SIMON REBELLO v. DAVID SOUZA — 1972 DIGILAW 113 (KAR)

( 1 ) THIS revision petition is by Sri "simon Rebello against the order passed by the District Judge, South Kanara, Mangalore, in Misc. App. 217 of 1968, affirming the order passed by the Land Tribunal at Puttur, South kanara, in Restoration Petn. No. 1 of 1967. The petitioner made an application under S. 7 of the Mysore Land Reforms Act, 1961 (hereinafter will be referred to as the Act'), for restoration of possession alleging that he was a tenant of the suit lands. His case is that he was unauthorisedly dispossessed by an illegal surrender some time in June 1962 by one Brahmayya shetty. Sri Brahmayya Shetty who resisted the application contended that the lands are in actual possession of his tenant David Souza. The petitoner, therefore amended his petition and impleaded the said david Souza as respondent No. 2 before the Land Tribunal. The application was resisted by Brahmayya Shetty as well as David Souza. The Land tribunal dismissed the application of the petitioner. The said order has been affirmed in appeal by the learned District Judge of South Kanara, mangalore. During the pendency of the appeal in the lower appellate court, Brahmayya Shetty having died, his legal representatives were brought on record. ( 2 ) SRI Tukaram S. Pai, learned Counsel for the petitioner, submitted that the Courts below have committed an error of law in dismissing the petitioner's application for restoration of tenancy and possession filed by him under S. 7 of the Act. He submitted that David Souza, respondent no. 1, not being a bona fide tenant, was not entitled to claim the benefit of the proviso to sub-sec. (2) of Sec. 7 of the Act. The Courts below after considering the rival contentions and the evidence placed 'by the parties have recorded a categorical finding to the effect that David Souza is not a member of the family of the landlord and that he is a person who' came on the land as a bona fide tenant. That finding is essentially one of fact and is not liable for interference in this revision petition. ( 3 ) SRI T. S. Pai further submitted that even if the first respondent is entitled to claim the benefit of the proviso to sub-sec. (2) of S. 7 of the act, the application of the landlord could not have been dismissed in its entirety. ( 3 ) SRI T. S. Pai further submitted that even if the first respondent is entitled to claim the benefit of the proviso to sub-sec. (2) of S. 7 of the act, the application of the landlord could not have been dismissed in its entirety. He submitted that if the conditions specified under the proviso to sub-sec. (2) of S. 7 are satisfied the Court is precluded from making an order for restoration of possession in' favour of the applicant; but that the same does not entitle the Court to refuse to make an order for restoration of tenancy in favour of the petitioner. ( 4 ) IN order to appreciate the contention of Sri T. S. Pai, it will be useful to extract the provisions of Section 7 of the Act s. 7. Restoration of possession to tenant's dispossessed in certain circumstances; (1) A person who or whose predecessor-in-title held any land as a tenant before the tenth day of September 1957 and who after that date and before the appointed day, has been dispossessed from such land either by surrender of the tenancy or by eviction, may, within fifteen months from the appointed day apply to the Tribunal for the restoration of his tenancy unless on the appointed day the land has been put to non-agricultural use. (2) On receipt of an application under sub-sec. (2) On receipt of an application under sub-sec. (1) the Tribunal shall inquire into the circumstances in which and the procedure under which such dispossession took place and if it is satisfied that such dispossession took place as a result of (a) surrender and the consent of the tenant was procured by fraud, mis-representaion or undue influence or pressure of any kind whatsoever or was otherwise in contravention of the provisions of the law applicable for the time being; or (b) expiry of the duration of tenancy; or (c) any act of the landlord or any person acting on his behalf without recourse to a Court of law or in contravention of any prevision cf law, the Tribunal shall order the restoration of possession of the land and the tenancy thereof to the tenant; provided that the Tribunal shall not order restoration of possession of the land, if it is satisfied that the land is held on lease bona fide by a tenant who is not a member of the family of the landlord, or the dispossession, by surrender of the Tenancy or eviction, took place in accordance with any provision of law, or that another person, not being the landlord, is legally entitled to possession of the land. (3) Sub-sees. (1) and (2) shall have effect notwithstanding that another person referred to in the proviso to sub-sec. (2) may be in possession of the land as a tenant or otherwise, and where such other person is so in possession he shall be liable to be evicted. " ( 5 ) SUB-SEC. (1) of S. 7 entitles a person who or whose predecessor-in-title held any land as a tenant before the tenth day of September 1957 and who after that date and before the appointed day, has been dispossessed from such land either by surrender of the tenancy or by eviction, may, within the prescribed time apply to the Court for restoration of his tenancy unless on the appointed day the land has been put to non-agricultural use. Sub-sec. (2) of S. 7 contemplates enquiry to be made by the court into the circumstances in which and the procedure under which the alleged dispossession took place, and it empowers the Court if it is satisfied that such dispossession took place under the circumstances specified in sub-sec. Sub-sec. (2) of S. 7 contemplates enquiry to be made by the court into the circumstances in which and the procedure under which the alleged dispossession took place, and it empowers the Court if it is satisfied that such dispossession took place under the circumstances specified in sub-sec. (2) to make an order for restoration of possession of the land and the tenancy thereof to the tenant. Relying on sub-sec. (2), Sri T. S. Pai submitted that if the conditions specified under sub-sec. (2) are satisfied, in an application filed under S. 7 (l) of the Act, the Court has to make an order for restoration of possession of the land and the tenancy thereof to the tenant. It was further submitted that the scheme of S. 7 is such that it contemplates restoration of possession as well as the tenancy to the applicant who satisfies the conditions specfied in that section. The proviso to sub-sec. (2) of S. 7 states than the Court shall not order restoration of possession of the land, if it is satisfied that the land is held on lease bona fide by a tenant who is not a member of the family of the landlord, or the dispossession, by surrender of the tenancy or eviction, took place in accordance with any provision of law, or that another person, not being the landlord, is legally entitled to possession of the land. ( 6 ) SRI T. S. Pai invited my attention to the wordings of the proviso to sub-sec. (2) of S. 7, which say that if the conditions specified in the proviso are satisfied, the Court shall not make an order for restoration of posession of the land. He submitted that the said proviso does not state in so many words that if the conditions specified therein are satisfied, the court is also precluded from making an order for restoration of the tenancy which is contemplated under sub-sec. (2 ). In other words, it was submitted that whereas the first part of sub-sec. (2) of Section 7 contemplates an order to be made for restoration of tenancy and possession if the conditions specified in that sub-section are satisfied, and the Court has to make an order for restoration of tenancy only if the conditions specified in the proviso to sub-sec. (2) of Section 7 are also satisfied. (2) of Section 7 contemplates an order to be made for restoration of tenancy and possession if the conditions specified in that sub-section are satisfied, and the Court has to make an order for restoration of tenancy only if the conditions specified in the proviso to sub-sec. (2) of Section 7 are also satisfied. ( 7 ) THE scheme of S. 7 of the Act is to secure possession to a tenant who has been dispossessed if he was a person answering the description of the persons specified under sub-sec. (1) of S. 7 if the conditionss specified in sub-sec. (2) of the said section are satisfied. It is necessary to note that in sub-sec. (1) it is not stated that the person dispossesed has to make an application for restoration of possession; but there is only a reference to an applcation being made for restoration of tenancy under subsec. (1) of S. 7. But, in sub-sec. (2) it is stated that if the conditions specified therein are satisfied, the Court has to make an order for restoration of possession of the land and the tenancy thereof. It is therefore obvious that no distinction is really made by the Legislature between the 'restoration of tenancy' and the restoration of possession and the tenancy. That is why though in sub-sec. (1) an application for restoration of tenancy is contemplated, an order for restoration of tenancy as well as possession is contemplated under sub-sec. (2)of S. 7 of the Act. Possession is an important right of the tenant. It is difficult to conceive that the Legislature would have contemplated restoration of all other rights to the dispossessed tenant, except the most valuable right to actual possession. It is obvious that the entire scheme of S. 7 is intended really to restore all the rights of tenancy to the tenant who has been dispossessed, including possession which he has lost between the two termini specified in sub-sec. (1) of S. 7. ( 8 ) THEREFORE, though in the proviso to sub-sec. (2) of S. 7 it is stated that if the conditions specified in the said proviso are satisfied, the Court shall not make an order for restoration of possession, the only order which the Court has to make is to dismiss the application field under Section 7 for the restoration of tenancy. (2) of S. 7 it is stated that if the conditions specified in the said proviso are satisfied, the Court shall not make an order for restoration of possession, the only order which the Court has to make is to dismiss the application field under Section 7 for the restoration of tenancy. ( 9 ) IF the interpretation put forward by Sri T. S. Pai is accepted, it will obviously lead to several anomalous and absurd results. ( 10 ) FIRSTLY, if an order for restoration of tenancy is made in favour of an applicant and the prayer for restoration of possession is refused, no useful purpose would be served whatsoever, inasmuch as the tenant who has bona fide come in possession of the land as a tenant would be entitled to continue on the land as a tenant thereof. Sri Pai submitted that such a pen on would continue as a tenant of the applicant and not as a tenant of the landlord. It is difficult to understand how such a result can be brought about. There is no proviso in S. 7 or in any other provision of the Act, by the operation of which the tenant who gets the benefit of the proviso to sub-sec. (2) of S. 7, becomes the tenant under the original tenant who was dis possessed and who had made an application under S. 7 of the Act. It is necessary to note that when the land is leased by the landlord, there is no privity of contract between the dispossessed tenant and the bona fide tenant who comes in possession subsequent to the dispossession of the original tenant. In the absence of a contract between the dispossessed tenant and the person who is protected by the proviso to sub-sec. (2)of S. 7, and in the absence of any statutory provision which has the effect of making the tenant who gets the protection of the said proviso, the status of a tenant under the original tenant who has been dispossessed, it is impossible to take the view as contended by Sri T. S. Pai that the applicant becomes a tenant under the orginal disposssessed tenant seeking relief under S. 7 of the Act. ( 11 ) IF as contended by Sri T. S. Pai the person who gets the protection of the proviso to sub-sec. ( 11 ) IF as contended by Sri T. S. Pai the person who gets the protection of the proviso to sub-sec. (2) of S. 7 becomes the tenant under the original dispossessed tenant, the dispossesssed tenant in whose favour an order only for restoration of tenancy, without restoration of possession, is made does not really secure any benefit whatsoever. Sri Pai had to concede that, if his proposition is accepted, the tenant who gets the protection of sub-sec. (2) of S. 7, has to pay the rent to the tenant in whose favour an order is made under S. 7, who in turn, has to pay the rent to the landlord. The maximum rent payable is regulated by S. 8 of the Act. If the proposition put forward by Sri T. S. Pai is accepted, there would be an unnecessary introduction of an intermediary between the landlord and the tenant in actual possessioon whose rights are protected by virtue of the proviso to sub-sec. (2) of S. 7 of the Act. It is therefore clear that if an order for possession cannot be made in view of the presence of a tenant who is entitled to the protection of the said proviso, no purpose will be served by makng an order for restoration of tenancy, as contended by Sri Pai. ( 12 ) I have, therefore no hesitation in holding that if an order for restoration of possession cannot be made in an application under S. 7 because of the proviso to sub-sec. (2) of Section 7 of the Act, the application under S. 7 has necessarily to be dismissed even if all the other conditions specified in that section are satisfied. ( 13 ) FOR the reasons stated above, this revision petition fails and the same is dimissed. ( 14 ) IN the circumstances of the case, the parties will bear their res- pective costs. --- *** --- .