SAIYED USMAN RAHEMATULLA v. SAIYED NOOR KARIM TAJ — 1993 DIGILAW 528 (GUJ)

A. N. DIVECHA, J. ( 1 ) THE decision rendered by the Gujarat Revenue Tribunal at Ahmedabad (`the Tribunal for convenience) on 1 9/09/1986 in Revision Application No. TEN. B. A. 1237 of 1982 is under challenge in this petition under Article 227 of the Constitution of India. By its impugned decision the Tribunal upset the order passed by the Assistant Collector at Patan (`the Appellate Authority for convenience) on 20/04/1982 in Tenancy Appeal No. 133 of 1981. By his Appellate order the Appellate Authority accepted the appeal of the present petitioner and set aside the order passed by the Additional Mamlatdar and Agricultural Lands Tribunal at Sami (`the First Authority for convenience) on 2/06/1981 in Tenancy Case No. 1 of 1978 declaring respondent No. 1 herein to have become the deemed purchaser of two parcels of land bearing Survey Nos. 145 and 143 (old Survey Nos. 214 and 213) admeasuring 5 acres 24 gunthas and 5 acres 6 gunthas respectively situated in village Kathi Taluka Sami District Mehsana (`the disputed lands for convenience ). ( 2 ) THE fact giving rise to this petition move in a narrow compass. The petitioner is the owner of the disputed lands. They were mortgaged with possession with respondent No. 2 herein. It appears that a civil litigation was instituted in the Civil Court at Harij for redemption of the disputed lands. That suit was dismissed. The matter was carried in appeal before the District Court at Mehsana. It came to be registered at Civil Appeal No. 111 of 1969. It appears to have been assigned to the Extra Assistant Judge at Mehsana for hearing and disposal. By his judgment and decree passed on 2 5/06/1971 in Civil Appeal No. 111 of 1969 the Appellate Court accepted the appeal and decreed the suit for redemption. Thus the disputed lands were ordered to be redeemed in favour of the petitioner. It appears that the aforesaid decree passed by the Appellate Court came to be affirmed in further appeal before this Court. It Appears that prior thereto the mortgage amount of Rs. 400. 00 was deposited by the present petitioner on 21/07/1971 in the Civil Court at Harij pursuant to the Appellate decree passed on 25/06/1971 in Civil Appeal No. 111 of 1969. It appears that thereafter the present petitioner instituted execution proceedings for possession of the disputed lands from respondent No. 2 herein. 400. 00 was deposited by the present petitioner on 21/07/1971 in the Civil Court at Harij pursuant to the Appellate decree passed on 25/06/1971 in Civil Appeal No. 111 of 1969. It appears that thereafter the present petitioner instituted execution proceedings for possession of the disputed lands from respondent No. 2 herein. It Appears to have been registered as Execution Application No. 14 of 1976 It appears that some time in 1975 respondent No. 1 (`the tenant for convenience) herein was inducted as a tenant on the disputed lands by respondent No. 2 herein. He appears to have moved the First Authority by his application made on 9/07/1978 under Section 32-G of the Bombay Tenancy and Agricultural Lands Act 1948 (`the Tenancy Act for brief) for fixing the price thereof as the deemed purchaser thereof. It came to be registered as Tenancy Case No. 1 of 1978. By his order passed on 2/06/1981 in Tenancy Case No. 1 of 1978 the First Authority accepted the application and fixed the price of the disputed lands to be Rs. 3 232 10 ps. to be paid in four yearly instalments beginning on and from 1/01/1982. Its copy is at Annexure C to this petition. That aggrieved the present petitioner. He carried the matter in appeal before the Appellate Authority under Section 74 of the Tenancy Act. It came to be registered as Tenancy Appeal No. 133 of 1981. By his order passed on 20/04/1982 in the Tenancy Appeal No. 133 of 1981 the Appellate Authority accepted the appeal and set aside the order at Annexure C to this petition. The Appellate Authority declared respondent No. 1 not to be the tenant of the disputed lands. A copy of the Appellate order is at Annexure B to this petition. The aggrieved tenant carried the matter in revision before the Tribunal under Section 76 of the Tenancy Act. It came to be registered as Revision Application No. TEN. B. A. 1237 of 1982. By its decision rendered on 19/09/1986 in the aforesaid revisional application the Tribunal accepted it and set aside the Appellate order at Annexure B to this petition and restored the order passed by the First Authority at Annexure C to this petition. A copy of the aforesaid decision of the Tribunal is at Annexure A to this petition. That aggrieved the present petitioner. A copy of the aforesaid decision of the Tribunal is at Annexure A to this petition. That aggrieved the present petitioner. He has thereupon moved this Court by means of this petition under Article 227 of the Constitution of India for questioning the correctness of the aforesaid decision at Annexure A to this petition. ( 3 ) THE undisputed factual position emerging from the record is to the effect that respondent No. 1 was inducted on the disputed lands by respondent No. 2 only after the decree for redemption of the disputed lands was passed by the Appellate Court on 25/06/1971 in Civil Appeal No. 111 of 1969. It is needless to reiterate that the Appellate decree came to be affirned in a further appeal by This Court. It would therefore mean that respondent No. 2 no longer remained the mortgagee in possession of the disputed lands after 25/06/1971 on passing of the Appellate decree in Civil Appeal No. 111 of 1969. Her possession qua the disputed lands could therefore be that of a trespasser. It is obvious that respondent No. 1 derived his title as a tenant of the disputed lands from respondent No. 2 in 1975. As aforesaid the possession of respondent No. 2 after 25/06/1971 was that of a trespasser. She was no longer a mortgagee in possession as the disputed lands were ordered to be redeemed by the Appellate decree passed on 25/06/1971 in Civil Appeal No. 111 of 1969 as aforesaid. Respondent No. 1 could not have therefore derived a valid title to his tenancy rights from respondent No. 2. He could not therefore become a deemed tenant under Section 4 of the Tenancy Act. ( 4 ) IT may be noted that the first condition for becoming a deemed tenant under Section 4 of the Tenancy Act is that a person should be lawfully cultivating a land or lands in question. A person can be said to be lawfully cultivating a land only when he derived a valid title thereto from another person. No valid title even by way of tenancy rights can be derived from a trespasser. In that view of the matter respondent No. 1 could not have become a tenant under Section 4 of the Tenancy Act. ( 5 ) THE same result is bound to ensue even if the position is examined from a different angle. No valid title even by way of tenancy rights can be derived from a trespasser. In that view of the matter respondent No. 1 could not have become a tenant under Section 4 of the Tenancy Act. ( 5 ) THE same result is bound to ensue even if the position is examined from a different angle. As pointed out hereinabove respondent No. 1 derived his title as a tenant of the disputed lands only in 1975. It is an admitted position on record that at that time the civil litigation between the petitioner and respondent No. 2 with respect to the disputed lands was pending before this Court by way of a Second Appeal. It cannot be gainsaid that to lease out a property would amount to transfer within the meaning of the Transfer of Property Act 1882 (`the TP Act for brief ). Section 52 thereof makes it clear that no property can be transferred during the pendency of any proceedings between the parties. In the explanation thereto it has clearly been mentioned that the proceeding would commence with institution of a suit. It cannot be gainsaid that an appeal is a continuation of a suit. It thus becomes clear that respondent No. 1 acquired his title as a tenant of the disputed lands during the pendency of the civil litigation between the petitioner and respondent No. 2 herein. Respondent No. 2 was not authorised to transfer the disputed lands in favour of respondent No. 1 in any form even by way of lease. In that view of the matter also respondent No. 1 could not be said to have acquired any valid title as a tenant of the disputed lands. ( 6 ) THE issue can be examined also from yet another angle and the result would be to the same. Clause (c) of Section 4 of the Tenancy Act excludes a mortgagee in possession of a land from becoming its deemed tenant. Section 2 (21) provides for reference to the TP Act in respect of words and expressions used in the Act but not defined. Section 59a of the TP Act provides : unless otherwise expressly provided reference in this chapter to mortgagor or mortgagee shall be deemed to include references to person deriving title from respectively. A tenant of a mortgagee in possession would derive his title as such from the said mortgagee in possession. Section 59a of the TP Act provides : unless otherwise expressly provided reference in this chapter to mortgagor or mortgagee shall be deemed to include references to person deriving title from respectively. A tenant of a mortgagee in possession would derive his title as such from the said mortgagee in possession. By virtue of Section 59a of the TP Act he will have to be referred to as a mortgagee in possession even for the purposes of Section 4 of the Tenancy Act. Clause (c) thereof excludes a mortgagee in possession from becoming its deemed tenant. Respondent No. 1 cannot therefore become the deemed tenant of the disputed lands even on this score as well. ( 7 ) IT may also be noted that Section 32-O of the Tenancy Act contemplates the deemed purchase of a land by a tenant on the date of expiry of one year from the commencement of such tenancy from the landlord. Respondent No. 1 has admittedly made his application under Section 32-O of the Tenancy Act. It was not his case that the tenancy was created in his favour by the present petitioner. The concurrent finding of fact arrived at by the petitioner. The concurrent finding of fact arrived at by the First Authority and the Appellate Authority is to the effect that the tenancy was created by respondent No. 2 as the mortgagee in possession. As pointed out hereinabove he lost his status as the mortgagee in possession on 25/06/1971 when the Appellate Court passed a decree for redemption of the disputed lands. It is needless to reiterate that it is affirmed in appeal by this Court. In that view of the matter it cannot be accepted that the tenancy in favour of respondent No. 1 was created by any landlord much less by the present petitioner. I am therefore of the opinion that the application made by respondent No. 1 herein to the First Authority under Section 32-O of the Tenancy Act was not maintainable. It was incompetent. ( 8 ) IN view of my aforesaid discussion I am of the opinion that the decision at Annexure A to this petition cannot be sustained in law. It has to be quashed and set aside. The Appellate order at Annexure B to this petition deserves to be restored. It was incompetent. ( 8 ) IN view of my aforesaid discussion I am of the opinion that the decision at Annexure A to this petition cannot be sustained in law. It has to be quashed and set aside. The Appellate order at Annexure B to this petition deserves to be restored. ( 9 ) BEFORE parting I should note with appreciation the assistance rendered by Shri Mehta for respondent No. 3 though he was merely a formal party and the dispute arising in this petition was mainly between the petitioner and respondents No. 1 and 2 more particularly respondent No. 1. ( 10 ) IN the result this petition is accepted. The impugned decision rendered by the Gujarat Revenue Tribunal at Ahmedabad on 19/09/1986 in Revision Application No. TEN. B. A. 1237 of 1982 at Annexure A to this petition is quashed and set aside. The Appellate order passed by the Assistant Collector at Patan on 20/04/1982 in Tenancy Appeal No. 133 of 1981 at Annexure B to this petition is restored. Rule is accordingly made absolute with no order as to costs. .