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Shamji Deoji Vs. Namdeo Bapuji Dhande - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 21 of 1964
Judge
Reported in(1965)67BOMLR931; 1965MhLJ653
AppellantShamji Deoji
RespondentNamdeo Bapuji Dhande
DispositionPetition dismissed
Excerpt:
bombay tenancy and agricultural lands (vidarbha region, and kutch area) act (bom xcix of 1958), sections 52, 10-berar regulation of agricultural leases act (xxiv of 1951), section 9-berar agricultural leases rules, 1952. rule 9-landlord terminating tenancy under section 9(1) of act xxiv of 1951 and obtaining possession of land-landlord selling land two years after obtaining possession-application by tenant under section 52 of bom. act xcix of 1958-whether tenant entitled to claim restoration of possession from transferee-applicability of section 52.;the word 'landlord' in section 52 of the bombay tenancy and agricultural lands (vidarbha region and kutch area) act, 1958, is restricted to those landlords who had terminated the tenancy under section 9 of the berar regulation of agricultural.....abhyankar, j.1. the petitioners shamji and kisan purchased s.n. 110, having an area of 23 acres and 20 gunthas situate at village bechkheda, from respondent no. 2 udhao on foot of a registered sale deed dated february 23, 1957. they were in possession of this property when respondent no. 1 namdeo filed an application purporting to be made under section 32 of the new tenancy act on may 15, 1959. that application is at page 23 of the paper book. in that application namdeo alleged that he was cultivating the field in dispute as a protected lessee for the year 1951-52 to 1954-55. the field was let out to him by udhao, respondent no. 2, in his capacity as manager of the joint hindu family of which his sons vasant, shyam and jayant, respondents nos. 3 to 5, were also members. actual lease was.....
Judgment:

Abhyankar, J.

1. The petitioners Shamji and Kisan purchased S.N. 110, having an area of 23 acres and 20 gunthas situate at village Bechkheda, from respondent No. 2 Udhao on foot of a registered sale deed dated February 23, 1957. They were in possession of this property when respondent No. 1 Namdeo filed an application purporting to be made under Section 32 of the new Tenancy Act on May 15, 1959. That application is at page 23 of the Paper Book. In that application Namdeo alleged that he was cultivating the field in dispute as a protected lessee for the year 1951-52 to 1954-55. The field was let out to him by Udhao, respondent No. 2, in his capacity as manager of the joint Hindu family of which his sons Vasant, Shyam and Jayant, respondents Nos. 3 to 5, were also members. Actual lease was given by Vasant who was the eldest son because Udhao was then in service in December 1954, which is obviously a mistake; actual date being November 24, 1954. Vasant sent a notice under Section 9 of the Berar Regulation of Agricultural Leases Act terminating the tenancy of Namdeo on the ground that he needed the land for personal cultivation. In consequence of this notice, possession was given. As a matter of fact, Vasant started proceedings for possession by an application dated April 2, 1955, before the Sub-Divisional Officer and during the pendency of this application, on June 13, 1955, a petition jointly signed by Vasant on behalf of all the landholders, and Namdeo, the tenant, came to be filed stating that the parties had settled the dispute amicably. The land-holders gave up the right to lease money for the agricultural year 1954-55 and the non-applicant had given up the right of cultivation and had placed the field in possession of the landholders. There is no date mentioned in this application when the landholders were placed in possession of the property.

2. The land-holders cultivated the land at home for the years 1955-56 and 1956-57 and sold it, as already stated, to the two petitioners under a sale-deed dated February 23, 1957. There is an averment in the written statement filed by the petitioners in para. 7 that their vendor, viz. previous landholder, cultivated the land in question personally for two years after it was taken from Namdeo and then it was sold to the petitioners in 1957. On the other hand, the averment of Namdeo in para. 4 of his application tinder Section 52 was to the effect that the land-holder sold the said field to opponent No, 5, i.e. petitioner No. 1, in the year 1956, which he alleged was within two years from dispossession of Namdeo. There is no dispute that this averment, besides being vague as to the date of delivery of possession, was also wrong with regard to the date of sale. Neither counsel has been able to show from record whether there is any statement or evidence showing the date on which possession was delivered by Namdeo to the previous landlord.

3. In para. 8, Namdeo also averred that after termination of the tenancy of Namdeo, the original land-holder re-entered upon the land and cultivated it personally for sometime but before the expiry of two years from the date of re-entry, sold it and put the transferee, i.e. the petitioner, in possession of the land. Originally, only petitioner No. 1 was impleaded as non-applicant to this application, but subsequently, petitioner No. 2, who was a co-purchaser seems to have been allowed to be impleaded. Namdeo thus founded his claim to restoration of possession on the basis of the provisions of Section 52 of the Tenancy Act on the allegation that his land-holder had obtained possession after termination of his tenancy for personal cultivation, that he had not cultivated for the requisite period of two years, that he had sold the land to the petitioners and, therefore, he was entitled to restoration of possession.

4. Out of the original land-holders, non-applicants Nos. 1 and 2 Udhao and Vasant, resisted the application on the ground that possession was taken as a result of the compromise between the parties after termination of the tenancy and by a notice under Section 9(2) of the Berar Regulation of Agricultural Leases Act and that they had cultivated the field for two years 1955-56 and 1956-57. In para. 5 they averred that it was not. necessary for the then land-holders to obtain any refusal from the ex-tenant prior to the sale to the petitioners because there was no such law in existence when the sale of the field was effected, that the sale was legal and valid and its validity could not be challenged in the present proceedings. They reiterated that respondents Nos. 1 and 2 had used the land for the purposes stated in the notice for the requisite period from the date possession was given. They raised an alternative contention that the tenancy was terminated not by notice under Section 9 of the Berar Regulation of Agricultural Leases Act but as a result of the compromise between the parties after which they cultivated the land for two years before the sale in 1957 to the petitioners.

5. The petitioners who came on land after termination of the proceedings and compromise denied the allegations regarding the notice proceeding before the revenue officer probably because they were not parties to it, but they reiterated that they purchased the land after the previous land-holder had cultivated it personally for two years and it was not necessary to offer tenancy to Namdeo because there was no such provision in any law requiring the landholder to do so when sale was effected. As an alternative contention, they pointed out that on proper construction of Section 52 of the new Tenancy Act, if reference to the land-holder included successor-in-interest of the previous landholder then the land was in personal cultivation of the 'land-holder', namely the petitioner, and it could not be said that the land-holder had ceased to cultivate it personally.

6. The Naib-Tahsildar held that Namdeo delivered possession of the field to Vasant for personal cultivation on termination of the tenancy and as a result of the compromise. In para. 8 of his order, the Naib-Tahsildar has discussed the question whether the previous landlord sold the land within two years of obtaining of possession. The discussion is much too brief and the Naib-Tahsildar observed that Udhao admitted that he sold the field on February 23, 1957, which is also the date of the sale-deed and from this statement of Udhao he inferred that the field was sold within two years from dispossession of the applicant Namdeo. I have already pointed out that there is no material or averment on record to indicate on what date actual possession was obtained by Udhao and Vasant. The recital in the compromise petition to which reference has been made only states that the non-applicant, i.e. Namdeo, had given up his rights of cultivation over the field and had placed the said field in possession of the applicant, i.e. the landlord, but makes no mention as to when possession was actually delivered. This date was required to be established specifically by Namdeo if be wanted to make out a case of non-compliance with the provisions of Section 9(6) of the Berar Regulation of Agricultural Leases Act. Under Rule 9 of the Rules framed under that Act, the period for the purpose of Sub-section (6) of Section 9 was put to be two years from the date of re-entry by the land-holder. If it was the contention of Namdeo that the sale was effected within the period of less than two years from the date of reentry of the landlord, it was incumbent on Namdeo to establish this date of re-entry. The learned Counsel for respondent Namdeo has not been able to show from the record any material or evidence to indicate what this date of re-entry is. On the other hand, the petitioners as well as the ex-landlords have claimed that the ex-landlords cultivated the field for two years. In the absence of any such evidence as to the date of re-entry, the Naib-Tahsildar could not have found that the sale was effected within the period of two years from the date of re-entry. The Naib-Tahsildar then goes on to observe in para. 9 of his order that the landlord did not obtain from Namdeo any refusal in writing to accept the tenancy on the same terms and conditions nor offered him a writing to give possession of the field to him. But these observations seem to have been made without bearing in mind that at the date on which the sale was effected the new Tenancy Act was not even conceived. The sale is of February 25, 1957, and there was no law in force which required a landlord, who had obtained possession on terminating the tenancy on the ground of personal cultivation, and who had cultivated the land for two years, to offer it to the tenant before selling1 it to someone else. The right of sale which is inherent in every owner of a property, unless there is any breach of law, was untrammelled by any such legislation on the date of sale in favour of the petitioners. The Naib-Tahsildar, however, ordered restoration of possession to Namdeo under Section 52(7) of the new Tenancy Act.

7. The petitioners challenged this order by an appeal before the Sub-Divisional Officer. The Sub-Divisional Officer has observed in para. 4 of his order that the possession of the field was delivered by Namdeo on June 13, 1955, according1 to the compromise petition, a certified copy of which was on the record. This statement is obviously incorrect because the compromise petition does not state that possession was delivered on the date of the petition. In fact, it recites the fact of delivery of possession having been already given. The Sub-Divisional Officer held that the notice under Section 9 of the Berar Regulation of Agricultural Leases Act could only be given by a recorded occupant. As Vasant was not a recorded occupant, he could.not give notice under Section 9. He also observed that possession was given to Vasant and the field having been sold on February 23, 1957, Namdeo could have applied for restoration if the landlord had failed to cultivate the land personally for two years. But Namdeo did not so apply within the prescribed time under the Berar Regulation of Agricultural Leases Act; instead he moved the Naib-Tahsildar under Section 52 of the new Tenancy Act by an application on May 16, 1959, and such application was held tenable. The Sub-Divisional Officer held that the application was not tenable at the instance of Namdeo because Vasant was not competent to serve a notice terminating1 the tenancy on Namdeo. Therefore, the notice had to be completely ignored. As there was no valid notice terminating the tenancy, the possession could not be said to have been obtained by the landlord as a result of the termination of tenancy under Section 9 of the Berar 'Regulation of Agricultural Leases Act and, as this condition was not satisfied, Namdeo could not invoke the provisions of Section 52 of the new Tenancy Act for being restored to possession. He, therefore, allowed the appeal and dismissed the application of Namdeo.

8. Namdeo moved the Maharashtra Revenue Tribunal in revision against the order of the Sub-Divisional Officer rejecting his application. The Tribunal has allowed the revision application and granted relief to the ex-tenant Namdeo and it is this order which is impugned in this petition.

9. In para. 2 of its order, the Tribunal has observed that as a result of the alleged surrender the non-applicant tenure-holder Udhao took possession of the suit land on the same day i.e. June 13, 1955. This observation is obviously incorrect, firstly because, the field was not obtained as a result of surrender but on account of the termination of the tenancy after notice under Section 9(7) of the Berar Regulation of Agricultural Leases Act was given and also because there is no proof that possession was obtained by the previous landholder on June 13, 1955. All the revenue authorities seem to have fallen into the same error as to the date when re-entry was effected by the landholder after termination of the lease. After adverting to the conflicting decisions of the subordinate revenue authorities the Tribunal has referred to the pointy in controversy between the parties in para. 4 of its order. The Tribunal held that the notice given by Vasant was on behalf of the joint family, that it was acted upon and the tenancy was terminated as a result of that notice. It also held that the tenancy was terminated because the land-holder desired the land for personal cultivation. An argument seems to have been advanced before the Tribunal that as a result of compromise Namdeo surrendered his rights in favour of the land-holder and possession was taken privately and not in pursuance of the notice under Section 9(7) of the Berar Regulation of Agricultural Leases Act for termination of the tenancy. With regard to this submission the Tribunal observed as follows:

The antecedents of the case are so glaring that it cannot but be observed that non-applicant tenure-holder Udhavrao wanted the suit land for personal cultivation and the proceedings before the Court were cut short under the device of surrender. So it makes no difference whether he got the possession due to surrender or under an order of the Court. The fact remains that the suit land was needed for his personal cultivation. But for the notice and the possession proceedings, the so-called surrender would not have seen the light of the. day. In other words, the so-called surrender was a part and parcel of the proceedings under Section 19 read with Section 9 of the Berar Leases Act.

10. It is difficult to reconcile this finding with the issues which have been raised for decision in para. 4 or with the averments of the parties before the Court. The Berar Regulation of Agricultural Leases Act did make a provision in st. 6 for surrender of a holding by a protected lessee. It was nobody's case that Namdeo had surrendered the leasehold rights under Section 6; on the other hand, it was specifically averred by Namdeo that notice under Section 9 was given terminating the tenancy. Thereafter, an application for possession was filed by the land-holder and during the pendency of enquiry on the basis of such application the parties arrived at a settlement. It is, therefore, difficult to see how possession could be said to have been obtained by the landlord as a result of surrender if that expression is to have any legal consequence in the light of the provision of the Tenancy Act. What seems to have taken place is that after possession proceedings were commenced by the landlord after terminating the tenancy under Section 9(7), the parties settled the dispute and possession was surrendered. Surrender of possession cannot be equated to surrender of tenancy. What was surrendered was possession and not surrender of tenancy rights which were already terminated by issue of a valid notice by the landlord under Section 9(7) of the Berar Regulation of Agricultural Leases Act. Obviously, some confusion has been caused as a result of the argument addressed before the Tribunal when no case of surrender of tenancy was pleaded or proved by either party up to that stage. The operative finding however which has been given by the Tribunal on point No. 3 that possession of the suit land was taken by the tenure-holder Udhao on the ground of personal cultivation must be affirmed on the material on record.

11. The Tribunal then proceeded to consider whether the tenure-holder was guilty of contravention of Section 9(6) of the Berar Regulation of Agricultural Leases Act. The Tribunal observed that applicant Namdeo parted with possession on June 13, 1955. I have already pointed out that there was no legal basis for this finding because nobody has averred to that effect nor is there any evidence as to the actual date of re-entry of the land-holder. Obviously, all the authorities seem to have been misled into thinking that possession was delivered by Namdeo on the date on which the compromise petition was presented because the compromise petition bears that date. But the compromise petition itself recites that possession had been delivered without disclosing the date of delivery of possession. It was for Namdeo to establish that there had been contravention of Section 9(5) of the Berar Regulation of Agricultural Leases Act and the rules made thereunder. Namdeo failed to lead evidence proving the date of re-entry of the landlord and this failure must result in a finding on that count being against him. On the assumption that possession was delivered or parted with by Namdeo on June 13, 1955, the Tribunal held that the field was transferred by sale before completion of two years from the date of delivery of possession. If that basic fact has not been proved by Namdeo, the finding that the sale was in contravention of the provisions of Section 9(6) cannot be sustained as Namdeo has failed to prove the date of re-entry.

12. The Tribunal then quoted the provisions of Section 52 of the new Tenancy Act and observed that the contesting opponents, viz. ex-landlords or petitioners, did not contend that Namdeo had refused in writing to accept the tenancy on the same terms and conditions, and therefore, the Tribunal refused to consider that point. Thus, the Tribunal restored the order of the Naib-Tahsildar on the short ground that Namdeo whose tenancy was terminated under Section 9(1) delivered possession on June 13, 1955, and the landlord who had obtained possession had parted with the property within two years thereof and, therefore, Namdeo was entitled to be restored to possession of the property under the first part of Section 52 of the new Tenancy Act.

13. The learned Member of the Tribunal then proceeded to consider whether, any other provision of the new Tenancy Act was attracted by the facts as disclosed in the case. It is not clear whether either party invited the Tribunal to travel beyond the pleadings and give a finding on an issue which was not raised till then. The Tribunal then referred to Section 10 of the new Tenancy Act and observed that Namdeo who was a protected lessee having lost his remedy under Section 19(2) of the Berar Regulation of Agricultural Leases Act for restoration of possession of the land of which he was dispossessed except in accordance with the provisions of the Leases Act, was not without a remedy. It was held that he was entitled to file an application for restoration under Section 10 of the new Tenancy Act on the footing that he had surrendered his tenancy otherwise than in accordance with the provision of the Berar Leases Act. It is admitted by counsel appearing for respondent Namdeo that it was not his case before the Naib-Tahsildar or the Sub-Divisional Officer nor any facts were pleaded to show that Namdeo had surrendered his tenancy or possession otherwise than in accordance with the provisions of law, or that he was dispossessed as a result of such illegal surrender and, therefore, was entitled to restoration of possession under Section 10 of the new Tenancy Act. It is difficult to see how the Tribunal could have considered this question for the first time sitting as a Court of revision without any pleadings to that effect, any evidence or any finding being recorded by any of the subordinate authorities. The Tribunal has clearly acted in excess of its jurisdiction as a revisional Court in entertaining the plea for the first time before it, the plea which does not raise a pure question of law at all and which depended on various facts being proved as required by Section 10 of the new Tenancy Act. The learned Counsel for the appellant has not attempted to support the order of the Tribunal on the basis of this finding of the Tribunal applying the provisions of Section 10 of the new Tenancy Act. It is, therefore, enough to say that the Tribunal could not have for the first time allowed the, application of Namdeo on the basis that Namdeo was dispossessed and that he could claim restoration of possession under Section 10 of the new Tenancy Act.

14. The question that falls for consideration therefore is whether on the material on record Namdeo was entitled, to claim restoration of possession invoking the provisions of Section 52 of the new Tenancy Act. That section is as follows:

52. (1) Where after terminating the tenancy of any land under Section 9 of the Berar Regulation of Agricultural Leases Act, 1951, or under Section 38, 39 or 39A of this Act, the landlord has taken possession of such land and he fails to use the land for the purpose specified in the notice given under the said Section 9 or as the case may be, Section 38, 39 or 39A within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession, the landlord shall forthwith, restore possession of the land to the tenant whose tenancy was terminated by him, unless he has obtained from the tenant his refusal in writing to accept the tenancy on the same terms and conditions or has offered in writing to give possession of the land to the tenant on the same terms and conditions and the tenant has failed to accept the offer within three months of the receipt thereof:Provided that no refusal of the tenant shall be valid unless it has been verified before the Tahsildar in the prescribed manner.

15. I have already shown that there is no warrant for the conclusion of any of the authorities below in the absence of evidence or plea to that effect, that the previous landlord had effected an entry on land after termination of the tenancy under Section 9(7) of the Berar Leases Act within two years of February 23, 1957. In fact, Namdeo has failed to establish the date of re-entry. On the other hand, it has been averred by the ex-landlord as well as the petitioners that after termination of the tenancy by notice the landlord was in possession of the property for two years and cultivated it for the years 1955-56 and 1956-57. It is however contended that after the coming into force of the new Tenancy Act, which puts Section 52 on the statute book, it was necessary for the landlord not to cease to make the same use of the land for a period of 12 years from the date of re-entry on the land. In other words, if a landlord like Udhao had obtained possession after terminating the lease under Section 9(1) of the Berar Leases Act, parted with possession after two years by sale or other valid mode of transfer then permissible, the moment Section 52(1) came into force the ex-tenant could claim restoration of possession from whosoever is found on land if the land was not to be found in personal cultivation of the ex-landlord. It is difficult to accept this interpretation of Section 52 of the new Tenancy Act. It has not been shown that there was any legal impediment under the provision of any statute or any other principle which in any manner curtailed the right of Udhao as owner of the property to dispose it of by sale or by other legal mode of transfer. The petitioners purchased the property in 1957 and there was no legal impediment to their acquiring property from Udhao merely because the property was previously under the tenancy of Namdeo but whose tenancy rights were terminated by a valid notice under Section 9(1) of the Berar Regulation of Agricultural Leases Act. It cannot, therefore, be said that the petitioners came on the land or acquired the rights in the property otherwise than by legal method. On the date the new Tenancy Act came into force, the property was owned by the petitioners and was in their personal cultivation. Only argument that was open to the contesting respondents in this case was to put an interpretation on Section 52 and in particular on the word 'landlord' as meaning successors-in-title of original landlord. In other words, what is contended is that the word 'landlord' in Section 52(1) means not only the landlord who had terminated his tenancy of the land under Section 9 and taken possession of the land from his tenant but also his successors-in-title and because the ex-landlord or the land-holder who had terminated the tenancy was not personally cultivating the land either on the date the Act came into force or had made himself incapable of cultivating the land personally for a period of 12 years from the date he effected re-entry, ex-tenant like Namdeo had been granted the right to be restored to possession by evicting whosoever was introduced on land even though by a valid transfer effected prior to the coming into force of the new Tenancy Act. There are several difficulties in accepting this interpretation.

16. The section, in the first place, begins by referring to termination of the tenancy of any land under Section 9 of the Berar Regulation of Agricultural Leases Act. Such termination could be made by the landlord by issuing a notice under Section 9. Then the section speaks of the failure to use the land for the purpose specified in the notice. One of purposes which could be specified in the notice under Section 9 is the purpose of personal cultivation. So the failure to use the land for the purpose specified in the notice means failure personally to cultivate the land. But this failure must be within one year which words could only be appropriately read in conjunction with other contingency viz. notice of termination under Section 38 or 39 of the new Tenancy Act. So the failure referred to in the first part of the section must be failure to cultivate personally according to the notice under Section 9(7) and according to the provisions of Section 9(6) of the Berar Regulation of Agricultural Leases Act. Further requirement of the section is not only that there must be user of the land according to the notice for which the tenancy has been terminated but such user must not cease for 12 years next following the date on which possession was taken. This requirement could be satisfied only by that category of landlords who had obtained possession and would be continuing on land as landlord. The section creates a right in the ex-tenant of such land to claim restoration at any point of time within a period of 12 years from the date he was dispossessed. The section also creates an obligation on such landlord that the moment such landlord ceases to cultivate the land personally, forthwith to restore possession of the land to the tenant from whom he obtained possession and whose tenancy he terminated. Now, this requirement is possible only by a landlord who is in possession and who is in a position physically to restore possession to the tenant whose tenancy such landlord had terminated under Section 9 of the Berar Regulation of Agricultural Leases Act. It is difficult to see how the landlord who had already transferred ownership of the property for a consideration in favour of another person could at all forthwith transfer possession of property when he had no dominion or control over such possession or property. There is a further requirement in the section which permits a landlord to retain possession if he has obtained from the tenant refusal in writing to accept the tenancy on the same terms and conditions. Even this condition is impossible of fulfilment because the person who can give the tenancy rights is now the transferee of land who has come on land prior to the coming into force of the Act and not the ex-landlord. All these difficulties are created because the interpretation that is sought to be put on Section 52 postulates that the Legislature anyhow wanted the ex-tenant to be restored to land the moment the ex-landlord transferred the land and was not in personal cultivation. I do not think that such effect is intended by the provisions of Section 52 of the new Tenancy Act.

17. In this connection it is worth while to compare the provision made by the Legislature in a somewhat similar contingency. Under Section 10 of the new Tenancy Act provision is made for restoration of possession to tenants who are dispossessed after January 1, 1953, in certain circumstances. That provision lays down that a person either himself or whose predecessor-in-title held land as tenant or protected lessee on the first day of January 1953 and thereafter and who has subsequently been dispossessed by a surrender of tenancy before the date of the commencement of this Act may apply within a period of one year from the date of the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960, to the Tahsildar for the restoration of his tenancy on the ground that dispossession took place as a result of surrender procured by fraud, deceit, false representation or undue influence or pressure of any kind or was otherwise in contravention of the provisions of the law applicable. Sub-section (3) of Section 10 specifically provides that relief shall be given to such ex-tenant notwithstanding that another person may be in possession of the land as a protected lessee or a tenant or otherwise, and where such other person is so in possession he shall be liable to be evicted. Thus, where the Legislature intended to create an overriding right in favour of the ex-tenant who could successfully challenge his dispossession because it was not in accordance with law, that right could be enforced not only against the ex-landlord but against any one who was introduced on land by the landlord either as tenant or as successor-in-title, in other words, a transferee. A comparison of these two provisions will, therefore, clearly show that Section 52 could not be interpreted to affect the rights of persons like the petitioners who had already acquired ownership of property long before the new Tenancy Act came into force. The word 'landlord' in Section 52, therefore, must be construed as restricted to those landlords who had terminated the tenancy under Section 9 and who were in possession of land on the date of the coming into force of the new Tenancy Act and on the date, on which the cause of action for the ex-tenant to claim restoration of possession accrued. The requirement that such landlord shall forthwith restore tenant to possession postulates the landlord's physical possession of the property as well as any legal dominion over it. If by legal process of transfer, the landlord's title becomes vested in some other person it is not possible to hold that such person will be liable to restore possession and the ex-tenant to enforcement of h. 52 of the new Tenancy Act.

18. There are other indications in the section which must also lead to the same conclusion. Under Sub-section (3) of Section 52, the landlord who fails to restore possession of the land to the tenant as provided in Sub-section (1), is made liable to pay such compensation to the tenant as may be determined by the Tahsildar. Similarly, under Sub-section (4) of Section 52, if the tenant makes an application to the Tahsildar and satisfies him that the landlord has failed to comply within a reasonable time with the provisions of Sub-section (1), the tenant will be entitled on a direction by the Tahsildar not only to obtain immediate possession of the land but also to obtain compensation as may be awarded by the Tahsildar for any loss caused to the tenant by eviction. Now, it is worth while to consider here whether the ex-landlord who had the right to transfer property before the coming into force of the new Tenancy Act and had sold property could be made liable for payment of such compensation when it is not within his power to restore possession of the property to the ex-tenant. If the ex-landlord is not in possession, he could not have means or power to restore possession of the property under Section 52 of the new Tenancy Act to the ex-tenant. In such circumstances it is still less possible for such tenant to claim any compensation from the ex-landlord. It has not been suggested that the successor-in-title of such landlord like petitioners in this case could at all be made liable for any compensation under Sub-section (5) or (4) of Section 52 of the new Tenancy Act. On consideration of the whole scheme of Section 52, the context in which the word 'landlord' is used as pertaining to person who gives notice, the liability to restore possession forthwith and liability to pay compensation for failure to restore possession would all go to show that the section postulates a ease of the landlord who undoubtedly entered into possession after terminating the tenancy under Section 9 of the Berar Regulation of Agricultural Leases Act but also continued to hold the ownership of the property as a tenure-holder after the new Tenancy Act came into force and was in a position to comply with the provisions thereto. It cannot possibly apply to a person who lawfully came on land prior to the coming into force of the Act. It will be difficult to suggest that the transfer effected which was lawful prior to the coming into force of the new Tenancy Act would become onerous and impose duties on transferees by this legislation being put on the statute book and after a valid transfer in the manner effected in this ease.

19. Thus, the result is that the petition is allowed and the orders of the Naib-Tahsildar as well as the Tribunal are set aside. Namdeo is not entitled to restoration of possession. His petition is liable to be dismissed. In the circumstances, however, there will be no order as to costs.


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