1. The third plaintiff Chandulal Chunilal who was a member of a joint Hindu family consisting of himself and his father sold S. Nos. 115, 35/1A and 85/2 of the village of Borwali, Taluka Mangaon, to plaintiffs 1 and 2 by a deed dated 3-3-1944. Plaintiff 3 sold the property as if he was absolute owner thereof.
Thereafter the three plaintiffs filed suit No. 158 of 1945 in the Court of the Civil Judge, Junior Division, at Roha, against the defendant who was originally a tenant of the joint family of plaintiff 3 alleging that the tenancy of the defendant was terminated by a proper notice to quit and the defendant had failed and neglected to vacate and deliver possession of the property when demanded.
2. The defendant by his written statement denied the plaintiff's ownership of the suit lands. He contended that the lands did not belong to the plaintiffs. He further contended that some of the suit lands belonged to the defendant as ancestral lands and the other lands were purchased by him in the year 1934. He also contended that Survey No. 115 was Khoti land, and the plaintiffs were not entitled to claim ownership in respect of it in view of the provisions of the Khoti Abolition Act.
The defendant then contended that he was a protected tenant in respect of Survey No. 115, and the suit being one for possession by a landlord against his tenant was not maintainable. Inconsistently with those allegations the defendant contended that the plaintiffs were not in possession of the suit lands within 12 years before the date of the suit and the suit was not in time. He also contended by an amendment to the written statement that the notice served by the plaintiffs was not according to law, and the Court had no jurisdiction to grant possession of the suit lands.
3. The learned trial Judge held that the plaintiffs had title to the suit lands, and that they were in possession within 12 years before the date of the suit; that the suit filed by the plaintiffs was in time; that the requisite notice was served upon the defendant, and that it was according to law; that the Civil Court was competent to pass a decree for possession to the plaintiffs; that the suit was not barred by the Khoti Abolition Act, and that the plaintiffs were entitled to mesne profits.
The learned trial Judge accordingly passed a decree in favour of the plaintiffs 1 and 2 for possession of the suit properties together with mesne profits amounting to Rs. 110/- and directed ascertainment of future mesne profits under Order 20, Rule 12(c), Civil P. C.
4. Against the decree passed by the trial Court an appeal was preferred to the District Court at Alibag. In appeal, however, only two points were urged before the learned District Judge (i) that the property in suit being joint family property of plaintiff 3 and the 3rd plaintiff not being the manager, he could by reason of the conveyance effected in favour of plaintiffs 1 and 3 convey only his 1/2 share in the property, and not the whole property, and (ii) that the defendant become a protected tenant under the Bombay Tenancy Act of 1939 which was applied to the area in which the lands are situate in 1946, that is during the pendency of the suit, and the Civil Court had no jurisdiction to pass a decree in ejectment against the defendant.
The learned District Judge held that because the lands were joint family lands and the third plaintiff was not the manager of the joint family, the plaintiffs were not entitled to file a suit for possession. The remedy of the plaintiffs according to the learned District Judge was a suit for partition and separate possession of a half share in the suit properties. He held, relying upon a decision of Vyas J. in 'Digambar Gopal v. Vithoba Jogu', : AIR1952Bom274 , that Section 4(1) Bombay Tenancy Act, 1939 was retrospective, and when the Bombay Tenancy Act, 1939 was applied to the area in which the lands are situated the defendant became protected tenant and was entitled to protect his possession. The learned Judge accordingly reversed the decree passed by the trial Court and plaintiffs l and 2 have come to this Court in second appeal.
5. Now the judgment in 'Digambar's case (A)', has been reversed by a Division Bench; that Judgment is reported in 'Digambar Gopal v. Vithoba Jogu' : AIR1954Bom450 . It has been held therein that the provisions of the Bombay Tenancy Act, 1939 are not retrospective. The tenancy of the defendant having been determined by a proper notice to quit, the defendant could not thereafter set up a right of protected tenancy when the Bombay Tenancy Act, 1939, came into operation. The view taken by the Courts below, therefore, that the defendant could be regarded as a protected tenant cannot be sustained.
6. Mr. Samant who appears on behalf of the tenant contended that in any event the notice sewed upon the defendant was not a proper notice and therefore the tenancy of the defendant was not terminated and at the date when the Bombay Tenancy Act, 1939 came into operation the defendant was in possession as a tenant and the suit filed by the plaintiffs could not be decreed. I am unable to accept that contention for various reasons. By the notice the plaintiffs called upon the defendant to vacate and deliver possession before 31-3-1945. That in my judgment was a proper notice.
The plaintiffs by their notice terminated the tenancy of the defendant and called upon him to deliver possession before the end of March 1945. The defendant was not called upon to deliver possession before the date preceding the last day of the month of March 1945. By the notice the defendant was given option to continue till the last day of March 1945. In my view the notice was a proper notice.
7. The question as to sufficiency of notice does not appear to have been raised in the District Court. It cannot therefore, be held that when the Bombay Tenancy Act, 1939, was brought into operation the defendant was in the position of a tenant. The tenancy of the defendant was terminated properly before the suit was instituted.
The Bombay Tenancy Act, 1939, was made applicable to the area and the plaintiffs were entitled to claim possession of the land under the provisions of the Bombay Land Revenue Code which at the date of the institution of the suit governed the relations between the parties.
8. I am unable to agree with the view of the learned District Judge that the plaintiffs should be driven to a separate suit for partition of the family properties belonging to plaintiff 3 and his father. It has to be noted that the defendant denied that he was a tenant of the plaintiffs. He set up a title in himself. The plaintiffs were claiming possession of the property relying upon the title of the third plaintiff, and the defendant put the plaintiffs to proof of that title and possession within 12 years before the date of the suit.
The plaintiffs prove their title in the trial Court and it does not appear to have been challenged in the District Court. For all purposes therefore at the date of the institution of the suit the defendant was in the position of a trespasser, and if the plaintiffs claimed possession of the property from him, the plaintiffs' suit was not liable to be dismissed merely because the plaintiffs had not exclusive title to the suit property. Evidently it appears to have been conceded that the plaintiffs 1 and 2 were owners of a half share in the suit property. I fail to see why as against the trespasser the plaintiffs who were entitled to a half share in the property could not be given a decree for that share.
The learned District Judge was in my judgment in error in refusing to award to the plaintiffs a half share and driving the plaintiffs to a separate suit for general partition of the joint family properties between plaintiff 3 and his father. Plaintiffs 1 and 2 who are purchasers from plaintiff 3 would be entitled to a half share in the suit properties from the defendant.
9. Mr. Daundkar who appears on behalf or the plaintiffs 1 and 2 contended that the father of plaintiff No. 3 died in 1952 and plaintiffs are entitled to claim the entire property from the defendant. It is true that plaintiff 3 purported to sell the entire three survey numbers in dispute as if they belonged to him. But by his sale he could not have conveyed anything more than his individual interest.
If plaintiffs 1 and 2 sued to recover from plaintiff 3 the whole property they may be entitled to rely upon the doctrine of feeding the grant by estoppel. But if the suit be regarded as a suit filed against a trespasser, the plaintiffs 1 and 2 cannot rely upon a title which devolved upon plaintiff 3 after institution of the suit and which may be regarded as available upon the doctrine of feeding the grant by estoppel against plaintiff 3.
In my view the proper remedy of plaintiffs 1 and 2 is to file a fresh suit against the defendant relying upon the title of plaintiff 3's father which is alleged now to have devolved upon plaintiff 3 on the death of his father.
10. The decree passed by the District Court will, therefore, be set aside, and the decree passed by the trial Court will be modified by declaring that plaintiffs 1 and 2 are owners of a half share in the suit properties. There will be a further decree against the defendant directing him to deliver possession of a half share in the suit properties. The partition will be effected by the Collector. The defendant will pay Rs. 55/- as past mesne profits and future mesne profits in respect of the half share awarded to the plaintiffs will be determined in an enquiry under Order 20, Rule 12. Clause (c), C. P. C. Having regard to the circumstances of the case, the defendant will pay half the costs of the plaintiffs throughout.
11. Order accordingly.