Fulabai vs Maharashtra Revenue Tribunal, Nagpur and others

M. N. Chandurkar, J.—The petitioner is a landholder and is a widow. She is challenging an order passed by the Revenue Tribunal holding that she was not entitled to a relief of resumption of land u/s 39 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereafter referred to as the Tenancy Act, but that her application made u/s 39 had to be decided under the provisions of section 38 of the Act. The petitioner is the owner of field survey number 48/2, area 10.29 acres and survey number 49/2, area 13.27 acres, both of village Isapur, taluq Darwha, District Yeotmal. These fields belonged to her husband Shamlal, who had by a will bequeathed them to the petitioner. Shamlal died on 17-5-1945 and the petitioner then became the owner of the fields. It appears that there were disputes between the petitioner and her sons and as a result of a compromise decree passed by a civil Court she got possession of these fields in 1958. She had leased out both those fields to respondent No. 4 Babya by a lease deed dated 11-3-1958. She then served a notice dated 11-2-1961 u/s 39 of the Tenancy Act on the tenant and filed an application u/s 36 of the Tenancy Act for possession. This application was contested by the tenant on several grounds. One of the grounds urged by the tenant was that the landholder had earlier filed an application u/s 39 of the Tenancy Act, but that it was rejected on 31-10-1968 and it was then held that she had no right to serve notice u/s 39. It was also contended by the tenant that the landholder was not an agriculturist and that agriculture was not main source of her livelihood. He, however, admitted the execution of the lease deed dated 11-3-1958, but he contended that he was in possession as a lessee for several years before the lease deed. The landholder examined herself but the tenant did not go into the witness-box, nor did he give any other evidence.

The Naib-Tahsildar found that though the earlier order rejecting the application u/s 39 was not res judicata between the parties, Babya was a tenant since the year 1952-53 and he, therefore, granted the application of the landholder to the extent of half the area of the two fields. This order was set aside by the Sub-Divisional Officer in appeal by the landholder and he held that the landholder was entitled to relief u/s 39 of the Tenancy Act and granted the application in respect of the entire area leased out to the tenant, The Maharashtra Revenue Tribunal in a revision application filed by the tenant took the view that the order in the earlier proceedings was not res judicata and that on the material on record Babya could not be held to be an old tenant. The Tribunal did not accept the finding that the tenancy of Babya came into being for the first time on 11-3-1958. The orders of the Naib-Tahsildar and the Sub-Divisional Officer were set aside and the matter was remanded back to the Tahsildar for a fresh decision.

Even after remand none of the parties led any oral evidence, but it appears that some crop-statements were filed. After remand, the Naib-Tahsildar found that Babya was not a tenant in the year 1957-58 and that he was a tenant only from 11.3-1958, that is, after 1-4-1957. He, therefore, found that section 39 of the Tenancy Act was applicable to the case and an order for possession of the entire land was passed in favour of the petitioner.

The tenant filed an appeal which was rejected by the Sub Divisional Officer, who held that the Naib-Tahsildar had given good reasons to show that the appellant before him had ''failed to prove that he was a tenant of the land in question during the intervening period from 1955-56 upto the commencement of the Tenancy Act and had thus failed to establish that he was a tenant of the suit fields prior to 1-4-1957. The tenant then filed a revision application before the Maharashtra Revenue Tribunal.

The Maharashtra Revenue Tribunal held that the landholder had admitted in her evidence that Babya was cultivating the fields from 1955-56 and the Tribunal observed that "Babya was, therefore, an ordinary lessee under the Leases Act." The Tribunal then took the view that on facts the conclusion should have been that Babya was in possession of the fields from 1953-54 as the tenant and had continued to be so in possession till 11-3-1955 when he executed the lease deed in favour of the petitioner. The Tribunal, therefore, did not accept the finding that Babya had become a tenant for the first time on 11-3-1958. On this finding the applicability of section 39 was ruled out. The Tribunal then considered the case of the landholder u/s 38 and modified the order passed by the Sub-Divisional Officer by holding that the petitioner was entitled to resumption of 11 acres, 13 gunthas of land as against the entire area granted to her by the Sub-Divisional Officer. This order is now challenged by the petitioner in this petition.

The learned counsel appearing on behalf of the petitioner contended that the Tribunal was not justified in holding that the tenancy of the tenant was created prior to 1-4-1957. According to the learned counsel, the finding given by the Sub-Divisional Officer that the tenancy was created on 11-3-1958 was a finding of fact which should have been accepted for the purposes of the revision application by the Tribunal.

In order to decide whether the Tribunal was justified in holding that the tenancy of the tenant was created prior to 1-4-1957 it is necessary to refer to the provisions of section 39 (1) of the Tenancy Act, Section 39 (1) is in the following terms:

"39 (1). Notwithstanding anything contained in section 9, 19 or 38 but subject to the provisions of sub-section (2), a landlord who holds an area not exceeding a family holding may terminate such tenancy created by him not earlier than the first day of April 1957 as could have been terminated but for the provisions of the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Ordinance, 1957 or the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Act, 1957 by giving to the tenant a notice in writing and making an application for possession as provided in sub-section (2) of section 36. within one year from the date of the commencement of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) (Amendment) Act, 1960, if he bona fide requires the land for cultivating it personally."

It is clear that this section gives a right to a landlord to terminate a tenancy created by him not earlier than the first day of April 1957, but it must be made clear that all tenancies created by a landholder not earlier than the first day of April 1957 are not covered by this section. The only tenancy which can be terminated under this section is the tenancy which is created not earlier than the first day of April 1957 and which could have been terminated but for the provisions of the Ordinance No. IV of 1957 or Bombay Act No. IX of 1958. Unless both these conditions are satisfied, merely because a tenancy is created not earlier than the first day of Aprill957, the landholder cannot terminate that tenancy u/s 39 of the Tenancy Act. It is also obvious that the right to terminate is exercised in respect of a tenancy created by a landholder. In other words, it must also be shown that the tenancy which is sought to be terminated is created by the landholder not earlier than the first day of April 1957. In the instant case there is no evidence to show that any landholder had created any tenancy in favour of respondent Babya prior to the first day of April 1957. Mere possession, if it is not in the capacity of a tenant, or in pursuance of a relationship of a landlord and a tenant, does not have the effect of clothing a person in possession even if he may be in possession prior to first day of April 1957 with the rights of a tenant and such possession can never be styled as a tenant''s possession, or possession in pursuance of relationship of a landlord and a tenant. The so called admission in this case made by the landholder was that the tenant was in possession of the field for some years prior to the grant of lease by the landholder. The tenant has not even entered the witness-box and this admission can never be read as meaning that the possession was traceable to a tenancy and it is impossible to see how, when the real landlord, namely, the present petitioner, was kept out of possession by her son and was ultimately restored to possession only after the decree of the civil Court, the possession of somebody, who was brought on land by a person, who was not a landholder and who was not acting in an authorised manner, could claim to be in possession prior to 11-3-1958 in pursuance of a tenancy created in his favour. The Tribunal was not justified merely on the admission of a physical fact of possession of Babya to reach a conclusion that that possession was that of a tenant. Before Babya''s possession could be styled as that of a tenant, it had to be shown that the possession was referable to tenancy rights created by the landholder, who alone was the landholder after her husband''s death since 1946, but Babya never claimed that this landholder had at any time inducted him on land.

It is contended by the learned counsel on behalf of the tenant that his client was in lawful possession throughout, and therefore, he was a tenant even prior to 1958. It is clear that this argument is advanced on the basis of the provisions of section 6 of the Tenancy Act. If the petitioner was in possession in pursuance of a lease created by a person who was not the landholder and was not authorised to manage the property of the landholder, the petitioner cannot be said to be in possession lawfully at all. This is apart from the fact that section 6 of the Tenancy Act cannot be availed of by him for claiming the status of a deemed tenant for the year 1957-58 The factual position in the present case, therefore, cannot be disputed that till 11-3-1958 Babya never claimed to be In possession in pursuance of a tenancy created by the present landholder, If the tenancy created by the present landholder was for the first time on 11-3-1958, then the tenancy would obviously be created after 1-4-1957. The finding given by the Tribunal that the Tenancy in favour of Babya was created earlier than first day of April 1957 will, therefore, have to be quashed,

9 In spite of this view of the matter, however, the final conclusion reached by the Tribunal that the petitioner was not entitled to relief u/s 39 of the Tenancy Act is not affected. As already stated the second condition, that the tenancy which is sought to be terminated u/s 39 must be a tenancy regarding the termination of which a bar was created by Ordinance IV of 1957 or Act No. IX of 1958, had to be satisfied. The learned counsel for the petitioner contends that Act No. IX of 1958 came into force on 20th January, 1958, and therefore, this tenancy created in April 1958 could not have been terminated because of the provisions of the said Act and a reference was made to section 3 of the Act. In order to appreciate this contention it is necessary to reproduce section 3 of that Act, which is the only material section. Section 3 is as follows:

"3. Notwithstanding anything in the Berar Regulation of Agricultural Leases Act, 1951, or the Madhya Pradesh Land Revenue Code, 1954, or in any other law for the time being in force, or in any contract, or the judgment, decree or order of a Court, tribunal or authority, no tenant shall, during a period of two years from the date of the commencement of this Act, be evicted from any land held by him as a tenant if such tenant tenders, within the prescribed period, to the landlord, or any person acting on his behalf, any rent or lease-money due to the landlord in respect of the land for the agricultural year ending on the 31st day of March 1958, and is willing to hold the land thereafter as tenant on the same terms and conditions on which he was holding the land."

It may be stated that section 3 of the Act is in identical terms and is a verbatim reproduction of the provisions of clause 3 of Ordinance IV of 1957 which came into force on 21st September 1957. This provision created an absolute bar against eviction of tenants. During the period of two years from the date of commencement of the Act a tenant was protected from eviction from any land held by him as a tenant. This protection was of course subject to the condition that the tenant had to tender to the landlord, within the prescribed period, rent or tease-money due to the landlord in respect of the land for the agricultural year ending 31st March 1958 and that he was to show his willingness to hold the land thereafter as the tenant on the same terms and conditions on which he was holding the land. The date prescribed for tendering the rent was 31-5-1958. If the provisions of this section are carefully read, it will appear that the bar to eviction created by this section is only in respect of tenants, who on the date on which either the Ordinance or the Act had come into force were in possession as tenants. The words italicised above, that is, ''any land held by him as a tenant'' read in the context of the provisions requiring the tenant to pay lease-money for the agricultural year 1957-58 which ends on 31-3-1958 coupled with the further provision that the tenant had to show his willingness to hold land thereafter as a tenant clearly indicates that the bar was to operate only in respect of tenants already on land. This provision which placed a bar on eviction of tenants, who were already in possession of the land, thus affected the right of a landholder to terminate the lease which was for the year 1957-58,

In the instant case neither on the date on which Ordinance No, IV of 1957 came into force nor on the date on which Act IX of 1968 came into force Babya was a tenant of the land. There was no question of his being evicted at the end of the agricultural year 1957-58, nor did any question of his depositing the rent for the year ending 31st March 1958 arise. It is, therefore, impossible to hold that there was any bar against the eviction of tenant Babya created by the provisions of Act No. IX of 1958.

There is another aspect of this question. If the lease in favour of Babya was granted on 11-3-1958 he was entitled to be in possession till 31-3-1959, or at least during the agricultural year 1958-59 which admittedly would end after the new Tenancy Act came into force. Till that time there wag no question of his eviction and an occasion for his eviction would arise only after the agricultural year was completed. But before any occasion for such a course arose, the Tenancy Act had already intervened and it having come into force on 30-12-1958 by virtue of the provisions of section 2 (32) of the Tenancy Act the tenant, who was holding the land on lease in the year 1958-59, and on the date on which the Tenancy Act came into force, became a tenant for the purposes of the Tenancy Act, and the provisions of section 9 of the Tenancy Act, which provide that no tenancy of any land shall be terminated merely on the ground that the period fixed for its eviction whether by agreement or otherwise had expired, were fastened on the lease created by the landholder. Under such circumstances it is not possible to hold that merely because the tenancy of the respondent-tenant was created after 1-4-1957 the landholder would be entitled to seek a relief u/s 39 of the Tenancy Act. In the view which I have taken, one of the essential conditions which is required to be satisfied before a landholder could claim relief u/s 39 of the Tenancy Act was not satisfied in the instant case and thus the only provision under which her claim for resumption could be validly considered was u/s 38 of the Act. The Tribunal was, therefore, right in holding that section 38 of the Tenancy Act governed the application of the landholder. Thus though for different reasons the order passed by the Tribunal that the application of the landholder was governed by section 39 of the Tenancy Act and that she was entitled only to half the area from the possession of the tenant is justified. There is, therefore, no reason to interfere with that order of the Tribunal.

The result is that the petition fails and is rejected with costs.