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Gangaram Bangale Vs. Balgouda Patil - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1728 of 1970
Judge
Reported inAIR1972Kant17; AIR1972Mys17
ActsCode of Civil Procedure (CPC), 1908 - Sections 115; Tenancy Laws; Mysore Land Reforms Act, 1962 - Sections 14(1), 16(10), 16(10B), 114, 118, 118(1) and 142; Mysore Land Reforms Act, 1961 - Sections 14(1) and 117; B.T. & A.L. Act, 1947 - Sections 31(B); Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 31A, 31B, 31B(1), 31C, 34, 34(1) and 34(2); Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955; ;Bombay Tenancy (Suspension of Provisions and Amendment) Act, 1957
AppellantGangaram Bangale
RespondentBalgouda Patil
Appellant AdvocateW.K. Joshi, Adv.
Respondent AdvocateK.I. Bhatta, Adv.
DispositionPetition allowed
Excerpt:
.....of india vis-a-vis article 19(1)(g). - in other words, a comparative test must be applied and the income of the landlord from sources other than the land of which the possession is sought must be considered and it is only if the income from the land of which he is seeking possession is larger than the income from other sources that the condition laid down in clause (c) will be satisfied. if the income is not larger, then no further question remains to be determined and the landlord's action must fail. if the landlord is already in a position to maintain himself from the other source then again the landlord must fail. it is only if he satisfied both these conditions that he can obtain possession from his tenant. thus the two conditions must be satisfied namely that the income of the land..........and the landlord's action must fail. if it turns out that the source of his income from the land in question is larger than the income from all other sources, then the next question would be whether he requires this income for his maintenance. if the landlord is already in a position to maintain himself from the other source then again the landlord must fail. it is only if he satisfied both these conditions that he can obtain possession from his tenant.' the provision of this section 34(1) (c) also came up for consideration before this court in (1959) 37 mvs. l. j. 276 (subbaji malhar joshi v. mysore board of revenue). this court accepted the test laid down in the full bench decision of the bombay high court and stated as under: 'we are in respectful agreement with their lordships.....
Judgment:
ORDER

H.B. Datar, J.

1. The petitioner is the landlord and filed an application under Sec'tion 14(1) of the Mysore Land Reforms Act, 1961 for resumption of the land R. S. No. 337/15 measuring 2 acres and 13 guntas assessed at Rs. 5/- situated at Sarnbra village, Beleaum District. The claim made by the landlord was that the land is bona fide required by him for his personal cultivation and that the income from the suit land will be the principal source for his maintenance. The Land Tribunal, Belgaum, raised two points for consideration. They are: (1) Does the applicant prove that he requires bona fide the land in dispute for his personal cultivation; and (2) If yes, what is the extent of the land to which he is entitled for resumption under the amended provisions of Section 16(10B) of M. L. R. Act. 1961? It held that the petitioner is entitled to resume half of disputed land R. S. No. 337/15 measuring 2 acres and 13 gunthas assessed at Rs. 5/--For arriving at this conclusion, the Land Tribunal recorded certain findings, they are (1) that the landlord reasonably and bona fide required the land for his personal cultivation; (2) that the income of the suit land will be the principal source for his maintenance; and (3) the extent of land to which the landlord would be entitled to claim under Section 31B (1) of the B. T. & A. L. Act of 1947 would be half of the land claimed by the landlord. On the question of bona fide and reasonable requirement, the Land Tribunal found that there was no material placed to hold that the claim of the landlord was not bona fide. On the question of the principal source of income, the view taken was that barring the temporary income that the landlord was deriving from working as an accountant, he has no other source of income.

2. The tenant-respondent filed an appeal before the 1st Additional District Judge. Belgaum, and the learned District Judge who heard the said appeal, allowed the appeal and set aside the order of the Land Tribunal. The learned District Judge held that the claim of the landlord was not bona fide and that it was stated that the income from the suit land may not be the main source of income. It is these two findings that led ultimately to the dismissal of the landlord's application.

3. It is the correctness of this order that is challenged in this revision petition.

4. Sri K. L. Bhatta, the learned Counsel appearing for the respondent tenant, raised a preliminary objection that the revision petition is not maintainable under section 115 of the Code of Civil Procedure, inasmuch as, under the provisions of Section 117 of the Mysore Land Reforms Act, 1961, before its, amendment in the year 1970, an appeal was competent only to the District Judge and according to the notification, it is the District Judge of Belgaum who was competent to hear the appeal. The decision of the District Judge was not that of a court but of a Tribunal. It was further submitted that having regard to the fact that the appeal was preferred to the District Judge and he has given a decision, it is final and no revision petition is maintainable under the provisions of Section 115 of the Code of Civil Procedure.

5. Section 117 of the Mysore Land Reforms Act providing for preferring appeals to the appellate authority has been repealed and consequently the notification issued under the provisions of Section 117 is no more in existence. Section 118 provides that an appeal shall lie to the District Court. Therefore it is the District Court that is entitled to hear and dispose of the appeals against the orders passed by the Land Tribunal-now Munsiff's Court. The word 'Land Tribunal' has also been repealed and in its place the word 'Court' i.e. 'Munsiff's Court' has been substituted. The resulting position is that District Court being the Court subordinate to the High Court the provisions of Section 115 C. P. C. are attracted. Even though it may have been stated that the decision of the District Court shall be final, it does not preclude the High Court from entertaining the revision petition under section 115 C. P. C.

6. This Court had occasion to consider the question as to whether every order including interlocutory order was appealable. In the case of Govinda v. Mary Fernandes (1970) 2 Mys. LJ 466 = (AIR 1971 Mys. 75) the question for consideration was whether an application for amendment was appealable under Section 118 of the Mysore Land Refroms Act or whether a revision petition was tenable under section 115. C. P. C. Discussing this question it was stated:

'3. The main question that arises for consideration is whether under section 115 of the C. P. C. a revision petition lies to this Court from an interlocutory order passed by the Land Tribunal in an application under Section 114 of the Act. In order to answer this question it is necessary to refer to Section 118(1) of the Act. That Section reads:

'Save as otherwise provided in this Act, from every decision or order passed by the Tribunal an appeal shall lie to the appellate Authority; and the order of the Appellate Authority on such appeal shall be final.'

The other sub-sections of this section are not necessary for the purpose of this case. This provision has been amended by Act VI of 1970 with effect from 15th January 1970. All that has been done by 'the amendment is that for the word 'Tribunal' the word 'Court' is substituted and for the expression 'Appellate Authority' the expression 'District Court' is substituted.'

'6. An order or an interlocutory application allowing amendment under the Act, cannot, therefore, be construed as one which affects the rights and liabilities of the parties. It is only an interlocutory order, the correctness of which can be questioned in an appeal against the final decision in the main case. If the argument of the landladies is to be accepted, then an appeal would lie from every order passed in the ease even though it does not affect the rights and liabilities of the parties finally. We do not think that this was the intention of the Legislature as observed by the Supreme Court in the Central Bank of India's case referred to above. We are, therefore, of the opinion that no appeal lies from such interlocutory orders which do not affect the rights and liabilities of the parties as such; therefore, a revision petition is maintainable under Section 115 of the C. P.C. In appropriate cases, the High Court may interfere with interlocutory orders in revision. That does not mean that the tenants in this case who are the petitioners before us, can succeed on the merits of the case. It is open to them to raise all grounds of objections including the grounds which they have raised now against the order following the amendment, in the appeal which may be filed against the final order to be passed in the main application,'

7. In this view of the matter, it is to be held that the present revision petition is maintainable before this Court; the preliminary objection raised by the respondent's counsel is rejected.

8. Sri W. K. Joshi, the learned counsel appearing for the petitioner contended that in the present case the finding given by the learned District Judge that the petitioner has been carrying on Arishina business is based upon no material and since that finding is not based upon any material, the said finding is liable to be set aside. It is also urged that for the purpose of finding out as to whether the claim of the landlord is reasonable and bona fide, what is to be seen is whether the requirement of the landlord is honest one. Further if it is neither capricious, unfair nor absurd then it would be a reasonable requirement.

9. In the present case, by overlooking the principles governing the claim the appellate court has rejected the claim by making a reference to two factors viz. (1) the landlord possessed some other lands which was sold after he took possession 20 years ago, as he wanted money as capital for starting his business in Arishina: and (2) letters Exhibits P1 and P2 show that the claim of the landlord is not bona fide. The explanation given by the landlord was that even though he sold lands about 20 years ago to do business in Arishina, he has not done that business. There is no material on record to show that the landlord was doing Arishina business. On the contrary, the learned Judge has stated that 'He admits that he is now doing some temporary work as an accountant in some shops at Belgaum and Sangli'. Having accepted this statement, the learned Judge states that 'In the face of these admissions it is rather hard to believe that the applicant required the land bona fide for purpose of personal cultivation.' The learned Judge also noticed that the letters arc written in the year 1956 and even though he says that the letters are written in the year 1956 still it is stated that a person who is writing accounts can hardly be expected to cultivate the land personally and therefore the requirement of the landlord has not been established. I am of the view that in the present case the finding that the landlord does not re-quire the land bona fide and reasonably for his personal cultivation is not based upon any evidence and so the finding is liable to be set aside.

10. Under Section 16 (10) of the Mysore Land Reforms Act, there are certain restrictions placed on the right of the landlord to claim resumption of lands. Section 16(10B) of the Mysore Land Reforms Act reads as under;

'16 (10B). Notwithstanding anything contained in Clauses (1) to (10) (both inclusive), or Section 142, the extent of land if any returnable by any landlord in 'Bombay Area, shall be subject to the restrictions and conditions specified in Sections 31A, 31B and 31C of the Bombay Tenancy and Agricultural Lands Act. 1948 as inserted by the Bombay Tenancy and Agricultural Lands (Amendment) Act. 1955 (Bombay Act 13 of 1956), notwithstanding the provisions of the Bombay Tenancy (Suspension of Provisions and Amendment) Act. 1957 (Mysore Act 13 of 1957).'

As a result of the provisions of Section 16 (10) of the Mysore Land Reforms Act, the provisions of Section 31A of the B. T. & A. L. Act are invoked and according to Section 31A of the B. T. & A. L. Act the right of a landlord to terminate a tenancy for cultivating the land personally under section 31 shall be subject to the following conditions. The condition with which we are concerned is condition No. (c) the income by the cultivation of the land of which he is entitled to take possession is the principal source of income for his maintenance. The provisions of Section 34(1) (c) of B. T. & A. L. Act and Section 31A of the amended Act are identical. The provisions of section 34 of the B. T. & A. L. Act, 1948 came up for consideration before the High Court of Bombay in the case of Dattatraya Vishnu v. Ganpat Eagho, : AIR1957Bom193 . The Full Bench was constituted to construe Clause 1 (c) of Sub-section (1) of Section 34 of the Act Chagla C. J. observed as under:

'The other view is that not only the landlord must require the land for his maintenance, but it must also be found that the income from the land of which he is seeking possession is the principal source of his income. In other words, a comparative test must be applied and the income of the landlord from sources other than the land of which the possession is sought must be considered and it is only if the income from the land of which he is seeking possession is larger than the income from other sources that the condition laid down in Clause (c) will be satisfied. In order to decide winch is more correct view we must look at the nature of the Act which we are construing and the object that the Legislature had in mind. It is needless to repeat what has often been said in this court that this is an ameliorative Act and it has been enacted for the benefit of the tenants. It is also necessary to bear in mind that Sub-section (2) of Section 34 in which Clause (c) finds a place is a restrictive provision restricting the right of the landlord to obtain possession which has been conferred upon him by Section 34(1) and therefore this restriction must be construed strictly in favour of the tenant and against the landlord.'

The Court also made a reference to the decision in (1909) ILR 33 Bom. 376 a case arising under the D. A. R. Act and then stated that:

'Applying that test to the expression used by the Legislature in this case, which is identical, in our opinion the proper approach to the matter is that when a landlord applies for possession of the land as required by him for personal cultivation, the first question that must be decided is whether the source of income from the land in suit or in the action is larger than his income from all other sources. If the income is not larger, then no further question remains to be determined and the landlord's action must fail. If it turns out that the source of his income from the land in question is larger than the income from all other sources, then the next question would be whether he requires this income for his maintenance. If the landlord is already in a position to maintain himself from the other source then again the landlord must fail. It is only if he satisfied both these conditions that he can obtain possession from his tenant.'

The provision of this section 34(1) (c) also came up for consideration before this Court in (1959) 37 Mvs. L. J. 276 (Subbaji Malhar Joshi v. Mysore Board of Revenue). This Court accepted the test laid down in the Full Bench decision of the Bombay High Court and stated as under:

'We are in respectful agreement with their Lordships of the Full Benchof the Bombay High Court To determine as to whether the income from the suit lands would be the main source of the income for purposes of Clause (c), there must be a comparison of the income from those lands with the income of the landlord from other sources. In order to make such a comparison it is essential that there must be evidence as to the income from the suit lands. In the absence of such evidence, it will not be competent for the Mainlander to infer as to whether any possible or supposed income from the suit lands could be the main source of the income of the landlord for his maintenance. A mere statement of the landlord himself to the effect that the income from the suit lands would be more than his income from other sources, could not be a substitute for positive evidence as to the expected income from the suit lands.'

Thus when a claim is made by a landlordfor resumption on the ground that he requires it for cultivating personally the first question that must be decided is whether the source of his income of the land of which resumption is claimed is larger than his income from all other sources. If the income is not larger then no further question arises. If however the income is found to be larger than all other sources, then the question is whether he requires this additional income for his maintenance. The landlord will get the land only if he satisfies that he is not in a position to maintain himself. Thus the two conditions must be satisfied namely that the income of the land claimed is the principal source and second it is required for his maintenance.

In the present case, the Land Tribunal took the view that the landlord has no other source and he was getting temporarily a sum of Rs. 300/- or so by working as an accountant. The learned appellate Judge thought that in addition to this income of Rs. 300/-, the landlord must be getting certain income from the trade in Arishina. I have already held that there is no material to show that the landlord is getting any income from the trade in Arishina, Neither the Land Tribunal nor the lower appellate Court has taken into consideration the rent which the landlord was deriving from the suit lands. In these circumstances, there is no proper consideration and decision on the question arising under Section 31A(c) of the Act, the orders passed by both the Courts below are set aside and the case Is remitted back to the lower Court for the purpose of deciding the only other issue remaining i.e., whether the income by the cultivation of the land of which he is entitled to take possession is the principal source of income and required for his maintenance. The trial Judge will now decide this question and decide the application in accordance with law.

In the result, this revision petition is allowed, the orders passed by the Courts below are set aside and the case is remitted back to the trial Court for disposal in accordance with law and in the light of the directions issued in this judgment There will be no order as to costs.

Parties are at liberty to lead such evidence as they may desire.


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