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Rachgouda Paragouda Vs. Appasaheb Tatyasaheb and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1521 of 1955
Judge
Reported inAIR1956Bom759; (1956)58BOMLR64; ILR1956Bom133
ActsTenancy Law; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 14, 14(1), 27(1) and 29(2); Constitution of India - Article 227; Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952 - Sections 14
AppellantRachgouda Paragouda
RespondentAppasaheb Tatyasaheb and ors.
Appellant AdvocateS.C. Javali, Adv.
Respondent AdvocateV.V. Albal, Adv.
Excerpt:
.....29(2) on november 21, 1951--application whether barred by time under section 29(2)--when right to obtain possession must be deemed to have accrued to landlord.;the applicant who was the owner of a certain land let it out to the opponent. on october 12, 1948, while the opponent was the applicant's tenant, the opponent sub-let the land - on november 21, 1951, the applicant filed an application against the opponent for possession under section 26(2) of the bombay tenancy and agricultural lands act, 1948. on the question whether the application was within two years as contemplated by section 29(2) of the act:--;that as the sub-letting took place on october 12, 1948, it was on that date that a right to obtain possession must be deemed to have accrued to the applicant within the-meaning of..........held that the application was not filed within two years of the date on which the right toobtain possession accrued to the applicant and having come to that conclusion, the applicationwas dismissed. there was then an appeal to theprant officer, chikodi, and the appellate authorityagreeing with the mamlatdar, held that the application was not within time and dismissed the applicant's appeal. prom the appellate order, the 'applicant went in revision before the bombay revenue tribunal and that tribunal consisting of mr. k. o. sen, president, and mr. s. b. hubli, held that the application was out of time. the applicant now applies under article 227 of the constitution. 3. upon this application, mr. javall for the applicant contends that the application preferred by him on 21-11-1951.....
Judgment:
ORDER

1. This special civil application raises a question of limitation under Section 29(2), Bombay Tenancy and Agricultural. Lands Act, 1948.

2. The facts of the case in which the question arises are simple. The applicant is the owner of a certain land and he let it out to the first opponent for the year 1948-49. On 12-10-1948, while the first opponent was the applicant's tenant, the first opponent sublet the land in dispute to opponent No. 2.

On 28-12-1948, the Bombay Tenancy and Agricultural Lands .Act 1948, was applied to the placefrom which this application arises & on 21-11-1951the applicant filed the present application againstthe two opponents for possession under Section 29(2) ofthe Act. Upon that application, a question arose asto whether the application preferred by the appllcant was within two years as contemplated by Section 29(2).

The Mamlatdar, Athanl, who heard the application, held that the application was not filed within two years of the date on which the right toobtain possession accrued to the applicant and having come to that conclusion, the applicationwas dismissed. There was then an appeal to thePrant Officer, Chikodi, and the appellate authorityagreeing with the Mamlatdar, held that the application was not within time and dismissed the applicant's appeal.

Prom the appellate order, the 'applicant went in revision before the Bombay Revenue Tribunal and that Tribunal consisting of Mr. K. O. Sen, President, and Mr. S. B. Hubli, held that the application was out of time. The applicant now applies under Article 227 of the Constitution.

3. Upon this application, Mr. Javall for the applicant contends that the application preferred by him on 21-11-1951 was within time because the application was made within two years either from 7-9-1951 or 21-9-1951 when the applicant gave nonce to the first opponent terminating the tenancy. In determining the question of limitation. It is necessary to just look at the section of the Act, The first of these is Section 14 which, so far as material, provides by Sub-section (1) that

'notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated unless such tenant (d) has sublet the land or failed to cultivate it personally.'

There is a proviso to Section 14, this proviso was added to Section 14 by the amending Act 33 of 1952 which came into force on 12-1-1953. It is clear, therefore, that the proviso does not apply to the facts of this case.

Section 14(1) (d) would, therefore, show that the tenancy of a land held by a tenant is not liable to be terminated unless the tenant has sublet the land. Since the proviso does not apply, it is not necessary for the landlord to give three months' notice as contemplated by the proviso to. Section 14(1). It is enough if the landlord terminates the tenancy by an indication of his intention to so terminate it by filing a proceeding under Section 29(2) of the Act.

Then the next section to look at is Section 27 which by Sub-section (1) provides, so far as material, that 'sub-letting of the land ...... held by a tenantshall be valid. Such ...... sub-letting .... shallmake the tenancy liable to termination.' Section 27(1), therefore, shows that if a tenant sublets, then the sub-letting would be invalid and as a consequence the tenancy is liable to termination. The remaining section to which reference must be made is Section 29(2) which provides that

'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.' In our view, the key words in Section 29 (2) are the words deemed to have accrued'.

Now, to obtain possession a landlord has to make an application and the question is as to when, the right to obtain possession must be deemed to have accrued applicant in the circumstances of this case.

Mr. Javali argues that the right to obtain session can arise only after he has given son dictation of his intention to terminate the te(sic) To justify such a construction there are no(sic) in Section 29(2) in favour of Mr. Javali's content(sic) a case where the proviso to Section 14 does not(sic) it is clear that no notice is necessary. In(sic) where the proviso applies, a notice to terr(sic) the tenancy is necessary and so long as, a(sic) is not given, the tenancy is not terminated. (sic)

It follows that the landlord has no ri(sic) possession until the period of the notice h(sic) pired. But the words as used in Section 29(2) a(sic) words 'the right to obtain possession is d(sic) to have accrued to him.' Now, the sub-lett(sic) this case took place on 12-10-1948 and it is o(sic) date that a right to obtain possession m(sic) deemed to have accrued to the applicant, t(sic) the landlord. Section 29(2) does not us(sic) words, 'the right to obtain possession has a(sic) to the landlord'.

The right to obtain possession would (sic) to the landlord only when the period of notice expired because it is only from the expiry(sic) period of the notice that the landlord we(sic) entitled to obtain possession of the land. B(sic) language used in Section 29(2) is 'the right to (sic) possession is deemed to have accrued to hi(sic) the face of the language, it is impossible t(sic) that the limitation would not begin to n(sic) 12-10-1948, but only on 7-11-1951 when the(sic) cant gave notice to the first opponent. (sic)

4. In our view, therefore, the authoritieslow were right in taking the view that the(sic)cation was barred by time under Section 29(2). Inof this conclusion, the application must fa(sic)the rule will be discharged with costs.

5. Rule dismissed.


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