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Devu Rau Chavan Vs. Jasingrao Narayanrao Ghorpade - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 471 of 1961
Judge
Reported in(1962)64BOMLR97
AppellantDevu Rau Chavan
RespondentJasingrao Narayanrao Ghorpade
DispositionApplication dismissed
Excerpt:
.....sections 88(c), 14 - applicability of section 88(c)--whether section 88(c) will apply where receiver is appointed in suit between two tenants to which landlord not a party--'failed,' meaning of word in section 14.;section 88(c) of the bombay tenancy and agricultural lands act, 1948, will apply only to a suit to which both the landlords and the tenants are parties and in which the receiver assumes management of the interests of both the landlords and the tenants in the land. the section will not apply when a receiver is appointed in a suit between two landlords, to which the tenant is not a party or in a suit between two tenants, to which the landlord is not a party.;the word 'failed' in section 14 of the bombay tenancy and agricultural lands act, 1948, means that there must be..........lands. according to petitioner no. 1, he had taken opponent no. 2 as a partner for cultivating the lands. opponent no. 2's case, on the other hand, was that half of the lands had been sub-let to him by petitioner no. 1 and that he was in exclusive vahivat of half of these lands. since 1950-51 opponent no. 2 was shown along with petitioner no. 1 as a tenant in the record of rights. on account of the disputes between petitioner no. 1 and opponent no. 2 proceedings were instituted under section 145 of the code of criminal procedure. on february 4, 1957, the sub-divisional magistrate passed an order for attachment of the lands. on february 10, 1957, the police patil of the village was appointed a receiver. the sub-divisional magistrate then held an inquiry and came to the conclusion that the.....
Judgment:

H.K. Chainani, C.J.

1. The dispute in this application is about survey Nos. 193 and 194. These lands belong to opponent No. 1. When he was a minor, his estate was under the management of the Court of Wards. In 1948 the Court of Wards leased the lands for a period of ten years to petitioner No. 1. Opponent No. 2 stood as a surety for petitioner No. 1. In 1949 opponent No. 1 attained majority. Subsequently petitioner No. 1 took the assistance of opponent No. 2 in cultivating the lands. There arose a dispute between petitioner No. 1 and opponent No. 2 as to whether they were in joint possession of the entire lands. According to petitioner No. 1, he had taken opponent No. 2 as a partner for cultivating the lands. Opponent No. 2's case, on the other hand, was that half of the lands had been sub-let to him by petitioner No. 1 and that he was in exclusive vahivat of half of these lands. Since 1950-51 opponent No. 2 was shown along with petitioner No. 1 as a tenant in the record of rights. On account of the disputes between petitioner No. 1 and opponent No. 2 proceedings were instituted under Section 145 of the Code of Criminal Procedure. On February 4, 1957, the Sub-Divisional Magistrate passed an order for attachment of the lands. On February 10, 1957, the police patil of the village was appointed a receiver. The Sub-Divisional Magistrate then held an inquiry and came to the conclusion that the lands were being jointly cultivated by petitioner No. 1 and opponent No. 2. On April 80, 1957, he passed an order, by which he awarded joint possession of the lands to petitioner No. 1 and opponent No. 2. On May 20, 1957, opponent No. 2 filed a suit (No. 62 of 1957) for a declaration that he was entitled to the exclusive possession of half of the lands and for an injunction restraining petitioner No. 1 from interfering with his possession thereof. In that suit also the civil Court appointed the police patil as receiver. The previous appointment made by the Sub-Divisional Magistrate was, therefore, continued. On September 7, 1957, the receiver held an auction for the purpose of leasing the lands. Petitioner No. 1 and opponent No. 2 were present at the time of this auction. The lands were, however, leased to some other person. Another auction was held by the receiver on May 11, 1958, for the year 1958-59. The third auction was held by the receiver on May 16, 1959. On August 22, 1959, the suit filed by opponent No. 2 was dismissed. Opponent No. 2 then filed an appeal (No. 413 of 1959). This appeal was also dismissed. On April 15, 1958, opponent No. 1 gave notices to both the petitioners and opponent No. 2 terminating the tenancy on the ground that they had failed to cultivate the lands personally. I may here mention that petitioner No. 2 is the brother of petitioner No. 1. Subsequently, opponent No. 1 made an application for obtaining possession of the lands under Section 29 read with Section 14 of the Bombay Tenancy and Agricultural Lands Act. Under Section 14 the tenancy may be terminated, if the tenant has failed to cultivate the land personally. The Mamlatdar made an order for possession of the lands being given to opponent No. 1. This order was set aside in appeal by the Deputy Collector on the ground that the Tenancy Act did not apply to lands tinder management of receivers appointed by Courts. The order made by the Deputy Collector was set aside in revision by the Revenue Tribunal, which restored the order made by the Mamlatdar. Thereafter the present Special Civil Application has been filed. The principal point, which has been argued before us, is whether the application made by opponent No. 1 was maintainable, in view of the provisions of of (c) of Section 88 of the Tenancy Act. The relevant portion of Section 88, as it stood at the material time, was in the following terms:

88. Nothing in the foregoing provisions of this Act shall apply-(c) ...to the lands taken, under management temporarily by the Civil, Revenue or Criminal Courts by themselves or through the receivers appointed by them till the decision of the title of the rightful holders.

Under this section the provisions of as. 1 to 87 of the Tenancy Act do not apply to lands, of which receivers have been appointed by Courts, until the title of the rightful holders of these lands has been adjudicated upon. Mr. Abhyankar has contended that as the lands leased by opponent No. 1 had been taken charge of by the receiver appointed by the Court in the civil suit filed by opponent No. 2, the provisions of Sections 1 to 87 did not apply to these lands and that, consequently, opponent No. 1 could not make an application under Section 29 of the Act for possession of the lands. The civil suit, which was filed by opponent No. 2 and in which the receiver was appointed by the civil Court, was, however, between petitioner No. 1 and opponent No. 2, both of whom claimed to be the tenants of the lands. The landlord, i.e., opponent No. 1 was not a party to the civil suit. The question which, therefore, arises for consideration is whether Section 88(c) will apply in such a case. When a land is leased, the leasehold interest is transferred to the lessee. The only interest left with the lessor is the reversion or the right to get back possession of the land on the termination of the lease. If there is a dispute between two owners of a land, which has been leased to a tenant, or, between two persons, each of whom claims title to the land, and a receiver is appointed pending the decision of the suit, the receiver takes charge of only the landlord's interest in tile land. The property involved in the suit in such a case is only the right of reversion, which remains with the landlord after the land had been leased. The receiver can, therefore, assume management of the land subject to the rights of the tenant. The tenant's rights will not in any way be affected by the appointment of the receiver and he will not lose possession of the land merely because the receiver has assumed its management. Similarly, if there is a dispute between two tenants and the landlord is not a party to the suit between them and a receiver is appointed, the receiver will assume management of only the leasehold interest in the land, in regard to which there is a dispute between the parties to the suit. The rights of the landlord, who is not a party to the suit, cannot be prejudicially affected by the appointment of the receiver. This is the position under the ordinary law, and it seems to us that that is also the position under the Tenancy Act. We do not think that the Legislature intended to alter this position, when it enacted Section 88(c). This section applies when a receiver assumes management of a land, i.e., of the entire interest in the land. In other words, Section 88(c) will apply only in those cases, in which the entire interest is represented before the Court and the receiver is able to assume management of the rights and interests of all persons in the land. Where the receiver assumes management of only the leasehold interest or of the remaining interest left with the landlord, this section will not apply. In any other view serious consequences will arise. For instance, if we were to hold that this section applies if a receiver is appointed in a suit between two landlords, to which the tenant is not a party, the position would be that the tenant, for no fault of his own, would lose all the benefits conferred upon him by the Tenancy Act. His tenancy could then be terminated under the ordinary law and he may even be evicted from the land. Similarly, the landlords would be in a position to sell the land contrary to the provisions of Sections 63 and 64 of the Act. 'We do not think that this result could have been contemplated by the Legislature. This could be avoided by interpreting the section in the manner I have indicated, that is to say, that this section will apply only to a suit to which both the landlords and the tenants are parties and in which the receiver assumes management of the interests of both the landlords and the tenants in the land. It will, however, not apply when a receiver is appointed in a suit between two landlords, to which the tenant is not a party or in a suit between two tenants, to which the landlord is not a party.

2. In the present case opponent No. 2 had filed the suit against petitioner No. 1. The landlord opponent No. 1 was not a party to the suit. The appointment of the receiver in the suit could not prejudicially affect the rights of opponent No. 1. Section 88 (c) did not, therefore, apply in this case. Consequently, we are unable to accept the argument of Mr. Abhyankar that the application made by opponent No. 1 for possession of the lands was not maintainable.

3. Under Section 14 the tenancy may be terminated, if the tenant has failed to cultivate the land personally. Mr. Abhyankar has contended that in this case the tenants cannot be said to have failed to cultivate the lands personally, because a receiver had been appointed by the Court. The word 'failed' would indicate that there must be failure, i.e., omission on the part of the tenant to do something, which it was possible for him to do. If a tenant is unable to cultivate the land for reasons beyond his control, it would be difficult to hold that he has failed in personally cultivating the land. It is true that after the Court had appointed the receiver, the petitioners and opponent No. 2 could not have cultivated the lands without the permission of the Court. As I have stated above, the receiver used to hold auctions for the purpose of leasing the lands. Notices about these auctions were given to petitioner No. 1 and opponent No. 2. At the time of the first auction both of them were present. There is nothing to show that either petitioner No. 1 or opponent No. 2 could not have offered bids at these auctions and could not have themselves taken the lands for cultivation from the receiver. The facts that notices of the auctions had been given to them and that at least at the time of the first auction both of them were present would suggest that they could have offered bids at these auctions. They could, therefore, have taken the lands from the receiver and thereby continued to cultivate the lands. As they did not do so, it cannot be said that they were unable to cultivate the lands, merely because the Court had made orders for the appointment of a receiver. Consequently, we cannot say that the view taken by the Mamlatdar and the Revenue Tribunal that the petitioners and opponent No. 2 had failed to cultivate the lands personally is incorrect.

4. The application must, therefore, fail. The rule is discharged. No order as to costs.


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