Bombay High Court
Bajirao Maruti Dhumal vs Shankar Yallappa Mane on 5 November, 1986
Equivalent citations: 1987(1)BOMCR522, (1987)89BOMLR4
Author: P.B. Sawant
Bench: P.B. Sawant
JUDGMENT P.B. Sawant, J.
1. This is a reference made by one of us (Kotwal, J.) to the Division Bench, for a correct interpretation of section 32(1-B) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act"). Another learned Single Judge (Tulpule, J.) has taken the view that the mortgages from the landlord is not a successor-in-interest of the landlord and hence the dispossessed tenant is not entitled to the restoration of the land under the said provision. With this view my brother Kotwal, J., has differed and by his reasoned judgment has referred the matter for answering the following two questions---
(1) Whether the rations in Balu Sripati v. Bandu Tatoba, 1981 Mh.L.J. 685 lays down the correct construction of the concept of 'possession' in section 32(1-B) of the Bombay Tenants and Agricultural Lands Act, 1948, and consequently, therefore whether the said term 'possession' is to be construct in its generic sense or it should mean that to formulate that concept there should be not only actual possession but also present right to possess ?
(2) Whether the explanation to section 32(1-B) of the said Act vis-a-vis the terms 'successor-in-interest' has a restrictive meaning and thereby limiting only to two categories as carved out in the Explanation thereby making the list exhaustive and not illustrative or whether it also covers all general categories including interest created by the parties ?
2. In order to appreciate the point involved, it is necessary to state the relevant admitted facts. The respondent was a tenant of the agricultural land in question belonging to the petitioner and was in possession and cultivation of the same as such tenant on 15-6-1956 i.e. the appointed day. Some time prior to the tillers day i.e. 1st April, 1957 he was dispossessed by the petitioner otherwise than in accordance with the provisions of section 29 of the Act.
After taking possession of the land the petitioner on 17th December, 1955 took a loan of Rs. 3500/- from the Land Mortgage Bank and executed a deed of possessory mortgage of the land of the Bank. Under the deed, the petitioner agreed to repay the loan by 16 equal annual instalments of Rs. 325.92 Ps. each. Simultaneously he executed a lease deed in respect of the land in favour of the Bank and purported to take the land for cultivation from the Bank on the annual rent equivalent to the payment of the loan instalment of Rs. 325.92 Ps. The result is that after the dispossession of the tenant, petitioner has throughout been in possession of the land.
3. After section 32 of the Act was amended by addition of sub-section (1-B) thereto, the tenant made an application to the Tahsildar for restoration of the land under the provisions of the added sub-section contending that he answered the description of the dispossessed tenant under the said provisions. The landlord was in possession of the land on 31st July, 1969 and the land was also not put to any non-agricultural use before the said day. The application was resisted by the petitioner-landlord on the ground that before 31st July, 1969, he had as stated earlier, already executed a possessory mortgage in favour of the Bank and it was the Bank as the mortgagee, who was in possession of the land and the Bank being not a successor-in-interest as defined in the said sub-section, the tenant was not entitled to the relief.
4. All the three authorities below granted the relief to the tenant and against their decision the petitioner has preferred the present writ petition.
5. Shri Abhyankar appearing for the petitioner-landlord, of course, heavily relies upon the decision of Tulpule, J., in Balu Sripati Patil and another v. Bandu Tatoba Chinchwade and another, 1981 Mh.L.J. 685 and contends that in view of the definition of the expression "successor in interest" given in the Explanation to the section, it must be held that the tenant is not entitled to the restoration of possession of the land. According to him, the tenant would be so entitled only if the land is in possession of a person who acquires interest in it by testamentary disposition or devolution on death. The possession of the land with the transferee of the landlord's interest under a transfer by any other mode being not of such successor-in-interest, the tenant is not entitled to its restoration. The second plank of his submission is that it is not enough that the landlord is either in constructive or actual possession of the land. He must have a present right to its possession. In the case of a transfer of land by way of mortgage or lease, the landlord, according to him, does not have a present right to possession. Hence the tenant is not entitled to the restoration of the land from the landlord.
6. We are not impressed by any of these submissions. Sub-section (1-B) reads as follows---
"(1-B). Where a tenant who was in possession on the appointed day and who on account of his being dispossessed before the 1st day of April, 1957 otherwise than in the manner and by an order of the Tahsildar as provided in section 29, is not in possession of the land on the said date and the land is in the possession of the landlord or his successor-in-interest on the 31st day of July, 1969 and the land is not put to a non-agricultural use on or before the last mentioned date, then, the Tahsildar shall, notwithstanding anything contained in the said section 29, either suo motu or on the application of the tenant hold an inquiry and direct that such land shall be taken from the possession of the landlord or, as the case may be, his successor-in-interest and shall be restored to the tenant and thereafter, the provisions of this section and sections 32-A to 32-R (both inclusive) shall in so far as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased the land on the date on which the land is restored to him :
Provided that, the tenant shall be entitled to restoration of the land under this sub-section only if he undertakes to cultivate the land personally and of so much thereof as together with the other land held by him as owner or tenant shall not exceed the calling area.
Explanation : In this sub-section "successor-in-interest" means a person who acquired the interest by testamentary disposition or devolution on death"
In the first instance the object of the sub-section is clear. It is to enable the vast number of tenants who were dispossessed before the tillers' day otherwise than in accordance with the provisions of the Act, to recover the possession of their lands. While enabling such tenants to recover the possession of their lands the legislature had also to safeguard the interests of third parties who were bona fide absolute transferees from the landlords and who in the meanwhile might also have invested their resources to improve the land. Hence the legislature has excepted from the provisions of the sub-section only the cases of absolute transfers, but has brought within its purview all other cases where the transfers have not divested the landlord either of actual or constructive possession. The expression ".......and the land is in the possession of the landlord or his successor-in-interest........." used in the sub-section has to be read in the context of this objective. The word "possession" used there therefore, must mean not only actual possession but also constructive possession. So long as the ownership of the land continues with the landlord, the possession of the land for the purposes of the sub-section, in his. For, he has undoubtedly the present right to claim possession and he can recover it, if the stipulated conditions are satisfied. So long, therefore, the right to claim possession remains with the landlord, it has to be held that he is in possession of the land within the meaning of the sub-section.
7. To canvass the contrary view, heavy reliance is placed on the Explanation which defines the expression "successor-in-interest", and it is argued that the specific meaning given to the expression must be deemed to exclude all transferees under the transfers by the act of parties. Looking at the object of the sub-section, it is clear that the Explanation to section 32(1-B) is added to provide an inclusive definition of "landlord" and not an exclusive definition of "transferee" from the landlord. The purpose of the definition is not to define "transferee" but to define "landlord". To hold otherwise would mean that what is intended to widen the definition of "landlord" should be construed to restrict it. It will be a case of tail wagging the dog. It is for these reasons that, with respect, we are unable to agree with the view taken by Tulpule, J., in the decision cited above. The questions referred to the Division Bench are therefore, answered as follows---
(1) The decision in Balu Sripati v. Bandu Tatoba, 1981 Mh.L.J. 685 does not correctly construe the word "possession" in section 32(1-B) of the Act. Where the ownership of the land continues to vest in the landlord, he is deemed to be in possession of the land for the purposes of the said section. It is immaterial whether he is in actual or constructive possession of the land. He has always the present right to claim possession.
(2) The Explanation defines "landlord" and not "transferee" from the landlord. It does not restrict the definition of "landlord" but widens it to include his successor-in-interest by testamentary disposition or by devolution. The possession of all transferees from the landlord or his successor-in-interest as defined there where the landlord or his successor-in-interest is not divested of his ownership therefore, is the possession of the landlord himself.
8. In the present case admittedly, the landlord was never out of possession of the land. He has always been in actual possession of it. The simultaneous transaction of mortgage and lease are nothing but a device to hide the real nature of the transaction to circumvent the restrictions imposed by the Act. As has been pointed out above, the mortgage loan is to be paid by annual instalments of Rs. 325.92 Ps. each which includes the principal amount of the loan and the interest accruing thereon annually. The alleged lease carriers annual rent in the same amount and the lease is to expire on the repayment of the instalments. It is, therefore, obvious that the loan is granted against the security of the land and the device of the mortgage and the lease is restored to secure the repayment of the loan. This being so it has to be held that the land always continued to be in possession of the landlord and on 31st July, 1969 it was the landlord who was in possession of it. Hence the present case is squarely covered by the provisions of the sub-section.
9. The result, therefore, is that the findings of the courts below are confirmed and the petition is dismissed.
10. Rule discharged with costs.