PETITIONER:
KESHEORAO
Vs.
RESPONDENT:
NARNARAYAN & ANOTHER
DATE OF JUDGMENT17/02/1977
BENCH:
KAILASAM, P.S.
BEG, M. HAMEEDULLAH (CJ)
GUPTA, A.C.
CITATION:
1977 AIR 1246 1977 SCR (3) 14
1977 SCC (2) 413
ACT
Constitution of India--Article 227--Powers of the High
Court--Bombay Tenancy & Agricultural Lands (Vidarbha
Region and Kutch Area).Act 1958--Sections 36, 38, 100(2),
132(3)--Recovery of possession.
Berar Regulation of Agricultural Leases Act 1951--Section
9A--Minor lessor’s application for possession within 3 years
after attaining majority.
HEADNOTE
Respondent No. 1 landlord after his father’s death and
during his minority let out the agricultural land in dispute
to the appellant tenant through his mother for one year.
After the expiry of the lease period the tenant refused to
deliver possession of the field. The mother filed a suit
for possession which was dismissed. Section 9A of the Berar
Regulation of Agricultural Leases Act 1951 (Madhya Pradesh
Act No. XXIV of 1951) enables a minor lessor to get posses-
sion within 3 years of his attaining majority. The
landlord, therefore, after attaining majority filed a peti-
tion for possession: By order dated 8-8-1955, the authori-
ties terminated the tenancy under s. 9A(2) of the Berar Act.
It was directed that the landlord shall apply for possession
of the suit land after 31-3-1956. Pending the proceedings
under s. 9A the landlord applied for recovery of mesne
profits or, in the alternative, the lease amount. Subse-
quentlY, the landlord filed a suit in the year 1960 against
the tenant for recovery of mesne profits or for rent since
the tenant continued to be on the land. When the suit was
pending the landlord filed another application under s.
100(2) and s. 36 read with section 38 of the Bombay Tenancy
and Agricultural Lands (Vidarbha Region & Kutch Area) Act
1958 (Bombay Act No. XLIX of 1958). The relief prayed was
for a declaration that Kesheorao was not a tenant. In the
alternative, the landlord claimed for relief of resumption
of the suit filed under section 36(2) and 38(1) of the
Tenaney Act. The Tenancy Court took the view that the
tenancy was terminated by the order dated 8-8-1955 under
section 9A of the Berar Act and that the possession of
Kesheorao thereafter was not in the capacity of a tenant and
allowed the landlord’s claim for possession under s. 132(3)
of the Tenancy Act. The Tribunal reversed the judgment of
the Appellate Authority ,red held that the tenant was a
protected lessee and entitled to enjoy that status under s.
6 of the Tenancy Act. The Tribunal held that the landlord
in his application under section 36(2) will have to satisfy
the conditions contained in s. 38(3) and (4) of the Tenancy
Act. The Tribunal, therefore, dismissed the application of
the landlord for possession. The High Court in exercise of
its powers under Article 227 of the Constitution quashed the
order of the Revenue Tribunal and restored the order passed
by the Deputy Collector. The High Court held that the
landlord was entitled to get possession under s. 36 read
with s. 38 and section 100(2) of the Tenancy Act and direct-
ed the handing over of the possession to the landlord.
In an appeal by Special Leave the tenant contended that
(1) The landlord took various proceedings on the basis that
the appellant was a tenant and, therefore the landlord
recognised or at any rate acquiesced in the tenancy of the
appellant.
(2) The order passed under s. 9A of the Berar Act cannot
be given effect to under s. 36 of the Tenancy Act.
(3) In any event, the application for possession was not
filed within two years from the dale of the order for pos-
session.
Dismissing the appeal by special leave.
HELD: (1) After the order dated 7-8-1955 was passed
under section 9A of the Berar Act the lease was terminated
and the appellant ceased to be a
15
tenant. The status of the appellant as a tenant was also
lost on the expiry of the 7 years period on 31-3-1956
conferred on him under the Berar Act. It is clear from
various proceedings that the landlord never recognised or
acquiesced in the tenancy of the appellant. The claim was
for mesne profits or in the alternative for lease and cannot
amount to acquiescing in the tenancy. Under the Tenancy Act
no right has been conferred on the appellant after his
status as protected tenant came to an end. The landlord in
fact made an application for possession within the period of
two years from the date the ’Tenancy Act came into force and
the application was, therefore, not barred by limitation.
[16H, 17A-C, E-F]
(2) The Revenue Tribunal was in error in upsetting the
order of the Appellate Authority to the effect that after
the order under s. 9A of the Berar Act was passed the pos-
session of the appellant was not in the capacity of a
tenant. The High Court was justified in interfering with
the order of the Revenue Tribunal. [17G-H]
JUDGMENT
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 2031 of
1968.
(Appeal by special leave from the Judgment and Decree
dated 1.2.1968 of the Bombay High Court (Nagpur Bench) in
Special Civil Appeal No. 387 of 1966).
M. N. Phadke, V.M. Phadke and A.G. Ratnaparkhi, for
the appellant.
Sharad Manohar, Suresh Sethi and B.P. Maheshwari, for
respondents.
The Judgment of the Court was delivered by
KAILASAM, J. This appeal arise out of special leave
granted by this Court against the judgment and order of the
High Court of Judicature Bombay at Nagpur. For convenience
sake we will refer to the appellant as the tenant and the
respondent No. 1 as the landlord because the history of the
litigation is 25 years old and the parties had resorted to
various remedies before various Tribunals.
The dispute relates to Field Survey No. 6 area 15 acres
23 gunthas in village Gangaon. Jodhraj the father of
Narnarayan, the landlord before us, died some time in
1942. Narnarayan who was then a minor became the owner and
his widowed mother Trivenibai leased the land on behalf
of the minor to Kesheorao, the tenant before us, for one
year. After the expiry of the lease on 31st January, 1952,
the tenant refused to deliver possession of the field. The
mother filed the suit, Suit No. 125-A of 1952 for posses-
sion. The suit as well as further proceedings by way of
appeal land second appeal failed and the tenant was held
to be protected lessee for a period of five years from
1951-52.
Availing himself of the benefit of section 9-A of the
Berar Regulation of Agricultural Leases Act Madhya Pradesh
Act 24/51 which enabled the minor to get possession within 3
years of his attaining majority he filed a petition for it.
By an order dated 8th August, 1955 the Sub-Divisional Offi-
cer found that Narnarayan is entitled to terminate the lease
of the tenant Kesheorao and ordered that lease of
16
Kesheorao is terminated under section ’9A(2) of the Berar
Regulation of Agricultural Leases Act and further ordered
under that section that Narnarayan shall apply for posses-
sion of the suit filed after 31stMarch, 1956. This order
admittedly became final. Pending the proceedings under
section 9-A the landlord applied for recovery of mesne
profits or in the alternative for lease amount. The land-
lord subsequently filed Civil Suit No. 3 of 1960 against the
tenant for recovery of mesne profits or for rent. The suit
was necessitated because the tenant continued to be on the
land. The claim was for mesne profits or for lease amount.
When this case was pending the landlord filed another appli-
cation under section 100(2) and section 36 read with section
33 of the Bombay Tenancy Act, 1953. (Vidharba Region and
Kutch area). The relief prayed for was for a declaration
that Kesheorao was not a tenant. In the alternative the
landlord claimed for relief of resumption of the suit filed
under sections 36(2) and 38(1) of the Bombay Tenancy Act.
The tenancy suits. and the landlord’s application were also
prolonged and ultimately the appellate authority took the
view that the tenancy was terminated by order dated 8th
August, 1955 under section ’9-A of the Berar Regulation of
Agricultural Leases Act and that his possession thereafter
was not in the capacity of a tenant and therefore set aside
the order dated 30th September, 1963 and allowed the land-
lord’s claim for possession under section 132(3) of the
Bombay Tenancy and Agricultural Lands Act, 1958. The
tenant took up the matter to the Revenue Tribunal, Nagpur
and the Revenue Tribunal set aside the order of the Appel-
late authority holding that the tenant was protected lessee
and entitled to enjoy that status under section 6 of the
Tenancy Act. Holding that the landlord in his petition
under section 36(2) will have to satisfy the condition
contained in section 38(3) and (4) of the’ Tenancy Act the
Revenue Tribunal decided that the landlord was not entitled
to that relief. Aggrieved by the order of the Revenue
Tribunal the landlord filed the writ petition out of which
this appeal arises before the Nagpur High Court under Arti-
cle 227 of the Constitution praying that the order of the
Revenue Tribunal’ may be quashed and the order passed by the
Special Deputy Collector may be restored. The High Court
allowed the writ petition setting aside the order of the
Revenue Tribunal. The High Court held that the petitioner
was entitled to get possession under section 36 read with
section 38 and section 100(2) of the Bombay Tenancy Act
and directed that the possession will be given to the land-
lord after the crops of the year 1967-68 are removed.
It is unnecessary for the purposes of this appeal to go
into the various proceedings between the landlord and the
tenant. For the purpose of decision of this appeal it is
sufficient to state that the landlord who was a minor filed
a petition under section 9-A of the Berar Regulation of
Agricultural Leases Act and obtained an order from the Sub-
Divisional Officer on 8th August, 1955 terminating the lease
of the tenant and directing that the landlord shall apply
for possession of the field on 31st March, 1956. After
7th August 1955 when the lease was terminated’ the tenant
ceased to be a tenant
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Equally the status of the tenant was lost by Kesheorao when
the protected tenancy came to an end with the expiry of the
7th years’ period conferred on him under the Berar Act. The
result was that the tenancy rights of Kesheorao were put an
end to by the order dated 8th August, ’1955 and whatever
rights he might have had under the Berar Act came to an end
on 31st March, 1956. The only ground on which the
rights of a tenant are claimed is that ’after 31st March,
1956 and after 31st March, 1958 though his tenancy rights
expired he continued to be a tenant because he was in pos-
session and various proceedings were taken by the landlord
on the basis that he was a tenant. This plea cannot be
accepted. It is seen from the various proceedings that the
landlord never recognised or acquiesced in the tenancy of
Kesheorao. The landlord claimed for mesne profits or alter-
natively for lease amount. The claim was not based on the
landlord acquiescing in the tenancy. We have been taken
through the relevant provision of the Bombay Tenancy Act but
there is no provision by which any right as a tenant is
conferred on Kesheorao after his status as protected tenant
expired. In this view the tenant ceased to have any right
after 31st March, 1958, up to which time he could, continue
due to an amendment in the Act and, if he had managed to
continue in possession it was in spite of the landlord.
The objection that is taken by the learned counsel for
the tenant is that the order which is made on 8th August,
1955 under section 9-A cannot be given effect to except
under the provisions of section 36 of the Bombay Tenancy
Act. It was also submitted that in any event the applica-
tion had not been filed within two years from the date of
the order for possession. It was brought to our notice that
the landlord did make an application on 11th January, 1960
for possession within two years from the date of the Bombay
Act coming into force and as such it is not barred by limi-
tation. The applicability or otherwise of section 132(2)
and (3) was vehemently argued, but, in the view we have
taken, it is unnecessary to go into that question. We find
that the tenant ceased to have any right after 31st March,
1958 and did not acquire any rights subsequently by the
landlord acquiescing in the tenancy. While the tenant had no
fight the landlord had obtained an order under section 9-A
terminating the lease of the tenant and directing the land-
lord to apply for possession of the field on 31st March,
19’56. The landlord had in fact applied for possession
after we are also. informed that the landlord obtained
possession as early as 18th February, 1968. In the circum-
stances we do not feel called upon to interfere with the
decision of the High Court holding that the landlord is
entitled to get possession. The Revenue Tribunal was in
error in upsetting the order of the appellate authority that
the tenancy was terminated by the Sub-Divisional Officer on
8th August, 1955 under section 9-A of the leases Act and
that his possession thereafter was not in the capacity of a
tenant. The High Court was therefore justified in interfer-
ing, with the order of the Revenue Tribunal. We see no
ground for interfering with the conclusion arrived at by the
High Court and dismiss this appeal. In the circumstances
the parties will bear their own costs.
P.H.P. Appeal dis-
missed.
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