This special civil application raises a question of limitation under S. 29(2), Bombay Tenancy and Agricultural Lands Act, 1948.
2. The facts of the case in which the question arises are simple. The applicant is the owner of a certain land and he let it out to the first opponent for the year 1948-1949. On 12-10-1948, while the first opponent was the applicant's tenant, the first opponent sublet the land in dispute to opponent No. 2.
3. On 28-12-1948, the Bombay Tenancy and Agricultural Lands Act 1948, was applied to the place from which this application arises & on 21-11-1951 the applicant filed the present application against the two opponents for possession under S. 29(2) of the Act. Upon that application, a question arose as to whether the application preferred by the applicant was within two years as contemplated by S. 29(2).
4. The Mamlatdar, Athani, who heard the application, held that the application was not filed within two years of the date on which the right to obtain possession accrued to the applicant and having come to that conclusion, the application was dismissed. There was then an appeal to the Prant Officer, Chikodi, and the appellate authority agreeing with the Mamlatdar, held that the application was not within time and dismissed the applicant's appeal.
5. From the appellate order, the applicant went in revision before the Bombay Revenue Tribunal and that Tribunal consisting of Mr. K.C Sen, President, and Mr. S.B Hubli, held that the application was out of time. The applicant now applies under Art. 227 of the Constitution.
6. Upon this application, Mr. Javali for the applicant contends that the application preferred by him on 21-11-1951 was within time because the application was made within two years either from 7-9-1951 or 21-9-1951 when the applicant gave notice to the first opponent terminating the tenancy. In determining the question of limitation, it is necessary to just look at the section of the Act. The first of these is S. 14 which, so far as material, provides by sub-s. (1) that
“notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated unless such tenant (d) has sublet the land or failed to cultivate it personally.”
7. There is a proviso to S. 14, this proviso was added to S. 14 by the amending Act 33 of 1952 which came into force on 12-1-1953. It is clear, therefore, that the proviso does not apply to the facts of this case.
8. Section 14(1)(d) would, therefore, show that the tenancy of a land held by a tenant is not liable to be terminated unless the tenant has sublet the land. Since the proviso does not apply, it is not necessary for the landlord to give three months' notice as contemplated by the proviso to S. 14(1). It is enough if the landlord terminates the tenancy by an indication of his intention to so terminate it by filing a proceeding under S. 29(2) of the Act.
9. Then the next section to look at is S. 27 which by sub-s. (1) provides, so far as material, that “sub-letting of the land …… held by a tenant shall be valid. Such…… sub-letting shall make the tenancy liable to termination.” Section 27(1), therefore, shows that if a tenant sublets, then the sub-letting would be invalid and as a consequence the tenancy is liable to termination. The remaining section to which reference must be made is S. 29(2) which provides that
“no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be, is deemed to have accrued to him.”
10. In our view, the key words in S. 29(2) are the words deemed to have accrued”. Now, to obtain possession a landlord has to make an application and the question is as to when the right to obtain possession must be deemed to have accrued to applicant in the circumstances of this case.
11. Mr. Javali argues that the right to obtain session can arise only after he has given some dication of his intention to terminate the tenant. To justify such a construction there are no ??? in S. 29(2) in favour of Mr. Javali's contention a case where the proviso to S. 14 does not ??? it is clear that no notice is necessary. In ??? where the proviso applies, a notice to terminate the tenancy is necessary and so long as a no is not given, the tenancy is not terminated.
12. It follows that the landlord has no right possession until the period of the notice has pired. But the words as used in S. 29(2) are words “the right to obtain possession is deed to have accrued to him.” Now, the ??? this case took place on 12-10-1948 and it is on date that a right to obtain possession must deemed to have accrued to the applicant, that the landlord. Section 29(2) does not use words, “the right to obtain possession has ??? to the landlord”.
13. The right to obtain possession would ??? to the landlord only when the period of notice expired because it is only from the expiry of period of the notice that the landlord would entitled to obtain possession of the land. But language used in S. 29(2) is “the right to ??? possession is deemed to have accrued to him the face of the language, it is impossible to ??? that the limitation would not begin to run 12-10-1948, but only on 7-11-1951 when the ??? cant gave notice to the first opponent.
14. In our view, therefore, the authorities low were right in taking the view that the acation was barred by time under S. 29(2). In of this conclusion, the application must fail the rule will be discharged with costs.
S.L.L
Rule discharge.