there were defaults in the payment of rent for the years 1951-52, 1952-53 and 1953-54, the opponents gave a notice terminating- the tenancy on December 27, 1954. This notice was served on the petitioner's father on December 29, 1954. It appears that there were further defaults in the payment of rent for the years 1954-55 and 1955-56. On March 23, 1957, the opponents made an application under Section 29 of the Tenancy Act for obtaining possession of the lands. The petitioner's father died during the pendency of the proceedings and the petitioner was brought on record as his heir. The Additional Tenancy Awal Karkun who heard the application came to the conclusion that there had been defaults for more than three yeans. He, therefore, directed that possession of the lands should be restored to the opponents. This order has been confirmed in appeal by the Prant Officer and in revision by the Revenue Tribunal.
2. Mr. Gole, who appears on behalf of the petitioner, has contended that the application made by the opponents for possession of the lands was time-barred. He has relied on the Full Bench decision of this Court in Chimnabai Rama v. Ganpat Jagannath. : AIR1959Bom425 F.B. This decision has been considered by the Revenue Tribunal. The Tribunal was, however, of the opinion that the matter must be decided in the light of the decision of another Full Bench of this Court in Ganpati Appa v. Maruti Bala : AIR1962Bom75 F.B., in which it was held that the right to obtain possession of a land accrues to the landlord on the expiry of the period of notice terminating the tenancy given by him. Under Section 14 of the Tenancy Act a landlord has to give three months notice informing the tenant of his decision to terminate the tenancy, before the tenancy can be terminated on the ground that the tenant has failed to pay the rent due from him. The period of notice expired on March 29, 1955. The application for possession was made by the opponents on March 23, 1957, i.e, within two years from the date on which the notice terminating the tenancy expired. The Tribunal, therefore, held that the application was in time.
3. Sub-section (2) of Section 29 of the Tenancy Act provides that for obtaining an order for possession from the Mamlatdar the landlord shall make an application in the prescribed form within two years from the date on which the right to obtain possession of the land is deemed to have accrued to him. As pointed out in Chimnabai Rama v. Ganpat Jagannath, the section fixes as the starting point of limitation not the date on which the right to obtain possession has actually accrued to the landlord, but the date on which this right must be deemed to have accrued to him. At page 978 it has been observed:. The one fact that immediately strikes the reader of this section is that the Legislature has advisedly not made the time, when the actual right to take possession accrues to the landlord, the starting point of limitation... the Legislature has inserted a legal fiction and the legal fiction is that you have not to consider for the purpose of limitation when the right to obtain possession actually accrued to- the landlord, but what you have to consider is when the right to obtain possession accrued to him fictionally by reason of the fiction introduced by the Legislature. Therefore, it is clear that under Section 29(2) limitation does not begin to run from the time when the right to obtain possession actually accrues to the landlord... It begins to run from a point of time when in fact he has no right to obtain possession, but the Legislature for the purpose of limitation considers that he has a right to obtain possession.
Later on, on the same page, it has been observed:.Therefore we must look to something antecedent to the actual moment of time when the right to possession accrues to the landlord and that antecedent point of time is the creation of the sub-tenancy. What the Legislature says is that when the tenant creates a sub-tenancy, although the right to obtain possession has not accrued to the landlord, for the purpose of limitation look upon the creation of the sub-tenancy as the starting point of limitation.
It was, therefore, held in this case that having regard to the language used in Section 29(2) limitation runs not from the date on which the right to obtain possession has actually accrued to the landlord but from the date on which it can be deemed to have accrued to him, i.e, when the sub-tenancy was, created. On the same reasoning- the right to obtain possession on account of the tenant's failure to pay rent within the prescribed time must be deemed to have accrued to the landlord on the date when there was a default in the payment of rent and limitation will run from this date.
4. Mr. Jahagirdar has urged that the authority of this decision is considerably shaken by Ganpcxti Appa v. Maruti Bala. In that case the Court was not considering the question of limitation under Section 29(2). The Court in that case had to determine the scope of Sub-section (2) of Section 25, as amended in 1956, and whether this section applied to cases in which tenancies had been terminated before August 1, 1956, when the sub-section, as amended, came into force. For the purpose of deciding this question the Court had to consider when the right to obtain possession accrues to a landlord. It was held that it is on the expiration of the period of notice that the tenancy is terminated and the landlord gets a right to obtain possession of the land. Even in the earlier decision of the Full Bench in Chimnabai Rama v. Ganpat Jagannath it was held that the right to obtain possession does not accrue when the sub-letting takes place but only after the landlord has given, a notice indicating his intention to terminate the tenancy. This is clear from the following observations (p. 978) :-.When, does the right to obtain possession actually accrue to the landlord? In view of what we have already said that sub-letting by itself does not bring about a termination and that the tenancy is only liable to be terminated, it is clear that when a tenant sub-lets there is no right in the landlord to obtain possession. Some further act is necessary on his part before, the right to obtain possession can arise and that further act is either the giving of a notice or the taking of some unequivocal act indicating his intention to terminate the tenancy.
In our opinion, there is no conflict between Chimnahai llama v. Ganpat Jagannath and Ganpati Appa v. Maruti Bala, nor is the authority of the earlier decision shaken by the later decision. In the first case the question which has been decided is when the right to obtain possession can be said to have accrued to the landlord within the meaning1 of Section 29(2). In the latter case, the question decided is as to when the right to obtain, possession actually accrues to the landlord.
5. Mr. Jahagirdar has also referred to the observation of the Supreme Court in Baja Bain v. Aba Maruti : (1962)64BOMLR569 which is as follows (p. 578) :-
The statute having provided for the termination of the tenancy would by necessary implication create a right in the landlord to recover possession... Indeed, Section 29(2) itself mentions this right expressly for it says that the application shall be made within two years from the date on which 'the right to obtain possession of the land' accrued to the landlord.
Mr. Jahagirdar has relied on the words 'accrued to the landlord' in this observation and has urged that the Supreme Court has interpreted the words 'deemed to have accrued' in Section 29(2) as equivalent to 'accrued'. 'We do not think that Mr. Jahagirdar is right on this point. The Supreme Court was not considering the question of limitation under Section 29(2). The question before the Supreme Court was whether a tenant is entitled to relief when he has committed more than three defaults in the payment of rent. The Supreme Court has pointed out that as there was a statutory right in the landlord to obtain possession, it could not be made subject to an equitable relief. Consequently no inference such as has been suggested by Mr. Jahagirdar can be drawn from the above observation of the Supreme Court.
6. Having regard to the decision in Chimnabai Mama v. Ganpat Jahagannath, we must, therefore, hold that the period of limitation must be counted from the date on which there were defaults in the payment of rent. The last default which took place before the opponents, gave a notice terminating the tenancy was for the year 1958-54. Under Section 14 of the Act, as it stood at the material time, the last date for the payment of rent was April 20, 1954. This was, therefore, the date on which the right to obtain possession must be deemed to have accrued to the opponents. The application for possession was made more than two years later, on March 23, 1957. It was, therefore, beyond the period of limitation and was consequently not maintainable.
7. Mr. Jahaagirdar has urged that defaults for subsequent years, 1954-55 and 1955-56, should also be taken into consideration. These could, at the most, be considered for the purpose of deciding whether the case falls under Sub-section (1) of Section 25 or Sub-section (2) of that section. They have no bearing on the question as to whether the application for possession made by the opponents was in time.
8. We, therefore, allow the application, set aside the orders made by the Additional Tenancy Awal Karkun, the Prant Officer and the Revenue Tribunal and direct that the application for possession of the lands made by the opponents should be dismissed. No order as to costs.