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Hasanbhai Adambhai Malvat Vs. Adambhai Malka Talat - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1534 of 1958
Judge
Reported in(1959)61BOMLR415
AppellantHasanbhai Adambhai Malvat
RespondentAdambhai Malka Talat
DispositionApplication rejected
Excerpt:
.....area prescribed for that land under the act, the landlord cannot, in order to make up his ceiling area, recover possession of more than half the area of the land leased out to his tenant.;section 31 of the bombay tenancy and agricultural lands act, 1948, has nothing to do with a case where a landlord claims to recover possession of his land from the tenant upon the ground that the tenant has got in his possession lands in excess of the ceiling area. therefore, where a landlord bases his claim upon the ground stated in section 34flj of the act, the provisions of section 31b(1) will not apply. - - provided that where an application under sub-section (2) is made by a landlord in pursuance of the right conferred on him under section 31, the mamlatdar shall first decide, as preliminary..........filed tenancy suit no. 3 of 1957 in the court of the tenancy mahalkari, dhanduka, to recover possession of 20 acres of his land from opponent no. 1 upon the ground that he required it bona fide for personal cultivation and also upon the ground that the tenant was in, possession of 64 acres and 27 gunthas of land which was in excess of the ceiling area. so far as the petitioner's case that he required to acres of his land from opponent no. 1 bona fide for personal cultivation is concerned, his contention is that his income from the 20 acres of land of which he is in possession and which he is personally cultivating is about rs. 1,400 to bs. 1,600 per year. his case is that the probable income of the other 20 acres of his land which is in possession of opponent no. 1 is about.....
Judgment:

Vyas J.

1. This is an application under Article 227 of the Constitution of India and it raises a question of construction of Section 31A(b), Section 31B(1) and Section 34(1) and (5) of the Tenancy Act. The petitioner Hasanbhai Adambhai Malvat has prayed for the setting aside of an order made by the Bombay Revenue Tribunal on March 25, 1958, by which order the Tribunal confirmed an order made by the Assistant Collector on December 9, 1957. By the aforesaid order dated December 9, 1957, the Assistant Collector dismissed the appeal of the present petitioner from an order made by the Tenancy Mahalkari on August 5, 1957. The circumstances which have given rise to this application may now be briefly stated.

2. The petitioner is the landlord. He is the owner of S. No. 2038 of Dhanduka, District Ahmedabad. The land comprising S. No. 2038 admeasures 40 acres. Out of this land, the petitioner himself is personally cultivating 20 acres and the remaining 20 acres of land has been leased out by the petitioner to opponent No. 1. The petitioner contends that is not holding any other land except the above land. Now, under the provisions of Section 5(1)(a) of the Bombay Tenancy and Agricultural Lands Act, 1948, the ceiling area of jirayat land is 48 acres. The petitioner says that as he is personally cultivating only 20' acres of land, he is in possession of land which is less than the ceiling area. The petitioner also says that opponent No. 1 is in possession of not only 20 acres of land leased out to him by the petitioner, but he is also in possession of other lands which have been leased out to him by other landlords. It is the petitioner's ease that opponent No. 1 is cultivating 64 acres and 27 gunthas of land and, therefore, be is in possession of land in excess of the ceiling area. I have already mentioned above that the ceiling area of Jirayat land is 48 acres. The petitioner-landlord, in the above-mentioned circumstances, filed Tenancy Suit No. 3 of 1957 in the Court of the Tenancy Mahalkari, Dhanduka, to recover possession of 20 acres of his land from opponent No. 1 upon the ground that he required it bona fide for personal cultivation and also upon the ground that the tenant was in, possession of 64 acres and 27 gunthas of land which was in excess of the ceiling area. So far as the petitioner's case that he required to acres of his land from opponent No. 1 bona fide for personal cultivation is concerned, his contention is that his income from the 20 acres of land of which he is in possession and which he is personally cultivating is about Rs. 1,400 to Bs. 1,600 per year. His case is that the probable income of the other 20 acres of his land which is in possession of opponent No. 1 is about Rs. 2,000 to Rs. 2,500 per year. So far as the petitioner's requirement of the 20 acres of his land which is in possession of opponent No. 1 upon the ground of bona fide need for personal cultivation is concerned, he contends that he is entitled to recover possession of all the 20 acres of his land which is being cultivated by opponent No. 1. He next says that the income of the said 20 acres of land, which is being cultivated by opponent No. 3, being the principal source of income for his maintenance, he is entitled to recover possession of all the 20 acres of land from opponent No. 1.

3. In the Tenancy Case No. 3 of 1957 filed by the petitioner the Mahalkari held by an order made by him on August, 5, 1957, that so far as the petitioner's case of bona fide requirement of the land for personal cultivation was concerned, he was entitled to recover possession, not of all the 20 acres of his land which was beings cultivated by opponent No. 3, but only half of the said 20 acres, namely, only 10 acres of that land. The Mahakari next held that the income from the said 10 acres of land, to the possession of which the petitioner-landlord would be entitled, was only about Rs. 1,000 to Rs. 1,200 per year. That being so, said the Mahalkari, that income was not the principal source of the petitioner's income for his maintenance. Consistently with this view of the matter which the Mahalkari took, he rejected the petitioner's application No. 3 of 1957 for recovering possession of the lands leased out by him to opponent No. 1. It may be noted that although the petitioner's application for recovering possession of the land from opponent No. 1 was based upon two grounds: (1) that he bona fide required possession of this land for personal cultivation, and (2) that the total land in possession of the tenant was in excess of the ceiling area, the Mahalkari decided the application, having regard to the first ground only and did not deal with the second ground at all. In other words, the Mahalkari did not go into the question whether the petitioner was entitled to recover possession of the 20 acres of land from his tenant upon the ground that the tenant had got in his possession 64 acres and 27 gunthas, which was more than the ceiling area.

4. From the aforesaid order of the Mahalkari made by him on August 5, 1957, the petitioner-landlord went in appeal to the Assistant Collector, Dholka Prant. By an order dated December 9, 1957, the Assistant Collector dismissed the appeal. He accepted the finding of the Mahalkari that so far as the petitioner's case of bona fide requirement of this land for personal cultivation was concerned, he was entitled only to recover possession of 10 out of the 20 acres, provided the income from the said 10 acres was the landlord's principal source ~ of income for his maintenance. The Assistant Collector further accepted the finding of the Mahalkari that the income from the 10 out of the 20 acres of land which was in possession of the tenant would not be the landlord's principal source of income for his maintenance. So far as the landlord's case under Section 34 of the Act was concerned, namely, the case that he was entitled to recover possession of 20 acres of his land from the tenant upon the ground that the tenant had got in his possession in all 64 acres and 27 gunthas, i.e., more than the ceiling area, the Assistant Collector took the view that it was irrelevant to go into that aspect of the case. According to the Assistant Collector, it did not matter whether the tenant was in possession of land less than the ceiling area or more than the ceiling area. The Assistant Collector took the view that even if the tenant had got in his possession land much more than the ceiling area, even so the landlord would be entitled to recover possession of only half the lands leased out by him to the tenant. In other words, the view which the Assistant Collector took was that Section 31B(1) and Section 34(1) of the Act. Consistently with this view of the matter which the Assistant Cllector took, he dismissed the landlord's appeal and confirmed the Mahalkari's order. Upon the landlord going in revision before the Revenue Tribunal, the Tribunal, on March 25, 1958, rejected the revisional application. The Tribunal accepted the view of the Assistant Collector that Section 31B(1) controlled Section 31A (b). In other words, the Tribunal also took the view that even if the land cultivated by the landlord personally was less than the ceiling area, the landlord would, in no case, where he claimed to recover possession of the land from the tenant upon the ground of bona fide requirement of the land for personal cultivation, be entitled to recover possession of more than half the area of the land leased out to the tenant. Although the Tribunal concurred with the view of the Assistant Collector that Section 31B(1) controlled Section 31B (b) it disagreed with the view of the Assistant Collector that Section 31B (1) also controlled Section 34Sub-sections (1) and (5). The view which the Tribunal took was that the right to recover possession of the land leased out to the tenant which the landlord has under Section 34 of the Act is quite independent of the right which he has in a case in which the claim to recover, possession is made upon the ground of bona fide requirement of the land for personal cultivation. As the matter had not been investigated by the Mahalkari in the light of the remedy available to the landlord under Section 34, Sub-sections (1) and (5), the Tribunal ordered the case to be remanded back to the Mahalkari. The pertinent observations of the Tribunal in this context are:

We have, therefore, to say that unless the first question of fact is settled (the Tribunal was referring to the question whether in point of fact the tenant was in possession of land in excess of the ceiling area) it would not be proper to settle the question which arises about the interpretation and effect of Sub-section (5) of Section 34. We are, therefore, constrained to remand the case back to the Tenancy Court to consider the question whether the applicant proved that the tenant held lands in excess of the ceiling area and then to consider the question whether the applicant landlord got an absolute right by virtue of Section 34.

In other words, the case was remanded to the Tenancy Court for deciding the question of fact whether the tenant was in possession of lands in excess of 1 the ceiling area and then to dispose of the case in accordance with law. It is from this order of the Tribunal dated March 25, 1958, that the landlord has (come to this Court under Article 227 of the Constitution.

5. Now, the point which Mr. Limaye for the petitioner-landlord has raised before us is whether Section 31B(1) of the Tenancy Act controls or is subject to Section 31A(b) of the Act. Mr. Limaye says that when a landlord claims to recover possession of his land leased out to the tenant upon the ground that he bona fide requires the land for personal cultivation, if he proves that the land cultivated by him personally is less than the ceiling area, he shall be entitled to recover possession of so much of his land leased to the tenant as will be sufficient to enlarge the area in his possession to the extent of a ceiling area. In other A words, Mr. Limaye's contention is that the provisions of Section 31A(b) control the provisions of Section 31B(1). We have considered Mr. Limaye's contention, but are unable to accept it. In our view, the position which Mr. Limaye is contending for is opposed to the language of Section 31B(1) which is clear and admits of no equivocation. Section 31B(1) deals with the right, which a landlord has under the Act, to recover possession of his land leased out to the tenant in a case where he bases the claim to recover possession upon the ground of his bona fide requirement of the said land for personal cultivation. If we turn to Section 29(2), the sub-section provides:

No landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be, is deemed to have accrued to him.

Then there is Sub-section (3) of Section 29, which provides:

On receipt of application under Sub-section (1) pr (2) the Mamlatdar shall, after holding an inquiry, pass such order thereon as he deems fit.

At the foot of Sub-section (3) there is a proviso and the proviso says:

Provided that where an application under Sub-section (2) is made by a landlord in pursuance of the right conferred on him under Section 31, the Mamlatdar shall first decide, as preliminary issues, whether the conditions specified in Clauses (c) and (d) of Section 31A and Sub-sections (2) and (3) of Section 31B are satisfied. If the Mamlatdar finds that any of the said conditions is not satisfied, he shall reject the application forthwith.

It is, therefore, clear that where a landlord claims to recover possession of the land leased by him to the tenant upon the ground of bona fide requirement of the said land for cultivating it personally, the statute has conferred a right upon him under Sub-section (2) of Section 29 to make an application to the Mamlatdar to recover possession of the land, and if he does make such an application, then a question, arises under Clauses (c) and (d) of Section 31A for consideration whether the income by the cultivation of the (d) of Section 31A for consideration whether the income by the cultivation of the land, of which the landlord is entitled to take possession, would be the principal source of income for his maintenance and whether the land leased out stands in the Record of Rights or any public record or similar revenue record on January 1, 1952, and thereafter during the period between the said date and the appointed day in the name of the landlord himself, or in the name of his ancestors, or if the landlord is a member of a joint family, in the name of a member of such family. Section 31B(2) clearly provides that in no case where a tenancy is terminated upon the ground that a landlord claiming to recover possession of his land requires the possession of his land back from his tenant for bona fide personal cultivation, shall the landlord be entitled to recover more than half the area of the land leased out to the tenant. In, our view, Section 31B(1) is an independent provision, which stands by itself and controls Section 31A(b). It is not subject to the provisions of Section 31A(b). The Courts below were, there fore, right in holding that the petitioner-landlord, in so far as he claimed to recover possession of the land leased out by him to the tenant on the ground of bona fide requirement of the land for personal cultivation, was not entitled to obtain possession of anything more than 10 acres out of the 20 acres of land leased out by him to his tenant, opponent No. 1. Under Clause (c) of Section 31A, the right of a landlord to terminate the tenancy on the ground of cultivating the land personally under Section 31 is subject to a condition that the income by the cultivation of the land, of which the landlord is entitled to take possession, is the principal source of income for his maintenance. Therefore, in this ease it became necessary to determine whether the income from 10 out of the 20 acres of land leased out by the petitioner to opponent No. 1, of which the petitioner would be entitled to take possession under Sub-section (1) of Section 81B, was the principal source of the landlord's income for his maintenance. On this point the finding of the Courts below is that the income from the 10 acres of land, which the landlord is entitled to recover back from his tenant, is not the principal source of his income for his maintenance. The finding is that the income from the aforesaid 10 acres of land is below Rs. 1,400 per year, whereas the income from the 20 acres of land which are now in the possession of the landlord is Rs. 1,400 to Rs. 1,600 per year. In view of this finding of fact the Courts below were right in coming to the conclusion that the landlord would not be entitled, to recover possession f 10 out of 20 acres of land leased out by him to his tenant, upon the ground that he fide required that land for personal cultivation.

6. The next point which arises in this case is whether the provisions of Section 34, Sub-sections (1) and (5), of the Act are subject to the provisions of Section 31B(1). In this connection, the Tribunal was right in holding that the remedy which a landlord has to recover possession of his land under Sub-sections (1) and (5) of Section 34 is a remedy independent of the remedy which he has if he wishes to terminate the tenancy of his tenant upon the ground that he requires the possession of the land for bona fide personal cultivation. The opening words of Section 31B, namely, the wourds 'In no case' are to be read with the words 'a tenancy shall, be terminated under Section 31' and there is no doubt that the question of termination of tenancy tinder Section 31 would only arise where a landlord requires possession of his land for bona fide personal cultivation or for any non-agricultural purpose. Section 31 has nothing to do with a case where a landlord claims to recover, possession of his land from the tenant upon the ground that the tenant has got, in his possession of his land in excess of the ceiling area. Therefore, where a landlord bases his claim upon the ground stated in Sub-section (1) of Section 34, the provisions of Section 31B (1would have no application. Nos, if we turn to the application made by the landlord in this case it would appear that he made his claim to recover possession of the land from his tenant on two grounds, one under Sub-section (1) of Section 31 and the next under Sub-section (1) of Section 34. The landlord stated in that application that he wanted the possession of his land, because he bona fide required it for personal cultivation and he also mentioned in terms that he wanted the land back from his tenant, because the tenant had got in his possession land in excess of the ceiling area. When a landlord claims to recover possession of his land from his tenant under Sub-section (1) of Section 34, the question whether the income of the land, whose possession is required by the Iandlord is or is not the principal source of income for his maintenance docs not arise, and the only question of fact which would fall to be determined in that case would be whether the tenant was in possession of land in excess of the ceiling area. That being so, the Tribunal was right, in our view, in remanding the case to the Tenancy Court for recording a finding upon the point covered by Sub-section (1) of Section 34 of the Act. After the Mahalkari records his finding, if any party has a grievance against it, the remedy of such party is to go by way of an appeal to the Prant Officer against that finding and if against the finding of the Prant Officer any party has got a grievance, the remedy of the said party is to approach the Revenue Tribunal by way' of revision. If by the order of the Tribunal any party feels aggrieved, the remedy open to him would be a remedy under Article 227 of the Constitution. At the present moment, we do not know what the Mahalkari's finding on the question, covered by Sub-section (1) of Section 34 would be and we do not know what attitude the aggrieved party would adopt in respect of that finding. 'When the landlord's claim under Sub-section (5) of Section 34 is finally decided, it would be open to the aggrieved party concerned to make a fresh application to this Court under Article 227 of the Constitution.

7. In the result, we reject this application with costs.


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