PETITIONER:
A.A. SHIRDONE ETC
Vs.
RESPONDENT:
SAHEB H. TAJBHOKHARI
DATE OF JUDGMENT20/03/1985
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
REDDY, O. CHINNAPPA (J)
CITATION:
1985 AIR 836 1985 SCR (3) 403
1985 SCC (2) 477 1985 SCALE (1)496
ACT:
Bombay Tenancy Act, 1939, ss.2A and 3,4
Bombay Tenancy and Agricultural Lands Act 1948, ss.4
and 89(2) (b)
Mortgagee in possession of land-Whether becomes 'deemed
tenant' Landowner-Mortgagor-Failure to file declaration
before Mamlatdar that mortgagee not a tenant-Whether
ownership right lost-Symbolic or actual physical possession-
Entitlement of.
Civil Procedure Code 1908, Section 9
Civil Court whether possesses jurisdiction to grant
possession in suit governed by Tenancy Laws.
HEADNOTE:
The respondent mortgaged different portions of a plot
of land to different persons. Five suits for redemption and
actual possession of the mortgaged land against the
mortgagees were filed, who contested the suits on the
grounds that they were tenants of the suit land prior to the
mortgage and were in possession thereof as such, that during
the period of mortgage their tenancy rights remained in
abeyance and after redemption their tenancy rights would
revive again in view of the provisions of section 25A of the
Bombay Tenancy and Agricultural Lands Act, 1948, and
consequently the respondent could not get actual possession.
It was further contended that the respondent could not get
actual possession over the disputed land from the civil
court as the proper forum was a revenue court,
The Civil Judge decreed the suits for possession
holding that the defendants were not tenants of the suit
land prior to the mortgage, and as such there was no
question of revival of tenancy rights under section 25A of
Act
404
In appeals the District Judge held that in only one
suit the defendant was in possession of the suit land as a
tenant on the date of the mortgage and so his tenancy would
revive after redemption of the mortgage, However, relying on
sections 2A and 3A of the Bombay Tenancy Act 1939 it was
held that the defendants in the other four suits also became
deemed tenants under section 2A and consequently a protected
tenant under section 3A of the said Act as it stood amended
in 1946 and could not, therefore, be evicted from the suit
land. All the appeals were, therefore, allowed, the
defendants permitted to remain in actual possession of the
suit land and the plaintiff-respondent getting only symbolic
possession.
The plaintiff filed appeals and the High Court reversed
the judgment of the District Judge holding that the
mortgagees in possession did not become 'deemed tenants'
under the provisions of section 2A of the Act of 1939 as
amended in 1946.
The respondent-defendants appealed to this Court.
Allowing the appeals,
^
HELD: 1.A mortgagee in possession cannot become a
deemed tenant under section 2A of the Bombay Tenancy Act of
1939 on the strength of the saving provision in section
89(2)(b) of the Bombay Tenancy and Agricultural Lands Act of
1948. [413F]
Sidram Narsappa Kamble v. Sholapur Borough Municipality
JUDGMENT:
Salman Raje v. Madhavsang Banesang & Ors., 4 Guj. L.R.
817 and Ishwara Bhau Sawant v. Pandurang Vasudeo Karmarkar,
67 Bom.L.R. 558, overruled.
Dinkar Bhagwant Salekar v. Babaji Mahamulkar, 59 Bom.
L. R. 101 and Jaswantrai Tricumlal v. Bai Jiwi, 59 Bom. L.
R. 168 Shankar Kalyan Kulkarni Ors. v. Basappa Sidramappa
Kolar & Ors. [1969]2 Mys.L.J.77 and Patel Ambalal Manilal &
Ors. v. Desai Jagdishchandra Naginlal & Ors. 17 Guj. L.R.
578, approved.
2. Two conditions were necessary in order to attract
the provisions of section 2A(I) of the Bombay Tenancy Act,
1939. But in the corresponding section 4 of the Bombay
Tenancy and Agricultural Lands Act of 1948 one more
condition was added in addition to the old two conditions as
provided in section 2A(I) of the Bombay Tenancy Act, 1939
and that additional condition excludes the mortgagee in
possession from acquiring the status of a ‘deemed tenant’
within the meaning of section 4. If the cases in hand were
to be governed by the Bombay Tenancy and Agricultural Lands
Act 1948, the mortgagees in possession would be out of the
purview of section 4 of that Act
405
as mortgagees in possession have been excluded from being
‘deemed tenants’. As the Act of 1948 has no retrospective
effect the suits giving rise to the aforesaid appeals will
be governed by the Act of 1939. [408H; 409A-B]
3. In the instant case, the plaintiff-respondent was
entitled to file an application for declaration before the
Mamlatdar that the defendants were not tenants, within one
year of the coming into force of the Amendment Act of 1946
as provided in sections 2A and 3A of the 1939. But he did
not choose to do so and, therefore, he lost whatever right
he had. [413G-H]
4. The relief for actual possession from the defendants
who claim to be protected tenants could be granted only by
the revenue court and not by the civil court. The plaintiff-
respondent, therefore, on the basis of the decree for
redemption can get only a symbolic possession and not actual
physical possession for the land in dispute. [414A-B]
&
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 320-
323 of 1971.
From the Judgment dated the 8th August 1970 of the
Mysore High Court in Regular Second Appeals Nos. 435, 437,
438, 515 of 1964 respectively.
R.B. Datar, for the Appellants.
K Rajendra Choudhary, for the Respondent.
The Judgment of the Court was delivered by
MISRA, J. The present connected appeals by special
leave are directed against the judgment of the Karnataka
High Court. The dispute in these appeals relates to survey
No. 56. Of Mangavati P village measuring 18 acres and 30
gunthas. Different portions of the said plot were mortgaged
by the respondent to different persons now arrayed as
appellants in the aforesaid appeals.
The respondent filed five suits for redemption and
actual possession of the mortgaged land against the
aforesaid mortgagees. The a suits were contested by the
mortgagees and their grievance in the main was that they
were tenants of the suit land prior to the mortgage and were
in possession thereof as such. During the period of the
mortgage their tenancy rights remained in abeyance and after
redemption their tenancy rights would revive again in view
of the provisions of s.25A of the Bombay Tenancy and
Agricultural
406
Lands Act, 1948 and the respondent could not get actual
possession; over the disputed land despite the redemption.
It was further pleaded that the respondent could not get
actual possession over the disputed land from the civil
court as the proper forum was a revenue court.
The learned Civil Judge decreed the aforesaid five
suits by separate judgments holding that the defendants were
not tenants of the suit land prior to the mortgage, and as
such there was no question of revival of the tenancy rights
after the redemption of the mortgagees, under s.25A of the
Bombay Tenancy and Agricultural Lands Act. 1948. The
mortgagor was entitled to get possession of the land after
redemption of the mortgage.
The judgments of the Civil Judge gave rise to five
appeals which were disposed of by the District Judge. In his
opinion the defendants in four suits were not the tenants of
the said land prior to the date of mortgage, but one of the
defendants in one of the suits, viz., suit No. 94 of 1961,
was in possession of the suit land as a tenant on the date
of the mortgage and so his tenancy would revive after
redemption of the mortgage. He, however, relying on ss.2A
and 3A of the Bombay Tenancy Act, 1939 found that the other
defendants in the four suits also became deemed tenants
under s.2A and consequently a protected tenant under s.3A of
the aforesaid Act of 1939 as it stood amended in 1946 and
could not be evicted from the suit land. Accordingly. all
the appeals were allowed and the judgments of the trial
court were modified in that the defendants were to remain in
actual possession of the suit land and the plaintiff-
respondent would get only symbolic possession in pursuance
of the decree for redemption.
Feeling aggrieved by the said decision the plaintiff
filed appeals before the High Court, which in turn allowed
the appeals and reversed the judgment of the District Judge
holding that the mortgagees in possession did not become
‘deemed tenants’ under the provisions of s.2A of the Act of
1939, as amended in 1946. The defendants have now come to
this Court and reiterate the same points as were raised by
them before the High Court.
In order to appreciate the points raised in these
appeals it will be appropriate at this stage to refer to the
relevant provisions of the Bombay Tenancy Act, 1939. Section
2A reads:
407
2A (I) A person lawfully cultivating any land belonging
to another person shall be deemed to be a tenant if
such land is not cultivated personally by the owner and
if such person is not-
(a) a member of the owner’s family, or
(b) a servant on wages payable in cash or kind but
not in crop share or a hired labourer cultivating the
land under the personal supervision of the owner or any
member of the owner’s family,
unless the owner has within one year of the coming into
force of the Bombay Tenancy (Amendment) Act, 1946 made
an application to the Mamlatdar within whose
jurisdiction the land is situated for a declaration
that the person is not a tenant.
(2) Where an application under sub-section (I) has
been made and the Mamlatdar refuses to make such
declaration and the Mamlatdar’s decision is not set
aside by the Collector in appeal under sub-section (3)
of section 13 or by the Provincial Government under
section 28, the person shall be deemed to be a tenant
for the purposes of this Act.”
Section 3A reads;
“3A. (1) Every tenant shall, on the expiry of one year
from the date of the coming into force of the Bombay
Tenancy (Amendment) Act, 1946, be deemed to be a
protected tenant for the purposes of this Act and his
rights as such protected tenant shall be recorded in
the Record of Rights, unless his landlord has within
the said period made an application to the Mamlatdar
within whose jurisdiction the land is situated for a
declaration that the tenant is not a protected tenant.
(2) Where an application under sub-section (I) has
been made and the Mamlatdar refuses to make such
declaration and the Mamlatdar’s decision is not set
aside by the Collector in appeal under sub-section (3)
of section-]3
408
or by the Provincial Government under section 28, the
tenant shall be deemed to be a protected tenant for the
purposes of this Act and his rights as such protected
tenant shall be recorded in the Record of Rights.”
In 1948 the Bombay Tenancy Act, 1939 was repealed and
another Act, that is, the Bombay Tenancy and Agricultural
Lands Act, 1948 came into being. Section 4 of this new Act
is the same as s. 2A of the Act of 1939 with the only
addition of a clause. It reads:
“4.A person lawfully cultivating and land belonging to
an other person shall be deemed to be a tenant if such
land is not cultivated personally by the owner and if
such person – is not-
(a) a member of the owner’s family, or
(b) a servant on wages payable in cash or kind but
not in crop share or a hired labourer cultivating the
land under the personal supervision of the owner or any
member of the owner’s family. Or
(c) a mortgagee in possession.
Explanation I.- A person shall not be deemed to be a
tenant under this section if such person has been on an
application made by the owner of the land as provided
under section 2A of the Bombay Tenancy Act, 1939,
declared by a competent authority not to be a tenant.
Explanation II.- Where any land is cultivated by a
widow or a minor or a person who is subject to physical
or mental disability or a serving member of the armed
forces through a tenant then notwithstanding anything
contained In Explanation I to clause (6) of section 2,
such tenant shall be deemed to be a tenant within the
meaning of this section.”
It is thus obvious that there were only two conditions
in order to attract the provisions of s. 2A(1) of the Bombay
Tenancy Act, 1939. But in the corresponding s. 4 of the
Bombay Tenancy and Agricultural Lands Act of 1948 one more
condition was added in addition to the old two conditions as
provided in s. 2A(I) of the
409
Bombay Tenancy Act, 1939 and that additional condition
excludes the mortgagee in possession from acquiring the
status of a ‘deemed tenant’ within the meaning of s. 4. If
the cases in hand were to be governed by the Bombay Tenancy
and Agricultural Lands Act, 1948, the mortgagees in
possession would be out of the purview of s. 4 of that Act
as mortgagees in possession have been excluded from being
‘deemed tenants’. As the Act of 1948 has no retrospective
effect the suits giving rise to the aforesaid appeals will
be governed by the Act of 1939.
The contention raised on behalf of the appellants is
that the mortgagees-appellants became ‘deemed tenants’
within the meaning of s. 2A of the Act of 1939 and could not
be evicted from the land in suit. For the respondent, on the
other hand, the contention was that the mortgagees have
never been treated to be tenants and it will be against the
uniform established view of law and this is why the mistake
was realised by the legislature and a mortgagee in
possession was excluded from being a ‘deemed tenant’ in the
Act of 1948. It is admitted case of the parties that no
application had been made by the mortgagor within one year
of the coming into force of the Bombay Tenancy (Amendment)
Act, 1946 for a declaration that the mortgagees in
possession were not the tenants of the disputed land as
contemplated by s. 2A.
At one time there seemed to be a cleavage of judicial
opinion on the construction of s. 2A of the Act of 1939. The
Gujrat High Court gave a literal construction to the
provisions of s. 2A(1) and held that the mortgagees would
become ‘deemed tenants’ in terms of s. 2A. The Bombay High
Court and the High Court of Mysore took a contrary view. It
will be advantageous to refer to these cases in` some
detail.
In Salman Raje v. Madhavsang Banesang & Ors.(l) the
mortgage was made in 1943 and the mortgagee came in
possession pursuant to the mortgage and the parties were,
therefore, governed by the Bombay Tenancy Act of 1939, which
was applied to the district of Ahmedabad on and from April
1946.A Division Bench consisting of Hon’ble Mr. Justice J.M.
Shelat and Hon’ble Mr. Justice P.N. Bhagwati, as they then
were, after discussing the various decisions held:
“There is, and can be no doubt that the petitioner was
cultivating the land belonging to another person, i.e.,
the ___ ____ ___
(1) 4 Guj. L.R. 817
410
opponents and he was doing so lawfully as the
usufructuary mortgage executed in his favour entitled
him to its possession. The petitioner also would not
fall in either of the two excepted categories. Prima
facie, therefore, he was entitled to the benefit of
ses. 2A and 3A of the Act. It is also clear from the
language used in sec. 2A that there were only two
classes of persons whom the legislature excluded from
the benefit of sec. 2A, viz.
(1) the members of the owner’s family, and
(2) his servants and hired labourers.
Obviously, a mortgagee in possession was not included
in these two categories and was, therefore, not
excluded from the benefit of sec. 2A though the
legislature must have been aware of the fact that there
would be mortgagees cultivating lands belonging to
mortgagors.
Section 3A of the 1939 Act then provides that a
tenant on expiry of one year from the date of the
coming into force of the Amendment Act XXVI of 1946 was
to be deemed to be a protected tenant and his rights as
such protected tenant shall be recorded in the record
of rights unless his landlord has within the said
period made an application to the ‘Mamlatdar for a
declaration that the tenant is not a protected tenant.”
The Bombay High Court in Dinkar Bhagwant Salekar v.
Babaji Mahamulkar(1) on the other hand held that a mortgagee
was not excluded from the benefits of s. 2A(1) due to an
oversight by the legislature while enacting s. 2A and that
oversight was repaired when subsequently s. 4 of the Act of
1948 was enacted.
Again a Full Bench of the Bombay High Court in
Jasvantrai Tricumlal v. Bai Jiwi(2) had the occasion to
consider the same question;. It also took the view that
there was a lacuna in s. 2A of the 1939 Act in the sense
that the mortgagee and his tenant were through mistake not
excluded from the scope of s. 2A(I ) and that lacuna was
removed while enacting s.4 of the Act of 1948. The
(1) 59 Bom. L.R. 101
(2) 59 Bom. L.R. 168
411
insertion of clause (c) in s. 4 in the Act of 1948 was taken
by the Full Bench to be a pointer to the fact that the
mortgagees in possesstion were never intended to be treated
as statutory tenants.
In Ishwara Bhau Sawant v. Pandurang Vasudeo
Karmarkar(1) a Division Bench while construing s. 2A of the
Act of 1939 observed:
“The words used in s. 2A are undoubtedly wide. One of
the presumptions in law is that the legislature does
not intend to make any substantial alteration in the
law beyond what it explicitly declares, either in
express terms or by clear implication, or, in other
words, beyond the immediate scope and object of the
statute. In all general matters outside these limits
the law remains undisturbed. General words and phrases,
therefore, however wide and comprehensive they may be
in their literal sense. must usually be construed as
being limited to the actual objects of the Act. If
therefore, it is possible, we must so construe s. 2A as
to avoid general provisions of law in regard to
mortgagees.”
In Shankar Kalyan Kulkarni & Ors. v. Basappa Sidramappa
Kolar & Ors.(2) a Division Bench of the Mysore High Court
took a similar view, and observed:
“We are of the opinion that a mortgagee in possession
did not become a deemed tenant under s. 2A of the 1939
Act. Although a mortgagee in possession is a person
lawfully cultivating the land belonging to his
mortgagor, he could not merely for that reason become a
deemed tenant under s 2A for the reason that we should
not understand the provisions of that section as
resulting in the transmutation of a mortgagee in
possession to a deemed tenant.
A mortgagee in possession is a person who lends
money to the mortgagor who mortgages his land to the
mortgagee ` `and delivers possession of it to him to
secure repayment of the sum of money borrowed by the
mortgagor from the mortgagee. That mortgage creates the
relationship of debtor and creditor between the
mortgagor and the mortgagee and it is that relationship
which subsists between
(1) 67 Bom L.R. 558. 11
(2) (1969) 2 MYS. L.J. 77.
412
them during the period when the mortgagee is in
possession of the property.
The provisions of s. 76 of the Transfer of
Property Act regulate the rights and liabilities of the
mortgagee in possession. It could not have been the
intention of the legislature that these incidents of a
mortgagee with possession should stand displaced in
consequence of the provisions which s. 2A of the 1939
Act incorporate. If they did stand superseded in that
way, the mortgagee would cease to be a creditor and the
mortgagor would no longer be the debtor and the
mortgagee could not demand or recover the mortgage debt
due to him by the mortgagor.”
The Salman Raje’s case (supra) of the Gujrat High Court
which had taken a contrary view itself came up for scrutiny
before the Gujrat High Court in Patel Ambalal Manilal & Ors.
v. Desai Jagdishchandra Naginlal & Ors.(l) and a learned
Single Judge of that High Court relying on a decision of
this Court in Sidram Narsappa Kamble v. Sholapur Borough
Municipality & Anr.(2) observed:
“It appears, with great respect to the learned Judges
who decided the case of Salman Raje (supra) that, in
that case, full effect has not been given to the words
“save as expressly provided in this Act” appearing in
sec. 89(2)(b) of the 1948 Act and in view of the
decision of the Supreme Court in the case of S.N.
Kamble (supra), the decision of this Court in the case
of Salman Raje cannot be considered to be a good law.
It should further be remembered that, mortgagee in
possession was specifically excluded from the category
of deemed tanant by sec. 4(c) of the 1948 Act in order
to remove the anomalies created by sec. 2A of the 1939-
Act so far as mortgagee in possession is concerned and
hence, it is not likely that the legislature would have
i intended to protect any right of a mortgagee in
possession to be included in the category of a deemed
tenant under sec. 2A of the 1939 Act, after sec. 4(c)
of the 1948 Act containing the provision to the
contrary was enacted.”
(1) 17 Guj. L.R. 578
(2) [1966] 1 SCR 618
413
This Court in S.N. Kamble’s case (supra) had an
occasion to consider the impact of the saving section
89(2)(b) of the Act of 1948, and held:
“…but the effect of the express provision contained
in s. 88(1)(a) clearly is that s. 31 must be treated as
non existent so far as lands held on lease from a local
authority are concerned and in effect therefore s.
88(1)(a) must be held to say that there will be no
protection under the 1948 Act for protected tenants
under the 1939 Act so far as lands held on lease from a
local authority are concerned. It was not necessary
that the express provision should in so many words say
that there will be no protected tenants after the 1948
Act came into force with respect to land held on lease
from a local authority. The intention from the express
words of s. 88(1) is clearly the same and therefore
there is no difficulty in holding that there is an
express provision- in the 1948 Act which lays down that
there will be no protected tenant of lands held on
lease from a local authority. In view of this express
provision contained in s. 88(1)(a), the appellant
cannot claim the benefit of s. 31; nor can it be said
that his interest as protected tenant is saved by s.
89(2)(b). This in our opinion is the plain effect of
the provisions contained in s. 31, s. 88 and s.
89(2)(b) of the 1948 Act.”
In view of the aforesaid decision of this Court it
cannot be argued for a moment that a mortgagee in possession
becomes a deemed tenant under s. 2A of the Act of 1939 on
the strength of the saving provision in s. 89(2)(b) of the
Act of 1948. The contention of the appellants that they
became deemed tenants under s. 2A of the Act of 1939 has no
force and cannot be accepted.
The appellants can, however, still succeed on the
ground that it was open to the plaintiff-respondent to file
an application for declaration before the Mamlatdar that the
defendants were not tenants, within one year of the coming
into force of the Amendment Act of 1946 as provided in ss.
2A and 3A of the Act of 1919. But he did not choose to do so
and, therefore, he lost whatever right he had. There is yet
another ground why the plaintiff-
414
respondent could not evict the defendants.A relief for
actual possession from the defendants who claimed to be
protected tenants could be granted only by the revenue court
and not by the civil court. The plaintiff-respondent,
therefore, on the basis of the decree for redemption can get
only a symbolic possession and not actual physical
possession for the land in dispute.
For the foregoing discussion the appeals must succeed.
They are accordingly allowed and the judgment and decrees of
the High Court are set aside and that of the first appellate
court is restored but on a slightly different ground. In the
circumstances of the case the parties shall bear their own
costs.
A.P.J. Appeals allowed.
415
