Jagannath S/O Raghunath Sing ... vs Member, Maharashtra Revenue ...
2005 Latest Caselaw 169 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. By this petition under Articles 226 and 227 of Constitution of India, the petitioners/landlords challenged the order dated 30th September, 1992, passed by Maharashtra Revenue Tribunal and also the order dated 30th March, 1988, passed by Tahsildar and Agricultural Land Revenue Tribunal. The lowest authority i.e. Tahsildar passed said order on an application for determining purchase price, filed under Section 50 of the Tenancy Act by respondent No. 2-tenant and has observed that the tenant is entitled to purchase said land. The said order was challenged in appeal by landlords before Sub-Divisional Officer, Mangrulpir and the appeal of landlord was allowed by S.D.O. On 31st October, 1989. This appellate order thereafter was challenged by tenant by filing revision under Section 111 of Bombay Tenancy and Agricultural Lands (Vidarbh Region) Act, 1958 and Maharashtra Revenue Tribunal has allowed the revision filed by tenant and has upset the appellate orders in favour of petitioners.

2. The case of petitioners is that one Daulatsing Raghuwanshi i.e. Brother of petitioner No. 2 was owner of field Survey No. 6/1, admeasuring 4 hectares 68 acres situated at village Baldeo, Tq. Mangrulpir, Distt. Akola. He expired on 12-7-1980 but before his death he executed a Will on 12-6-1980 bequeathing the suit field in favour of petitioner No. 1. The case of petitioners is that after death of Daulatsing, petitioner No. 1 became owner of suit field.

3. It appears that before his death Daulatsing had leased out the suit field to respondent No. 2 and rent note titled 'Maktepavati' is entered into between deceased Daulatsing and Amarsing in presence of two witnesses. This rent note is executed by Daulatsing in favour of respondent No. 2 Amarsing in presence of two witnesses. Respondent No. 2 moved an application on 13-3-1983 before Agricultural Lands Tribunal, Mangrulpir under Section 50 of Bombay Tenancy (V.R.) Act, contending that deceased Daulatsing orally leased out suit land to him on 5-2-1978 at the rate of rent of Rs. 500/- per month for a period of five years i.e. for 1978-79 to 1982-83. He contended that rent was agreed to be paid every year in advance and on every payment of rent, the lease was to be deemed to have been renewed afresh for next year. He stated that accordingly he paid amount of Rs. 500/- to Daulatsing on 5-2-1978 for the year 1978-79 and Daulatsing issued him a receipt on 10-4-1979, which he has produced on record. He paid rent amount of Rs. 500/- for the year 1979-80 and he also paid similarly rent amount for the year 1980-81. After the death of Daulatsing, the respondent No. 2 stated that he has paid the lease money to petitioner No. 2 who was his sole legal heir and petitioner No. 2 also got his name mutated as a owner of suit field. Respondent No. 2 claimed that similarly he also remitted the rent for the year 1981-82 on 13-2-1982 and for the year 1982-83 on 20-10-1982 respectively and it was accepted by petitioner No. 2. In this background on 25-11-1982 respondent No. 2 issued a notice under Section 50 of tenancy Act to petitioner No. 2 intimating to him his willingness to purchase the suit field. As said notice did not receive any response, respondent No. 2 on 13-3-1983 filed an application before Tahsildar for exercising his right to purchase the suit field.

4. Said application was opposed by petitioner No. 2 who was the sole party respondent in it. He pointed out in his reply that the petitioner No. 1 is the real owner and it appears that later on the written statement was amended to point out that the petitioner No. 1 had initiated proceedings against petitioner No. 2 for correction of mutation entry, showing ownership, as petitioner No. 1 was real owner in view of Will left behind by deceased Daulatsing. Thereafter respondent No. 2 amended his application and petitioner No. 1 was joined as party-respondent, before the Tahsildar.

5. It appears that before Tahsildar the parties led oral evidence and Tahsildar thereafter recorded a finding that, as the money orders forwarded subsequently were accepted, by petitioner No. 2, a fresh contract of lease Was created or renewed in favour of respondent No. 2 for the year 1982-83. He, therefore, held that notice under Section 50 of Tenancy Act issued on 25-11-1982 was within one year of commencement of Tenancy for the year 1982-83 and hence valid notice. In view of this finding, the Tahsildar proceeded further to determine the purchase price and has passed the order directing the respondent No. 2 to pay amount of Rs. 590.88 (purchase price determined by him) on or before 31-8-1988 and observed that after deposit of this amount necessary purchase Certificate would be issued in favour of respondent No. 2. This order was challenged by both the petitioners in appeal under Section 107 of Tenancy Act before Sub-Divisional Officer, Mangrulpir and Sub-Divisional Officer found that the tenancy in favour of respondent No. 2 was created in the year 1979, and as the notice for purchase under Section 50 of Tenancy Act was not issued, within one year thereof, the tenant lost his right of purchase. The Sub-Divisional Officer further observed that it was proved on record that tenancy was created by Maktapavati agreement dated 5-2-1978 but he failed to prove that contractual tenancy was to be renewed every year. When the matter came up before Maharashtra Revenue Tribunal in revision under Section 111 at the instance of respondent No. 2 Maharashtra Revenue Tribunal observed that a fresh contract of tenancy was created every year upon the petitioner No. 2 accepting agreed rent of Rs. 500/- and though the initial contract was for the period of five years, it was renewable every year by paying rent each year in advance. The conclusion drawn is, therefore, that the lease was from year to year or at any rate lease renewable every year for the period of five years. It was, therefore held that as the rent for the year 1982-83 was accepted on 20-10-1982, the purchase notice and consequential action initiated by respondent No. 2 was within four corners of Section 50 of Tenancy Act and therefore the respondent No. 2 was entitled to purchase the suit land. In view of this revision, The Maharashtra Revenue Tribunal has set aside the appellate order and has restored the order of Tahsildar in favour of respondent No. 2. The petitioner approached this Court challenging the said order and on 22-1-1992 has issued rule and also granted ad-interim relief staying operation and effect of order of Tahsildar.

6. I have heard Shri A. S. Mehadia for petitioners and Advocate Shri B. N. Mohta for respondent No. 2.

7. Advocate Mehadia invites attention of Court to the rent note i.e. Maktapavati dated 5-2-1978 to contend that the period of tenancy as agreed is five years and only rent was to be paid every year. He, therefore, contends that there was no creation of fresh tenancy and there was no fresh agreement every year and the findings in this respect as reached by Tahsildar or Maharashtra Revenue Tribunal is incorrect. He points out that under Section 50 of the Tenancy Act, the respondent No. 2 has to take the action within one year from the commencement of the Tenancy and as the purchase notice was issued in this case on 25-11-1982, it was not within one year of commencement of tenancy. He has relied upon the judgment of Hon'ble Apex Court at AIR 2000 SC 1771, Janba (dead, through legal heirs) v. Smt. Gopikabai to contend that the said right has to be exercised within one year of commencement of tenancy. He further argues that petitioner No. 1 was not served with any such notice though petitioner No. 1 was real owner and petitioner No. 1 was initially also not joined as party before Tahsildar by respondent No. 2. He, therefore, contends that as purchase notice is not served upon real owner, the proceedings are vitiated. He has also invited attention of Court to the judgment of this Court reported at 1972 Mh.L.J. Page 588 in support of his contention. He states that the finding reached that a fresh tenancy was created every year was perverse and document has not been construed correctly.

8. Advocate Mohta appearing for respondent No. 2 states that the Tahsildar has correctly appreciated the material available on record and the conclusion reached by him that it is a fresh tenancy created in the year 1982-83 in view of acceptance of rent on 20th October, 1982 is just and proper. He states that there is no bar in provisions of Tenancy Act which prohibits landlord from creating fresh tenancy every year in favour of tenant. He invites attention of Court to the pleadings of respondent No. 2 in his application and also to the findings reached by Tahsildar in his order to demonstrate that the Authorities have, after appreciation of evidence, found that a fresh tenancy is created every year and therefore action has taken under Section 50 of the Tenancy Act within one year of commencement of tenancy. He has also placed reliance upon judgment of this Court reported at 1980 Mh.L.J. 275 in support of his submission that there is no bar anywhere in Tenancy Act against landlord which prohibits him from creating contractual tenancy again in favour of tenant. In the alternative he has also argued that if said right is not exercised by tenant within one year, then consequences provided under Section 43(14-A) of Tenancy Act follow and the land is deemed to have been surrendered to the landlord by the tenant. He, therefore, contends that after such surrender when the landlord again accepts the rent, the presumption is of creation of fresh tenancy and hence when in the year 1981-82 the respondent No. 2 did not exercise his right to purchase, at the end of that year, land is presumed to have been surrendered. As the petitioner No. 2 accepted the rent on 28th October, 1982, a fresh tenancy for the year 1982-83 is again deemed to have been created. He, therefore, states that taking any view of the matter, the respondent No. 2 has given purchase notice on 25-11-1982 i.e. within one year and as such no fault can be found with the orders passed by Tahsildar or by Maharashtra Revenue Tribunal. He, therefore, contends that no case is made out for interference in Writ petition.

9. After hearing both the sides, it is apparent that the finding reached by Tahsildar is not a finding of fact, as is sought, to be contended by Advocate Mohta. The Tahsildar in paragraph No. 2 of his order narrated the case as pleaded before him and the pleadings revealed that the respondent No. 2 specifically stated that it was agreed between parties that after payment of rent every year in advance, a fresh tenancy for that year shall be deemed to have been created. However, the Tahsildar has not recorded any finding of fact in relation to this version of respondent No. 2. Tahsildar has only drawn an inference on account of payment of rent by respondent No. 2 and its acceptance by petitioner No. 2. Tahsildar has observed that because the money orders were received and accepted by petitioner No. 2, a fresh contract of lease or renewal of original lease afresh in favour of respondent No. 2 has taken place for the year 1982-83 and, therefore, the notice of purchase dated 25-11-1982 was within time. It is to be noticed that the case of respondent No. 2 was that the contract of tenancy between him and the deceased Daulatsing was oral, however, Tahsildar has not recorded any specific finding in relation to such oral agreement or its terms and conditions in his order. The learned counsel for petitioner has invited attention of Court to the fact that the terms and conditions are expressly incorporated in the rent note which is executed by Daulatsing in favour of respondent No. 2 on 5-2-1978. Said rent note (Maktepavati) mentions that the suit field is given on lease for a period of five years i.e. 1978-79 to 1982-83 on annual lease money of Rs. 500/-. It further mentions that out of total lease money, lease money of Rs. 500/-for the year 1978-79 is received by Daulatsing in advance on that date i.e. on 5-2-1978 and, therefore, field is placed in possession of respondent No. 2 for cultivation. It also mentions that it was agreed that future lease instalment is to be paid in advance and, therefore, the rent note is executed. In view of specific case of respondent No. 2 that after payment of lease money every year, it was agreed that fresh lease agreement would be deemed to have been created, the evidence on record was also seen with the assistance of parties and there is nothing in said evidence to hold that there was any such agreement between deceased Daulatsing and respondent No. 2. In this background the only document, which is available on record in relation to the agreement between parties, is rent Note dated 5-2-1978.

10. Perusal of said rent Note clearly demonstrates that the lease period of five years i.e. from 1978-79 to 1982-83 is expressly mentioned in it and it further mentions that the lease money i.e. consideration for those five years is Rs. 500/- per year and it is also expressly agreed between parties. It also stipulates that out of total lease money payable for five years, the deceased has received amount of Rs. 500/- which represents lease money for the year 1978-79 in advance and, therefore, only he has delivered the field in possession of respondent No. 2 for cultivation. Thus, total period of lease, money payable as consideration therefor, are mentioned on 5-2-1978 itself in this rent note. It is also stated that next instalment of lease money is to be paid in advance every year. Thus the mode and manner of payment of lease money every year is also agreed between the parties in this document. The question is whether such a document is to be construed as a document creating fresh lease every year. The Maharashtra Revenue Tribunal has placed reliance upon judgment of this Court reported at 1980 Mh.L.J. 275 to arrive at a finding that it was a lease for a year to year and, therefore, the action initiated by respondent No. 2 is valid. The perusal of said ruling reveals that this Court has considered the controversy in paragraph 13 and it is observed - "In such circumstances, I do not see any bar anywhere in Tenancy Act to the landlords, creating the contractual tenancy again in favour of tenant in possession for next year so that by virtue of such second tenancy for the following year again tenant would get a fresh right for purchase of ownership right. In this view of the matter, it is not possible to accept the reasoning of Revenue Tribunal on the basis of which it allowed the revision applications and set aside the orders of Courts below". It will thus be seen that this ruling considers the case of the tenant, whose tenancy has already expired and who was allowed to remain in possession thereafter. This Court has found that the landlord is free to create tenancy again in favour of such person who is in possession. In the facts of present case, the land was expressly given to respondent No. 2 for a period of five years i.e. from 1978-79 to 1982-83 and therefore there was no question of said respondent No. 2 continuing in possession after determining expiry of tenancy in his favour. Further as terms and conditions between the parties are agreed in February, 1978 itself, there was no question of any new agreement or fresh agreement of tenancy being entered into by the parties each year. The question only is whether payment of lease money in advance every year could be interpreted to mean that a fresh agreement or fresh lease is created between parties every year. However, such a course further is not supported by rent note itself between parties in February, 1978. It is thus apparent that mere payment of rent-lease money every year, as already agreed, cannot be interpreted to hold that by such payment a fresh lease or fresh agreement was created between parties.

11. The reliance by Advocate Mehadia on the judgment of Hon'ble Apex Court reported, at AIR 2000 SC 1771 in paragraphs 12 and 13 is also not relevant. In this paragraphs the Hon'ble Apex Court has considered the provisions of Section 50 of Tenancy Act and thereafter the case, which is considered, is that of widow landlady, in view of special status which is conferred upon her by virtue of Section 41(2) of the Tenancy Act. Thus, the present controversy was not involved in that judgment before the Hon'ble Apex Court and it has not been answered in any way by the Apex Court.

12. The ruling of this Court in 1972 Mh.L.J. 588 in paragraph 13 reads as under --

"It is at this stage that it is contended that there cannot be only one commencement of tenancy, but there could be commencement of tenancy every year if the landlord permits the tenant to continue in possession and does not take immediate steps to obtain possession from a tenant, who has failed to exercise his right within one year. Whether Section 50 contemplates repeated commencement of tenancy or not will depend on what is the effect of the tenant failing to exercise his right of purchase within the specified period. It is here that the concluding part of Section 50 becomes material."

These observations show that whether it is a case of repeated commencement of tenancy or not depends on the facts of each case and also upon what is the effect of tenant, failing to exercise his right of purchase within a specified period. Same ruling in concluding portion of paragraph 13 states that joint reading of Section 50 and Section 43(14-A) make it clear that intention of Legislature that land in respect of which tenant has failed to exercise his right of purchase is either to be retained by landlord if he is entitled to retain, having regard to the provisions of Section 21(1), or the land is to be treated as surplus and its management was deemed to have been assumed for public purpose under the Tenancy Act. It appears that the tenant in this judgment of High Court was having tenancy for the year 1964-65 and on construction of provisions of Section 50 of Tenancy Act, Maharashtra Revenue Tribunal held that his application for exercise the right of purchase should have been made within one year from 1-4-1964. Said tenant has, in fact, made the application on 17-11-1965 and, therefore it was found barred by limitation. These observations of Maharashtra Revenue Tribunal have been accepted by the High Court.

13. This brings the Court to consider the argument advanced by respondent No. 2 in the alternative. It is the contention that if it is held that the respondent No. 2 did not exercise his right to purchase within one year, the land must be deemed to have been surrendered and, therefore, the landlord is free to let it out again to the tenant. Reliance has been placed upon observations of this Court made in 1980 Mh.L.J.275 in paragraph 13 (supra). Said observations clearly show that the High Court, was considering the case of a tenant, whose tenancy has expired and in spite of that expiry he was continued in possession and it is in this background the High Court has held that there is no prohibition in Bombay Tenancy Act which disentitles the land to create tenancy again in favour of such tenant. In the facts of present case, as already mentioned above, on 25-11-1982 the tenancy of respondent No. 2 had not expired, he was tenant of deceased Daulatsing and thereafter of petitioners for a period of 5 years from 1978 i.e. up to 1982-83. Hence, that analogy cannot be extended here. Further as per provisions of Section 43(14-A), in case of deemed surrender, the provisions of Sub-sections (1) and (2) of Section 21 and Chapter VII can apply to such land, as if the land was surrendered by tenant under Section 20. Under Section 21(1) and 21(2) the Authorities have to decide the extent of land which the landlord would be entitled to retain upon such surrender and the land which he is found not entitled to retain is to be declared as surplus. Thus, if this scheme is taken into consideration it is apparent that upon surrender, the landlord cannot create fresh tenancy again automatically by accepting the rent. The Tahsildar has to conduct an enquiry and declare whether whole or part of tenanted land surrendered to the landlord is to be retained under Sub-section (1) of Section 21 by landlord and landlord is then entitled to retain only that much land, the land over and above such land as is found by Tahsildar is to be declared surplus. Thus, the contention of respondent No. 2 that a fresh tenancy should be presumed to have been created in favour of respondent No. 2 in view of acceptance of rent by petitioner No. 2 on 28th October, 1982 is without any substance.

14. Advocate Mohta has placed reliance upon the ruling of this Court reported at to contend that where after terminating the tenancy of his tenant, landlord again accepts the rent, a fresh tenancy is created between such landlord and tenant. It is to be noticed that these rulings are under the provisions of C. P. and Berar House Rent Control Order, 1949 which does not contain provision similar to Section 21 of Bombay Tenancy (V.R.) Act and the said Rent Control Order does not put any fetter upon right of landlord to retain such house in respect of which tenancy is surrendered by the tenant. Advocate Mohta further contends that surrender is one of the mode of determination of tenancy under Section 111 of Transfer of Property Act and in view of Section 5 of the Bombay Tenancy Act, all provisions of Transfer of Property Act, as are not inconsistence with it, are applicable. It is his contention that, therefore, the presumption of creation of fresh tenancy, which is available under Transfer of Property Act can also be drawn under the provisions of Bombay Tenancy Act. However, in view of provisions of Section 43(14-A) read with Section 21 of Tenancy Act, such provisions of Transfer of Property Act cannot be extended to the case of respondent No. 2.

15. Under the circumstances, the view as taken by Maharashtra Revenue Tribunal and by Tahsildar that the tenancy between respondent No. 2 and petitioners was year to year tenancy and a fresh tenancy was created for the year 1982-83 because of acceptance of rent on 28th October, 1982 by petitioner No. 2 is found to be incorrect and erroneous. The tenancy between respondent No. 2 and petitioners was for a period of five years and it commences on 5-2-1978 only. Hence, notice of purchase as issued on 25-11-1982 is not within one year, as required by Section 50 of Bombay Tenancy Act. Therefore, the respondent No. 2 had lost his right to purchase the suit field. Thus, the order of Tahsildar dated 30th March, 1988 and the order of Maharashtra Revenue Tribunal dated 30th September, 1992 are found to be unsustainable. Same are quashed and set aside. Rule is made absolute in above terms. No order as to costs.