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Nagnathappa Vs. Shrinivas and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 344 and 548 of 1971
Judge
Reported inAIR1976Bom372; 1976MhLJ465
ActsInams and Cash Grants Act, 1954 - Sections 2(1) and 6(1); Hyderabad Tenancy Act, 1950
AppellantNagnathappa
RespondentShrinivas and anr.
Appellant AdvocateH.G. Vaishnav and ;Bhimrao N. Naik, Advs. ;in Spl. C.A. No. 344 of 1971 and S.J. Deshpande, Adv. and ;D.Y. Lovekar, Adv. ;in Spl. C.A. No. 548 of 1971
Respondent AdvocateH.G. Vaishnav, ;Bhimrao N. Naik, Advs. and ;A.H. Vaishnav, Adv.
Excerpt:
a) the case dealt with the meaning of 'tenant' under section 2(!) of the hyderabad abolition of inams and cash grants act, 1954 - the court ruled that the person satisfying ingredients of definition of tenant as given in the hyderabad tenancy act, 1950 was tenant within the meaning of section 2(1) (j) of the act - further, the fact that the tenancy act did not apply to service inam lands was immaterial.;b) the court ruled that the possession envisaged by section 6 (1) (a) of the hyderabad abolition of inams and cash grants act, 1954 was actual possession and not constructive possession. - .....parli were community service inam lands. the inams were abolished on 1st july 1960 under the hyderabad abolition of inams and cash grants act, 1954 (hereinafter called as the 'hyderabad abolition of inams act'). before the abolition of the inam, the inamdar had granted lease for 20 years of survey nos. 41 and 42 to nagnathappa (petitioner in special civil application no. 344 of 1971) in 1944 by a registered lease deed. nagnathappa sub-let a plot admeasuring 300'x500' to srinivas (petitioner in special civil application no. 548 of 1971) on 14th april 1949 by a registered lease deed for 18 years. on the same day, he sub-set another plot admeasuring 200'x300' to one ramgopal for 18 years by a registered deed. this ramgopal, in his turn, sublet this plot to srinivas on 6th june 1965......
Judgment:

Hajarnavis, J.

1. These two petitions are directed against an appellate order passed by the Commissioner, Aurangabad, who partly allowed the appeal filed by the occupant of the suit lands viz. the petitioner in Special Civil Application No. 548 of 1971 against the order passed by the District Deputy Collector, Land Reforms, Bhir.

2. Survey Nos. 41 and 42 of village Parli were community service inam lands. The inams were abolished on 1st July 1960 under the Hyderabad Abolition of Inams and Cash Grants Act, 1954 (hereinafter called as the 'Hyderabad Abolition of Inams Act'). before the abolition of the inam, the Inamdar had granted lease for 20 years of Survey Nos. 41 and 42 to Nagnathappa (Petitioner in Special Civil Application No. 344 of 1971) in 1944 by a registered Lease Deed. Nagnathappa sub-let a plot admeasuring 300'X500' to Srinivas (Petitioner in Special Civil Application No. 548 of 1971) on 14th April 1949 by a registered Lease Deed for 18 years. On the same day, he sub-set another plot admeasuring 200'X300' to one Ramgopal for 18 years by a registered deed. This Ramgopal, in his turn, sublet this plot to Srinivas on 6th June 1965. After the Hyderabad Abolition of Inams Act came into force, a dispute arose between Srinivas and Nagnathappa regarding the grant of occupancy right. The District Deputy Collector by his order dated 17th April 1970 held that Nagnathappa was entitled to be declared as an occupant under S. 6 (1) (a) of the Hyderabad Abolition of Inams Act in respect of Survey Nos. 41 and 42 including the two plots leased out by him.

3. Being aggrieved by this decision, Srinivas filed an appeal before the Commissioner, Aurangabad, who after hearing the parties, held that he was deemed to be a tenant of the Inamdar in respect of the lease that was granted to him by Nagnathappa and as he was in actual possession of that land, he was entitled to the grant of occupancy right in respect of that plot. So far as the second land was concerned, he held that he had obtained the least from Ramgopal on 6th June 1965 and as he was not in possession of the land as sub-tenant on or before the date of amendment of Section 5 of the Hyderabad Tenancy and Agricultural Lands Act (hereinafter called as the 'Hyderabad Tenancy Act'), he could not be deemed to be a tenant under the 1st proviso to Section 5 of the Hyderabad Tenancy Act and, therefore, could not be called as a tenant under Section 2 (1) (j) of the Hyderabad Abolition of Inams Act. He could not be said to be in possession of that land as a tenant of the Inamdar on the relevant date and was not entitled for the grant of occupancy right of the land. He, therefore, partly allowed the appeal and declared him a tenant of land admeasuring 300'X500' from Survey Nos. 41 and 42 of village Parli under Section 6 (1) (a) of the Hyderabad Abolition of Inams Act. He dismissed his claim for grant of occupancy right in respect of the plot of which he had obtained least from Ramgopal. It is against this order that both Nagnathappa and Srinivas filed these two petitions.

4. Mr. Vaishnav, the learned counsel for Nagnathappa, took us through the relevant provisions of the Hyderabad Tenancy Act and also of the Hyderabad Abolition of Inams Act. He also took us through the orders passed by the authorities below. He submitted that the Commissioner has committed an error in holding that Srinivas was a tenant of the Inamdar. He also urged that Nagnathappa was a tenant of the Inamdar and he was in constructive possession of the suit land inasmuch as it is he who had granted sub-least to Srinivas and, therefore, Srinivas's possession could be deemed to be his possession and that it is not necessary for the purposes of Section 6 of the Hyderabad Abolition of Inams Act that the person claiming occupancy right should be in actual possession. Mr. Vaishnav also urged that the Commissioner has committed an error in holding that Srinivas was a tenant of the Inamdar on the basis of the provisions in the Hyderabad Tenancy Act. He submitted that Hyderabad Tenancy Act was not applicable to the facts of this case because the suit lands were service inam lands. Mr. Vaishnav relied on a decision of the Division Bench of this High Court in Thakur Niranjansingh v. Bhagatraj Dagadoba reported in : AIR1967Bom136 in support of his contention. It is not possible to accept the contention of Mr. Vaishnav.

5. We will deal with the last point raised by Mr. Vaishnav that the provisions of the Hyderabad Tenancy Act are not applicable to the facts of this case. Section 102-A of the Hyderabad Tenancy Act reads:

'Nothing in the forgoing provisions of this Act shall apply-

(a) ... ... ...

(b) ... ... ...

(c) to service inam lands.'

There cannot be any dispute that the suit lands are service inam lands. The provisions of Hyderabad Tenancy Act will not, therefore, be attracted to the facts of the present case. In this case Srinivas is claiming tenancy. The word 'tenant' has been defined in clause (j) of sub-section (1) of Section 2 of the Hyderabad Abolition of Inams Act which reads:

''tenant' means a tenant as defined in the Hyderabad Tenancy and Agricultural Lands Act, 1950, and includes a protected tenant but does not include a permanent tenant.'

So that the provisions defining the word 'tenant' under the Hyderabad Tenancy Act are deemed to have been incorporated under this definition of the word 'tenant' under clause (j) of sub-section (1) of Section 2 of the Hyderabad Abolition of Inams Act. The provisions of the sections of the Tenancy Act defining 'tenant' are, therefore, applicable under the Hyderabad Inam Act even if the Hyderabad Tenancy Act is not applicable to service inam lands. The Commissioner has not committed any error in referring to those provisions which defined the word 'tenant' under the Hyderabad Tenancy Act. It is only to those provisions that the Commissioner has made a reference.

6. 'Tenant' has been defined under clause (v) of sub-section (1) of Section 2 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 which reads:

' 'Tenant' means an asami shikmi who holds land on least and includes a person who is deemed to be a tenant under the provisions of this Act.'

Section 5 of the Hyderabad Tenancy Act defines who is a deemed tenant. Section 5 of the Hydrabad Tenancy Act reads:

'A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the land-holder and if such person is not-

(a) ... ... ...

(b) ... ... ...

(c) ... ... ...

Provided further that a sub-tenant cultivating any land belonging to another person on the day on which the Hyderabad Tenancy and Agricultural Lands (Second Amendment) Act, 1951, came into force shall, notwithstanding the fact that the creation of the sub-tenancy might have been prohibited by any law for the time being in force, be deemed to be lawfully cultivating the land as a tenant for the purposes of this section.'

It is not disputed that Nagnathappa was an original tenant of the suit lands and that he had sub-let plot No. 1 to Srinivas in 1949 i.e. before the Hyderabad Tenancy Act came into force. He was a sub-tenant on the suit land before the amendment came into force and that he was lawfully cultivating the land. He was deemed to be a tenant of the land under Section 5 of the Hyderabad Tenancy Act. That being so he was a tenant under clause (v) of sub-section (1) of Section 2 of the Hyderabad Tenancy Act and if he was a tenant under the Hyderabad Tenancy Act, he was also a tenant under clause (j) of sub-section (1) of Section 2 of the Hyderabad Tenancy Act even if the suit lands were service inam lands. He was, therefore, right in holding that Srinivas was a tenant holding from the inamdar for the purposes of Section 6 of the Hyderabad Abolition of Inams Act. There is no dispute that Section 6 of the Hyderabad Abolition of Inams Act is applicable to the facts of this case. Section 6 (1) (a) of the Hyderabad Abolition of Inams Act reads:

'(1) In the case of an occupied land comprised in an inam other than land to which the provisions of Section 5 apply,-

(a) Where such land is in possession of the inamdar, or kabiz-e-kadim or of a permanent tenant or tenant holding from the inamdar, then such inamdar, kabiz-e-kadim, permanent tenant or tenant shall, in respect of the land which is in his possession, be primarily liable to the State Government for the payment of land revenue and shall, subject to the provisions of sub-sections (2), (3) (4) and (5), be entitled to all the rights and be liable to all the obligations as an occupant in respect of such land under the Land Revenue Act, 1317 Fasli and the rules made thereunder.'

The only other point that is urged is what should be the nature of the possession for the grant of the occupancy right.

7. Mr. Vaishnav urged that possession envisaged in clause (a) of sub-section (1) of Section 6 of the Hyderabad Abolition of Inams Act need not be actual possession. It would be enough for the purposes of grant of occupancy right if it is shown that the Inamdar, Kabiz-e-kadim, permanent tenant or tenant was in constructive possession of the inam lands at the relevant time viz. on 1st July 1960. He invited our attention to the definition of 'holding' under the Hyderabad Land Revenue Code. It is not possible to accept this contention. If constructive possession were enough for the purposes of the grant of the occupancy rights under clause (a) of sub-section (1) of Section 6 of the Hyderabad Abolition of Inams Act then both the Inamdar and his tenant could be held to be in possession of the land and would, therefore, be entitled for the grant of occupancy rights. It is obvious that occupancy right could not be granted both to the Inamdar and the tenant. Therefore, what is required under that clause is the actual possession. We are also fortified in our view by the decision of the Supreme Court in the State ported in : AIR1971SC1859 , where the Supreme Court has observed:

'The High Court was right in both the orders. The crucial date for grant of occupancy rights under the 1955 Act is 1st July, 1960 when the entire 1955 Act including in particular the provisions regarding grant of occupancy rights and Clause (d), (g), (h) and (i) of Section 3 (2) of the 1955 Act came into effect. The Government became entitled to the possession of the land. The Government became entitled to grant of occupancy rights. The relationship between landlord and tenant ceased on 1st July, 1960. If any tenant had surrendered possession prior to 1st July, 1960 as happened in Civil Appeal No. 2533 of 1965 and the Inamdar accepted such surrender and remained in possession of the land on the relevant date 1st July, 1960 the Inamdar would be entitled to grant of occupancy rights. On the other hand, if the tenant claimed to be in possession of the land as in Civil Appeal No. 2531 of 1966 on the relevant date 1st July, 1960 and the Inamdar also claimed to be in possession, the Government will have to ascertain as to who was lawfully in possession on the material date 1st July, 1960.'

No other point was urged so far this case is concerned. The Commissioner was, therefore, right in granting the occupancy right of the land to Srinivas in respect of plot No. 1 of which he was a tenant and in possession of the land.

8. So far as the second plot is concerned, viz. the plot in respect of which Srinivas has obtained lease from Ramgopal, he cannot be held to be a deemed tenant under Section 5 of the Hyderabad Tenancy Act because he had obtained sub-lease from Ramgopal in 1965 viz. after the amendment to Section 5 of the Hyderabad Tenancy Act came into force which prohibited sub-tenancy. The sub-tenancy created by Ramgopal in favour of Srinivas was, therefore, illegal and he could not be deemed to be a tenant in possession on the relevant date. The Commissioner was, therefore, right in rejecting Shrinivas's claim in respect of sub-lease which he had obtained from Ramgopal. The order of the Commissioner was, therefore, in accordance with law and we do not see any reason to interfere in that order.

9. In the result, both these petitions are liable to be dismissed and the rules are, therefore, discharged with costs.

10. Petitions dismissed.


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