CHUNILAL PRAGJIBHAI PATEL v. MOTIBHAI BAJIBHAI — 1974 DIGILAW 23 (GUJ)

S. H. SHETH, J. ( 1 ) THESE two petitions have been filed under the following circumstances:- the petitioner is a tenant. He was the tenant in respect of lands bearing S. Nos. 324 741 and 654 of village Anandi and in respect of S. No. 226 Paiki 6 acres-4 gunthas and S. No. 245 Paiki 34 gunthas of village Aniad both in Sinor Taluka of Baroda District. The respondents were the landlords of the lands in question. On 29th March 1957 the landlords filed a suit under sec. 29 against the tenant to recover possession of all the lands. On 31st December 1957 the Mamlatdar decided that suit and made an order for possession in respect of the three lands of Anandi but dismissed the landlords claim in respect of two lands of Aniad. On 16th April 1958 the order for possession was executed and the landlords recovered from the tenant possession of Anandi lands. The tenant did not appeal against that order but the Collector instituted suo motu revisional proceedings under sec. 76a of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act for the sake of brevity ). Those revisional proceedings came to be known as Revision Application No. 8 of 1958. After hearing both the parties the Collector set aside the order made by the Mamlatdar in respect of Anandi lands and remanded the matter to the Mamlatdar for a fresh trial. On 16th June 1959 the Mamlatdar upon remand heard the parties and dismissed the landlords suit. The landlords did not appeal against the order. The order made by the Mamlatdar therefore became final and conclusive. ( 2 ) SO far as the Aniad lands were concerned there was an arbitration between the landlords and the tenant and the arbitrator made an award under which the tenant handed over to the landlords possession of those lands. It may be noted that so far as the Aniad lands were concerned though the tenant handed over their possession to the landlords in pursuance of the arbitration award the action of so surrendering the lands on the part of the tenant to the landlords was not approved by the Mamlatdar under sec. 15. It appears that no intimation thereof was given to him and therefore there were no proceedings under sec. 15 in respect of those lands. 15. It appears that no intimation thereof was given to him and therefore there were no proceedings under sec. 15 in respect of those lands. ( 3 ) ON 7th March 1967 the Agricultural Lands Tribunal issued to the parties a notice under sec. 32 G of the Tenancy Act for fixing the purchase price of the lands in question. In those proceedings the landlords contended that the tenant had voluntarily surrendered possession. The Agricultural Lands Tribunal by its order dated 26th April 1967 found that the tenant was not in possession of the lands in question and therefore directed that proceedings under sec. 84 of the Tenancy Act be instituted for summary eviction of the landlords from the lands in question as they were in unauthorised possession thereof. By the said order the Agricultural Lands Tribunal also fixed the purchase price of the lands in question at Rs. 9848. The respondent No. 1 (one of the landlords) appealed against that order of the Agricultural lands Tribunal. It was Tenancy Appeal No. 62 of 1967. The Prant Officer Dabhoi who heard that appeal dismissed it by his order dated 26th April 1968. He also made an order for summary eviction of the respondents in proceedings instituted under sec. 84 of the Tenancy Act. The landlords challenged those two orders of the Prant Officer Dabhoi. In Revision Application No. 540 of 1968 they challenged the appellate order recorded under sec. 32g of the Tenancy Act. In Revision Application No. 541 of 1968 they challenged the order of summary eviction recorded against them under sec 84 of the Tenancy Act. ( 4 ) THE Revenue Tribunal decided both the Revision Applications by a common judgment on 22nd November 1968. It allowed Revision Application No. 540 of 1968 and remanded the case to the Mamlatdar for a fresh inquiry. It allowed Revision Application No. 541 of 1968 and set aside the order of summary eviction. ( 5 ) IN Special Civil Application No. 587 of 1969 the tenant challenges the order recorded by the Revenue Tribunal in Revision Application No. 540 of 1968. In Special Civil Application No. 740 of 1969 the tenant challenges the order recorded by the Revenue Tribunal in Revision Application No. 541 of 1968. ( 6 ) THE judgment of the Revenue Tribunal in my Opinion suffers from want of clarity. In Special Civil Application No. 740 of 1969 the tenant challenges the order recorded by the Revenue Tribunal in Revision Application No. 541 of 1968. ( 6 ) THE judgment of the Revenue Tribunal in my Opinion suffers from want of clarity. The question which the Revenue Tribunal was required to decide was whether the tenant in order to become a deemed purchaser had satisfied the conditions specified in sec. 32 of the Tenancy Act. Instead of examining that question the Revenue Tribunal diverted Its attention to an altogether different question and held that the tenant who had been dispossessed ought to have applied within two years for recovering possession from the landlords of the lands in question. In my opinion the requirements of sec. 32 of the Tenancy Act do not warrant the aforesaid approach. It is an undisputed fact that the suit for possess ion filed by the landlords against the tenant was finally dismissed on 16th June 1959. Prima facie therefore the tenant became a deemed purchase on that date within the meaning of the first proviso to sub-sec. (1) of sec. 32 of the Tenancy Act. This fact also clearly shows that the landlords were not able to recover from the tenant possession of the lands in question until that date. If they obtained possession of the lands in question from the tenant after that date obviously it was unauthorised recovery of possession because the tenant had ceased to be a tenant and had become a deemed purchaser. Assuming that the relationship of tenant and landlord continued between the parties possession of the lands in question could not have been recovered by the landlords from their tenant after 16th June 1959 except under an order of the Mamlatdar irrespective of the question whether that order was recorded under sec. 15 or under sec. 29 of the Tenancy Act. ( 7 ) IT therefore becomes necessary for me to examine the question whether the provisions of sub-sec. (1) of sec. 32 justify the order of remand which the Revenue Tribunal has made. Sub-sec. (1) of sec. 32 lays down that a tenant would become a deemed purchaser of the land in his possession if he cultivated the land personally. Clause (a) of subsec. (1) deals with the case of a permanent tenant. (1) of sec. 32 justify the order of remand which the Revenue Tribunal has made. Sub-sec. (1) of sec. 32 lays down that a tenant would become a deemed purchaser of the land in his possession if he cultivated the land personally. Clause (a) of subsec. (1) deals with the case of a permanent tenant. I am not concerned with that clause in the instant case because the tenant in the instant case is not a permanent tenant. Clause (b) of sub-sec. (1) therefore governs his case. Assuming that there were no pending proceedings against him for recovery of possession of the lands in question he would become a deemed purchaser of the lands in his possession if he satisfied the following conditions:- (1) if there was a relationship of landlord and tenant between the parties on 1st April 1957 (2) if he had been cultivating personally the land leased to him and (3) the landlords had not given him a notice of termination of tenancy under sec. 31 or if such a notice was given to him landlords had not applied to the Mamlatdar on or before the 31st day of March 1957 under sec. 29 for obtaining possession of the lands or if the landlords had not terminated his tenancy on any of the grounds specified in sec. 14 or have so terminated the tenancy but have not applied to the Mamlatdar on or before the 31st day of March 1957 under sec. 29 for obtaining possession of the lands in question. ( 8 ) MR. M. C. Shah appearing for the tenant has relied upon the first proviso to clause (b) of sub-sec. (1) of sec. 32 and argued that in a case where proceedings had been pending against the tenant on 1st April 1957 he was not required to expressly prove that the relationship of landlord and tenant had been subsisting between the parties on 1st April 1957 and that he had been cultivating personally on that date the lands leased to him. According to Mr. M. C. Shah as soon as the pending proceedings instituted by the landlords against the tenant finally failed the tenant ipso facto became a deemed purchaser. Mr. R. N. Shah appearing for the landlords has contended before me that the proviso to clause (b) of sub-sec. (1) of sec. According to Mr. M. C. Shah as soon as the pending proceedings instituted by the landlords against the tenant finally failed the tenant ipso facto became a deemed purchaser. Mr. R. N. Shah appearing for the landlords has contended before me that the proviso to clause (b) of sub-sec. (1) of sec. 32 merely postpones the date of purchase but does not dispense with the satisfaction of the two conditions specified in clause (b) of sub-sec. (1) of sec. 32. In other words according to Mr. M. C. Shah the first proviso to clause (b) renders the entire principal part of clause (b) inapplicable to a tenant against whom proceedings for recovery of possession had been pending on 1st April 1957 According to Mr. R. N. Shah the proviso renders inapplicable to such a tenant the second part of clause (b) of sub-sec. (1) of sec. 32. If the argument advanced by Mr. R. N. Shah is upheld it means that after the pending proceedings have come to a final termination against the landlords the tenant will become the deemed purchaser of the lands in his possession only if he proves that on 1st April 1957 there was a subsisting relationship of landlord and tenant between the parties and that he had been personally cultivating on that day the lands leased to him. It appears to me from the judgment of the Revenue Tribunal that the Revenue Tribunal has remanded the matter to the Mamlatdar for the purpose of finding out whether the tenant had been personally cultivating on 1st April 1957 the lands leased to him. The argument advanced by Mr. M. C. Shah is in my opinion quite sound and worthy of acceptance. A tenant against whom proceedings for recovery of possession of the lands in his possession had been pending on 1st April 1957 is not expressly required to prove that the relationship of landlord and tenant between the parties had been subsisting on 1st April 1957 and that he had been cultivating personally on that day the lands leased to him for the following reasons. the very fact that proceedings had been instituted by the landlords against the tenant under the Tenancy Act prior to 1st April 1957 for the recovery of possession of the lands in possession of the tenant and had been pending on 1st April 1957 presupposes that the relation ship of landlord and tenant had been subsisting between the parties on that day. No such proceedings would have been competent or instituted by the landlord if there was no such subsisting relationship between the parties. Therefore the very. fact of pending proceedings points to the conclusion that there was subsisting relationship of tenant and landlord between the parties on 1st April 1957. A It was that relationship which formed the foundation of the pending proceedings. Want of such a relationship between the parties would have rendered impossible the institution of such proceedings between the par. ties under the Tenancy Act and it would have knocked down the very bottom of those proceedings if any such proceedings were instituted. Secondly the question of a tenant becoming a deemed purchaser would aside only if the price dings pending between the parties on 1st April 1957 resulted in favour of the tenant. Result of those proceedings in favour of the landlord would deprive the tenant of the land in his possession and the question of applying sec. 32 would not arise. Result in favour of the tenant must lead to the presupposition that the tenant had been personally cultivating the land within the meaning of that expression in the Tenancy Act on 1st April 1957 because if he had not been personally cultivating the land the proceedings would have led to an order of eviction against him in light of the provisions of sec. 29 read with sub-clause (iv) of clause (a) of sub-sec. (1) of sec. 14. Under sec. 29 read with sec. 14 of the Tenancy Act a landlord was entitled to recover possession of his lands from his tenant if he was not personally cultivating them. In may opinion therefore the very fact that the pending proceedings led to the result in favour of the tenant must necessarily and invariably show that there was a relationship of landlord and tenant between the parties on 1st April 1957 and that the tenant had been personally cultivating the lands. In may opinion therefore the very fact that the pending proceedings led to the result in favour of the tenant must necessarily and invariably show that there was a relationship of landlord and tenant between the parties on 1st April 1957 and that the tenant had been personally cultivating the lands. In the instant case the suit for possession which had been instituted by the landlords against the tenant for recovery of possession of the lands in question had been admittedly pending on 1st April 1957. In view of the reasons stated above I must record the conclusion that the tenant satisfied the conditions specified in clause (b) of sub-sec. (1) of sec. 32. It was therefore not necessary for the Revenue Tribunal to remand the matter for fresh inquiry into the question. The order recorded by the Revenue Tribunal therefore on the aforesaid aspect is a totally misconceived order and is liable to be quashed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeal partly allowed. .