JUDGMENT S.A. Bobde, J.
1. This is a petition by a person who had obtained possession of the lands in question under an agreement to sale from a landlord who had resumed possession of the land under Section 33B of the Bombay Tenancy and Agricultural Lands Act, for short "the Bombay Tenancy Act", for bonafide personal cultivation.
2. The lands in question are situated at Village Herale, Taluka Hatkangale, District Kolhapur. They were owned by one Narhar Narayan Kulkarni, and were in possession of respondent Nos. 1 to 4 as tenants. Narhar Narayan Kulkarni died on 1st November, 1971 leaving behind the respondent Nos. 2 and 3 as heirs, "Kulkarnis" for short. The said Kulkarnis initiated proceedings under Section 88C of the Bombay Tenancy Act against respondent No. 1 and obtained an exemption certificate. On 20th June, 1970 they obtained possession of the land under Section 33B of the Bombay Tenancy Act. The respondent Nos. 2 and 3 (Kulkarnis) executed agreement for sale in favour of the petitioner for consideration of Rs. 7,000/- and in pursuance of the agreement the revenue records have also been duly mutated to give effect to the above agreement.
3. There is no dispute that the petitioner has received possession of the land. It must, therefore, be observed that ex facie the Kulkarnis have ceased using the lands in question for bonafide personal cultivation.
4. On 21st March, 1980 the respondent No. 1, the former tenant came to know of the transaction between Kulkarnis and the petitioner. He made an application under Section 39 read with Section 37 of the Bombay Tenancy Act for restoration of possession of the suit lands. This application was made on the basis that the respondent Nos. 2 and 3, the heirs of Kulkarni have breached the conditions upon which the possession of the suit lands was given to him.
5. On 19th June, 1986 the Tenancy Awal Karkoon allowed the application and ordered that the petitioner be evicted from a half portion of the suit lands and that the possession should be restored to the former tenant, the respondent No. 1. The Tenancy Awal Karkoon held that the landlord was under obligation to keep the lands under his personal cultivation at least for a period of twelve years as required by Section 37 of the Bombay Tenancy Act. The landlord had, therefore, breached the conditions by transferring possession of the land under an agreement to sale on 9th February, 1978.
6. The petitioner preferred an appeal before the Sub-Divisional Officer on 20th January, 1986. The Sub-Divisional Officer dismissed the appeal and confirmed the order of the Tenancy Awal Karkoon. It appears from the order that the Sub-Divisional Officer has wrongly described the transaction between the petitioner and the respondent No. 1, the former tenant, as a transaction of sale. In fact, it is only an agreement to sale accompanied by delivery of possession.
7. Being aggrieved by the dismissal of the appeal the petitioner preferred a revision before the Manarashtra Revenue Tribunal. On 27th March 1987 the Maharashtra Revenue Tribunal dismissed the revision and concurred with the findings of the court below that the transfer is in breach of Section 37 of the Bombay Tenancy Act. The order of the Maharashtra Revenue Tribunal is impugned in this petition.
8. Mr. Bandiwadekar, learned Counsel for the petitioner, mainly raised two contentions against the order. Firstly, according to the learned Counsel, the Maharashtra Revenue Tribunal ignored the fact that the application by the tenant is barred by limitation of two years provided by Section 29 of the Bombay Tenancy Act. Section 29(1), which is relevant, reads as follows:--
"29(1) A tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply in writing for such possession to the Mamlatdar. The application shall be made in such form as may be prescribed and within a period of two years from the date on which the right to obtain possession of the land or dwelling house is deemed to have accrued to the tenant, agricultural labourer or artisan, as the case may be."
According to the learned Counsel, Kulkarnis executed an agreement for conditional sale in favour of the petitioner on 9th February, 1978, Therefore, the application which is filed on 21st March, 1980 is beyond the limitation of two years and is delayed by one month.
9. Secondly, according to the learned Counsel for the petitioner, the respondent No. 1 tenant was not entitled to claim possession in proceedings under Section 37 read with Section 39 of the Bombay Tenancy Act, from the petitioner who had obtained possession of the lands under an agreement to sale executed by the Kulkarnis. In other words, no effective order, could be passed against a third person under Section 37 read with Section 39 of the Bombay Tenancy Act.
10. Taking up the first contention, it is obvious that the argument presupposes that an application for possession of any land must be made under Section 29 of the Bombay Tenancy Act. This is not so. Where an application is to be made by a tenant because the landlord has breached the conditions imposed by Section 37 of the Bombay Tenancy Act, it is clear that such an application is required to be made under Section 39 of the Bombay Tenancy Act. The relevant part of Section 37 of the Bombay Tenancy Act reads as follows :--
"37. (1) If after the landlord takes possession of the land after the termination of the tenancy under Section 31, 33B or Section 34 of this Act as it stood immediately before the commencement of the Amending Act, 1956, he fails to use it for any of the purposes specified in the notice given under Section 31, 33B of Section 34 of this Act as it stood immediately before the commencement of the Amending Act, 1956 within one year from the date on which he took possession or ceases to use it at anytime for any of the aforesaid purposes within twelve years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him, unless, he has obtained from the tenant his refusal in writing to accept the tenancy on the same terms and conditions or has offered in writing to give possession of the land to the tenant on the same terms and conditions and the tenant has failed to accept the offer, within three months of the receipt thereof."
The above section casts a duty on the landlord to forthwith restore possession of the land to the tenant whose tenancy was terminated by him, if he fails to use it for any of the purposes for which he obtained possession. Where the landlord fails to restore possession to the tenant, the tenant is empowered to make an application under Section 39 of the Bombay Tenancy Act. Section 39 of the Bombay Tenancy Act reads as follows :--
"39. If at any time the tenant makes an application to the Mamlatdar and satisfies him that the landlord has failed to comply within a reasonable time with the provisions of Section 37, the tenant shall be entitled on a direction by the Mamlatdar to obtain immediate possession of the land and to such compensation as may be awarded by the Mamlatdar for any loss caused to the tenant by eviction and by failure on the part of the landlord to restore or give possession of the land to him as required by Section 37."
It is, therefore, clear that an application is tenable under Section 39 itself.
Moreover, the legislature has specifically enables a tenant to make such an application "at any time" in terms. Obviously, no limitation is prescribed by this section and on the other hand the legislature has deliberately used the word "at any time" to enable the tenant to recover possession from the landlord who has wrongly deprived him of possession of the land ostensibly on the ground of bona fide personal cultivation.
11. Mr. Jagdale, the learned Counsel for the respondents submits that this question is no more res integra. He relies on a decision of this Court in Samarth Ramdas Math(Shri) Vithal Rakhumai Mandir Trust Awas through its Sanchalaka Sitaram Mahadeo Rane v. Atmaram Damu Rane and Ors.
, where this Court relying on, the observations of the Full Bench of this Court in Vasant Haribai v. Jagannath, 1969 Mh.L.J. 249 (F.B.) = LXXI Bom.L.R. 72, observed as follows :--
'The period of limitation cannot be imagined. It is to be found, if at all, in the provisions of a statute itself. Section 39 of the Bombay Tenancy Act, as has been pointed out by the Full Bench, itself does not provide for any period of limitation. If this is so, then in my opinion, one cannot import any period of limitation in Section 39. The cause of action which gives right to a tenant to apply for restoration of the possession under Section 39 has to arise within one year from the date on which the landlord has taken possession or within 12 years from the said date depending upon the failure to use the land or the cessation, of the personal cultivation of the land, as the case may be, as mentioned in Section 37(1). If, however, the landlord fails to use land for the purposes for which the possession of the same was obtained after the expiry of the period of 12 years from the date on which he took possession, then the tenant may be debarred from making an application under Section 39. But if the cause of action itself arises within one year, or 12 years, as the case may be, then the period during which the tenant can apply for restoration of possession has not been provided for in Section 39 or in any other provisions of the Bombay Tenancy Act."
12. The second contention raised on behalf of the petitioner is also no more res integra. The contention that the tenant can only obtain possession from a landlord under Section 39 of the Bombay Tenancy Act and cannot pursue the lands, in the hands of the transferee cannot be upheld either. The same contention was raised before the learned Single Judge of this Court in Samarth Ramdas Math (supra) and this Court rejected the similar contention in the following words :--
"At first glance this argument appears to be attractive, but a proper reading of Section 39 should leave one in no doubt that the application which is to be made by the tenant can be made against anyone who is in possession of the land of which he was originally the tenant. The relief which the tenant is claiming under Section 39 on a cause of action provided by the default of the landlord is the obtaining of the possession of the land. If the possession of the land is within a person other than the landlord then that other person has also to be evicted pursuant to an order made on an application under Section 39. The legislature has not thought it fit to mention in Section 39 that the application is to be made only against the landlord and that the possession of the land has to be obtained only from the landlord. If this is so, it is not permissible for a Court to read into a section words which have not been apparently advisably, used by the legislature."
Having regard to the mischief which is sought to be remedied I am in agreement with the findings of the learned single Judge in the case of Samarth Ramdas Math (supra).
13. In the result, I find no merit in the petition, which is hereby dismissed. Rule to stand accordingly discharged. There shall be no order as to costs.
P. A. to give ordinary copy of this order to the parties concerned.
All Authorities concerned to act on an ordinary copy of this order duly authenticated as true copy by the Sheristedar of this Court.