PETITIONER: DHONDIRAM TATOBA KADAM Vs. RESPONDENT: RAMCHANDRA BALWANTRAO DUBAL DATE OF JUDGMENT27/07/1993 BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) THOMMEN, T.K. (J) RAMASWAMI, V. (J) II CITATION: 1994 SCC (3) 366 JT 1993 Supl. 603 1994 SCALE (1)329 ACT: HEADNOTE: JUDGMENT:
The Judgments of the Court were delivered by
SAHAI, J. (for Thommen, J. and himselj)- The short question
of law that arises for consideration in this appeal, by
grant of special leave under Article 136 of the Constitution
of India, is if a tenant under the Bombay Tenancy &
Agricultural Lands Act, 1948 Thereinafter referred to as
‘the Act’) who surrendered the tenancy can be said to have
been dispossessed so is to claim benefit under Section 32(1-
B) of the Act added, in 1969 in chapterIII, dealing with
‘Special Rights and Privileges of Tenants and Provisions for
Distribution of Land for Personal Cultivation’.
2.For this purpose it is necessary to state facts in
brief. A suit was filed by Respondent 1 plaintiff
(referred to as plaintiff) against Respondent 2 defendant
(referred to as the defendant) and the appellant-defendant 2
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(referred to as the appellant), on the allegation that a
conditional mortgage was executed by the plaintiff in favour
of defendant in 1952 after getting the land surrendered from
the appellant but since the defendant was not willing to
hand over possession despite offer of paying the mortgage
amount, a declaration may be granted that he was the owner
of the land in dispute on payment of the mortgage amount to
the defendant. In the written statement filed by the
defendant it was claimed that he was the owner of the land
in dispute. Apart from that, one of the pleas raised was
that the land in dispute was let out by him to the appellant
who was in possession since then. On the pleadings one of
the questions that arose was whether the appellant was the
tenant of the land in dispute. Since the question of
tenancy could be decided by the revenue authorities only,
two issues were framed to the following effect:
1.Does defendant 2 prove that he was a
tenant over the suit land since prior to
mortgage transaction dated June 23, 1952.
2.Does defendant 2 (present applicant)
further prove that he is the tenant of
defendant I over the suit land since 1952.
The issues were referred for decision to the Sub-Divisional
Officer. They were decided in favour of the plaintiff
against which the appeal filed by the defendant and
appellant was dismissed. The appellate authority held that
the appellant was the tenant even in 1949 but he surrendered
his tenancy at the time of mortgage by the plaintiff. It
was further held that he was not the tenant from 1952 to
1968. And his claim was falsified by absence of his name in
revenue records from 1956 to 1968. It was supported by
drawing an inference against the appellant as the defendant
did not refer to his tenancy in the reply sent by him to the
notice sent by the plaintiff in 1969. The Revenue Tribunal,
however, allowed the revision, setting aside the order
passed by the two authorities and answered the issues
referred to it in the affirmative in favour of the
appellant. It found that the appellant had not surrendered
in 1952. It was held that there was no iota of evidence to
support it. In respect of second surrender in 1956 the
Tribunal even after recording the finding that there was
little doubt that the appellant had surrendered the
possession held that the relationship of landlord and tenant
between the appellant and the defendant did not cease. It
was further held that surrender having been entered in
revenue records in December 1956 and the law having been
amended in August by Act XIII of 1956 making it obligatory
for surrender to be in writing the surrender by the
appellant was invalid. Consequently it found that as
appellant was in possession of the land as tenant on June
15, 1955 and was dispossessed before April 1, 1957 otherwise
than in the manner and by an order of the Tahsildar as
provided in Section 29 he was entitled to benefit of Section
32(1-B) of the Act. The two issues were answered thus:
“Issue No. 1. Defendant 2 (i.e. the present
revision applicant) does prove that he was a
tenant over the suit property since prior to
the mortgage transaction dated June 23, 1952.
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Issue No. 2. He further proves that he is
undisputably the present tenant of the land
and further he had not ceased to be so,
despite his alleged surrender of possession in
December 1956.”
Against this order the plaintiff filed a civil miscellaneous
application before the High Court which was allowed and the
order of the Tribunal was set aside. The High Court found
that it was not disputed that the appellant was the tenant
under registered lease deed executed on June 15, 1949 nor
was there any dispute that there was a conditional sale deed
in favour of the defendant. Therefore, even though there
was no evidence to support the surrender but since, under
the provisions of the Act, no transfer of interest was
possible without the consent of the tenant, as he alone was
entitled to purchase the land, an inference in law arose
that when conditional mortgage was executed the tenant must
have surrendered the land in dispute in favour of the
plaintiff. This finding was supported by the statement of
the appellant who, appears to have, admitted in his
deposition that there was a surrender and the defendant was
put in possession of the land. It was further held that
appearance of appellant’s name in revenue records did not
negative surrender. The appellant was tenant of plaintiff
since 1949 till surrender and of defendant from 1952 till he
surrendered again in 1956. The High Court found it as a
fact that the appellant continued in possession of the land
till he surrendered in 1956. The High Court held that
surrender was proved by entry in December 1956. When was
the actual surrender made could have been proved by the
defendant. In absence of any evidence led by defendant the
Court inferred that it must have been made prior to August
1956. The factum of surrender stood proved by follow-up
action of not only deletion of appellant’s name from record
but its absence till the plaintiff gave notice in 1969.
Since the Tribunal in recording finding on both the
surrender misdirected itself by not adverting to relevant
material and drawing on conjectures the High Court was well
within its jurisdiction to set aside the order. The High
Court found that the entry having appeared in 1968-69 it was
clear that the tenant was not in possession from 1956-57
till 1968-69. Further since the appellant did not move any
application within two years under Section 29 of the Act,
his remedy to recover possession became barred by
limitation. It also held that since the remedy was lost the
right of the appellant extinguished. The High Court
disagreed with the Tribunal on collusion between the
appellant and the defendant and held that it exceeded its
jurisdiction in setting aside the finding of the two
authorities on this score.
3.Two questions arise in this appeal, one if the High
Court was right, in law, in negativing claim of the
appellant under Section 32(1-B) and other if the Tribunal in
setting aside the finding on collusion in revision exceeded
its jurisdiction. Out of the two it is proposed to take up
legal issue on applicability of Section 32(1-B) as if the
appellant cannot successfully assail this finding then the
finding on collusion becomes academic only. Section 32(1-B)
of the Act is extracted below:
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“Where a tenant who was in possession on the
appointed day and who on account of his being
dispossessed before the 1st day of April 1957
otherwise than in the manner and by an order
of the Tahsildar as provided in Section 29, is
not in possession of the land on the said date
and the land is in the possession of the
landlord or his successor-in-interest on the 3
1st day of July 1969 and the land is not put
to a nonagricultural use on or before the last
mentioned date, then, the Tahsildar shall,
notwithstanding anything contained in the said
Section 29, either suo motu or on the
application of the tenant, hold an inquiry and
direct that such land shall be taken from the
possession of the landlord or, as the case may
be, his successor-in-interest, and shall be
restored to the tenant; and thereafter, the
provisions of this section and Sections 32-A
to 32-R (both inclusive) shall, insofar as
they may be applicable, apply thereto, subject
to the modification that the tenant shall be
deemed to have purchased the land on the date
on which the land is restored to him:
Provided that, the tenant shall be entitled to
restoration of the land under this sub-section
only if he undertakes to cultivate the land
personally and of so much thereof as together
with the other land held by him as owner or
tenant shall not exceed the ceiling area.”
The section entitles a tenant to restoration of possession
provided he was in possession on the appointed date, i.e.,
June 15, 1955 and was dispossessed before April 1, 1957 and
his landlord was in possession on July 31, 1969. The
section is, thus, in two parts one creating right and other
entitling restoration of possession. Proceedings for
restoration could take place either at the instance of the
tenant or suo motu by the Tahsildar. But the order could be
passed only if the primary requirements of tenant being in
possession on the appointed date and his dispossession
before April 1, 1957 were satisfied. The language of the
latter part of the section directing the Tahsildar to take
possession of the land from the landlord and restore it to
the tenant who on restoration by operation of law becomes
purchaser from the date of restoration are clear legislative
indications to construe the section liberally in favour of
the tenant. What happens if a tenant who satisfied the
requirements as provided in the section is found to be in
possession on July 31, 1969. Could he be evicted in any
proceeding even though he satisfied the requirement of being
in possession on appointed date and was evicted before April
1, 1957. Would such construction of the section be in
consonance with the spirit of the Act. On the language the
sub-section does not grant any protection to a tenant who
was in possession on July 31, 1969. But reading the section
in such a narrow manner would be defeating the legislative
objective of enacting a beneficent legislation endeavouring
to make the tillers of soil as purchaser and owner. This is
clear from amendments made in Section 32 from time to time
between 1957 to 1969. When Section 32 was renumbered and
sub-section (1) was added in 1957, April 1, 1957 was
declared as tillers’ date and it was provided that every
tenant who was one of those mentioned in the sub-section and
was cultivating the land personally was entitled to become
purchaser of such land from his landlord free of all
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encumbrances subsisting on that date. In 1958 similar
rights were granted by sub-section (1-A) added to Section
32, to those tenants who had been evicted prior to the
tillers’ date and were not in possession but had made an
application for possession of the land under sub-section (1)
of Section 29. In 1969 yet another right was granted by
Section 32(1-B) which has been extracted above. There can,
thus, be no doubt that the legislature intended not only to
grant rights to those tenants who were in possession but
also to restore the land from which the tenant had been
evicted prior to 1957 on satisfying the conditions mentioned
in Section 32(1-A) and (1-B) and make such a person on
restoration of possession, purchaser of the land. What
happens if a tenant who is otherwise entitled to restoration
of possession due to operation of the first part of the
section is found to be in possession after July 31, 1969
either with permission of the landlord or in any other
manner? Is such a tenant liable to eviction? The answer
should be in the negative as it would result in conferring
higher rights on a person who is not in possession than a
person who is in possession. In our opinion, Section 32(1-
B) should be construed in a manner which must effectuate the
legislative objective of making every tenant purchaser of
the land if he satisfies the conditions laid down in Section
32(1-B) of the Act whether he was in possession or not.
4.Even then the question is if the appellant on facts
found is entitled to the declaration that he became a
purchaser of land by operation of law under Section 32(1-B).
It has been found by the High Court that the appellant was
in possession from 1952 to 1956, thus, he satisfied the
first requirement of being in possession on the appointed
date. But that alone was not sufficient as a tenant should
have been dispossessed before the 1st day of April 1957. It
was found by the High Court that the appellant surrendered
sometime before August 1956 which was established by an
entry in the revenue records made in December 1956. The
Tribunal too found that the appellant had surrendered his
possession as was clear from the mutation entry supported by
absence of entries in favour of appellant from 1957-58 to
1968-69. The difference between the Tribunal and the High
Court was in construction of the nature of surrender. The
Tribunal found it to be invalid as no oral surrender could
be effected after Amendment Act 13 of 1956 whereas the High
Court was of opinion that in absence of any evidence as to
the actual date of surrender, there was no reason not to
accept the case of plaintiff that surrender was before
December 1956 and, therefore, it was in accordance with law.
In any case both the Tribunal and the High Court concurred
on the surrender by the appellant. The effect of surrender
was that the appellant ceased to be tenant. Assuming that
surrender was invalid and the appellant left the possession
over land of his own accord, was he dispossessed as
contemplated in Section 32(1-B) of the Act? Voluntary
giving up of possession does not amount to dispossession
unless the law provides for it. ‘Dispossess’ according to
Black’s Law Dictionary means: “To oust from land by legal
process; to eject, to exclude from realty.” The
dispossession should have been, therefore, either by legal
process or by physical act of
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exclusion. It would not include leaving possession
voluntarily or by surrender. If the words would have been
that if such a person was not in possession before April 1,
1957 then a tenant who surrendered or left the possession
voluntarily could be included in it. But the legislature
having used a stronger word it should, in absence of any
indication to the contrary, be understood in its normal
sense. A tenant surrendering the land either in accordance
with the provisions of law or leaving possession voluntarily
would not be covered in the expression ‘dispossessed’. The
appellant, on the finding of the High Court, therefore, was
not dispossessed. Even if the surrender was not valid as
found by the Tribunal then the appellant shall be deemed to
have left possession voluntarily. In either case it was not
dispossession. The appellant therefore did not satisfy the
second requirement. Consequently he did not become
purchaser of the land under Section 32(1-B) of the Act.
5.In the result this appeal fails and is dismissed.
Parties shall bear their own costs.
V.RAMASWAMI, J. (dissenting)- In my view on the facts the
interpretation of the provision in Section 32(1-B) of Bombay
Tenancy & Agricultural Lands Act, 1948 does not arise for
consideration. On facts with great respect I am unable to
agree either on the assessment of facts or on the ultimate
conclusion in the judgment.
7.One Ramchandra Balwantrao Dubal, Respondent 1 in this
appeal (since dead and is now represented by his legal
representatives) filed a suit for redemption of a mortgage
by conditional sale dated June 23, 1952 against the second
respondent who was shown as first defendant in the suit.
The appellant herein was impleaded as a second defendant.
The case of the first respondent-plaintiff in the suit was
that the said deed dated June 23, 1952 was a mortgage by
conditional sale, that the property was to be in possession
of the second respondent (first defendant in the suit) till
the mortgage is redeemed and that the plaintiff was entitled
to redeem the same without payment of any money and get
possession of the property from the first defendant.
Alternatively, he pleaded that the six years’ period of
redemption stipulated in the deed having expired he is
entitled to get executed a deed of re-conveyance from the
second respondent (defendant 1). He further stated in the
plaint that with an intention of creating some obstruction,
if possible, the second respondent (defendant 1) had made an
entry of the appellant’s name in the column of tenant in the
records in collusion with the Talathi and that it was a
bogus entry. He further contended that the second defendant
had no concern with the land nor was he ever a tenant in the
suit property. The first defendant (second respondent
herein) filed a written statement stating that the deed
dated June 23, 1952 was not a mortgage by conditional sale
but that it was an absolute sale and that under that
document he purchased the property from the plaintiff and
had become the owner of the same. He further stated that
after he purchased the property the second defendant (the
appellant herein) became his tenant and has been in the
possession of the property as his tenant since the year
1952.
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8.The second defendant (appellant herein) filed a
separate written statement contending that he was a tenant
in respect of the suit property under a registered lease
deed dated June 15, 1949 executed in favour of the plaintiff
and that after the purchase of the suit property by the
first defendant (second respondent herein) he executed
another registered lease deed in favour of the purchaser and
that he had continued in the possession and enjoyment of the
property ever since 1949 and the suit for possession against
him is liable to be dismissed.
9.When the suit was taken up for trial in the view that a
question of tenancy is involved, the matter was referred to
the revenue authorities constituted under the Bombay Tenancy
and Agricultural Land Act, 1948. The two issues that were
referred to the authorities were:
1.Does defendant 2 (appellant) prove that
he was a tenant over the suit property since
prior to the mortgage transaction dated June
23, 1952.
2.Does he further prove that he is the
tenant of defendant I (second respondent) over
the suit land since 1952.
Though the original authority and the first appellate
authority under the Act answered both the issues in the
negative and held that the appellant was neither a tenant
before June 23, 1952 nor was he a tenant after that, the
Revenue Tribunal in its order dated March 31, 1975 held that
the appellant was a tenant under a registered rent note
dated June 15, 1949, that he had never surrendered
possession though he executed a registered rent deed again
in favour of the first defendant (second respondent herein)
after the transaction dated June 23, 1952. The Tribunal
also held that there was no surrender by the second
defendant subsequent to 1952 and the entries in the relevant
register showed that since 1950-51 to 1956-57 the appellant
cultivated the land without any break or without any
interruption. Though from 1957-58 to 1968-69 the entries do
not show the name of the second defendant as tenant it
reappeared in the register since 1969-70 and that therefore
the plaintiff (first respondent) had no right to deny the
appellant’s status as a tenant of the land and in that view
answered the two issues referred to by the civil court in
favour of the appellant and held that the appellant was a
tenant over the suit property since prior to the transaction
dated June 23, 1952 and that he continued to be the tenant
and had not ceased to be so.
10.The plaintiff filed a petition before the High Court
under Article 227 of the Constitution against this finding
of the Tribunal. The High Court accepted that the appellant
was a tenant under a registered lease deed executed on June
15, 1949 but in the view that the transaction of conditional
sale dated June 23, 1952 could not have come into existence
without the surrender of tenancy rights by the tenant, took
the view that the appellant should have surrendered the land
to the plaintiff before June 23, 1952. The High Court then
observed that since the Talathi had made an entry in the
register to the effect that on the basis of an intimation
dated December 14,
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1956 given by the appellant herein the name of the appellant
had been deleted from the tenancy column, came to the
conclusion that there was a surrender by the appellant-
tenant sometime before December 14, 1956. I am unable to see
how the High Court could have interfered with the findings
on facts given by the Revenue Tribunal in exercise of its
power under Article 227 of the Constitution in this regard.
Even without going into the jurisdiction the inference drawn
by the High Court is not warranted by the facts. The
execution of the registered lease deed in favour of the
first defendant (second respondent herein) on June 30, 1952
might not necessarily lead to the conclusion that there was
a surrender of possession. The tenant might have agreed to
accept the first defendant-purchaser from the original owner
as his landlord and in token thereof attuned the tenancy and
executed the registered rent deed. In fact the High Court
concurred with the findings of the Tribunal that the tenant
was in possession and cultivation during the years 1950-51
to 1956-57. Even if, it is to be assumed that there was a
legal surrender of the original tenancy right, a fresh
tenancy right has been created by the alleged purchaser if
the deed dated June 23, 1952 is to be treated as a sale
deed. Even if it is a mortgage by conditional sale the
first defendant was entitled to lease the property to the
second defendant. There was no plea in the suit that
subsequent to 1952 there was any oral surrender by the
tenant. It is not also possible to infer from the entry
made by the Talathi as to when the surrender of possession,
if any, was made. One could infer that on the date of
intimation, namely, December 14, 1956 there was a surrender.
If it is to be a date earlier than that there should be a
positive evidence to that effect. In the absence of any
positive evidence as to when actual surrender was effected
it is not possible to infer that it was effected prior to
August 1, 1956. The Revenue Tribunal has found that the
appellant had continued to be in possession right from 1949
and in fact the suit itself is for possession. The
plaintiff has not stated that because of any surrender of
possession the tenant had lost his right to be in
possession. Therefore, the provisions of Section 29(2)
(sic) is not applicable to this case. There is no clear
finding as to the nature of the document dated June 23, 1952
either. If it is a sale deed as contended by the first
defendant then the plaintiff’s suit will have to be
dismissed. If it is to be held a mortgage by conditional
sale it has to be treated as subject to the tenancy right
and the plaintiff would be entitled only to whatever right,
title or interest that was conveyed under the document dated
June 23, 1952. In fact as already stated the plaintiff did
not even plead that before he executed the deed dated June
23, 1952 the second defendant surrendered his possession or
his tenancy right. In either case, therefore, on the facts
the findings of the Revenue Tribunal were correct and could
not have been interfered with. The High Court therefore
erred in setting aside the order of the Revenue Tribunal.
In the result appeal succeeds and the order of the High
Court is set aside and that of the Revenue Tribunal is
restored. However, there will be no order as to costs.
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