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Narayan Ganpat Raut Vs. Habiba Yusuf Landye and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 5278 of 1976
Judge
Reported inAIR1981Bom371; (1980)82BOMLR663; 1981MhLJ261
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 27, 31, 33B, 34, 37 and 63; Transfer of Property Act
AppellantNarayan Ganpat Raut
RespondentHabiba Yusuf Landye and ors.
Appellant AdvocateS.J. Jadhav, Adv.
Respondent AdvocateD.M. Parulekar and;S.R. Swar, Advs.
Excerpt:
.....to june there were no agricultural operations carried on or contemplated, then even if during that period possession of the land was with a stranger, an alleged transferee of the land, it cannot be said that the owner or ex-landlord of the land ceased to continue to use the land for the purpose for which he had obtained the possession of the land from the ex-tenant.;it is conceivable that if no agricultural operations were carried on during a particular period by the landlord, the landlord may conveniently use that land for any other purpose during that short period and still continue to use the said land for the purpose for which he obtained possession. this he can do so by using it during the 'remaining period for that purpose. a temporary use or permission to use the land or a licence..........1973 there were no agricultural operations carried on or contemplated, then even if during that period possession was with ganpat chavan, it cannot be said, since nobody carried out any agricultural operations that the owner or ex-landlord habiba had ceased to continue to use the land for the purpose for which she obtained precession. on the 29th june, 1973, she has resumed back to herself not only the right to the land but the right to continue to use the land for any purpose which she may have wanted.20. it is this aspect of the matter which should have been really taken into account by the authorities below. instead they concentrated themselves on the question of passing of title and possession. in remitting the matter to the authorities below the tribunal, therefore, rightly.....
Judgment:
ORDER

1. This Petition raises a question with regard to the scope of Section 37 of the Bombay Tenancy and Agricultural Lands Act and the import of that section.

2. The question arises in the following circumstances:

Lands Survey No. 25. Hissa No. 1 and 2 admeasuring 2 acres and 8 3/4 gunthas of village Kase in Sangameshwar Taluka, District of Ratnagiri, was leased to Narayan Ganpat as a tenant, Lands belonged to Respondent Habiba. Habiba filed a proceeding against Narayan under Section 31 of the Bombay Tenancy and Agricultural Lands Act claiming possession on the ground that she required the land for bona fide personal cultivation. That was Tenancy Suit No. 303 of 1962. It is common ground that Habiba succeeded in that suit and was rewarded with an order of possession of those lands. Accordingly, she was actually put in possession in the year 1964. Since then she has been cultivating this land personally about which there is no dispute.

3. On the 9th April, 1973 Habiba executed a sale deed in favour of Respondents Nos. 2 and 3 Ganpat Chavan and Gangubai Chavan, his wife. It appears that as soon as the sale deed was executed and within a few days therefrom parties thought of cancellation of that document. To that effect, on the 13th May. 1973, an application was given by Ganpat and his wife to the Registrar to cancel that document. It appears that Respondents Nos. 2 and 3 were then ready to cancel the document but such a thing could not be done, and the Registrar informed them that if they did not want the land then they had to execute a reconveyance in favour of the Vendor Habiba. Accordingly, a document came to be executed on 29th June, 1973 reconveyance the same land by Respondents Nos. 2 and 3, namely, Ganpat and his wife in favour of Habiba from whom they had purchased this land.

4. On the 31st of May, 1973 Narayan called upon Habiba to hand over possession of the land of which she had taken possession in a proceeding under Section 31 by recourse to Section 37 of the Bombay Tenancy and Agricultural Lands Act. It was his contention that the land had been transferred by Habiba and, therefore, she was liable to put tenant Narayan into possession and restore the land to him. As Habiba did not agree, tenant Narayan filed a suit, which gives rise to the present petition, in the Court of Tahsildar, Deorukh.

5. In his application to the Tahsildar, Deorukh, Narayan alleged that Habiba had executed a sale deed on the 29th May, 1973, in favour of Ganpat Chavan. The date however seems to be wrong. He then contended that the land is in possession of Ganpat and that this transaction of sale is illegal. Habiba had no right to effect such a sale and the sale deed is not binding upon him. He, therefore, claimed possession. It is significant to note that in his application for possession under Section 37, he has not made any reference to the land or the use to which, if any, Ganpat had put the lands or whether Habiba had ceased to cultivate the land personally. This application was filed on the 18th August, 1973.

6. The Tahsildar, Deorukh held that there was a contravention of the provisions of Section 37 by Habiba. He, therefore, ordered restoration of possession, of the land by Habiba to Narayan.

7. Aggrieved by that judgment and order, Habiba preferred an appeal. That appeal came to be heard by the Special Land Acquisition Officer, Dapoli. It may be stated that Ganpat and Gangubai were joined as parties to his application before the Tahsildar by Narayan. They did not, however, file any appeal to the Collector, but it was only Habiba who filed that appeal. Ganpat and Gangubai were made respondents alone with Narayan. The Special Land Acquisition Officer confirmed the order passed by the Tahsildar.

8. Habiba then took a revision application to the Maharashtra Revenue Tribunal being Revision Application No. 169 of 1976. The Maharashtra Revenue Tribunal allowed the application and set aside the orders passed by the Special Land Acquisition Officer as well as of the Tahsildar, but instead of deciding the question which was raised therein, it remitted the matter back to the Tahsildar, Sangameshwar, for an inquiry. That inquiry was directed in regard to the question as to the use to which the land had been put during the period 9th April. 1973. to 29th June, 1973. The learned Member of the Tribunal observed that the period during which Habiba was not in possession, assuming that the recitals in the sale deeds are correct, was between 9th April, 1973. to 29th June, 1973 only, and that was a very short period and normally this is not a period during which any cultivation as such could be undertaken. It made a reference to what had appeared in the judgments of the authorities below as summer paddy cultivation. It, therefore, felt, 'it was necessary for the tenant to adduce evidence to show that the appellant has failed to use the land for agriculture purpose.' It is for that purpose that the Tribunal directed the matter back to be inquired into by the Tahsildar, Sangameshwar. It will be seen from the judgment of the Tribunal that the Tribunal has made a distinction between sale of land and sale of proprietary interest, and cessation of use to which the land must be put and was required to be put before provisions of Section 37 got attracted. It correctly pointed out that judgment and orders passed by the authorities below suffer from undue emphasis and consideration of facts and circumstances which were not relevant. It pointed out that Section 37 speaks of failure to use the land for the purpose for which it was obtained. What the authorities below considered was the question of possession having been transferred from Habiba to Ganpat Chavan and the proprietary interest in the property also passing from Habiba to Chavan and repassing from Ganpat Chavan to Habiba. Indeed the consequence of the property passing back to Habiba on account of the reconveyance deed is not given its due and necessary consideration by the authorities below.

9. Mr. Jadhav, who appeared for the petitioner, raised a contention that Section 37 was clearly infringed by Respondent Habiba in the present case, by executing the sale deed in favour of Ganpat Chavan. It was Mr. Jadhav's contention that Habiba by further parting with possession must be deemed to be, and must be held to have ceased to use the land for the purpose for which she obtained the land, the moment Habiba transferred the property to Ganpat Cha-van, it was Mr. Jadhav's contention, that she ceased to have any dominion over the property and could not thereafter cultivate it personally. It was his submission that the landlord must not only cultivate the land or use it for the purpose for which he has obtained the possession from the tenant but that his capacity as a landlord or owner by virtue of which he got back the possession from the tenant must continue with him. In other words. Mr. Jadhav's contention was that landlord must not only continue to use the land for the purpose for which he obtained the possession from the tenant, but he must also continue to be the landlord or the owner of the land. Where he ceased to be such an owner, and the character of his possession of such land, even if he is in physical possession, changes and the result is that he is not in possession as a landlord and not using the land for the purpose for which it has been given.

In other words, it seems to be his contention that the landlord must continue to use the land for the purpose for which it has been given to him and in that capacity. There must be no change in his character of holder.

10. So far as the relevant part of Section 37 is concerned, it is as follows:

'37. (1) If after the landlord takes possession of the land after the termination of the tenancy under Section 31, 33B or Section 34 of this Act as it stood immediately before the commencement of the Amending Act, 1956 he fails to use it for any of the purposes specified in the notice given under Sections 31, 33B or Section 34 of this Act as it stood immediately before the commencement of the Amending Act, 1956 within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him.... ......'

Now, analysing this section for our purposes, it would be seen that there are two contingencies in which a tenant who has lost possession, or possession has been taken from him in a proceeding commenced by the landlord under Section 31, 33B or 34 before its amendment in 1956 would become entitled to restoration of possession. The first contingency is where the landlord who has recovered possession from the tenant, 'fails to use it within one year from the date on which he took the possession' for the purpose for which he has obtained possession. Therefore, where a landlord has obtained possession from his tenant on the ground that he requires the land for personal cultivation, then within a period of one year he must start cultivating the land personally. Where he has obtained possession for a non-agricultural purpose, then he must put the land within a period of one year for such non-agricultural purpose.

The purpose to which the land must be put is the purpose mentioned or specified in the notice preceding action under Section 31, 33B or 34, as the case may be.

11. The second contingency in which the tenant would be entitled to restoration of possession is a contingency which may occur within a period of 12 years from the date of taking possession, that is. where the landlord 'ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession.' The combined effect of the two parts of the section, therefore, is that where a landlord takes possession be must within a period of one year from the date of his taking possession put the land to the purpose for which he has obtained possession and use it for that purpose on pain of losing possession, Similarly he must continue to use the land for such purpose for a period of twelve years from the date of his taking possession, otherwise if he ceases to use the land for that purpose, he renders himself liable to lose possession and the tenant who has lost possession becomes entitled to restoration of possession.

12. Now important words in this section are obviously the words 'failing to use it for any of the purposes'' and 'ceasing to use it for any of the aforesaid purposes.' The expression 'for any of the purposes' or 'any of the aforesaid purposes' is common. What Section 37 seems to strike at is failure to use the land for the purpose or 'ceasing to use it' for the purpose during the period of twelve years from the date of taking possession for which possession was obtained. The emphasis, therefore, is user of the land for the purpose for which the land has been obtained. What the section aims at, therefore, is non-use of the land for the purpose for which it has been obtained. If there is such a non-use, then the landlord would be visited with the penalty of losing the land and the tenant who has been deprived of possession of the land, to enable the landlord to put it to that use, is put back in possession.

13. It would be seen that the section does not say anything as to the capacity in which the landlord or a former landlord must use the land or continue to use it. The converse of ceasing to use is continuing to use. What was contended by Mr. Jadhav was that the section makes no reference to the word 'owner.' It uses all along and everywhere in the section the word landlord. It also refers to landlord and, therefore, it was his contention that it is the landlord who must use it within a period of one year and must continue to use it for a period of twelve years for the purpose for which the land was given to him and he obtained from the tenant. If the person ceased to be the landlord, meaning thereby according to him, the owner of the land, then he automatically must be deemed to have 'failed to use it' or 'ceased to use it' for the purpose for which the land was let. In other words, according to Mr. Jadhav, the status of the landlord and the use of the land must go hand in hand. If any of them is discontinued and does not walk in step, then Section 37, according to him, is immediately attracted.

14. Now it is true that in Section 37 the word used is 'landlord'. But it is obvious that what is meant by the word 'landlord' is an ex-landlord or owner. Once the relationship of landlord and tenant ceases, the landlord having succeeded in suit for possession, he cannot be described with reference to the land as landlord, since there is no tenant on the land. The person who obtains possession is no more a landlord with reference to the land. The proper description of such a person would be an ex-landlord. Wherever similarly the section uses the word 'tenant', it really means ex-tenant. The word 'landlord' in such a case, would mean owner and the 'tenant' would mean an ex-tenant.

15. Now there are no express words in this section which place any embargo or prohibition upon the status of the owner or ex-landlord changing from that to any other. If the section intended that the owner, namely, ex-landlord must for a period of twelve years from the date of his taking possession continue as an owner, and must not part with the property in any manner or must not lose dominion over the land, then it is reasonable to suppose that the Legislature would have used such words limiting the landlord's power to transfer his interest in the land.

15A. Wherever the Legislature wanted to prohibit transfers of land or dispossession thereof, it has used such words so as to clearly bring out its intention. An instance of this intention can be given by making a reference to Section 63 of the Bombay Tenancy and Agricultural Lands Act and also to Section 27. Section 27 prohibits an assignment of any interest by a tenant and Section 63 prohibits a sale. gift, exchange, lease of any land in favour of a non-agriculturist. The Bombay Tenancy and Agricultural Lands Act has been enacted, as the preamble says, to amend the law which governs the relationship of landlords and tenants of agricultural lands. Its object was to ensure 'the full and efficient use of land for agriculture.' The scheme of the Act also goes to show that the intention of the enactment was to eliminate absentee landlords, and to confer the status of a proprietor upon persons who were actually cultivating the land. The object of the Legislation, therefore, was clearly that those persons who were interested in cultivation of agricultural land should cultivate the land and should continue to cultivate that land. The ordinary law relating to landlord and tenant, and the right of a lessor to recover possession which was available to him under the T. P. Act, by this Legislation has been seriously controlled and curtailed. It is no more possible for a landlord, which it was possible for him under the T. P. Act, to simply terminate the tenancy of his tenant and then recover the possession. He can do so only by following the procedure and in the circumstances laid down by the Bombay Tenancy and Agricultural Lands Act only and not otherwise.

16. Once, however, the landlord has established his right to recover possession, then all those rights which he had under the ordinary law relating to his property, the right of disposal and the right of enjoyment, again accrue to him and are not subject to any limitation except if there be any imposed by the Act under which he has been able to get the possession. Such a provision limiting the rights of an owner lessor who has acquired possession by resort to the provisions of Bombay Tenancy and Agricultural Lands Act is Section 37. It is, therefore, clear that the provisions of Section 37 are restrictive of the common law rights and the ordinary rights of a lessor. If a legislation or a provision of a section is restrictive of the rights which a person generally possesses or is possessed of, then such restrictive provisions, it is settled law, must be construed strictly. Section 37, therefore, has to be given a very strict interpretation. It cannot, therefore, be allowed to travel beyond its text to matters which do not come within the ambit of Section 37. As pointed out, the section places no restriction of whatsoever kind or nature upon the owner's or ex-landlord's title, status and character vis-a-vis the land in question. The only liability or duty under the provisions of the Act is that he must not fail to use the land within a period of one year from the date of taking possession for the purpose for which he has obtained possession, and must continue to use it for the said purpose for a period of twelve years. The section does not say or speak of what capacity, and in what right he must continue to use the land for the purpose for which he has obtained the possession and must not fail to use it within a period of twelve years. If he continues to use it and if he does not fail to use it for the purpose for which he has obtained the possession, then I do not see why, even if he has ceased to be an owner, or the content of ownership does not continue to remain with him, he can be said to have infringed the provisions of Section 37. If the object of the section and the Act is to insist on the land being used by the person for the same purpose for which it has been obtained, then the insistence is upon the actual use and the character of that use and not in the capacity in which the said use is being made.

17. A number of instances and illustrations can be given to bring out the distinction between the capacity of the ex-landlord or owner and the nature of actual use of the land. An owner and ex-landlord who has obtained possession can also mortgage that land. If the mortgage is a simple mortgage, then no question as raised by Mr. Jadhav will arise at all. But even if he executes a usufructuary mortgage by force of circumstances and parts with possession, and obtains the land on the same day and at the very same time from the mortgagee in possession for cultivation and cultivates it personally, it is difficult to see how in such a case, merely because he has created a subsidiary interest in favour of another person that he can be said to have ceased to use the land for the purpose for which he has obtained. He continues to be the owner of the land. He also continues to use the land for the purpose for which he has obtained possession thereof. The only thing which happens is that a subsidiary interest is created in favour of a third person. The section does not seem to prohibit any such transfer of proprietary interest. What it seems to prohibit is the non-use of the land by the person concerned to anything other than the purpose for which it was had. Similar can be the position where a person is unable to cultivate the land on account of certain exigencies and circumstances beyond his control and allows the land to remain fallow in a particular year, in such a case the person would be no doubt continuing to be the landlord and owner. If such a use or to be correct, non-use is continued for sufficiently reasonable period, then it is difficult to see how Section 37 would not be infringed by such a landlord. The section does not allow any scope for non-use or cessation of use without a reasonable cause or any such circumstance. All that it seems to consider is the factor of use and the factor of cessation of use. The emphasis is, therefore, clearly, in my opinion, on the actual user or non-user of the land by the owner, and not on the capacity in which he has been doing so. His capacity may be that of a partner. He may also cease to cultivate himself and may get the land cultivated on his behalf by somebody. Such a cultivation would also for the purposes of the Act be deemed to be personal cultivation.

18. There is one more reason why Section 37 must be construed strictly. The section does not speak of any particular purpose, but the purposes specified in he notice preceding the action. Now both Section 31 and former Section 34 speak of seeking possession of land not only for cultivating it personally but also for the purposes of a non-agricultural purpose. Section 33B, however, is only confined to personal cultivation. It does not speak of right to recover possession for a non-agricultural purpose. Now when a person requires possession of any land for a non-agricultural purpose as, for instance, like developing that land by making layout and dividing it into build-able plots and then selling the clots, it is difficult to see how, when such a person prepares the layout, develops the locality and sells the plots thereby parting, with proprietary interest in the property, can be said to have infringed the provision of Section 37. Similarly, where a person acquires possession of any land as, for instance, for building a house and builds a house or builds a factory and later sells the house or the factory, it is extremely doubtful if it can be said that he has ceased to use the land for a non-agricultural purpose or the land its not being used for the purpose for which its possession was taken from the tenant and conferred upon the landlord. It is true that in such a case the person entitled to the enjoyment of the land and possession of the land may change, but the purpose for which the land is being used continues to be the same. If import of Section 37 is towards the purpose for which possession has been given, then it seems to be reasonable that it is unnecessary to be weighed with the considerations of ownership unless the transaction is such that the owner has placed it beyond his powers to continue to use the land for that purpose for which he obtained possession. Such a situation might arise where the land is sold for good within a period of twelve years and the transferor either does not get possession or has no right to possession. It is also possible to conceive of a case where the land is sold but at the same time the transferor obtains a lease for a period of more than twelve years from the vendee of the very lands in question and continues to cultivate them personally for which purpose he obtained possession. In such a case, there would not be even a break of a single moment in the continued possession of the owner or ex-landlord. All that has changed is the character of his possession. Section 37 does not seem to strike at any such change of character. It strikes merely at the cessation of the use by the person concerned.

19. In the present case, a contention was raised that though the land was sold by Habiba to respondent Chavan the intention was not to part with the land and part with the possession. Notwithstanding the recitals in the document, a case was made out that possession was not actually parted. In any event, possession of Habiba was restored on the 29th June, 1973. Therefore, even assuming that possession was handed over to Chavan on the 9th April the loss of possession was only for a period of two months and 17 days. Now agricultural operations and even for that matter personal cultivation, does not require day in and day out work on the land depending on the character of the land and the type of crops which are grown. In case of dry lands, it is common that during the summer months there is no agricultural operation carried on on the land. A reasonable view, therefore, has to be taken of the provision's of Section 37. It does not mean continuance and daily use for the purpose for which the possession of the land is obtained, but only use for the purpose for which it is obtained. If, therefore, between the period of 9th Apr., 1973 to 29th June. 1973 there were no agricultural operations carried on or contemplated, then even if during that period possession was with Ganpat Chavan, it cannot be said, since nobody carried out any agricultural operations that the owner or ex-landlord Habiba had ceased to continue to use the land for the purpose for which she obtained precession. On the 29th June, 1973, she has resumed back to herself not only the right to the land but the right to continue to use the land for any purpose which she may have wanted.

20. It is this aspect of the matter which should have been really taken into account by the authorities below. Instead they concentrated themselves on the question of passing of title and possession. In remitting the matter to the authorities below the Tribunal, therefore, rightly brought out the emphasis of Section 37 and required a finding as to whether during that short period there was any cultivation of this land. If there was no cultivation of this land by anybody, then on the resumption of the right to possession and actual possession by Habiba, it is difficult to see how it can be said that Habiba has ceased to use the land for the purpose for which she obtained possession, only because for a short period of 2 and 1/2 months she had parted with her proprietary interest in the land. It is conceivable that if no agricultural operations were carried on during a particular period by the landlord, the landlord may conveniently use that land for any other purpose during that short period and still continue to use the said, land for the purpose for which he obtained possession. This he can do so by using it during the remaining period for that purpose. A temporary use or permission to use the land or a licence for a limited operation for a limited duration where a land is not used for agricultural operations cannot be said to be such a cessation of use of the land.

21. In that view of the matter, the order passed by the Tribunal has to be confirmed.

22. The petition fails and is dismissed. There will, however, be no order as to costs. Rule discharged.

23. Petition dismissed.


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