1. This is a writ petition by one Kisan who is the defendant in a pending suit and who claims to be a tenant of survey No. 129/1 of mouza Akot. On his pleading in the civil suit, an issue of his tenancy was raised and referred to the revenue Courts as required by Section 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. All the three Revenue Courts, namely, the Tenancy Naib Tahsildar, the Special Deputy Collector and the Maharashtra Revenue Tribunal, have answered the issue against the tenant. They all held that he is not a tenant. Being aggrieved by this finding, he has filed this petition,
2. The facts giving rise to this litigation are not in dispute. One Punjaji, the grandfather of the present respondent Yashodabai, was admittedly the owner of survey No. 129/1. After his death, his son, Vithu, leased out that land for a period of 15 years by registered document dated February 21, 1935, to one Govinda. It appears that Vithu died and his daughter Yashodabai and her mother Rukhabai effected a sale of the disputed land to one Mankabai who is the daughter of Rukhabai As a result, of this sale deed in favour of Mankabai, the owner of the adjoining sub-division, one Rungaji, filed a preemption suit. Pre-emption was allowed to him on payment of a certain amount.
3. It may be noted that this was a pre-emption suit of 1940 and before that the tenant Govinda had assigned his entire term to Kisan, the husband of Mankabai. That was by a registered document in 1937. Kisan, the present petitioner, who is also the husband of Mankabai, became entitled to enjoy the fruits of the property as a tenant-assignee, till the end of the agricultural year 1949-50. He was a party to the suit. He pleaded his tenancy. Hence a decree was passed in favour of the plaintiff in this suit, subject to the rights of Kisan as. a tenant and subject to the payment of a certain amount. The operative part of that judgment which is made available to me shows that after the expiry of the right of defendant No. 4 in that suit, namely, Kisan, and on payment of Rs. 1,800 minus costs of that suit, even possession was ordered within two months after the end of the Fasli year 1359 corresponding to June 7, 1950. After the agricultural year 1949-50, even possession against Kisan was directed by that decree. However, the plaintiff in that suit never pre-empted and never paid the amount.
4. In this state of the record, Yashodabai, the present respondent, filed Civil Suit No. 12-A of 1954 for partition of the family properties. In that suit, she also included survey No. 129/1 as available for division in spite of the fact that she had sold it earlier to Mankabai. Kisan, somehow, was not made a party to this sut. Since all the parties to the suit were close relations, the suit came to be compromised and the decree in terms of the compromise was passed. The result of that compromise was that Yashodabai, the respondent, was awarded 7/25ths eastern share in survey No. 129/1, The western 18/25ths share went to defendants Nos. 3 to 6 in that suit.
5. That would be the second stage of the litigation. The third phase has now started in 1961, by the institution of a suit by Yashodabai for partition and separate possession of her 7/25ths eastern share in survey No. 129/1, To such a suit, Kisan being in physical possession, has been added as a party. Kisan raises a dispute that he is a tenant and as such, the property could not be partitioned. lie has pleaded other consequences of being a tenant, but at the moment, it is enough to note that an issue about his tenancy has been framed and referred to the Revenue Courts as stated earlier.
6. The unanimous view taken by all the Revenue Courts is that Kisan was an assignee of the leasehold rights from Govinda. Govinda's lease expired at the end of the agricultural year 194'-50. Kisan being merely an assignee of the term, his rights as assignee came to an end by the end of the agricultural year 1949-50. There was nothing to indicate on the record of the case to hold that a fresh contract of tenancy or a renewal of tenancy in his favour was ever made. Since be was merely an assignee of a term, he became virtually a trespasser after the agricultural year 1949-50. At any rate, he had no legal title to stay on the land after the agricultural year 1949-50. In that view, all the Revenue Courts held that Kisan is not a tenant. Neither a direct contract of tenancy has been proved, nor is it shown by any legal provisions that he could be deemed to be a tenant.
7. The case of the petitioner has been argued before me by the learned counsel Mr. S. N. Kherdekar from two different points of view. He says that there is considerable evidence to hold that assent was given to the continuance of Kisan after the expiry of the period of lease. He was actually treated as a tenant and as such under the provisions of Section 116 of the Transfer of Property Act, he becomes a tenant. If he once becomes a tenant and is held to be a tenant in the agricultural year 1950-51 and the same position is continued in the year 1951-52, the tenancy in the year 1951-52 would make him a protected lessee under the provisions of Section 5 of the Berar. Regulation of Agricultural Leases Act, 1951. That would also make him a tenant or lessee under the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act. In that view, all the Courts below are wrong in holding that the petitioner had no right or title as a tenant.
8. Mr. Kherdekar also makes an alternative argument. He says that in the event of this Court holding that there was no assent or revival of the tenancy as is contemplated by the provisions of Section 116 of the Transfer of Property Act, Kisan would be a tenant holding over. The possession of even such a tenant is lawful and juridical. He relies upon certain judgments of this Court to point out that an erstwhile tenant remaining in possession after the expiry of the term has a right to continue on the property until evicted in due course of law. Such a possession being lawful, in 1958 when the present Tenancy Act came to be applied to this area, Kisan answered the description of being a person in 'lawful cultivation of the land belonging to another as required by Section 6 of that Act. He would, therefore, be a deemed tenant. Looked at from any point of view, he says the conclusion arrived at by the Revenue Courts is erroneous and the reference has been wrongly answered.
9. The first position of fact that must be remembered is that Kisan, the petitioner, is an assignee of the entire rights of Govinda for the remaining period of lease. Kisan is not therefore either a sub-lessee or a lessee. He is merely an assignee of the leasehold rights. Though it is argued before me in all seriousness by the learned counsel for the petitioner that Kisan's continuance of possession is by assent of the landlord which results in renewal of tenancy, there is hardly any proof in that behalf. Section 116 of the Transfer of Property Act contemplates that the possession after the period of lease is over must be shown to be with the assent of the landlord or the lessor or his legal representative ought to have accepted rent for a period subsequent to the period of lease. In either case, there is the renewal of the lease from- year to year or from month to month according to the purpose for which the lease was created. Kisan has not pointed out how he continued with the assent of the lessor. It is not his case that he ever paid rent. Mere continuance at the sufferance of the landlord or due to the laches of the landlord is not the kind of possession that is contemplated by the provisions of Section 116 of the Transfer of Property Act. Kisan argues that Mankabai was the owner after the sale in her favour by Yashodabai and Rukhabai. Mankabai being the wife of Kisan, it may be presumed that the husband was in possession with the assent of the landlord. It may be remembered that the position taken up in the earlier litigation by the pre-emptor was that the sale was benami in the name of Mankabai though the true owner was Kisan himself. That was denied, find the finding was obtained in 1940 from the Court that the purchaser is Mankabai in her own rights. What is needed is either the acceptance of rent after the period of the original lease is over or a consent which is subsequent to the expiry of the period. Unless this is done, there is no question of the effect 'of holding over following under the provisions of Section 116 of the Transfer of Property Act. Mankabai has not been examined nor any other positive evidence is led in that behalf. In the circumstances, I would hold that Kisan merely continued in possession after the end of the period of the original lease. He has not proved that he continued with the assent of the lessor or that he paid any rent for a subsequent period which is accepted by the landlord.
10. An important illustration of this approach is found in the case of Karnani Industrial Bank v. Prov. of Bengal : 2SCR560 . The Supreme Court points out that for the application of Section 116 of the Transfer of Property Act, two things are necessary:--(1) the lessee should be in possession after the termination of the lease; and (2) the lessor or his representative should accept rent or otherwise assent to his continuing in possession. They observed:.The use of the word ' otherwise' suggests that acceptance of rent by the landlord has been treated as a form of his giving assent to the tenant's continuance of possession. There can be no question of the lessee ' continuing in possession ' until the lease has expired, and the context in which the provision for acceptance of rent finds a place clearly shows that what is contemplated is that the payment of rent and its acceptance should be made at such a time and in such a manner as to be equivalent to the landlord assenting to the lessee continuing in possession. Where the landlord had accepted rent for a period subsequent to the determination of the lease by efflux of time nearly a year before the expiry of the lease, the consent of the landlord to the tenant's continuing in possession cannot be inferred.
This shows that continuance with consent for which the payment of rent or the assent must be shown to exist after the original period is over and thereafter it is given. The payment of advance rent as we may call it for a period to cover some period beyond the original lease but before the expiry of the original lease is not a payment for the continuance of the possession. What must therefore be proved is that the assent which is the basis of the right of renewal under Section 116 of the Transfer of Property Act must exist after the original term is over. There is no such evidence in this case, and on this short ground, it could be held that the petitioner is not entitled to take advantage of the provisions of Section 116 of the Transfer of Property Act.
11. There is yet another difficulty in the way of the petitioner. The right of renewal under the provisions of Section 116 of the Transfer of Property Act is available either to the lessee or under lessee of the property. It does not seem to be available to an assignee from a lessee. A distinction has been made between an under lessee and an assignee. In the case of an assignee of the term, a privity of estate is created between the lessor and the assignee. Such an estate is not created in the case of an underlessee. The right of renewal under the statute is available only to a lessee or an under lessee and not to an assignee. Even on that ground, I think the present petitioner cannot invoke the aid of the provisions of Section 116 of the Transfer of Property Act.
12. Mr. Kherdekar argued in the alternative that even if direct help of Section 116 of the Transfer of Property Act is not available to the petitioner, he is entitled to rely upon his possession which is lawful for the purpose of claiming the rights of a deemed tenant under the provisions of Section 6 of the present Tenancy Act. I would first examine the requirements of Section 6 before the argument of Mr. Kherdekar is examined in detail. Section 6 of the Bombay Tenancy and Agricultural Lands Act, 1956, defines persons who are to be deemed as tenants. The main requirement is that a person lawfully cultivating any land belonging to another is to be deemed to be a tenant of such land if such land is not cultivated personally by the owner. There are certain exceptions to this rule. A person in lawful cultivation of another person's land is not held to be a tenant if he answers the description given in Clauses (a) to (c) of Sub-section (1) of Section 6. In other words, if the person cultivating is a member of the owner's family or is a servant on wages payable in cash or kind but not in crop share or is a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family or is a mortgagee in possession, in such eases he does not become a tenant, even though he may be a person in lawful cultivation of the land belonging to another. If none of those exceptions apply, then a person in lawful cultivation is held to be a tenant of that land. Sub-section (2) of Section 6 which is also relevant for this litigation lays down that for the purposes of that Act, a person shall be recognised as a protected lessee if such a person was immediately before the commencement of that Act deemed to be a protected lessee under Section 3 of the Berar Regulation of Agricultural Leases Act, 1951. If a person answered that description, then he is included in the definition of 'tenant' contained in Clause (32) of Section 2 of the same Act. By looking to the provisions of this section, Mr. Kherdekar argued that the petitioner Kisan would become a tenant either as a person in lawful cultivation or as a person who is deemed a protected lessee under the Berar Regulation of Agricultural Leases Act, 1951.
13. The only controversial part of this definition is the expression 'lawfully cultivating'. What is meant by 'lawfully cultivating the land of another'? Does it mean that it is to be equated with just a possession which is not unlawful, or does the expression require some positive content To my mind, the choice of the word 'lawfully' by the Legislature is very significant. It implies that the possession has rightful origin and that the right can successfully be defended in law against the person who is the rightful owner. It will, therefore, be a moot point to consider whether an erstwhile tenant, who has merely continued on the land either because of mere laches of the landlord or because of some conflict going on in the family of the landlord could be considered a person in lawful cultivation. The possession of the petitioner in this case is that of an assignee of term from the original lessee. He never had a direct contract of tenancy with the landlord at all. What should happen to a person of this type must, therefore, be decided in the light of the provisions of Section 6 of the present Tenancy Act.
14. Mr. Kherdekar for the petitioner relies upon two judgments of the Supreme Court in order to suggest the approach under facts of this type. The first case relied upon is Dahya Lala v. Rasul Mahomed : 3SCR1 . That was a case under the Bombay Tenancy and Agricultural Lands Act, 1948, where the same expression 'lawfully cultivating' fell for interpretation. In that case, the person contesting the claim was a tenant created by the mortgagee in possession. The question was whether after the redemption of the mortgage, the tenant of the mortgagee was also bound to surrender possession to the mortgagor. It was being canvassed that the right of the mortgagee to remain in possession came to an end with the redemption of the mortgage. The mortgagee was obliged to deliver possession back to the mortgagor. The tenant of the mortgagee had merely an estate in his favour created by the mortgagee. When the superior estate came to an end, the inferior estate automatically ceases to exist and possession must be delivered back to the mortgagor both by the mortgagee. as well as the tenant of the mortgagee. This approach was negatived by the Supreme Court on the ground that the letting out of the property was a part of the management of the estate to which the mortgagee was entitled. At the time when the tenancy was created by the mortgagee in possession, he was entitled to create that tenancy. The cultivation of the tenant was, therefore, a lawful cultivation. Such lawful cultivation gave him the right to continue in possession as a tenant under the deeming provisions of the Tenancy Act. The intervening estate may come to an end by the fact of redemption, but that cannot affect the lawful cultivation of the tenant. The Supreme Court approved in terms the Full Bench judgment of this Court in Jaswantrai v. Bai Jiwi : AIR1957Bom105 . In that case, a sub-tenancy was created by the tenant before the application of the Bombay Tenancy Act. Since the creation of sub-tenancy at that time was lawful, the question that fell for consideration was the effect on such sub-tenancy if the tenancy of the original tenant comes to an end. When the tenancy was terminated validly by a notice, the Full Bench pointed out that the intervening protection of the tenancy came to an end and the statute stepped in to protect the possession of the sub-tenant. The sub-tenant, therefore, became a tenant under the deeming provisions of the Tenancy Act. Mr. Kherdekar also referred to a decision of a single Judge of this Court which is unreported but it is not necessary to specifically refer to that judgment, because the principle on which it is decided is the same.
15. The question, therefore, that is posed for consideration is whether the assignee of term could be considered to be a person in lawful cultivation after the expiry of the period. Undoubtedly, the original tenant had a right, to assign and the assignment is valid. The most important fact that must be remembered in this case is that the original term of lease came to an end by the closure of the agricultural year 1949-50. From April 1, 1950, could it be said that the present petitioner was in such a possession that he could defend it in law against the true owner? If he could do that, then he was in lawful cultivation: not otherwise. It is, therefore, necessary in this case to decide the nature of the possession of the petitioner Kisan from and onwards of April 1, 1950, That would give the clue to the understanding of the legal position of Kisan vis-a-vis the disputed land.
16. In the cases cited above, not only the transactions of letting out by the mortgagee or the creation of a sub-lease by the lessee was lawful, but the lawful character subsisted even on the date when the Tenancy Act came into force. What was considered was the possession of the party as on the date of the application of the Tenancy Act. If on that date he could be said to be in lawful cultivation then it was accepted that he becomes a tenant. There was no prohibition previously to sublet and it is accepted that the normal incident of management of property by letting it out is available to the mortgagee in possession. The act of letting out by the mortgagee as well as the act of sub-letting by the lessee were lawful according to the laws of this country. The sub-lessee or the mortgagee's tenants were, therefore, in lawful possession as on the date of the application of the Tenancy Act. It is this factual possession that gave them protection and they were declared as being tenants under the Act.
17. Could this be said of the present petitioner Kisan? To my mind, undoubtedly he does not answer any of these descriptions. Some reference was made to the implication of the terms like 'tenant at sufferance', or 'tenant at will' as they are used in England and America. I was referred to Corpus Juris Secundum, vol. 51, Article 175, dealing with tenancies at sufferance, their nature and incidents. It is observed that a tenant at sufferance has no estate that can be granted by him to a third person, and one who enters on land under a lease or assignment from such tenant is a clisseizor, and is liable in trespass at the option of the landowner. Thus, a person who enters lawfully at first but after the period of demise continues in possession holding wrongfully, has no estate and no title.
18. Mr. Kherdekar pointed out that these concepts of Common Law are inapplicable in this country. It has been held in Emperor v. Haji Gulam Mahomed I. L. R. (1918) 43 Bom. 531 21 Bom. L.R. 261 that the tenant holding over had a position recognised by the law and had a right to retain possession of the premises he occupied even against the landlord himself until dispossessed in due course of law. The facts of that case show that after the period of lease was over, the landlord prevented the tenant from entering upon the demised premises. The erstwhile tenant prosecuted the landlord under Section 341 of the Indian Penal Code and the landlord was convicted. When he approached the High Court by way of a revision application, it was pointed out that the erstwhile tenant had a right to retain possession even against the landlord himself until dispossessed in due course of law. He bad no right to prevent the entry of the tenant upon the property under demise.
19. Mr. Kherdekar also relied upon a recent judgment of this Court in K. K. Verma V. Union of India : AIR1954Bom358 . In that case, Brigadier Verma was a tenant of the Union of India whose tenancy was terminated. After the termination of the tenancy action was sought to be taken under Section 3(1) of the Government Premises (Eviction) Act, 1950, on the ground that the erstwhile tenant answered the description 'unauthorised occupant'. The tenant approached the High Court with the application that the summary eviction on the footing of his being an unauthorised occupant was not permissible. He continued in possession after the termination of the tenancy and he could not be deemed to be a trespasser. A Division Bench of this Court upheld the contention and held that a trespasser's possession is never juridical and is not protected, but the possession of an erstwhile tenant is juridical and is protected by law. He could not become a trespasser by the mere termination of the tenancy. It is pointed out that that may not be the position in England, but in this country a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a decree for ejectment.
20. In my opinion, the principle laid down in these cases does not apply to the type of the case with which I am dealing. In all those cases, the only proposition was that an erstwhile tenant was sought to be. summarily ejected with-out recourse to law. In one case, the landlord tried to obstruct the tenant; in the other, the landlord, the Union of India, took, resort to summary eviction under the provisions of some statute. The basis of those judgments is that an erstwhile tenant is not in unlawful possession. In this country, in view of the laws made, even against an erstwhile tenant a decree has got to lie obtained for possession. This, to my mind, is very much different from saying that the possession of an erstwhile tenant is lawful in the sense that he could defend it on some valid ground against the landlord himself. But for the protective laws like the Tenancy Act and the Rent Control Act, there could be no defence to a tenant in a suit for eviction after the, period is over. The only defence he could take up is that the contract is renewed either by direct contract or by conduct which falls under Section 116 of the Transfer of Property Act. But for these defences, he was bound to surrender possession. To my mind, the provisions of the Tenancy Act require that there should be some positive content in the right to be in possession. This positive content should be of a type by which he could resist the recovery of possession by the landlord himself if a suit were to be instituted against him. Taking resort to Section 116 of the Transfer of Property Act or to plead a new direct contract of tenancy is not to resist possession on the ground of a right which flows merely from the fact of erstwhile tenancy. This is a new fact that occurs and creates a right for the first time in the tenant. Otherwise he had no right to defend the decree of possession in favour of the landlord. In this context it is important to note that the Full Bench of this Court as also the Supreme Court considered the facts where the right created in favour of a sub-tenant or a mortgagee's tenant was a, subsisting lawful right on the date when the Tenancy Act came into force. To my mind, the present petitioner Kisan had no such right in his favour in 1958, when the Bombay Tenancy and Agricultural Lands Act came into force.
21. Let me now consider the possession of the petitioner under any other provisions of law. Resort was first taken to the provisions of the Berar Land Revenue Code, 1928. Chapter VIII deals with landlord and tenant. It begins with Section 71. I do not think that any of the provisions of this Chapter can be of any particular assistance. Section 71 lays down that where there is no satisfactory evidence of the capacity in which a person is in possession of land, in respect of which he pays anything in money, kind or service to the landlord, it shall be presumed that he is in possession as tenant. This is a sort of deeming provision but it applies when there is no satisfactory evidence of the capacity in which the person occupies and cultivates the land. Since in this case there is direct evidence of the manner in which rights were created and dealt with under registered documents, this is not a case where there is no satisfactory evidence, and therefore the deeming provisions of Section 71 cannot be resorted to. The further provisions of Sections 72 and 73 which deal with ante-alienation tenants and tenants of antiquity are obviously not applicable. Section 74 was also brought to my notice which speaks of the period of tenancy in the absence of evidence. When there is no agreement relating to the period, then the tenancy of agricultural land shall be from year to year and each year shall be the agricultural year. I do not think that in the present case, the Berar Land Revenue Code has any relevance whatsoever.
22. Resort was then taken to the provisions of the Berar Regulation of Agricultural Leases Act, 1951. It was argued that the petitioner Kisan was in actual cultivation after the period of the original lease was over and as such his possession in 1951-52 will enure to his benefit. His lease would be extended for very many years according to the amendments effected in this section from time to time. The final amendment makes it a tenancy for seven years. A person who was a lessee in 1951-52 would automatically become a lessee for seven years and as such a protected lessee under the Act. The most important portion of that section is the opening clause which requires a lease of land by a landlord entitling the lessee to hold the land in the agricultural year 1951-52. The very basis of this Act is, therefore, a lease by the landlord which entitles a lessee to hold the land in the agricultural year 1951-52. There is no lease in this case which entitles Kisan to hold land in the year 1951-52. None such lease has been pleaded or proved. I do not think that the petitioner can take advantage of the Berar Regulation of Agricultural Leases Act.
23. The next argument, therefore, is that the petitioner has been continued in possession for quite some time. From 1950 when the original term ended, he is continuously in possession till 1961. Some cases were cited in which continued possession of an erstwhile tenant extending for a period of 10-11 years has been construed as possession with the assent of the landlord under the provisions of Section 116 of the Transfer of Property Act. I do not think that the mere laches or laziness of the landlord to recover possession can lead to the conclusion that there has been a renewal of the lease. I have sufficiently dealt with this aspect earlier. For the same reasons, the ultimate approach under the Transfer of Property Act is also not available to the present petitioner.
24. In this view of the matter, Kisan is just in possession but not in lawful cultivation, so as to successfully resist the attempt of the landlord to obtain possession from him. He could, therefore, not be even a deemed tenant under the provisions of Section 6 of the present Tenancy Act. The issue framed by the Civil Court had been properly answered by the Revenue Courts below. The petition, therefore, fails and is dismissed with costs.