R.D. Tulpule, J.
1. An interesting question of law arises in this petition which was filed by the landlords of land bearing Survey No. 303/2 of village Saswad, Taluka Purandar, District Puna.
2. The litigation which has reached this Court on the second occasion, has a long history. This land belonging to the landlords it appears, was leased to Hari Malhari Inamke some time prior to the year 1949. Hari Malhari died and was survived by his widow Manjulbai continued to cultivate this land and was cultivating this land. She died, thereafter, but the date of her death, is not on record and is not known. She was survived by her daughter Bhikabai. This Bhikabai died in the year 1959 and her husband Shankar Balwant Jagtap respondent is now contesting the present litigation.
3. It appears that in the year 1951, tenancy case No. 131 of 1951 was started. That was filed by the landlords on the ground that, Manjulabai had surrendered her tenancy in their favour. It may be mentioned that, at the time when these proceedings were started, a tenant could surrender his tenancy in favour of the landlord under section 5 of the Bombay Tenancy and Agricultural Lands Act as it then was. That provision, did not require any verification by the Mamlatdar of such surrender. On that applications or proceedings, an order deleting the name of Manjulabai as a tenant, came to be passed. It appears as has been observed in one of the orders in this case, that the application was more in the nature of an application for correcting the record of rights than an application to accept the surrender and make an order for possession. Nothing further seems to have occurred.
4. Later, 32-G proceedings were taken out by the Additional Mamlatdar A.L.T. Purandar, in the Year 1964. That 32-G proceedings was dropped by the Additional Mamlatdar holding that the surrender having been accepted by the Mamlatdar on 7-9-51, the tenant has 'no interest left in the land'. The erstwhile tenant became a trespasser after termination if the tenancy in consequence of surrender duly recorded. The A.L.T. therefore, held that the holding of the land by the tenants subsequent to the valid surrender and remaining in possession is unlawful and, therefore, does not clothe them with the status of a tenant. The A.L.T. felt that in order to attract the operation of section 116 of the Transfer of Property Act, it had to be shown that the landlord had accepted rent or otherwise assented to the continuation of possession of the land by the tenant. In that view of the matter, the 32-G proceedings were dropped.
5. Aggrieved by that order, Shankar approached the Special Deputy Collector in appeal being Tenancy Appeal No. 710/66. The Special Duty Collector rejected that appeal. Against that order, Shankar approached the Maharashtra Revenue Tribunal which at one stage, dismissed the petition for default. Thereafter, Shankar approached this Court in Special Civil Application 461/71 which set aside the order passed by the Tribunal and remanded back the matter to the Maharashtra Revenue Tribunal for re-hearing. He was then heard by the Tribunal which came to the conclusion that the possession of a tenant of the lands after surrender, did not automatically become illegal. The landlord had to approach the Mamlatdar under section 29 of the B.T. & A.L. Act for restoration or resumption of possession or order of possession and unless such an order was passed, the landlord could not take possession. His possession would not have been lawful if he had take possession and the tenant, therefore, continued to have right to remain in possession. If a tenant had a right to remain in possession, then the Tribunal felt, that he could also apply for possession under section 29(1) and his tenancy rights will not come to an end. In other words, notwithstanding the surrender given under section 5, by Manjulabai the Tribunal was of the view that Manjulabai continued to be a tenant during her lifetime an thereafter, her heir Bhikabai and the proceedings, therefore, under section 32-G could not be dropped. The Tribunal directed that the provisions of section 32-A and 32-B for fixation of price may be continued remitting the matter back to the A.L.T. It was being aggrieved by that order and judgment, that the present petition was filed.
6. The facts giving rise to this litigation are hardly in dispute. It is not disputed that Manjulabai surrendered her tenancy rights in favour of the landlord by a writing. Such a surrender as the provision of the law stood then, in the year 1951, did not require any verification by the Mamlatdar. It does not appear however, and that is also common ground that, any order for possession was passed by the Mamlatdar thereupon. Apparently, it was a mere application under section 5 and not one under section 29.
7. Notwithstanding, therefore, the surrender which for all purpose was accepted by the landlord, in that, he made an application for correcting the entries, tenant Manjulabai continued to be in possession. It is stated that under section 40 of the B.T. & A.L. Act which was for merely section 34, the tenancy of nay land is deemed to have been continued by the landlord, 'under the same terms and conditions on which, such tenant was holding it at time of his death'. Therefore, on the death of Haribhau, the tenancy would be deemed to continue in favour of Manjulabai and on the death of Manjulabai, in favour of her daughter Bhikabai.
8. The fact that possession continued either with Manjulabai or with Bhikabai on her death, is also again not in dispute. The only question which is raised and which was raised in the Court was, what was the character and nature of possession of Manjulabai after the execution of the document of surrender. In other words, the question which false for determination is, where a tenant surrendered his tenancy rights under the position of law as it was then and such surrender is accept by the landlord, but the tenant continues, in the absence of an application under section 29, sub-section (2) of the Bombay Tenancy and Agricultural Lands Act or an application by the landlord for delivery of such possession, the tenant continues to be a tenant or otherwise. In other words, the question which requires to be determined is, where the contractual tenancy or the relationship of landlord and tenant is determined by a tenant surrounding his estate in favour of the landlord, as continuing in possession in view of the provisions of section 29, lawful or otherwise, and whether it confers upon such a tenant the status of a tenant under the B.T. & A.L. Act in order to clothe him with the further rights of a tenant under the Act.
9. Shri Limaye who appeared for the petitioners, raised a two fold submission. His first contention was that, where a tenant surrenders his tenancy in favour of the landlord, and where such tenancy is not required to be verified by the Mamlatdar as was the position of law prior to 1952, the relationship between landlord and tenant ceases between the parties. Such person is thereafter no more a tenant. Shri Limaye states that he cannot then claim the status of a tenant and is not entitled to the rights and protection to tenants under the B.T. & A.L. Act. According to him, such a person is not entitled to any status. The status or relationship between landlord and tenant, according to Shri Limaye, can thereafter be created by a contract. Since there is no evidence or the case of the parties that there was any such contract, neither Majulabai nor Bhikabai, after the execution of the surrender can became tenants.
10. The second contention which Shri Limaye raised was that, where the jural relationship of landlord and tenant between the parties comes to an end, then, not withstanding on order for possession is not passed or an application for possession is not made, the tenant is not entitled to apply for possession. His possession on account of the failure of the landlord to take steps to take possession or resume possession, under section 29(2), under an order of the Mamlatdar, will not clothe such possession with the character of legality. The mere continuation of possession by a tenant who has surrendered his rights as tenant of the land, is not lawful possession of such person. Such possession is not authorised. There is no estate or right remaining as a tenant in him when he surrendered his tenancy rights in favour of the landlord, to continue to remain in possession. If he has no such right or status to continue in possession, then he cannot be said to be a person lawfully in possession merely on the basis of his physical possession.
11. Reliance was placed in this behalf, for the respondents on a decision reported in 62 Bombay Law Reporter 261 Trambaklal Harinarayan Jani v. Shankarbhai Vagri. That was a case where original section 5 of the Bombay Tenancy and Agricultural lands Act was amended and in its place, section 15 was enacted, which required verification by the Mamlatdar of surrender. Parts of the observation in that case were relied upon to support the rival contentions, both by the petitioner as well as the respondent. Those observations which were relied upon for the petitioner are to the following effect ) :---
'Under section 15 of the Tenancy Act (substituted for section 5) also where there is a valid surrender duly verified and recognised by the Mamlatdar under the provisions of section 15 (formerly section 5), the relationship between the parties as a landlord and a tenant must come to an end, and the tenant's rights in the leased lands must upon such surrender terminate. The tenant then would lose all his rights and obligations as a tenant in respect of the leased land and that would be so whether the tenancy is contractual or statutory.'.
12. The second part of the observations which were relied upon as supporting the other contentions were.
'A proceeding under section 29(1) for restoration of possession by a tenant means that such surrender or relinquishment has not resulted in the loss of tenancy rights by the tenant. Such a proceeding also implies that the tenant retains his tenancy rights in the leased land until the surrender is verified and recognised under section 15 by the Mamlatdar and possession of the land is obtained by the landlord under section 29(2) of the Act'.
'So long as surrender is not verified and recognised under section 15 and so long as a tenant still retains the right to restoration of possession under section 29(1), there would be no cessation of tenancy rights and, therefore, no acquisition of transfer of land by the landlord.'
13. It was sought to be contended that the first part of the observations to which a reference has been made, clearly lays down that the relationship between the parties as a landlord and tenant must come to an end where a surrender is duly made and accepted. Where the law requires that it should be verified and is also so verified, the tenancy will come to an end. It was contended in this connection, that it was conveyable that a landlord may apply to the Mamlatdar for verification of the surrender made under section 15 and may not at the same time apply under section 29(2) for restoration or resumption of possession. In such a case, where the Mamlatdar inquires into the application for verification of surrender which under the Act is his duty to do so and verifies the surrender, accepts it as bona fide, and passes an order that the surrender, is verified and is lawful, then the relationship of landlord and tenant has come to an end and must be deemed to have come to and end. If the landlord thereafter makes an application under section 29(2) on the fact of surrender having been verified, then the landlord is bound to be placed is possession by the Mamlatdar. It was contended that the right is continue as a tenant has come to an end. The mere fact that there is some delay or time gap in verification of surrender or application under section 29, would not clothe the tenant with the status or character of a person lawfully cultivating the land or of a deemed tenant or a contractual tenant. If a landlord can make an application within a period of 2 years, which is the period of limitation for making an application under section 29(2), then he can do so within that period after the surrender is duly verified by the Mamlatdar. It was, therefore, urged that failure to apply for possession of a more delay or lapse of time to apply for possession merely has not the effect of revival of tenancy. Failure to apply for recovery of possession does not confer the status of a tenant upon such a person who is in possession. It was contended that the latter part of the observations in the judgment referred above, to the effect that the tenancy rights are not determined, useless, possession is taken under section 29 must be understood in the light of the earlier observations that the tenancy stands determined whether there is a valid surrender.
14. A reference was also made to section 5 of the Bombay Tenancy and Agricultural Lands Act before it came to be amended by Act 33 of 1952. That section provided that a tenant could terminate his tenancy before the expiry of the period of 10 years to which period all tenancies were statutorily extended and continued, by surrendering his interest in the land in favour of the landlord. A surrender even under the law prevailing under the Transfer of Property Act, section 111, has the same effect namely, extinguishment of tenancy rights of the tenant. Section 5 as it stood at the relevant time when the surrender in this case was made, provided in its proviso.
'any tenancy may be terminated by a tenant before the expiry of a period of ten years by surrendering his interest as a tenant in favour of the landlord.'
Where, therefore, a tenant surrenders his interest as a tenant, in favour of the landlord and the landlord accepts such a surrender the tenancy comes to an end. The precise question which has got to be considered in the present case is, as to what happens to the character and status of such a tenant and the nature of his possession where the acceptance of surrender is not followed by taking possession by recourse to a proceeding when such a proceeding would be necessary as under the B.T. & A.L. Act, section 29. Shri Dalvi contended that the possession of such a tenant cannot be described as ipso facto becoming unlawful from the moment the surrender is accepted. He contended that even if such a situation may be possible to reach and to arise under the Transfer of Property Act, where it is not permissible for a landlord to resume possession except by an order of the Mamlatdar under section 29, the tenant-continuation in possession does not become unlawful. The tenant cannot be physically ousted. His possession thereafter, until an order for possession is passed by the Mamlatdar is not that of a trespasser. Such a possession can also be described at the most, as that of a tenant holding over or tenant at sufferance, but in no case, of a person unlawfully in possession.
15. In (Special C.A. No. 3493 of 1957, decided on 21-2-1958)2, (unreported), a contention similar to the one which has been raised in this case, was advanced. There also, the tenancy was claimed to have been surrendered prior to the amending Act 33 of 1952. It was only under that Act, that a verification of the Mamlatdar had become necessary. It was contended there, that in cases falling under section 5, a tenant may on his own surrender and therefore, that in such a case, no application for possession under section 29 was necessary. The Court observed.
'Now, section 29(2) provides that no landlord shall obtain possession of any landlord dwelling house held by a tenant except under an order of the Mamlatdar. This section is absolute and makes no distinction between the termination of the tenancy whether under section 14 or section 34 or section 5. In no case under the Tenancy Act can a landlord obtain possession of any land held by a tenant except under an order of the Mamlatdar and under section 29(3) the Mamlatdar has got a discretion as to the order that he would pass on the application.'
As to what is the position of a tenant and the nature of his possession whose tenancy is determined and which provision of the Transfer of Property Act applies it would be interesting to find, in order to derive assistance for the resolution of the question before me. In Mulla's Transfer of Property Act 6th edition, at page 647 it is observed,
'A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality.'
Such a tenancy at sufferance is not created by contract and is only assumed or presumed by law. It comes into existence where a person is lawfully in possession under a lawful title, but after that title is determined, continues to be in possession and without the consent of the person so entitled to possession of such a person is distinguished from the possession of a trespasser, in that, the possession of a trespasser from its inception, is unlawful, while the possession of a person with a limited title whose title has come to an end was rightful at the commencement, but wrongful in its continuance. This wrongful possession however, has not been likened to that of wrongful possession of a trespasser. However, under the Transfer of Property Act, it is quite clear that, a tenant at sufferance does not have the relationship of landlord and tenant.
16. Section 116 deals with a lessee or under-lessee of the property continuing possession after the determination of a lease. It lays down that, where such a person namely, a lessee or an under-lessee after the determination of the lease, continues in possession, if the lessor or his legal representative accepts rent from the lessee or the under lessee or assents to his continuing in possession 'the lease in the absence of the agreement to the contrary' becomes renewed either from year to year or month to month according, to the purpose for which the property is leased. But, it is well settled that a mere act of holding over after the determination of the term creates no tenancy of any kind. If the lessee remains in possession after the determination of the term, under the common law, such a lessee is deemed to be 'a tenant at sufferance'. At page 769 of Mulla's Transfer of Property Act, it is observed that,
'a distinction should be drawn between the tenant continuing in possession after the determination of the lease without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenant is called a tenant holding over or a tenant at will.'
As contemplated by section 116, such an ex-tenant's continuance of possession is liable to be converted into a contract of lease depending upon the lessor's assent and accepting rent from the ex-lessee.
17. The provisions of the Transfer of Property Act are not applicable to agricultural leases. As section 106 of the Transfer of Property Act lays down the law relating to leases in that act applies only if there is no local law or usage to the Transfer of Property Act are not applicable, the local law in that behalf being the B.T. & A.L. Act is applicable. As provided in section 3 of the B.T. & A.L. Act, however those provisions contained in the Transfer of Property Act are applicable 'in so far as they are not inconsistent with the provisions of this Act.' Apart from that, the principles laid down under the Transfer of Property Act are applicable on the ground of justice, equity and good conscience.
18. The question then is, what is the nature of possession of a person whose tenancy has been determined, as stated above, but the possession continues with him and no order for possession is passed under section 29. It cannot be said that in such a case, that person continues to be a lessee in the sense, that there exists a contractual relationship of landlord and tenant between them. Land cannot be said to have been leased to him. The word 'tenant' is define under the B.T. & A.L. Act as a person who holds lands on lease and also includes a person who is 'deemed to be a tenant under the provisions of section 4'. Therefore, a tenant is not merely a person who is a lessee in the sense, there is an agreement of lease or there is a contract of lease between him and the landlord, but also a person who is deemed to be a tenant under section 4. A person is deemed to be a ten a tenant in law and the law creates a friction in the circumstances required to be established by that section and confers that status of a deemed tenant upon him. In the circumstances, it is necessary to look to the definition of 'a deemed tenant' in section 4.
19. Section 4 says, 'a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant' if such person does not belong to the categories mentioned in Clauses (a), (b) and (c) of that section. It cannot be said that the present respondent belongs to any of these categories of persons mentioned in Clauses (a), (b) and (c). That he was cultivating the land belonging to another person namely, the petitioner, is not disputed. The only question is, whether he was lawfully cultivating the land even after the determination of his tenancy.
20. In the light of what I have said above and in the light of the provisions to which I have made a reference and principles in regard to the law of leases. I do not think it is possible to hold that the possession and cultivation by the respondent of the lands in question was unlawful. I have already referred to the provisions of section 29 and in particular, sub-sections 2 and 3 of that provision. Sub-section 2 provides that no landlord shall obtain possession except by an order of the Mamlatdar. If the landlord, therefore, cannot and does not recover possession, and cannot do so except by an order of the Mamlatdar, notwithstanding that a tenancy is terminated, the tenant is entitled to remain in possession. Section 29 sub-section (1) makes it quite clear. The cumulative effective of the provisions contained in section 29, sub-section (1), (2) and (3) clearly is that, even where the tenancy of a tenant stands determined, as long as there is no order passed against him to deliver possession, his continuation in possession in lawful. Such a tenant is entitled to remain in possession and the provisions of section 29(1) can be successfully attracted and invoked by a such a tenant against whom, no order for possession has been passed by the Mamlatdar under section 29 sub-section (3). In other words, pending the passing of an order by the Mamlatdar under section 29 sub-section (3), the mere termination of a tenancy on any ground has not the effect and result of converting his possession which was unlawful into an lawful possession. If the possession, therefore, is lawful, if his continuation in possession is lawful as long as and until an order for recovery of possession is passed by the Mamlatdar, such a tenant, notwithstanding the determination of his tenancy, is said to be one qualifying for the status of a deemed tenant under section 4. In such a case, the tenancy is created by the statute. The creation of a tenancy as known to law, is not only by reason of a contract, but, also in some cases, like the present section 4 by reason of a statute. The Tribunal, therefore, was right in holding that the respondent must be considered to be and held to be a deemed tenant. In that view of the matter, the order passed by the Tribunal has to confirmed.
21. Petition fails and is dismissed. No order as to costs. Rule discharged.