Nethram Ganpatrao Dongre Bhoyar v. Shankarlal Dhorulalji Paliwal

Tambe, C.J:— Facts in brief are: One Ganpat, the predecessor-in-title of the petitioners before us was a tenant of S. Nos. 61/80, 81, 95/2, 95/3 situated in Mouja Parsodi, Taluka Arvi, District Wardha. The landlord of these fields at the material time was opponent No. 1 Shankerlal. Shankerlal gave a notice of date November 16, 1959, to Ganpat under s. 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, as it then stood, for termination of his tenancy. He also instituted proceedings under sub-s. (2) of s. 36 of the said Act for obtaining possession of the fields from Ganpat. While the proceedings were pending, the Act was amended and certain amendments were effected in s. 38. On February 7, 1961, Shankerlal gave another notice under s. 38 determining the tenancy of Ganpat, and he also filed another application under sub-s. (2) of s. 36 for obtaining possession of the fields from Ganpat. This application was filed before March 31, 1961. The Nayab Tahsildar allowed the applications of Shankerlal, against which Ganpat preferred an appeal before the Sub-Divisional Officer. By his order dated November 13, 1961, the Sub-Divisional Officer allowed the appeal and remanded the case for a fresh decision by the Nayab Tahsildar. By his order dated September 29, 1962, the Nayab Tahsildar rejected the applications of Shankerlal. Shankerlal preferred an appeal before the Sub-Divisional Officer. Now, during the pendency of the appeal before the Sub-Divisional Officer, Shankerlal had also instituted a Civil Suit against Ganpat, being Civil Suit No. 24 of 1963 in the Civil Court for recovery of arrears of rent for the years 1959–1960, 1960–1961 and 1961–1962. On April 11, 1963, Ganpat paid all the arrears of rent. Placing reliance on this fact of institution of the suit, and payment of arrears, Ganpat had in support of the order in his favour, contended that the effect of the institution of the suit was that the earlier notices of date November 16, 1959, and February 7, 1961, given by Shankerlal under s. 38 terminating the tenancy of Ganpat, stood waived, and therefore the applications for possession must be dismissed. The Sub-Divisional Officer allowed the appeal and made an order that Shankerlal be put in possession. Against this order of the Sub-Divisional Officer, Ganpat filed a revisional application before the Revenue Tribunal, and before the Tribunal also Ganpat had raised the aforesaid contention of waiver. Before the Tribunal, reliance had been placed on behalf of the applicant-tenant on a decision of the Division Bench of this Court in Bapurao v. Waman . 1962 64 Bom. L.R 541, S.C [1962] N.L.J 453.. The Tribunal, however, following the ratio of the Full Bench of this Court in Ramchandra Anant v. Janardan . 1962 64 Bom. L.R 635, F.B, S.C [1962] N.L.J 700. and the Division Bench decision of this Court in Keshav v. Laxmanappa . 1963 Special Civil Application No. 289 of 1962, decided by Patel and Kantawalla JJ., on June 19, 1963 Unrep.. dismissed the revision application. Ganpat then filed a writ application under art. 227 of the Constitution, challenging the aforesaid order of the Revenue Tribunal. The learned single Judge, noticing the differing view taken by two Division Benches of this Court in Bapurao v. Waman and Keshav v. Laxmanappa, referred the case to a Division Bench, and the Division Bench has referred this case to us.

2. The question thus that arises for consideration is whether the institution of the civil suit by Shankerlal against Ganpat for recovery of arrears of rent for the years 1959–1960, 1960–1961 and 1961–1962, and the payment of all arrears by Ganpat on April 11, 1963, has resulted in waiver of notices of date November 16, 1959, and February 7, 1961 given by Shankerlal to Ganpat under s. 38 of the Act determining the tenancy of Ganpat? Subsequent to the aforesaid order of reference, there has been a recent decision of the Supreme Court in Venkatesh v. Hajisaheb . [1966] Mh. L.J 436, S.C There, their Lordships were considering the position under the Bombay Tenancy and Agricultural Lands Act. The material provisions of the present Act are similar to those of the Bombay Act. Facts in that case were that on account of the default in payment of rent for the years 1951–1952, 1952–1953 and 1954–1955 by the tenant, the landholder served three months' notice under s. 41(1)(b) of the Tenancy Act on December 8, 1956, terminating his tenancy and applied for possession on June 24, 1957, under s. 29(2) read with s. 14(1) of the Tenancy Act. The application for possession was resisted on the ground that it was barred by limitation as it was not filed within two years after May 20, 1955, the date on which the last default took place. The decision turned on the true construction of the clause “within the 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.” In considering the arguments advanced before them, their Lordships stated the true position in para. 6 of the report in following words:

“In spite of the termination of the tenancy, the landlord has no right to obtain possession of the land without an order of the Mamlatdar under s. 29(2). Between the date of the termination of the tenancy and the date of the order for possession under s. 29(2) the tenant continues to be in lawful possession of the land and is liable to pay rent and not mesne profits…. Thus, on the termination of the tenancy, the right to obtain possession of the land, though in reality not accrued to the landlord, is, by a legal fiction, deemed to have accrued to him so that he may immediately apply under s. 29(2) for an order for possession.”

3. It is thus clear that in a case of a protected tenancy though the notice for termination of the tenancy has been given by a landlord to a tenant, still, the tenant continues to pay rent till an order of delivery of possession is made by the appropriate revenue authority. That being the position, the act of institution of a suit by landholder for recovery of rent from the tenant for a period prior to the date of the order of delivery of possession made by an appropriate revenue authority cannot be taken to be an act on the part of the landholder showing an intention to treat the tenancy as a subsisting tenancy. In view of the decision of their Lordships of the Supreme Court, learned counsel for the petitioners has conceded, and in our opinion rightly, that the answer to the question which we have to consider has to be against the tenants. We may also state that the ratio of the Full Bench decision of this Court in Ramchandra v. Janardan is also to the same effect. This decision of the Full Bench has been referred to by their Lordships in the aforesaid case. The decision of this Court in Bapurao v. Waman does not state the law correctly on this aspect of the case. We affirm the decision in Keshav v. Laxmanappa.

4. In the result, we answer the question in the negative.

5. Costs costs in the cause. The case will now go back before the appropriate bench for disposal on merits.

6. Answer accordingly.