{"id":1001,"date":"1993-07-27T00:00:00","date_gmt":"1993-07-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dhondiram-tatoba-kadam-vs-ramchandra-balwantrao-dubal-on-27-july-1993"},"modified":"2018-01-23T06:02:46","modified_gmt":"2018-01-23T00:32:46","slug":"dhondiram-tatoba-kadam-vs-ramchandra-balwantrao-dubal-on-27-july-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dhondiram-tatoba-kadam-vs-ramchandra-balwantrao-dubal-on-27-july-1993","title":{"rendered":"Dhondiram Tatoba Kadam vs Ramchandra Balwantrao Dubal on 27 July, 1993"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dhondiram Tatoba Kadam vs Ramchandra Balwantrao Dubal on 27 July, 1993<\/div>\n
Equivalent citations: 1994 SCC (3) 366\t JT 1993 Supl., 603<\/div>\n
Author: R Sahai<\/div>\n
Bench: Sahai, R.M. (J)<\/div>\n
           PETITIONER:\nDHONDIRAM TATOBA KADAM\n\n\tVs.\n\nRESPONDENT:\nRAMCHANDRA BALWANTRAO DUBAL\n\nDATE OF JUDGMENT27\/07\/1993\n\nBENCH:\nSAHAI, R.M. (J)\nBENCH:\nSAHAI, R.M. (J)\nTHOMMEN, T.K. (J)\nRAMASWAMI, V. (J) II\n\nCITATION:\n 1994 SCC  (3) 366\t  JT 1993  Supl.    603\n 1994 SCALE  (1)329\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
The Judgments of the Court were delivered by
\nSAHAI, J. (for Thommen, J. and himselj)- The short  question
\nof  law\t that arises for consideration in  this\t appeal,  by
\ngrant of special leave under Article 136 of the Constitution
\nof  India,  is\tif  a tenant  under  the  Bombay  Tenancy  &
\nAgricultural  Lands  Act, 1948 Thereinafter referred  to  as
\n‘the  Act’) who surrendered the tenancy can be said to\thave
\nbeen dispossessed so is to claim benefit under Section 32(1-
\nB)  of\tthe Act added, in 1969 in chapterIII,  dealing\twith
\n‘Special Rights and Privileges of Tenants and Provisions for
\nDistribution of Land for Personal Cultivation’.\n<\/p>\n
2.For  this  purpose it is necessary to\t state\tfacts  in
\nbrief.\t A  suit  was  filed  by  Respondent  1\t   plaintiff
\n(referred  to as plaintiff) against Respondent 2   defendant
\n(referred to as the defendant) and the appellant-defendant 2
\n368<\/span>
\n(referred  to  as the appellant), on the allegation  that  a
\nconditional mortgage was executed by the plaintiff in favour
\nof defendant in 1952 after getting the land surrendered from
\nthe  appellant\tbut since the defendant was not\t willing  to
\nhand  over possession despite offer of paying  the  mortgage
\namount,\t a declaration may be granted that he was the  owner
\nof the land in dispute on payment of the mortgage amount  to
\nthe  defendant.\t  In  the written  statement  filed  by\t the
\ndefendant  it was claimed that he was the owner of the\tland
\nin  dispute.  Apart from that, one of the pleas\t raised\t was
\nthat the land in dispute was let out by him to the appellant
\nwho  was in possession since then.  On the pleadings one  of
\nthe  questions that arose was whether the appellant was\t the
\ntenant\tof  the\t land in dispute.   Since  the\tquestion  of
\ntenancy\t could be decided by the revenue  authorities  only,
\ntwo issues were framed to the following effect:\n<\/p>\n
\t      1.Does  defendant\t 2 prove that he  was  a
\n\t      tenant  over  the\t suit land  since  prior  to
\n\t      mortgage transaction dated June 23, 1952.\n<\/p><\/blockquote>\n
\t      2.Does  defendant\t 2  (present  applicant)
\n\t      further  prove  that  he\tis  the\t tenant\t  of
\n\t      defendant I over the suit land since 1952.\n<\/p><\/blockquote>\n
The issues were referred for decision to the  Sub-Divisional
\nOfficer.   They\t were  decided in favour  of  the  plaintiff
\nagainst\t which\tthe  appeal  filed  by\tthe  defendant\t and
\nappellant was dismissed.  The appellate authority held\tthat
\nthe appellant was the tenant even in 1949 but he surrendered
\nhis  tenancy at the time of mortgage by the  plaintiff.\t  It
\nwas  further  held that he was not the tenant from  1952  to
\n1968.  And his claim was falsified by absence of his name in
\nrevenue\t records  from 1956 to 1968.  It  was  supported  by
\ndrawing an inference against the appellant as the  defendant
\ndid not refer to his tenancy in the reply sent by him to the
\nnotice sent by the plaintiff in 1969.  The Revenue Tribunal,
\nhowever,  allowed  the\trevision, setting  aside  the  order
\npassed\tby  the\t two authorities  and  answered\t the  issues
\nreferred  to  it  in  the  affirmative\tin  favour  of\t the
\nappellant.  It found that the appellant had not\t surrendered
\nin 1952.  It was held that there was no iota of evidence  to
\nsupport\t it.   In respect of second surrender  in  1956\t the
\nTribunal  even\tafter recording the finding that  there\t was
\nlittle\t doubt\tthat  the  appellant  had  surrendered\t the
\npossession held that the relationship of landlord and tenant
\nbetween\t the appellant and the defendant did not cease.\t  It
\nwas  further  held  that surrender having  been\t entered  in
\nrevenue\t records  in December 1956 and the law\thaving\tbeen
\namended\t in August by Act XIII of 1956 making it  obligatory
\nfor  surrender\tto  be\tin  writing  the  surrender  by\t the
\nappellant  was\tinvalid.   Consequently\t it  found  that  as
\nappellant  was in possession of the land as tenant  on\tJune
\n15, 1955 and was dispossessed before April 1, 1957 otherwise
\nthan  in  the  manner and by an order of  the  Tahsildar  as
\nprovided in Section 29 he was entitled to benefit of Section
\n32(1-B) of the Act.  The two issues were answered thus:\n<\/p>\n
\t      “Issue  No. 1. Defendant 2 (i.e.\tthe  present
\n\t      revision\tapplicant) does prove that he was  a
\n\t      tenant  over the suit property since prior  to
\n\t      the mortgage transaction dated June 23, 1952.\n<\/p><\/blockquote>\n
\t      369<\/span><\/p>\n
\t      Issue  No.  2. He further proves\tthat  he  is
\n\t      undisputably  the present tenant of  the\tland
\n\t      and  further  he\thad not\t ceased\t to  be\t so,
\n\t      despite his alleged surrender of possession in
\n\t      December 1956.”\n<\/p><\/blockquote>\n
Against this order the plaintiff filed a civil miscellaneous
\napplication before the High Court which was allowed and\t the
\norder  of the Tribunal was set aside.  The High Court  found
\nthat  it was not disputed that the appellant was the  tenant
\nunder  registered lease deed executed on June 15,  1949\t nor
\nwas there any dispute that there was a conditional sale deed
\nin  favour of the defendant.  Therefore, even  though  there
\nwas  no evidence to support the surrender but  since,  under
\nthe  provisions\t of  the Act, no transfer  of  interest\t was
\npossible without the consent of the tenant, as he alone\t was
\nentitled  to  purchase the land, an inference in  law  arose
\nthat when conditional mortgage was executed the tenant\tmust
\nhave  surrendered  the\tland in dispute\t in  favour  of\t the
\nplaintiff.   This finding was supported by the statement  of
\nthe  appellant\twho,  appears  to  have,  admitted  in\t his
\ndeposition that there was a surrender and the defendant\t was
\nput  in\t possession of the land.  It was further  held\tthat
\nappearance  of appellant’s name in revenue records  did\t not
\nnegative  surrender.  The appellant was tenant of  plaintiff
\nsince 1949 till surrender and of defendant from 1952 till he
\nsurrendered  again  in 1956.  The High Court found it  as  a
\nfact that the appellant continued in possession of the\tland
\ntill  he  surrendered  in 1956.\t The High  Court  held\tthat
\nsurrender  was proved by entry in December 1956.   When\t was
\nthe  actual  surrender made could have been  proved  by\t the
\ndefendant.  In absence of any evidence led by defendant\t the
\nCourt  inferred that it must have been made prior to  August
\n1956.\tThe  factum of surrender stood proved  by  follow-up
\naction of not only deletion of appellant’s name from  record
\nbut  its  absence till the plaintiff gave  notice  in  1969.
\nSince  the  Tribunal  in  recording  finding  on  both\t the
\nsurrender  misdirected itself by not adverting\tto  relevant
\nmaterial and drawing on conjectures the High Court was\twell
\nwithin\tits jurisdiction to set aside the order.   The\tHigh
\nCourt found that the entry having appeared in 1968-69 it was
\nclear  that  the tenant was not in possession  from  1956-57
\ntill 1968-69.  Further since the appellant did not move\t any
\napplication  within two years under Section 29 of  the\tAct,
\nhis   remedy   to  recover  possession\tbecame\t barred\t  by
\nlimitation.  It also held that since the remedy was lost the
\nright  of  the\tappellant  extinguished.   The\tHigh   Court
\ndisagreed  with\t the  Tribunal\ton  collusion  between\t the
\nappellant  and the defendant and held that it  exceeded\t its
\njurisdiction  in  setting  aside  the  finding\tof  the\t two
\nauthorities on this score.\n<\/p>\n
3.Two  questions  arise in this appeal, one if\tthe  High
\nCourt  was  right,  in\tlaw,  in  negativing  claim  of\t the
\nappellant under Section 32(1-B) and other if the Tribunal in
\nsetting aside the finding on collusion in revision  exceeded
\nits jurisdiction.  Out of the two it is proposed to take  up
\nlegal  issue on applicability of Section 32(1-B) as  if\t the
\nappellant  cannot successfully assail this finding then\t the
\nfinding on collusion becomes academic only.  Section 32(1-B)
\nof the Act is extracted below:\n<\/p>\n
370<\/span><\/p>\n
\t      “Where  a tenant who was in possession on\t the
\n\t      appointed day and who on account of his  being
\n\t      dispossessed before the 1st day of April\t1957
\n\t      otherwise\t than in the manner and by an  order
\n\t      of the Tahsildar as provided in Section 29, is
\n\t      not in possession of the land on the said date
\n\t      and  the\tland  is in the\t possession  of\t the
\n\t      landlord or his successor-in-interest on the 3
\n\t      1st  day of July 1969 and the land is not\t put
\n\t      to a nonagricultural use on or before the last
\n\t      mentioned\t date,\tthen, the  Tahsildar  shall,
\n\t      notwithstanding anything contained in the said
\n\t      Section\t29,  either  suo  motu\tor  on\t the
\n\t      application of the tenant, hold an inquiry and
\n\t      direct that such land shall be taken from\t the
\n\t      possession of the landlord or, as the case may
\n\t      be,  his successor-in-interest, and  shall  be
\n\t      restored\tto the tenant; and  thereafter,\t the
\n\t      provisions  of this section and Sections\t32-A
\n\t      to  32-R\t(both inclusive) shall,\t insofar  as
\n\t      they may be applicable, apply thereto, subject
\n\t      to  the modification that the tenant shall  be
\n\t      deemed to have purchased the land on the\tdate
\n\t      on which the land is restored to him:
\n\t      Provided that, the tenant shall be entitled to
\n\t      restoration of the land under this sub-section
\n\t      only  if he undertakes to cultivate  the\tland
\n\t      personally and of so much thereof as  together
\n\t      with  the other land held by him as  owner  or
\n\t      tenant shall not exceed the ceiling area.”\n<\/p><\/blockquote>\n
The  section entitles a tenant to restoration of  possession
\nprovided  he was in possession on the appointed date,  i.e.,
\nJune 15, 1955 and was dispossessed before April 1, 1957\t and
\nhis  landlord  was  in possession on  July  31,\t 1969.\t The
\nsection is, thus, in two parts\tone creating right and other
\nentitling   restoration\t of  possession.   Proceedings\t for
\nrestoration  could take place either at the instance of\t the
\ntenant or suo motu by the Tahsildar.  But the order could be
\npassed\tonly if the primary requirements of tenant being  in
\npossession  on\tthe  appointed date  and  his  dispossession
\nbefore\tApril 1, 1957 were satisfied.  The language  of\t the
\nlatter\tpart of the section directing the Tahsildar to\ttake
\npossession  of the land from the landlord and restore it  to
\nthe  tenant who on restoration by operation of\tlaw  becomes
\npurchaser from the date of restoration are clear legislative
\nindications  to construe the section liberally in favour  of
\nthe  tenant.   What happens if a tenant\t who  satisfied\t the
\nrequirements  as provided in the section is found to  be  in
\npossession  on\tJuly 31, 1969.\tCould he be evicted  in\t any
\nproceeding even though he satisfied the requirement of being
\nin possession on appointed date and was evicted before April
\n1,  1957.   Would  such construction of the  section  be  in
\nconsonance with the spirit of the Act.\tOn the language\t the
\nsub-section  does not grant any protection to a\t tenant\t who
\nwas in possession on July 31, 1969.  But reading the section
\nin  such a narrow manner would be defeating the\t legislative
\nobjective of enacting a beneficent legislation\tendeavouring
\nto make the tillers of soil as purchaser and owner.  This is
\nclear  from amendments made in Section 32 from time to\ttime
\nbetween\t 1957 to 1969.\tWhen Section 32 was  renumbered\t and
\nsub-section  (1)  was  added  in 1957,\tApril  1,  1957\t was
\ndeclared  as  tillers’ date and it was provided\t that  every
\ntenant who was one of those mentioned in the sub-section and
\nwas  cultivating the land personally was entitled to  become
\npurchaser of such land from his landlord free of all
\n371<\/span>
\nencumbrances  subsisting  on  that date.   In  1958  similar
\nrights\twere granted by sub-section (1-A) added\t to  Section
\n32,  to\t those\ttenants who had been evicted  prior  to\t the
\ntillers’  date\tand were not in possession but had  made  an
\napplication for possession of the land under sub-section (1)
\nof  Section  29.  In 1969 yet another right was\t granted  by
\nSection 32(1-B) which has been extracted above.\t There\tcan,
\nthus, be no doubt that the legislature intended not only  to
\ngrant  rights  to those tenants who were in  possession\t but
\nalso  to  restore the land from which the  tenant  had\tbeen
\nevicted prior to 1957 on satisfying the conditions mentioned
\nin  Section  32(1-A)  and (1-B) and make such  a  person  on
\nrestoration  of\t possession, purchaser of  the\tland.\tWhat
\nhappens if a tenant who is otherwise entitled to restoration
\nof  possession\tdue to operation of the first  part  of\t the
\nsection\t is  found to be in possession after July  31,\t1969
\neither\twith  permission  of the landlord or  in  any  other
\nmanner?\t  Is such a tenant liable to eviction?\t The  answer
\nshould\tbe in the negative as it would result in  conferring
\nhigher\trights on a person who is not in possession  than  a
\nperson who is in possession.  In our opinion, Section  32(1-
\nB) should be construed in a manner which must effectuate the
\nlegislative  objective of making every tenant  purchaser  of
\nthe land if he satisfies the conditions laid down in Section
\n32(1-B) of the Act whether he was in possession or not.\n<\/p>\n
4.Even\tthen  the question is if the appellant\ton  facts
\nfound  is  entitled  to the declaration\t that  he  became  a
\npurchaser of land by operation of law under Section 32(1-B).
\nIt  has been found by the High Court that the appellant\t was
\nin  possession\tfrom 1952 to 1956, thus,  he  satisfied\t the
\nfirst  requirement of being in possession on  the  appointed
\ndate.  But that alone was not sufficient as a tenant  should
\nhave been dispossessed before the 1st day of April 1957.  It
\nwas  found by the High Court that the appellant\t surrendered
\nsometime  before  August 1956 which was\t established  by  an
\nentry  in  the revenue records made in December\t 1956.\t The
\nTribunal  too found that the appellant had  surrendered\t his
\npossession as was clear from the mutation entry supported by
\nabsence\t of entries in favour of appellant from\t 1957-58  to
\n1968-69.   The difference between the Tribunal and the\tHigh
\nCourt  was in construction of the nature of surrender.\t The
\nTribunal  found it to be invalid as no oral surrender  could
\nbe effected after Amendment Act 13 of 1956 whereas the\tHigh
\nCourt  was of opinion that in absence of any evidence as  to
\nthe  actual  date of surrender, there was no reason  not  to
\naccept\tthe  case  of plaintiff that  surrender\t was  before
\nDecember 1956 and, therefore, it was in accordance with law.
\nIn  any case both the Tribunal and the High Court  concurred
\non the surrender by the appellant.  The effect of  surrender
\nwas  that the appellant ceased to be tenant.  Assuming\tthat
\nsurrender was invalid and the appellant left the  possession
\nover  land  of\this  own  accord,  was\the  dispossessed  as
\ncontemplated  in  Section  32(1-B) of  the  Act?   Voluntary
\ngiving\tup  of possession does not amount  to  dispossession
\nunless\tthe law provides for it.  ‘Dispossess’ according  to
\nBlack’s\t Law Dictionary means: “To oust from land  by  legal
\nprocess;   to\teject,\t to  exclude   from   realty.”\t The
\ndispossession  should have been, therefore, either by  legal
\nprocess or by physical act of
\n372<\/span>
\nexclusion.    It  would\t not  include\tleaving\t  possession
\nvoluntarily  or by surrender.  If the words would have\tbeen
\nthat if such a person was not in possession before April  1,
\n1957  then a tenant who surrendered or left  the  possession
\nvoluntarily  could be included in it.  But  the\t legislature
\nhaving\tused  a stronger word it should, in absence  of\t any
\nindication  to\tthe contrary, be understood  in\t its  normal
\nsense.\tA tenant surrendering the land either in  accordance
\nwith the provisions of law or leaving possession voluntarily
\nwould not be covered in the expression ‘dispossessed’.\t The
\nappellant, on the finding of the High Court, therefore,\t was
\nnot  dispossessed.  Even if the surrender was not  valid  as
\nfound by the Tribunal then the appellant shall be deemed  to
\nhave left possession voluntarily.  In either case it was not
\ndispossession.\tThe appellant therefore did not satisfy\t the
\nsecond\t requirement.\tConsequently  he  did\tnot   become
\npurchaser of the land under Section 32(1-B) of the Act.\n<\/p>\n
5.In  the  result  this appeal fails  and  is  dismissed.
\nParties shall bear their own costs.\n<\/p>\n
V.RAMASWAMI, J. (dissenting)- In my view on the facts the
\ninterpretation of the provision in Section 32(1-B) of Bombay
\nTenancy\t & Agricultural Lands Act, 1948 does not  arise\t for
\nconsideration.\t On facts with great respect I am unable  to
\nagree  either on the assessment of facts or on the  ultimate
\nconclusion in the judgment.\n<\/p>\n
7.One  Ramchandra Balwantrao Dubal, Respondent 1 in  this
\nappeal\t(since\tdead  and is now represented  by  his  legal
\nrepresentatives)  filed a suit for redemption of a  mortgage
\nby  conditional sale dated June 23, 1952 against the  second
\nrespondent  who\t was shown as first defendant in  the  suit.
\nThe  appellant herein was impleaded as a  second  defendant.
\nThe  case of the first respondent-plaintiff in the suit\t was
\nthat  the  said deed dated June 23, 1952 was a\tmortgage  by
\nconditional sale, that the property was to be in  possession
\nof the second respondent (first defendant in the suit)\ttill
\nthe mortgage is redeemed and that the plaintiff was entitled
\nto  redeem  the same without payment of any  money  and\t get
\npossession  of\tthe  property  from  the  first\t  defendant.
\nAlternatively,\the  pleaded that the six  years’  period  of
\nredemption  stipulated\tin  the deed having  expired  he  is
\nentitled  to get executed a deed of re-conveyance  from\t the
\nsecond\trespondent (defendant 1).  He further stated in\t the
\nplaint that with an intention of creating some\tobstruction,
\nif possible, the second respondent (defendant 1) had made an
\nentry of the appellant’s name in the column of tenant in the
\nrecords\t in  collusion with the Talathi and that  it  was  a
\nbogus entry.  He further contended that the second defendant
\nhad no concern with the land nor was he ever a tenant in the
\nsuit  property.\t  The  first  defendant\t (second  respondent
\nherein)\t filed\ta written statement stating  that  the\tdeed
\ndated  June 23, 1952 was not a mortgage by conditional\tsale
\nbut  that  it  was  an absolute sale  and  that\t under\tthat
\ndocument  he purchased the property from the  plaintiff\t and
\nhad  become the owner of the same.  He further\tstated\tthat
\nafter  he purchased the property the second  defendant\t(the
\nappellant  herein)  became his tenant and has  been  in\t the
\npossession  of\tthe property as his tenant  since  the\tyear
\n1952.\n<\/p>\n
373<\/span><\/p>\n
8.The\tsecond\tdefendant  (appellant  herein)\tfiled\ta
\nseparate  written statement contending that he was a  tenant
\nin  respect  of the suit property under a  registered  lease
\ndeed dated June 15, 1949 executed in favour of the plaintiff
\nand  that  after the purchase of the suit  property  by\t the
\nfirst  defendant  (second  respondent  herein)\the  executed
\nanother registered lease deed in favour of the purchaser and
\nthat he had continued in the possession and enjoyment of the
\nproperty ever since 1949 and the suit for possession against
\nhim is liable to be dismissed.\n<\/p>\n
9.When the suit was taken up for trial in the view that a
\nquestion of tenancy is involved, the matter was referred  to
\nthe revenue authorities constituted under the Bombay Tenancy
\nand  Agricultural Land Act, 1948.  The two issues that\twere
\nreferred to the authorities were:\n<\/p>\n
\t      1.Does defendant 2 (appellant) prove  that
\n\t      he  was a tenant over the suit property  since
\n\t      prior  to the mortgage transaction dated\tJune
\n\t      23, 1952.\n<\/p><\/blockquote>\n
\t      2.Does  he  further prove that he\t is  the
\n\t      tenant of defendant I (second respondent) over
\n\t      the suit land since 1952.\n<\/p><\/blockquote>\n
Though\tthe  original  authority  and  the  first  appellate
\nauthority  under  the Act answered both the  issues  in\t the
\nnegative  and held that the appellant was neither  a  tenant
\nbefore\tJune  23, 1952 nor was he a tenant after  that,\t the
\nRevenue Tribunal in its order dated March 31, 1975 held that
\nthe  appellant\twas a tenant under a  registered  rent\tnote
\ndated\tJune  15,  1949,  that\the  had\t never\t surrendered
\npossession  though he executed a registered rent deed  again
\nin favour of the first defendant (second respondent  herein)
\nafter  the  transaction dated June 23, 1952.   The  Tribunal
\nalso  held  that  there\t was  no  surrender  by\t the  second
\ndefendant subsequent to 1952 and the entries in the relevant
\nregister showed that since 1950-51 to 1956-57 the  appellant
\ncultivated  the\t land  without\tany  break  or\twithout\t any
\ninterruption.  Though from 1957-58 to 1968-69 the entries do
\nnot  show  the\tname of the second defendant  as  tenant  it
\nreappeared in the register since 1969-70 and that  therefore
\nthe  plaintiff (first respondent) had no right to  deny\t the
\nappellant’s status as a tenant of the land and in that\tview
\nanswered  the two issues referred to by the civil  court  in
\nfavour\tof the appellant and held that the appellant  was  a
\ntenant over the suit property since prior to the transaction
\ndated  June 23, 1952 and that he continued to be the  tenant
\nand had not ceased to be so.\n<\/p>\n
10.The\tplaintiff filed a petition before the  High  Court
\nunder  Article 227 of the Constitution against this  finding
\nof the Tribunal.  The High Court accepted that the appellant
\nwas a tenant under a registered lease deed executed on\tJune
\n15, 1949 but in the view that the transaction of conditional
\nsale dated June 23, 1952 could not have come into  existence
\nwithout the surrender of tenancy rights by the tenant,\ttook
\nthe view that the appellant should have surrendered the land
\nto the plaintiff before June 23, 1952.\tThe High Court\tthen
\nobserved  that\tsince the Talathi had made an entry  in\t the
\nregister  to the effect that on the basis of  an  intimation
\ndated December 14,
\n374<\/span>
\n1956 given by the appellant herein the name of the appellant
\nhad  been  deleted  from the tenancy  column,  came  to\t the
\nconclusion  that  there was a surrender\t by  the  appellant-
\ntenant sometime before December 14, 1956. I am unable to see
\nhow  the High Court could have interfered with the  findings
\non  facts given by the Revenue Tribunal in exercise  of\t its
\npower under Article 227 of the Constitution in this  regard.
\nEven without going into the jurisdiction the inference drawn
\nby  the\t High  Court is not warranted  by  the\tfacts.\t The
\nexecution  of  the registered lease deed in  favour  of\t the
\nfirst defendant (second respondent herein) on June 30,\t1952
\nmight not necessarily lead to the conclusion that there\t was
\na surrender of possession.  The tenant might have agreed  to
\naccept the first defendant-purchaser from the original owner
\nas his landlord and in token thereof attuned the tenancy and
\nexecuted  the registered rent deed.  In fact the High  Court
\nconcurred with the findings of the Tribunal that the  tenant
\nwas  in possession and cultivation during the years  1950-51
\nto  1956-57.  Even if, it is to be assumed that there was  a
\nlegal  surrender  of  the original tenancy  right,  a  fresh
\ntenancy\t right has been created by the alleged purchaser  if
\nthe  deed  dated June 23, 1952 is to be treated\t as  a\tsale
\ndeed.\tEven  if it is a mortgage by  conditional  sale\t the
\nfirst  defendant was entitled to lease the property  to\t the
\nsecond\tdefendant.   There  was no plea\t in  the  suit\tthat
\nsubsequent  to\t1952  there was any oral  surrender  by\t the
\ntenant.\t  It  is not also possible to infer from  the  entry
\nmade by the Talathi as to when the surrender of\t possession,
\nif  any,  was  made.  One could infer that on  the  date  of
\nintimation, namely, December 14, 1956 there was a surrender.
\nIf  it is to be a date earlier than that there should  be  a
\npositive  evidence  to that effect.  In the absence  of\t any
\npositive  evidence as to when actual surrender was  effected
\nit  is not possible to infer that it was effected  prior  to
\nAugust\t1,  1956.  The Revenue Tribunal has found  that\t the
\nappellant had continued to be in possession right from\t1949
\nand  in\t fact  the  suit  itself  is  for  possession.\t The
\nplaintiff  has not stated that because of any  surrender  of
\npossession   the  tenant  had  lost  his  right\t to  be\t  in
\npossession.   Therefore,  the provisions  of  Section  29(2)
\n(sic)  is  not applicable to this case.\t There is  no  clear
\nfinding as to the nature of the document dated June 23, 1952
\neither.\t  If  it is a sale deed as contended  by  the  first
\ndefendant  then\t the  plaintiff’s  suit\t will  have  to\t  be
\ndismissed.   If it is to be held a mortgage  by\t conditional
\nsale  it has to be treated as subject to the  tenancy  right
\nand the plaintiff would be entitled only to whatever  right,
\ntitle or interest that was conveyed under the document dated
\nJune 23, 1952.\tIn fact as already stated the plaintiff\t did
\nnot  even plead that before he executed the deed dated\tJune
\n23, 1952 the second defendant surrendered his possession  or
\nhis tenancy right.  In either case, therefore, on the  facts
\nthe findings of the Revenue Tribunal were correct and  could
\nnot  have  been interfered with.  The High  Court  therefore
\nerred  in setting aside the order of the  Revenue  Tribunal.
\nIn  the\t result appeal succeeds and the order  of  the\tHigh
\nCourt  is  set\taside and that of the  Revenue\tTribunal  is
\nrestored.  However, there will be no order as to costs.\n<\/p>\n
376<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dhondiram Tatoba Kadam vs Ramchandra Balwantrao Dubal on 27 July, 1993 Equivalent citations: 1994 SCC (3) 366 JT 1993 Supl., 603 Author: R Sahai Bench: Sahai, R.M. (J) 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-1001","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDhondiram Tatoba Kadam vs Ramchandra Balwantrao Dubal on 27 July, 1993 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dhondiram-tatoba-kadam-vs-ramchandra-balwantrao-dubal-on-27-july-1993\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dhondiram Tatoba Kadam vs Ramchandra Balwantrao Dubal on 27 July, 1993 - 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