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Marzban Rustomji Vs. Khushalbhai Pitambar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1013 of 1958
Judge
Reported in(1959)61BOMLR294
AppellantMarzban Rustomji
RespondentKhushalbhai Pitambar
Excerpt:
.....demised property and therefore it was a bad notice. dalai for the tenants contends that as the notice given by the landlord in this case referred to only a part of the lands leased out, it was a bad notice......his lands to the tenants was only one transaction. there were no two distinct leases although the lands leased out were two survey numbers. the transaction was one, although the subject-matter of the transaction was lands more than one. bearing this position in mind, namely, that the lands leased out by the petitioner-landlord to the tenants admeasured 7 acres 12 gunthas plus 2 acres 25 gunthas, i.e., in all 9 acres 37 gunthas, it is necessary to remember that even if the possession of the entire s. no. 410/2 admeasuring 2 acres 25 gunthas has to be returned by the tenants to the petitioner-landlord, even so the tenants would continue to remain in possession of much more than half of the lands originally leased out to them. they would still have the possession of 7 acres 12 gunthas out.....
Judgment:

Vyas, J.

1. This is an application made under Article 227 of the Constitution of India by the petitioner Marzban Rustomji, wherein the petitioner has prayed for the quashing of an order made by the Bombay Revenue Tribunal on February 3, 1958, by which order the Revenue Tribunal confirmed the order passed by the Prant Officer on October 21, 1957. The circumstances under which this application arises may be briefly stated:

2. The petitioner-landlord let out his lands, comprising two survey numbers, being S. No. 409 admeasuring 7 acres 12 gunthas and S. No. 410/2 admeasuring 2 acres 25 gunthas, of Olpad, to opponents Nos. 1, 2 and 3 under a registered lease dated August 13, 1942. On December 20, 1956, the petitioner served opponents Nos. 1, 2 and 3 with a notice under Section 31 of the Tenancy Act, asking the opponents to quit S. No. 410/2. The ground upon which the petitioner required the opponents to hand over possession of S. No. 410/2 to him was that he (the petitioner) bona fide required possession of the said land for personal cultivation. After serving opponents Nos. 1, 2 and 3 with notice in respect of S. No. 410/2 only as stated above, the petitioner made an application in April 1957, under Section 29(2) of the Act, to the Mamlatdar for obtaining possession of the land in respect of which he had given the notice. The Extra Aval Karkun, Olpad, who heard the application of the petitioner-landlord, observed in the course of his order that the notice which was given by the petitioner-landlord to his tenants was not in respect of both the survey numbers, viz., S. No. 409 and S. No. 410/2, but that the notice related only to S. No. 410/2, admeasuring 2 acres 25 gunthas, and that, therefore, at best the possession of only half the said S. No. 410/2, i.e., possession of only half of 2 acres 25 gunthas could be awarded to the landlord, and that if that be done, there would result a fragmentation of land which would be contrary to law, and in that view of the matter the Extra Aval Karkun dismissed the application of the petitioner-landlord. From that order the petitioner-landlord went in appeal before the Prant Officer, and the Prant Officer by an order made on October 21, 1957, dismissed the appeal and confirmed the order of the Extra Aval Karknn. From that order of the Prant Officer the petitioner-landlord went before the Bombay Revenue Tribunal by way of a revisional application and the Tribunal by an order made by them on February 3, 1958, rejected the said revisional application of the landlord. It is from that order of the Revenue Tribunal that the landlord, feeling aggrieved, has approached this Court under Article 227 of the Constitution.

3. Now, in our view, the conclusion of the Extra Aval Karkun that if the landlord's application for possession of S. No. 410/2 be allowed, there would be a violation of the provisions of law contained in Section 31B(1) of the Tenancy Act is clearly erroneous. It is difficult to understand why the Extra Aval Karkun took the view that although the landlord asked for possession of the entire S. No. 410/2 he could be awarded possession of only half of that survey number, i.e., possession of only half of 2 acres and 25 gunthas. The learned advocate Mr. Dalai appearing for the tenants in this case has not been able to point out to us any provision of law in the Tenancy Act, pursuant to which the Extra Aval Karkun could validly hold that although the landlord had asked for possession of the entire S. No. 410/2 he could only be entitled at best to possession of half of that survey number. If we turn to the relevant provision of law contained in Sub-section (1) of Section 31B, the law only lays down that a tenancy in no case shall be terminated in such a way as will result in leaving with a tenant, after termination, less than half the area of the land leased to him. Now, in this case, it is to be borne in mind that the lease under which the petitioner leased out his lands to the tenants was only one transaction. There were no two distinct leases although the lands leased out were two survey numbers. The transaction was one, although the subject-matter of the transaction was lands more than one. Bearing this position in mind, namely, that the lands leased out by the petitioner-landlord to the tenants admeasured 7 acres 12 gunthas plus 2 acres 25 gunthas, i.e., in all 9 acres 37 gunthas, it is necessary to remember that even if the possession of the entire S. No. 410/2 admeasuring 2 acres 25 gunthas has to be returned by the tenants to the petitioner-landlord, even so the tenants would continue to remain in possession of much more than half of the lands originally leased out to them. They would still have the possession of 7 acres 12 gunthas out of 9 acres 37 gunthas of lands that were leased out to them. That being so, it is difficult to understand how it could be validly contended that the provisions of law contained in Sub-section (1) of Section 31B of the Act would be violated by handing over possession of the entire S. No. 410/2 to the petitioner-landlord.

4. The learned advocate Mr. Dalai appearing for the tenants contends that it is not known whether the notice which was given by the petitioner-landlold to the tenants referred only to S. No. 410/2 or referred only to S. No. 409 or referred to both S. No. 410/2 and S. No. 409; and, says Mr. Dalal if the notice related only to S. No. 409, then, if the possession of 8. No. 409 is to be given back by the tenants to the petitioner-landlord, less than half of the lands leased out to the tenants would thereafter remain in the possession of the tenants. Of course, Mr. Dalai would be right, if we were to act on the assumption that the notice given by the landlord to the tenants was a notice in relation to S. No. 409. Survey No. 409 admeasures 7 acres 12 gunthas and therefore if that survey number is to be handed over by the tenants to the landlord, what would thereafter remain in the possession of the tenants would be only S. No. 410/2 admeasuring 2 acres 25 gunthas, and obviously, on the very face of things, 2 acres 25 gunthas would be much less than half of 9 acres 37 gunthas. But this contention of Mr. Dalai rests entirely upon the assumption made by him that the notice given by the landlord to the tenants might be a notice in relation to S. No. 409 only and not in relation to S. No. 410/2; and for this assumption we find no justification on the record. It is true that the Bombay Revenue Tribunal has pointed out in the course of its order that the notice itself has not been produced in the lower Courts nor is a copy of it placed on the record even now. However, if we turn to the order passed by the Extra Aval Karkun, whose Court was the first Court to deal with this matter in the first instance, it would appear that in the proceedings before him a reference was made to a notice which related only to S. No. 410/2 ad' measuring 2 acres 25 gunthas. This is what the Extra Aval Karkun observed in the course of his order:

The applicant has not given a notice to the opponent for the S. No. 409, admeasuring 7 acres 12 gunthas, (or handing over the possession. He has only given notice for the land of S. No. 410/2 admeasuring 2 acres 25 gunthas and hence he is not entitled for getting possession of S. No. 409 admeasuring 7 acres 12 gunthas.

If we turn to the order made by the Prant Officer in this case, once again it would appear that he referred to a notice which related to S. No. 410/2. The Prant Officer says in the course of his order :--

In the notice under Section 31 the applicant had failed to mention S. No. 409 and therefore the lower Court had dismissed his application.

It may be, as the Bombay Revenue Tribunal has observed in the course of its order that no notice was brought on the record of the case before any Court. But even so, we have got before us, in this proceeding under Article 227 of the Constitution, a finding of fact recorded by the Extra Aval Karkun and confirmed by the final fact finding authority, namely, the Prant Officer, the finding being to the effect that the notice which was given by the landlord to the tenants related only to S. No. 410/2 and that it did not relate to S. No. 409. The finding may be an erroneous finding. Nevertheless, it is a finding of fact and, therefore, in the exercise of our jurisdiction under Article 227 of the Constitution, it would not be open to us to go behind that finding and take the view, which the learned advocate Mr. Dalai is contending for, that the notice might be a notice relating to S. No. 409 only and not relating to S. No. 410/2.

5. The next point which Mr. Dalai has (sought to make before us is that it is well settled that a tenancy cannot be dissected. What Mr. Dalai means by this contention is that a tenancy cannot be kept intact in respect of a part of the land leased out and cannot be terminated in respect of the other part of the land leased out. In effect, what Mr. Dalai contends is that the petitioner-landlord could either get possession of both the S. Nos. 409 and 410/2 or could get possession of neither of them. We have considered this contention of Mr. Dalai, but we are unable to see force in it. In our view, termination of tenancy, with the dissection of lands originally leased out to the tenants, is made expressly clear in Sub-section (1) of Section 31B, which provides:-

In no case a tenancy shall be terminated under Section 31 in such manner as will result in leaving with the tenant, after termination, less than half the area of the land leased to him.

It is, therefore, clear in our view that when the Legislature enacted Section 31B(1), it had in its mind the restoration of possession by a tenant to the landlord, upon the termination of tenancy, of a portion of lands leased out by the landlord to the tenant. Besides, it is clear that a lease is a matter of contract. There might have been a contract between the landlord and the tenants in this case that the lease of S. No. 410/2 alone could be terminated. In this connection it is to be noted, and this is relevant, that no plea was taken by the tenants at any stage of the proceedings in this case that the tenancy of one survey number only could not be terminated.

6. Mr. Dalal has invited our attention to an English case of Woodward v. Dudley [1954] 1 All E.R. 559. In this ease there was an agreement between a landlord and his two tenants in respect of agricultural property which was described in two parcels. These two parcels were Jeffries Farm and Langley Lodge Farm. The agreement was dated September 24, 1928, and by the said agreement the landlord let out the above two parcels of land to his tenants A and B. On December 17, 1952, B died and the probate of his will was granted to C, his sole executor, who remained in possession of the demised property. On February 5, 1953, D's agents, on behalf of D, gave C a notice to quit which required the delivery of 'land known as Jeffries Farm' and contained no reference to Langley Lodge Farm. It was held that the notice referred to part only of the demised property and therefore it was a bad notice. Relying upon this decision Mr. Dalai for the tenants contends that as the notice given by the landlord in this case referred to only a part of the lands leased out, it was a bad notice. In this connection, it is to be noted, however, that by Section 31B(1) the Tenancy Act itself has expressly created a tenancy which could be terminated in such a way as would result in a landlord getting back possession of only a part of the land leased out. If the landlord under the law contained in the Tenancy Act could legitimately ask for restoration of possession of only a part of the property leased out to the tenants, then naturally the notice must relate only to a part of the property leased out and it cannot relate to the entire property leased out. The present application which we are deciding is an application which raises a point under the Tenancy Act and, therefore, the intention which the Legislature had in view in enacting the Act must be the governing factor on the point of construction whether the notice given by the landlord was a good notice or a bad notice. Apart from this, it is to be borne in mind that the principle laid down by the English case, which is a principle of common law, would be subject to the contract to the contrary, since leases are matters of contract between the parties; and, as I have stated above, the tenants in this case do not plead, and have not pleaded at the previous stages of the proceeding, that the contract was that the landlord would ask for possession either of both the survey numbers or of none of them. In this view of the matter, we cannot accept Mr. Dalai's contention that the landlord cannot ask for possession of only a part of the lands leased out to the tenants.

7. I have already stated above that even if the possession of S. No. 410/2 admeasuring 2 acres 25 gunthas be handed over by the tenants to the landlord, even so the tenants would continue to be in possession of 7 acres 12 gunthas, which is much more than half of the lands originally leased out to them, the lands originally leased out being 9 acres 37 gunthas in area.

8. It is important to bear in mind at this stage that the Courts below have not gone into the question whether the requirement of the petitioner-landlord for personal cultivation of S. No. 410/2 is a bona fide requirement or not. Some how, for reasons which are not clear to us, the Extra Aval Karkun took the view that if the possession of S. No. 410/2 were to be given over to the landlord, only half the survey number could be given to the landlord and not the entire survey number, and the Extra Aval Karkun thought that if only half of S. No. 410/2 were to be returned to the landlord, there would be a fragmentation which would be contrary to the provision of law. The Prant Officer, on appeal, seems to have shared the same view, namely, that only half the S. No. 410/2 could be given back to the landlord and not the whole of it. The' Bombay Revenue Tribunal, who could not go into questions of fact, confirmed the orders passed by the Prant Officer and the Extra Aval Karkun. The result of all this has been that there has been no finding upon a question of fact, namely, whether the petitioner-landlord bona fide requires possession of S. No. 410/2 admeasuring 2 acres 25 gunthas for personal cultivation.

9. In these circumstances, we set aside the order passed by the Revenue Tribunal and remand the case to the Mamlatdar with a direction that the Mamlatdar shall give a finding on the point raised by the petitioner-landlord, namely, that be bona fide requires possession of the entire S. No. 410/2 for personal cultivation. The Mamlatdar shall decide the case bearing in mind the provisions of Section 31A of the Act. So far as the question of costs is concerned, the costs shall abide by the result.


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