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Hanmanta Daulappa Nimbal Since Deceased By His Heirs And Lrs. v. Babasaheb Dajisaheb Londhe .
Factual and Procedural Background
The respondent-landlord instituted Civil Suit No. 10 of 1968 in the Court of the Civil Judge, Junior Division, Akkalkot, seeking an injunction against the appellant’s alleged unlawful occupation of Survey No. 3 (16 acres 26 gunthas) in Mirajgi Village. The appellant asserted an oral tenancy for the agricultural year 1968-69. Treating the plea of tenancy as a “tenancy question,” the civil court referred the issue—“Does the defendant prove tenancy over the suit land?”—to the Tehsildar under the Bombay Tenancy and Agricultural Lands Act, 1948.
The Tehsildar held that the land belonged to the respondent and the appellant had not proved oral tenancy. On appeal, the Special Deputy Collector (Tenancy Appeals), Sholapur, reversed that finding, recognising the appellant both as an oral tenant for 1968-69 and, in any event, as a deemed tenant under Section 4 of the Tenancy Act. The Maharashtra Revenue Tribunal affirmed the appellate decision. The respondent then invoked Article 227 of the Constitution before the Bombay High Court. A learned Single Judge set aside the decisions of both tenancy authorities, restored the Tehsildar’s finding, and remitted the matter to the civil court. Aggrieved, the appellant approached the Supreme Court by special-leave appeal.
Legal Issues Presented
- Whether the appellant was in lawful possession of the suit land for the year 1968-69 on the basis of an asserted oral tenancy.
- Whether, irrespective of contractual tenancy, the appellant qualified as a “deemed tenant” under Section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948.
Arguments of the Parties
Appellant’s Arguments
- The landlord (through his maternal uncle) orally leased the land to the appellant for the agricultural year 1968-69.
- Revenue records for 1968-69 and payment of land revenue through the village Talathi corroborate the appellant’s cultivation and tenancy status.
- Even if an oral lease were not proved, the appellant is a “deemed tenant” under Section 4 because he was lawfully cultivating land belonging to another.
Respondent-Landlord’s Arguments
- The minor respondent, acting through his maternal uncle, never granted an oral tenancy; the appellant is a trespasser.
- Revenue entries relied upon by the appellant were made without notice to the landlord and are therefore unreliable.
- Because possession was not obtained with the landlord’s consent, the statutory requirements of Section 4 for deemed tenancy are not fulfilled.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court confined itself to determining whether the appellant's possession was “lawful,” a prerequisite both for contractual tenancy and for deemed tenancy under Section 4.
- Lack of contractual lease: There was no written lease, and the alleged oral tenancy was first asserted only after the landlord filed suit and secured an ad-interim injunction (20-1-1969/21-1-1969). The appellant’s notice claiming tenancy was issued a day later (22-1-1969), casting doubt on his claim.
- Minor’s estate and possession: As the respondent was a minor, the law deems his maternal uncle to be in possession unless lawfully divested. The prior mortgagee’s inductee (Somanna) had cultivated up to 1964-65, after which the uncle resumed possession. Thus, any subsequent occupation by the appellant required proof of the uncle’s consent.
- Insufficiency of evidence: The appellant offered only one supporting witness. Revenue-record entries made without notifying the landlord and unilateral payment of land revenue could not establish lawful possession or landlord acquiescence.
- Section 4 analysis: To invoke deemed tenancy, cultivation must be “lawful.” Because the appellant’s entry was not authorised and the landlord did not accept rent or otherwise acquiesce, the cultivation was held unlawful. Consequently, the statutory deeming provision was inapplicable.
- Correction of lower tribunals: The tenancy authorities erred by extending their inquiry beyond the specific reference and by presuming deemed tenancy. The High Court’s reinstatement of the Tehsildar’s factual finding was therefore justified.
Holding and Implications
Appeal dismissed with costs throughout.
The Supreme Court affirmed the High Court’s decision that the appellant was neither an oral tenant nor a deemed tenant. The direct consequence is that the appellant must vacate the land, and the civil court will proceed on the basis of the Tehsildar’s findings. The judgment turns on evidentiary sufficiency and statutory interpretation of “lawful cultivation,” setting no new precedent beyond reaffirming the strict requirements for deemed tenancy under Section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948.
Order
1. This appeal by special leave arises from the judgment of the High Court at Bombay in Special Civil Application No. 277 of 1972 dated 8-9-1977. The respondent-landlord filed Civil Suit No. 10 of 1968 in the Court of Civil Judge, J.D at Akkalkot. Since the appellant raised plea of oral tenancy for the year 1968-69, the Civil Court referred the issue : “Does the defendant prove tenancy over the suit land thereon?” to the Tehsildar who in his proceedings held that in respect of Survey No. 3 to the extent of 16 acres 26 gunthas situated in Mirajgi Village belongs to the respondent and the appellant had not proved oral tenancy. Thereon, the appellant carried the matter in appeal to the Special Deputy Collector, Tenancy Appeals, Sholapur, who held that oral tenancy was established. Even otherwise, the appellant is a deemed tenant under Section 4 of the Bombay Tenancy and Agricultural Land Act, 1948 (for short “Tenancy Act”). On revision, Maharashtra Revenue Tribunal, Pune, confirmed the findings. A writ petition was filed under Article 227 of the Constitution.
2. The learned Single Judge of the High Court, while holding that since the issue referred to the Tribunal under the Tenancy Act is only the contractual tenancy for the year 1968-69, the Tribunals could not have gone into the question of deemed tenancy under Section 4. On the question of tenancy, the High Court came to the conclusion that the oral tenancy has not been proved on the grounds that the entries in the revenue records for the year 1968-69 were made without notice to the landlord. When the parties were litigating their rights, it cannot be said that the landlord had agreed for creating oral tenancy in favour of the appellant. Thus on that premise, reversed the orders of the Tribunals below, accepted the finding of the Tehsildar and referred the matter to the Civil Court for decision according to the finding of the Tehsildar. Thus, this appeal.
3. The only question that arises for consideration is whether the appellant is in lawful possession of the property. Admittedly, there is no written lease granted in favour of the appellant. He claimed that the landlord had agreed for an oral lease for the year 1968-69. The admitted facts are that the landlord was a minor and was prosecuting his studies and his maternal uncle was looking after the properties. The suit property was subject of hypothecation and the mortgagee had inducted one Somanna who remained in possession and cultivated the land till 1964-65. Thereafter, the maternal uncle of the respondent claimed to have been in possession and cultivated the land. The question whether who cultivated the land up to year 1967-68 is not material for the reason that the appellant is not laying any claim for that period. In view of the admitted position that the respondent is the owner and, being minor, his maternal uncle must be deemed in law to be in possession.
4. The only material question is whether the appellant had any tenancy rights in respect of the land in question? His claim is that he came into possession under the oral tenancy for 1968-69. That was denied by the maternal uncle who was examined on behalf of the respondent-landlord. It is true that one witness was examined on behalf of the appellant and that evidence was believed by the appellate authority, and the revisional authority did not disturb that finding. But the revisional authority primarily proceeded on the finding that the appellant is a deemed tenant. The question, therefore, is whether the ingredients of Section 4 of the Tenancy Act are satisfied. Section 4 reads thus:
“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….”
5. The other criteria as enumerated in clauses (a), (b) and (c) and the Explanation are not relevant for the purpose of this case.
6. The question springing for consideration is whether the appellant has lawfully cultivated the land for the year 1968-69? The admitted position is that the respondent filed the suit for injunction on 20-1-1969 and ad interim injunction was issued on 21-1-1969. The appellant issued notice on 22-1-1969 claiming oral tenancy. In other words, the appellant had raised his claim for the first time, after the landlord had filed the suit. The appellant could have got lawful possession over the lands, if there would have been an agreement with the landlord, and pursuant thereto the landlord inducted the tenant in possession for beneficial enjoyment of the demised land on payment of premium or rent etc. or there would have been acquiescence of the landlord, for the tenant continuing to possess by accepting the rent. Since the claim of the appellant that he came into possession in the year 1968-69 under oral lease was not conclusively accepted and there is no proof that the landlord had accepted any rent, the appellant is a trespasser on the land. The suit was filed for injunction against the appellant. The burden is on the appellant to establish his lawful possession. Except the oral tenancy, no other evidence was brought on record. Entries in the revenue records cannot establish lawful possession, when, admittedly, no notice was given to the respondent before making those entries. The other circumstance is payment of land revenue to the Government through Talatti (village servant). For the payment thereof also, there is no notice or acquiescence by the landlord.
7. If these two circumstances are excluded, then the only fact is on the land, but the possession cannot be said to be lawful possession. In other words, his possession is of a trespasser, which is not protected by the Act. The question of benefit of Section 4 does not arise. Though the Tribunals below or the High Court has not adverted to this aspect of the matter, we feel that the order passed by the High Court needs no interference.
8. The appeal is, therefore, dismissed with costs throughout.
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