{"id":216724,"date":"1985-03-20T00:00:00","date_gmt":"1985-03-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-a-shirdone-etc-vs-saheb-h-tajbhokhari-on-20-march-1985"},"modified":"2017-02-22T05:18:13","modified_gmt":"2017-02-21T23:48:13","slug":"a-a-shirdone-etc-vs-saheb-h-tajbhokhari-on-20-march-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-a-shirdone-etc-vs-saheb-h-tajbhokhari-on-20-march-1985","title":{"rendered":"A.A. Shirdone Etc vs Saheb H. Tajbhokhari on 20 March, 1985"},"content":{"rendered":"
Supreme Court of India<\/div>\n
A.A. Shirdone Etc vs Saheb H. Tajbhokhari on 20 March, 1985<\/div>\n
Equivalent citations: 1985 AIR 836, \t\t 1985 SCR (3) 403<\/div>\n
Author: R Misra<\/div>\n
Bench: Misra, R.B. (J)<\/div>\n
           PETITIONER:\nA.A. SHIRDONE ETC\n\n\tVs.\n\nRESPONDENT:\nSAHEB H. TAJBHOKHARI\n\nDATE OF JUDGMENT20\/03\/1985\n\nBENCH:\nMISRA, R.B. (J)\nBENCH:\nMISRA, R.B. (J)\nREDDY, O. CHINNAPPA (J)\n\nCITATION:\n 1985 AIR  836\t\t  1985 SCR  (3) 403\n 1985 SCC  (2) 477\t  1985 SCALE  (1)496\n\n\nACT:\n\t  Bombay Tenancy Act, 1939, ss.2A and 3,4\n     Bombay Tenancy  and Agricultural  Lands Act  1948, ss.4\nand 89(2) (b)\n     Mortgagee in possession of land-Whether becomes 'deemed\ntenant'\t Landowner-Mortgagor-Failure   to  file\t declaration\nbefore\tMamlatdar   that  mortgagee   not  a  tenant-Whether\nownership right lost-Symbolic or actual physical possession-\nEntitlement of.\n     Civil Procedure Code 1908, Section 9\n     Civil Court  whether possesses  jurisdiction  to  grant\npossession in suit governed by Tenancy Laws.\n\n\n\nHEADNOTE:\n     The respondent  mortgaged different  portions of a plot\nof land\t to different persons. Five suits for redemption and\nactual\tpossession   of\t the   mortgaged  land\tagainst\t the\nmortgagees were\t filed,\t who  contested\t the  suits  on\t the\ngrounds that they were tenants of the suit land prior to the\nmortgage and were in possession thereof as such, that during\nthe period  of mortgage\t their tenancy\trights\tremained  in\nabeyance and  after redemption\ttheir tenancy  rights  would\nrevive again in view of the provisions of section 25A of the\nBombay\tTenancy\t  and  Agricultural  Lands  Act,  1948,\t and\nconsequently the respondent could not get actual possession.\nIt was\tfurther contended  that the respondent could not get\nactual possession  over the  disputed land  from  the  civil\ncourt as the proper forum was a revenue court,\n     The  Civil\t Judge\tdecreed\t the  suits  for  possession\nholding that  the defendants  were not\ttenants of  the suit\nland prior  to the  mortgage,  and  as\tsuch  there  was  no\nquestion of  revival of\t tenancy rights under section 25A of\nAct\n404\n     In appeals\t the District  Judge held  that in  only one\nsuit the  defendant was\t in possession of the suit land as a\ntenant on  the date of the mortgage and so his tenancy would\nrevive after redemption of the mortgage, However, relying on\nsections 2A  and 3A  of the  Bombay Tenancy  Act 1939 it was\nheld that the defendants in the other four suits also became\ndeemed tenants under section 2A and consequently a protected\ntenant under  section 3A of the said Act as it stood amended\nin 1946\t and could  not, therefore, be evicted from the suit\nland.  All   the  appeals   were,  therefore,  allowed,\t the\ndefendants permitted  to remain\t in actual possession of the\nsuit land and the plaintiff-respondent getting only symbolic\npossession.\n     The plaintiff filed appeals and the High Court reversed\nthe  judgment\tof  the\t District  Judge  holding  that\t the\nmortgagees in  possession did  not become  'deemed  tenants'\nunder the  provisions of  section 2A  of the  Act of 1939 as\namended in 1946.\n     The respondent-defendants appealed to this Court.\n     Allowing the appeals,\n^\n     HELD: 1.A\tmortgagee  in  possession  cannot  become  a\ndeemed tenant  under section 2A of the Bombay Tenancy Act of\n1939 on\t the strength  of the  saving provision\t in  section\n89(2)(b) of the Bombay Tenancy and Agricultural Lands Act of\n1948. [413F]\n     Sidram Narsappa Kamble v. Sholapur Borough Municipality\nJUDGMENT<\/a>:\n<\/pre>\n
     Salman Raje  v. Madhavsang Banesang & Ors., 4 Guj. L.R.
\n817 and\t Ishwara Bhau Sawant v. Pandurang Vasudeo Karmarkar,
\n67 Bom.L.R. 558, overruled.\n<\/p>\n
     Dinkar Bhagwant  Salekar v.  Babaji Mahamulkar, 59 Bom.
\nL. R.  101 and\tJaswantrai Tricumlal v. Bai Jiwi, 59 Bom. L.
\nR. 168\tShankar Kalyan\tKulkarni  Ors. v. Basappa Sidramappa
\nKolar &\t Ors. [1969]2 Mys.L.J.77 and Patel Ambalal Manilal &
\nOrs. v.\t Desai Jagdishchandra  Naginlal &  Ors. 17 Guj. L.R.
\n578, approved.\n<\/p>\n
     2. Two  conditions were  necessary in  order to attract
\nthe provisions\tof section  2A(I) of the Bombay Tenancy Act,
\n1939. But  in the  corresponding section  4  of\t the  Bombay
\nTenancy\t and   Agricultural  Lands  Act\t of  1948  one\tmore
\ncondition was added in addition to the old two conditions as
\nprovided in  section 2A(I)  of the  Bombay Tenancy Act, 1939
\nand that  additional condition\texcludes  the  mortgagee  in
\npossession from\t acquiring the\tstatus of  a ‘deemed tenant’
\nwithin the  meaning of\tsection 4. If the cases in hand were
\nto be  governed by the Bombay Tenancy and Agricultural Lands
\nAct 1948,  the mortgagees  in possession would be out of the
\npurview of section 4 of that Act
\n405<\/span>
\nas mortgagees  in possession  have been\t excluded from being
\n‘deemed tenants’.  As the  Act of  1948 has no retrospective
\neffect the  suits giving  rise to the aforesaid appeals will
\nbe governed by the Act of 1939. [408H; 409A-B]\n<\/p>\n
     3. In  the instant\t case, the  plaintiff-respondent was
\nentitled to  file an  application for declaration before the
\nMamlatdar that\tthe defendants\twere not tenants, within one
\nyear of\t the coming  into force of the Amendment Act of 1946
\nas provided  in sections  2A and  3A of the 1939. But he did
\nnot choose  to do  so and, therefore, he lost whatever right
\nhe had. [413G-H]\n<\/p>\n
     4. The relief for actual possession from the defendants
\nwho claim  to be  protected tenants could be granted only by
\nthe revenue court and not by the civil court. The plaintiff-
\nrespondent, therefore,\ton  the\t basis\tof  the\t decree\t for
\nredemption can get only a symbolic possession and not actual
\nphysical possession for the land in dispute. [414A-B]<\/p>\n
&
\n     CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 320-
\n323 of 1971.\n<\/p>\n
     From the  Judgment dated  the 8th\tAugust 1970  of\t the
\nMysore High  Court in  Regular Second Appeals Nos. 435, 437,
\n438, 515 of 1964 respectively.\n<\/p>\n
     R.B. Datar, for the Appellants.\n<\/p>\n
     K Rajendra Choudhary, for the Respondent.
\n     The Judgment of the Court was delivered by
\n     MISRA, J.\tThe present  connected\tappeals\t by  special
\nleave are  directed against  the judgment  of the  Karnataka
\nHigh Court.  The dispute  in these appeals relates to survey
\nNo. 56.\t Of Mangavati  P village  measuring 18\tacres and 30
\ngunthas. Different  portions of the said plot were mortgaged
\nby the\trespondent  to\tdifferent  persons  now\t arrayed  as
\nappellants in the aforesaid appeals.\n<\/p>\n
     The respondent  filed five\t suits\tfor  redemption\t and
\nactual\tpossession   of\t the   mortgaged  land\tagainst\t the
\naforesaid mortgagees.  The a  suits were  contested  by\t the
\nmortgagees and\ttheir grievance\t in the\t main was  that they
\nwere tenants of the suit land prior to the mortgage and were
\nin possession  thereof as  such. During\t the period  of\t the
\nmortgage their tenancy rights remained in abeyance and after
\nredemption their  tenancy rights  would revive again in view
\nof the\tprovisions  of\ts.25A  of  the\tBombay\tTenancy\t and
\nAgricultural
\n406<\/span>
\nLands Act,  1948 and  the respondent  could not\t get  actual
\npossession; over  the disputed\tland despite the redemption.
\nIt was\tfurther pleaded\t that the  respondent could  not get
\nactual possession  over the  disputed land  from  the  civil
\ncourt as the proper forum was a revenue court.\n<\/p>\n
     The learned  Civil Judge  decreed\tthe  aforesaid\tfive
\nsuits by separate judgments holding that the defendants were
\nnot tenants  of the  suit land prior to the mortgage, and as
\nsuch there  was no question of revival of the tenancy rights
\nafter the  redemption of  the mortgagees, under s.25A of the
\nBombay\tTenancy\t  and  Agricultural  Lands  Act.  1948.\t The
\nmortgagor was  entitled to  get possession of the land after
\nredemption of the mortgage.\n<\/p>\n
     The judgments  of the  Civil Judge\t gave rise  to\tfive
\nappeals which were disposed of by the District Judge. In his
\nopinion the defendants in four suits were not the tenants of
\nthe said  land prior to the date of mortgage, but one of the
\ndefendants in  one of  the suits, viz., suit No. 94 of 1961,
\nwas in\tpossession of  the suit land as a tenant on the date
\nof the\tmortgage and  so  his  tenancy\twould  revive  after
\nredemption of  the mortgage.  He, however,  relying on ss.2A
\nand 3A\tof the Bombay Tenancy Act, 1939 found that the other
\ndefendants in  the four\t suits also  became  deemed  tenants
\nunder s.2A and consequently a protected tenant under s.3A of
\nthe aforesaid  Act of  1939 as\tit stood amended in 1946 and
\ncould not  be evicted  from the\t suit land. Accordingly. all
\nthe appeals  were allowed  and the  judgments of  the  trial
\ncourt were modified in that the defendants were to remain in
\nactual possession  of  the  suit  land\tand  the  plaintiff-
\nrespondent would  get only  symbolic possession in pursuance
\nof the decree for redemption.\n<\/p>\n
     Feeling aggrieved\tby the\tsaid decision  the plaintiff
\nfiled appeals  before the  High Court, which in turn allowed
\nthe appeals  and reversed the judgment of the District Judge
\nholding that  the mortgagees  in possession  did not  become
\n‘deemed tenants’  under the provisions of s.2A of the Act of
\n1939, as  amended in  1946. The\t defendants have now come to
\nthis Court  and reiterate  the same points as were raised by
\nthem before the High Court.\n<\/p>\n
     In order  to appreciate  the  points  raised  in  these
\nappeals it will be appropriate at this stage to refer to the
\nrelevant provisions of the Bombay Tenancy Act, 1939. Section
\n2A reads:\n<\/p>\n
407<\/span><\/p>\n
     2A (I) A person lawfully cultivating any land belonging
\n     to another\t person shall  be deemed  to be\t a tenant if
\n     such land is not cultivated personally by the owner and
\n     if such person is not-\n<\/p><\/blockquote>\n
     (a) a member of the owner’s family, or\n<\/p><\/blockquote>\n
\t  (b) a servant on wages payable in cash or kind but
\n     not in  crop share\t or a hired labourer cultivating the
\n     land under the personal supervision of the owner or any
\n     member of the owner’s family,
\n     unless the owner has within one year of the coming into
\n     force of  the Bombay Tenancy (Amendment) Act, 1946 made
\n     an\t application   to   the\t  Mamlatdar   within   whose
\n     jurisdiction the  land is\tsituated for  a\t declaration
\n     that the person is not a tenant.<\/p><\/blockquote>\n
\t  (2) Where an application under sub-section (I) has
\n     been made\tand  the  Mamlatdar  refuses  to  make\tsuch
\n     declaration and  the Mamlatdar’s  decision is  not\t set
\n     aside by  the Collector in appeal under sub-section (3)
\n     of section\t 13 or\tby the\tProvincial Government  under
\n     section 28,  the person  shall be deemed to be a tenant
\n     for the purposes of this Act.”
\nSection 3A reads;\n<\/p>\n
     “3A. (1)  Every tenant shall, on the expiry of one year
\n     from the  date of\tthe coming  into force of the Bombay
\n     Tenancy (Amendment)  Act,\t1946,  be  deemed  to  be  a
\n     protected tenant  for the\tpurposes of this Act and his
\n     rights as\tsuch protected\ttenant shall  be recorded in
\n     the Record\t of Rights,  unless his\t landlord has within
\n     the said  period made  an application  to the Mamlatdar
\n     within whose   jurisdiction  the land is situated for a
\n     declaration that the tenant is not a protected tenant.
\n\t  (2) Where an application under sub-section (I) has
\n     been made\tand  the  Mamlatdar  refuses  to  make\tsuch
\n     declaration and  the Mamlatdar’s  decision is  not\t set
\n     aside by  the Collector in appeal under sub-section (3)
\n     of section-]3
\n408<\/span>
\n     or by  the Provincial  Government under section 28, the
\n     tenant shall be deemed to be a protected tenant for the
\n     purposes of  this Act  and his rights as such protected
\n     tenant shall be recorded in the Record of Rights.”<\/p><\/blockquote>\n
     In 1948  the Bombay  Tenancy Act, 1939 was repealed and
\nanother Act,  that is,\tthe Bombay  Tenancy and Agricultural
\nLands Act,  1948 came  into being. Section 4 of this new Act
\nis the\tsame as\t s. 2A\tof the\tAct of\t1939 with  the\tonly
\naddition of a clause. It reads:\n<\/p>\n
     “4.A person  lawfully cultivating and land belonging to
\n     an other  person shall be deemed to be a tenant if such
\n     land is  not cultivated  personally by the owner and if
\n     such person – is not-\n<\/p><\/blockquote>\n
\t  (a) a member of the owner’s family, or\n<\/p><\/blockquote>\n
\t  (b) a servant on wages payable in cash or kind but
\n     not in  crop share\t or a hired labourer cultivating the
\n     land under the personal supervision of the owner or any
\n     member of the owner’s family. Or\n<\/p><\/blockquote>\n
\t  (c) a mortgagee in possession.\n<\/p><\/blockquote>\n
     Explanation I.-  A person\tshall not  be deemed to be a
\n     tenant under this section if such person has been on an
\n     application made  by the  owner of the land as provided
\n     under section  2A of  the\tBombay\tTenancy\t Act,  1939,
\n     declared by a competent authority not to be a tenant.
\n     Explanation II.-  Where any  land is  cultivated  by  a
\n     widow or a minor or a person who is subject to physical
\n     or mental\tdisability or  a serving member of the armed
\n     forces through  a tenant  then notwithstanding anything
\n     contained In  Explanation I to clause (6) of section 2,
\n     such tenant  shall be  deemed to be a tenant within the
\n     meaning of this section.”<\/p><\/blockquote>\n
     It is  thus obvious that there were only two conditions
\nin order to attract the provisions of s. 2A(1) of the Bombay
\nTenancy Act,  1939. But\t in the\t corresponding s.  4 of\t the
\nBombay Tenancy\tand Agricultural  Lands Act of 1948 one more
\ncondition was added in addition to the old two conditions as
\nprovided in s. 2A(I) of the
\n409<\/span>
\nBombay Tenancy\tAct,  1939  and\t that  additional  condition
\nexcludes the  mortgagee in  possession\tfrom  acquiring\t the
\nstatus of  a ‘deemed  tenant’ within the meaning of s. 4. If
\nthe cases  in hand were to be governed by the Bombay Tenancy
\nand  Agricultural   Lands  Act,\t  1948,\t the  mortgagees  in
\npossession would  be out  of the purview of s. 4 of that Act
\nas mortgagees  in possession  have been\t excluded from being
\n‘deemed tenants’.  As the  Act of  1948 has no retrospective
\neffect the  suits giving  rise to the aforesaid appeals will
\nbe governed by the Act of 1939.\n<\/p>\n
     The contention  raised on\tbehalf of  the appellants is
\nthat  the   mortgagees-appellants  became  ‘deemed  tenants’
\nwithin the meaning of s. 2A of the Act of 1939 and could not
\nbe evicted from the land in suit. For the respondent, on the
\nother hand,  the contention  was that  the  mortgagees\thave
\nnever been  treated to be tenants and it will be against the
\nuniform established  view of law and this is why the mistake
\nwas  realised\tby  the\t  legislature  and  a  mortgagee  in
\npossession was\texcluded from being a ‘deemed tenant’ in the
\nAct of\t1948. It  is admitted  case of\tthe parties  that no
\napplication had\t been made  by the mortgagor within one year
\nof the\tcoming into  force of the Bombay Tenancy (Amendment)
\nAct,  1946   for  a   declaration  that\t the  mortgagees  in
\npossession were\t not the  tenants of  the disputed  land  as
\ncontemplated by s. 2A.\n<\/p>\n
     At one  time there\t seemed to be a cleavage of judicial
\nopinion on the construction of s. 2A of the Act of 1939. The
\nGujrat\tHigh  Court  gave  a  literal  construction  to\t the
\nprovisions of  s. 2A(1)\t and held  that the mortgagees would
\nbecome ‘deemed\ttenants’ in  terms of s. 2A. The Bombay High
\nCourt and  the High Court of Mysore took a contrary view. It
\nwill be\t advantageous to  refer\t to  these  cases  in`\tsome
\ndetail.\n<\/p>\n
     In Salman\tRaje v.\t Madhavsang Banesang  & Ors.(l)\t the
\nmortgage  was  made  in\t 1943  and  the\t mortgagee  came  in
\npossession pursuant  to the  mortgage and  the parties were,
\ntherefore, governed by the Bombay Tenancy Act of 1939, which
\nwas applied  to the  district of Ahmedabad on and from April
\n1946.A Division Bench consisting of Hon’ble Mr. Justice J.M.
\nShelat and  Hon’ble Mr.\t Justice P.N. Bhagwati, as they then
\nwere, after discussing the various decisions held:\n<\/p>\n
     “There is,\t and can be no doubt that the petitioner was
\n     cultivating the land belonging to another person, i.e.,
\n     the ___ ____ ___
\n     (1)  4 Guj. L.R. 817
\n410<\/span>
\n     opponents\tand   he  was\tdoing  so  lawfully  as\t the
\n     usufructuary mortgage  executed in\t his favour entitled
\n     him to  its possession.  The petitioner  also would not
\n     fall in  either of\t the two  excepted categories. Prima
\n     facie, therefore,\the was\tentitled to  the benefit  of
\n     ses. 2A  and 3A  of the  Act. It is also clear from the
\n     language used  in sec.  2A that  there  were  only\t two
\n     classes of\t persons whom  the legislature excluded from
\n     the benefit of sec. 2A, viz.\n<\/p><\/blockquote>\n
     (1) the members of the owner’s family, and
\n     (2) his servants and hired labourers.\n<\/p><\/blockquote>\n
     Obviously, a  mortgagee in\t possession was not included
\n     in\t these\t two  categories  and  was,  therefore,\t not
\n     excluded  from  the  benefit  of  sec.  2A\t though\t the
\n     legislature must have been aware of the fact that there
\n     would be  mortgagees  cultivating\tlands  belonging  to
\n     mortgagors.\n<\/p><\/blockquote>\n
\t  Section 3A  of the  1939 Act\tthen provides that a
\n     tenant on\texpiry of  one year  from the  date  of\t the
\n     coming into force of the Amendment Act XXVI of 1946 was
\n     to be deemed to be a protected tenant and his rights as
\n     such protected  tenant shall  be recorded in the record
\n     of rights\tunless his  landlord  has  within  the\tsaid
\n     period made  an application  to the  ‘Mamlatdar  for  a
\n     declaration that the tenant is not a protected tenant.”
\n     The Bombay\t High Court  in Dinkar\tBhagwant Salekar  v.\n<\/p><\/blockquote>\n
Babaji Mahamulkar(1) on the other hand held that a mortgagee
\nwas not\t excluded from\tthe benefits  of s.  2A(1) due to an
\noversight by  the legislature  while enacting s. 2A and that
\noversight was  repaired when subsequently s. 4 of the Act of
\n1948 was enacted.\n<\/p>\n
     Again  a  Full  Bench  of\tthe  Bombay  High  Court  in
\nJasvantrai   Tricumlal v.  Bai Jiwi(2)\thad the\t occasion to
\nconsider the  same question;.  It also\ttook the  view\tthat
\nthere was  a lacuna  in s.  2A of  the 1939 Act in the sense
\nthat the  mortgagee and\t his tenant were through mistake not
\nexcluded from  the scope  of s.\t 2A(I )\t and that lacuna was
\nremoved while enacting s.4 of the Act of 1948. The
\n(1) 59 Bom. L.R. 101
\n(2) 59 Bom. L.R. 168
\n411<\/span>
\ninsertion of clause (c) in s. 4 in the Act of 1948 was taken
\nby the\tFull Bench  to be  a pointer  to the  fact that\t the
\nmortgagees in  possesstion were never intended to be treated
\nas statutory tenants.\n<\/p>\n
     In\t  Ishwara   Bhau   Sawant   v.\t Pandurang   Vasudeo
\nKarmarkar(1) a\tDivision Bench while construing s. 2A of the
\nAct of 1939 observed:\n<\/p>\n
     “The words\t used in  s. 2A are undoubtedly wide. One of
\n     the presumptions  in law  is that\tthe legislature does
\n     not intend\t to make  any substantial  alteration in the
\n     law beyond\t what  it  explicitly  declares,  either  in
\n     express terms  or by  clear implication,  or, in  other
\n     words, beyond  the immediate  scope and  object of\t the
\n     statute. In  all general  matters outside\tthese limits
\n     the law remains undisturbed. General words and phrases,
\n     therefore, however\t wide and  comprehensive they may be
\n     in their  literal sense.  must usually  be construed as
\n     being limited  to the  actual objects  of the  Act.  If
\n     therefore, it is possible, we must so construe s. 2A as
\n     to\t avoid\tgeneral\t provisions  of\t law  in  regard  to
\n     mortgagees.”<\/p><\/blockquote>\n
     In Shankar Kalyan Kulkarni & Ors. v. Basappa Sidramappa
\nKolar &\t Ors.(2) a  Division Bench  of the Mysore High Court
\ntook a similar view, and observed:\n<\/p>\n
     “We are  of the  opinion that a mortgagee in possession
\n     did not  become a deemed tenant under s. 2A of the 1939
\n     Act. Although  a mortgagee\t in possession\tis a  person
\n     lawfully  cultivating   the  land\t belonging  to\t his
\n     mortgagor, he could not merely for that reason become a
\n     deemed tenant  under s 2A for the reason that we should
\n     not  understand  the  provisions  of  that\t section  as
\n     resulting\tin  the\t transmutation\tof  a  mortgagee  in
\n     possession to a deemed tenant.<\/p><\/blockquote>\n
\t  A mortgagee  in possession  is a  person who lends
\n     money to  the mortgagor  who mortgages  his land to the
\n     mortgagee `  `and delivers\t possession of\tit to him to
\n     secure repayment  of the  sum of  money borrowed by the
\n     mortgagor from the mortgagee. That mortgage creates the
\n     relationship  of\tdebtor\tand   creditor\tbetween\t the
\n     mortgagor and the mortgagee and it is that relationship
\n     which subsists between
\n(1) 67 Bom L.R. 558. 11
\n(2) (1969) 2 MYS. L.J. 77.\n<\/p>\n
412<\/span><\/p>\n
     them  during  the\tperiod\twhen  the  mortgagee  is  in
\n     possession of the property.\n<\/p>\n
\t  The  provisions  of  s.  76  of  the\tTransfer  of
\n     Property Act regulate the rights and liabilities of the
\n     mortgagee in  possession. It  could not  have been\t the
\n     intention of  the legislature that these incidents of a
\n     mortgagee with  possession should\tstand  displaced  in
\n     consequence of  the provisions  which s. 2A of the 1939
\n     Act incorporate.  If they\tdid stand superseded in that
\n     way, the mortgagee would cease to be a creditor and the
\n     mortgagor\twould  no  longer  be  the  debtor  and\t the
\n     mortgagee could not demand or recover the mortgage debt
\n     due to him by the mortgagor.”\n<\/p>\n
     The Salman Raje’s case (supra) of the Gujrat High Court
\nwhich had  taken a contrary view itself came up for scrutiny
\nbefore the Gujrat High Court in Patel Ambalal Manilal & Ors.
\nv. Desai  Jagdishchandra Naginlal  & Ors.(l)  and a  learned
\nSingle Judge  of that  High Court  relying on  a decision of
\nthis Court  in Sidram  Narsappa Kamble\tv. Sholapur  Borough
\nMunicipality & Anr.<\/a>(2) observed:\n<\/p>\n
     “It appears,  with great  respect to the learned Judges
\n     who decided  the case  of Salman  Raje (supra) that, in
\n     that case,\t full effect has not been given to the words
\n     “save as  expressly provided  in this Act” appearing in
\n     sec. 89(2)(b)  of the  1948 Act  and  in  view  of\t the
\n     decision of  the Supreme  Court in\t the  case  of\tS.N.
\n     Kamble (supra),  the decision of this Court in the case
\n     of Salman\tRaje cannot  be considered to be a good law.
\n     It should\tfurther be  remembered\tthat,  mortgagee  in
\n     possession was  specifically excluded from the category
\n     of deemed\ttanant by sec. 4(c) of the 1948 Act in order
\n     to remove the anomalies created by sec. 2A of the 1939-
\n     Act so  far as mortgagee in possession is concerned and
\n     hence, it is not likely that the legislature would have
\n     i intended\t to protect  any right\tof  a  mortgagee  in
\n     possession to  be included\t in the category of a deemed
\n     tenant under  sec. 2A  of the 1939 Act, after sec. 4(c)
\n     of\t the  1948  Act\t containing  the  provision  to\t the
\n     contrary was enacted.”\n<\/p><\/blockquote>\n
(1)  17 Guj. L.R. 578
\n(2)  [1966] 1 SCR 618
\n413<\/span>
\n     This  Court  in  S.N.  Kamble’s  case  (supra)  had  an
\noccasion to  consider  the  impact  of\tthe  saving  section
\n89(2)(b) of the Act of 1948, and held:\n<\/p>\n
     “…but the  effect of  the express provision contained
\n     in s. 88(1)(a) clearly is that s. 31 must be treated as
\n     non existent so far as lands held on lease from a local
\n     authority are  concerned and  in  effect  therefore  s.
\n     88(1)(a) must  be held  to say  that there\t will be  no
\n     protection under  the 1948\t Act for  protected  tenants
\n     under the 1939 Act so far as lands held on lease from a
\n     local authority  are concerned.  It was  not  necessary
\n     that the  express provision should in so many words say
\n     that there\t will be no protected tenants after the 1948
\n     Act came  into force with respect to land held on lease
\n     from a  local authority. The intention from the express
\n     words of  s. 88(1)\t is clearly  the same  and therefore
\n     there is  no difficulty  in holding  that there  is  an
\n     express provision- in the 1948 Act which lays down that
\n     there will\t be no\tprotected tenant  of lands  held  on
\n     lease from\t a local  authority. In view of this express
\n     provision\tcontained  in  s.  88(1)(a),  the  appellant
\n     cannot claim  the benefit\tof s. 31; nor can it be said
\n     that his  interest as  protected tenant  is saved by s.
\n     89(2)(b). This  in our  opinion is\t the plain effect of
\n     the provisions  contained\tin  s.\t31,  s.\t 88  and  s.
\n     89(2)(b) of the 1948 Act.”<\/p><\/blockquote>\n
     In view  of the  aforesaid decision  of this  Court  it
\ncannot be argued for a moment that a mortgagee in possession
\nbecomes a  deemed tenant  under s.  2A of the Act of 1939 on
\nthe strength  of the  saving provision in s. 89(2)(b) of the
\nAct of\t1948. The  contention of  the appellants  that\tthey
\nbecame deemed  tenants under s. 2A of the Act of 1939 has no
\nforce and cannot be accepted.\n<\/p>\n
     The appellants  can,  however,  still  succeed  on\t the
\nground that  it was open to the plaintiff-respondent to file
\nan application for declaration before the Mamlatdar that the
\ndefendants were\t not tenants,  within one year of the coming
\ninto force  of the  Amendment Act of 1946 as provided in ss.
\n2A and 3A of the Act of 1919. But he did not choose to do so
\nand, therefore,\t he lost whatever right he had. There is yet
\nanother ground why the plaintiff-\n<\/p>\n
414<\/span><\/p>\n
respondent could  not  evict  the  defendants.A\t relief\t for
\nactual possession  from the  defendants who  claimed  to  be
\nprotected tenants could be granted only by the revenue court
\nand  not  by  the  civil  court.  The  plaintiff-respondent,
\ntherefore, on the basis of the decree for redemption can get
\nonly  a\t  symbolic  possession\t and  not   actual  physical
\npossession for the land in dispute.\n<\/p>\n
     For the  foregoing discussion the appeals must succeed.
\nThey are accordingly allowed and the judgment and decrees of
\nthe High Court are set aside and that of the first appellate
\ncourt is restored but on a slightly different ground. In the
\ncircumstances of  the case  the parties shall bear their own
\ncosts.\n<\/p>\n
A.P.J.\t\t\t\t\t    Appeals allowed.\n415<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India A.A. Shirdone Etc vs Saheb H. Tajbhokhari on 20 March, 1985 Equivalent citations: 1985 AIR 836, 1985 SCR (3) 403 Author: R Misra Bench: Misra, R.B. (J) 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) […]<\/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-216724","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nA.A. Shirdone Etc vs Saheb H. 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