Gujarat High Court
Motibhai Ranchhodbhai Patel And Anr. vs Jethabhai Chhelabhai Heirs Of Decd. ... on 21 January, 1988
Equivalent citations: (1988)2GLR1489
JUDGMENT D.H. Shukla, J.
1. The petitioners are brothers, being sons of deceased Manekben, who was the only daughter of her father, deceased Shri Jinabhai Bachubhai of Village Ashi, taluka Petlad, district Kaira. Deceased Manekben is stated to be the only heir of her father. After the death of Manekben, the petitioners have become her heirs. Deceased Jinabhai Bachubhai had mortgaged an agricultural field, bearing Survey No. 305 in S. Y. 1906 for Rs. 170/- to Shri Rambhai Ranchhodbhai. After receiving additional amount, a further mortgage deed between the same parties and in regard to the same property was entered into on 25-5-1912 for Rs. 264/-. Both these mortgage transactions were possessory mortgages and accordingly the possession of the suit field was handed over to Chhela Ranchhod and Rama Ranchhod. Both of them have expired, and the respondents as their heirs are in possession of the suit field as mortgagees.
2. The petitioners filed Regular Civil Suit No. 227 of 1969 in the Court of the Civil Judge (J. D.), Petlad, for redemption of mortgage and for possession of the suit agricultural field. The respondent-defendants contended in the suit that they became the deemed purchasers of the suit land, which contention was accepted by the learned Judge, and he dismissed the plaintiffs' suit on 20th September, 1971. A copy of the said judgment and order is at Annexure 'A' to the petition.
3. Having been dissatisfied and aggrieved by the aforesaid judgment and order, the petitioner preferred an appeal, being Tenancy Appeal No. 244 of 1971 in the Court of the District Judge at Kheda, and in the said appeal a reference was directed under Section 85A to the Mamlatdar and ALT, Petlad, to decide the question whether the respondents had become the tenants and whether they had become the deemed purchasers. The Mamlatdar and ALT, Petlad, initiated an inquiry and decided the reference against the respondents. He held, by his order dated 30-9-1975, that on consideration of the merits as well as the legal position, the respondents could not be held to be tenants and did not become the deemed purchasers of the suitland. A copy of the order of the Mamlatdar and ALT is at Annexure 'B'.
4. The respondents preferred an appeal against the order of the Mamlatdar and ALT, being Tenancy Appeal No. 53 of 1976, in the Court of the Deputy Collector, Petlad, who by his order dated 20-6-1976. dismissed the appeal and confirmed the order of the Mamlatdar and ALT. The copy of the order of the Deputy Collector, Petlad, is at Annexure 'C. The respondents having been aggrieved by the aforesaid appellate order, preferred Revision Application No. TEN. B.A. 832 of 1976, before the Gujarat Revenue Tribunal, Ahmedabad, which by its order dated 14-4-1977, allowed the revision application and set aside the order passed by the Deputy Collector and held that the respondents did become the tenants of the disputed land. A copy of the judgment and order of the Tribunal is at Annexure 'D'.
5. It is against the said order of the Gujarat Revenue Tribunal that the petitioners have filed the present Special Civil Application.
6. It transpires from the perusal of the judgment of the Gujarat Revenue Tribunal that the Mamlatdar and ALT followed the judgment of this Court reported in [1976] 17 GLR 578, being the case of Patel Ambalal Manilal and Ors. v. Desai Jagdishchandra Naginlal and Ors. decided by C.V. Rane, J. and Rane, J. held that the judgment of the Division Bench in Salman Raje v. Madhavsang Banesang and Ors. [1963] 4 GLR 817, was no longer good law and held that in the face of the express provision of Section 4(c) of the 1948 Act which specifically excludes mortgagee in possession from the category of a deemed tenant, there is no scope for saying that the appellants' status as deemed tenant is saved by the provisions of Section 89(2)(b)(i) of the 1948 Act. The Tribunal however, observed that the judgment in Ambalal's case 17 GLR 578 was overruled by the Division Bench of the Gujarat High Court in Special Civil Application bearing No. 858 of 1971. It further observed that it was held by the Division Bench that the judgment of the learned single Judge in Ambalal's case, 17 GLR 578, is not good law and that the view expressed by the learned single Judge is not the correct view and law as laid down by the Division Bench in Salmon Raje's case is the correct law. The Tribunal further observed that it was patently clear from the facts of the present case that the mortgage was prior to 1948 and that after the Amendment Act of 1946, no application was filed within one year by the landlord-mortgagors, and therefore mortgagees in possession became deemed tenants under Section 2A and were entitled to protection under Section 3A of the 1939 Act. In other words, the Tribunal came to the conclusion that the present case was governed by Salman Raje's case (4 GLR 817) and that therefore the learned Mamlatdar and ALT and the Deputy Collector had erred in their respective judgments that the mortgagees being the heirs of the original mortgagees were not the tenants of the disputed land.
7. Mr. M.C. Shah, the learned Advocate for the petitioners, did not challenge the proposition that so far as the facts and circumstances of the case are concerned they are governed by Salman Raje's case. He conceded that the Tribunal was right in observing that Salman Raje's case straightway applied to the facts of the present case. Mr. M.C. Shah, however, submitted before me that Salman Raje's case was not correctly decided and that he would endeavour to persuade me to take a view that Salman Raje's case was required to be reconsidered by a Full Bench of this Court.
8. The following were the contentions raised by Mr. M.C. Shah before me.
(1) Mr. Shah submitted that the Bombay Tenancy Act, 1939 did not apply to Ashi village, which was at the relevant time situated in the erstwhile State of Baroda. Section 2A of the Act of 1939 did not apply to Ashi. It was for the first time that the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as "the Act of 1948" came to be applied to Ashi in 1949, i.e. to say after the merger of the State of Baroda in 1949, Mr. Shah submitted that by Section 89 of the Act of 1948, the Act of 1939 was repealed, except Sections 3, 3A and 4. By Section 4 of the Act of 1948, the mortgagee in possession is specifically excluded from the statutory fiction of deemed tenancy. As Section 2A of the Act of 1939 never applied to village Ashi and as Section 4 of the Act of 1948 specifically excluded a mortgagee in possession from the deemed tenancy, the respondents never became deemed tenants and were therefore not entitled to any protection under the Tenancy Act.
The argument of Mr. Shah proceeded on the footing that Ashi was a village not situated in British territories at the time when the Act of 1939 came into force. Mr. A.J. Patel, the learned Advocate for the respondents, contended that if it was a correct fact that village Ashi was at the relevant time situated in erstwhile State of Baroda, the argument of Mr. Shah was quite correct and that the respondents were out of Court. However, he challenged Mr. Shah to prove that Ashi was so situated. Mr. Patel pointed out that the statement made by Mr. Shah was a statement of fact which was never pleaded at any stage of the proceedings, not in the memo of the petition and that it was for the first time argued before me. Mr. Patel conceded that he would not take any objection to the argument being advanced even at this stage, since if went to the root of the matter. But, at any rate, there should be cogent evidence to prove that fact. On the contrary, Mr. Patel pointed out that at paragraph 4 of the judgment of the learned Civil Judge in Regular Civil Suit No. 227 of 1969, it is observed "The suit land being of village Ashi under British Rule, under Tenancy Act of 1939, they have become deemed purchaser of suit field since 1-4-1957 and even if they are mortgagee in possession, since 1-4-1957 they have become owner of the suit land, hence the plaintiffs have no right to take possession". Of course, this observation of the trial Judge is made while he was referring to the contentions raised by the respondents in the suit. Even then, Mr. Patel stated that it is asserted that village Ashi was at the relevant time under British Rule and that therefore the Tenancy Act of 1939 applied to it. This proposition has not been attempted to be controverted in the later proceedings. Further, even in the judgment of the ALT and Mamlatdar, it is asserted that Ashi was under the British Rule. But even then this assertion has not been challenged in the later proceedings, nor is any evidence sought to be led to prove the fact now asserted by Mr. Shah. I, therefore, called upon Mr. Shah to prove his assertion, but he could not. On the contrary, on the next day of hearing before me, he submitted that his assertion was a dobtful proposition.
The first argument of Mr. Shah, therefore, fails.
9. (II) Mr. Shah's second submission was that the law laid down in Salman Raje's case 4 GLR 817 and subsequently in Dalwadi Joyantilal's case 19 GLR 88 is not good law because both the judgments overlook a basic jurisprudential concept of ownership. As found from the judgment in Salman Raje's case 4 GLR 817, the text of Section 2A of the Act of 1939 defines a tenant as a person lawfully cultivating land belonging to another person if such land is not cultivated personally by the owner and secondly... Mr. Shah submitted that therefore a before person is deemed to be a tenant, it must be proved that he was lawfully cultivating the land belonging to another person. He submitted that the jurisprudential concept of ownership was that it was a bundle of rights. The bundle of rights included a right to possession. The respondents being mortgagees in possession were in fact and in law in possession of the disputed land. To that extent, therefore, they had become owners of the disputed land. Could it then be said that they were tilling the land "belonging to another person". After the mortgage was entered into, the mortgagor had only a right of redemption and barring that right the rest vested in the mortgagees. In Mr. Shah's submission, the mortgage resulted into duel concept of ownership of the mortgagor and the mortgagee. The mortgagees, therefore, in their own right and therefore to that extent as owners thereof, cultivated the property and they were not cultivating the land belonging to another person. Mr. Shah submitted that both the judgments of the Division Bench did not consider the question from this aspect and therefore both the judgments required reconsideration by a Full Bench.
10. Mr. Shah's argument is entirely misconceived. It is true that ownership consists of a bundle of rights, but therefore it does not follow that when the owner transfers to another one of his ownership rights, the transferee becomes to that extent the owner of the property. There is no such concept of duel ownership in jurisprudence as contended by Mr. Shah, nor could he show me such a concept from any text book. Mr. Shah was also not right in his submission that when the mortgagor mortgaged the property what was left with him was only a right to redeem the mortgage. There are other incidence of ownership which still continue to vest in the mortgagor, notwithstanding the mortgage, as for example, a right to make a testament, a right to sell the property subject to mortgage etc. The correct legal position is that after the mortgage, the ownership of the mortgagor in the property continues subject to the interest in the property transferred by him to the mortgagee. Even so, there is only one ownership and no ownership in the estate is created in favour of the mortgagee. It cannot be said, therefore, that when a mortgagee in possession is cultivating the land, he does not cultivate the land belonging to another. The argument though ingenious, has no merit, when it is subjected to analysis. The argument is, therefore, rejected.
11. (III) Mr. Shah submitted that Salman Raje's case 4 GLR 817 does not correctly follow the Full Bench judgment of the Bombay High Court, reported in 59 BLR 168 (Jasvantrai Tricumlal Vyas v. Bai Jiwi). In that case, the facts were that the protected persons were the tenants of the tenants to whom the land was let out, whereas in the case before the Division Bench of the Gujarat High Court, the persons who sought protection were the mortgagees in possession themselves. Mr. Shah submitted that the tenants of a tenant were protected on the ground that they had come into possession with the tacit consent of the owner-landlord and that therefore they could be considered to be lawfully in possession of the land. In fact, this submission of Mr. Shah is considered by Shelat, J. (as he then was) in Salman Raje's case 4 GLR 817 at page 823 :
It follows from the views categorically expressed by the Full Bench in this decision that if a tenant of the mortgage became a deemed tenant under Section 2A of the 1939 Act on the ground only that he came on the land lawfully, though not because of the permission of or privity with the owner, a mortgagee under an usufructuary mortgage must necessarily be in the identical position and must be said to be a deemed tenant on the same reasoning under Section 2A of the 1939 Act.
Mr. Shah's submission" does not persuade me to take a view that either the argument submitted by him is not considered in Salman Raje's case 4 GLR 817 at page 823, or that it does not state the correct law.
12. (IV) Mr. Shah then referred to a decision reported in (Gulabrao M. Wani v. Hema Kashiram Gajare) 59 BLR 194 and to another decision reported in (Ambalal Vallavbhai v. Mangalbhai) 1978 GLR 799. Mr. Shah submitted that if a person who came into possession on the basis of an agreement to sell is not considered to be a person lawfully in possession at the time of the relevant date, much less a person who has come in possession as a mortgage in possession can be so considered. This argument of his is found answered by the observations of S.H. Sheth, J. in a Division Bench judgment reported in (Ambalal Vallavbhai Patel v. Mangalbhai) 1978 GLR 799, Sheth, J. observed therein as under (at page No. 808809 of GLR):
It is, therefore, wrong to say that the principle laid down by the Supreme Court in Dahya Lal's case and by the Full Bench of the High Court of Bombay in Jaswantrai's case militate against the principle laid down by the High Court of Bombay in Gulabrao's case, and that therefore, the principle laid down in Gulabaro's case has become inapplicable. So far as the agreements of sale are concerned, they are governed by the decision of the Bombay High Court in Gulabrao's case. That decision still holds the field in that class of cases. In other class of cases, paticularly in cases of tenancies created by the mortgagees in possession and lawful sub-tenancies created by the tenants, the decision of the full bench of the High Court of Bombay in Jaswantrai's case and of the Supreme Court in Dahyalal's case would hold the field. These two sets of decisions operate in altogether different fields. The areas in which they operate do not overlap. It is, therefore, wrong to come to the conclusion that there is any conflict between the decision of the High Court of Bombay in Gulabrao's case on one hand and the decisions of the High Court of Bombay in Jaswantrai's case and of the Supreme Court in Dahya Lal's case on the other hand. Decision in Ranchhod Fakir's case also operates in a field were contract of cultivation has been created by one in favour of another.
Sheth, J. further observed as under (at page No. 808 of GLR):
So far as the agreements of sale are concerned, the modus operandi to claim title to the land which can be adopted can only be under the Specific Relief Act. The modus operandi of claiming title to it by invoking the provisions of Section 4 of the Bombay Tenancy Act cannot be adopted because Section 4 does not have an overriding effect upon the provisions of Specific Relief Act Section 4 does not open with any non-obstante clause. Under these circumstances, an agreement of sale which is exclusively enforceable under the Specific Relief Act cannot be enforced by invoking the provisions of Section 4 read with Section 32-0 of the Tenancy Act because the provisions of the Tenancy Act do not exclude the provisions of Specific Relief Act.
Sheth, J. further observed as under (at page No. 810 of GLR):
Section 4 is not an instrument for a dishonest person to dupe a simple, unwary and honest person. If a dishonest person enters into an agreement of sale with another pays a small amount towards the earnest money, enters into possession in anticipation of the conveyance of the title to him, deliberately commits breach of the agreement, goes back upon it and claims tenancy when the intending vendor seeks to recover possession of his land from him, what happens. Shall the dishonest person succeed? Will be be able to achieve his evil design successfully under the protection of law? If we take this view, it will be removed from achieving its last mentioned laudable objective and will operative as a foundain of dishonesty and crookedness creating poverty where there is none without removing it from any other social pocket. It cannot be imagined that the Legislature, by enacting Section 4 in a very wide langauge though of trapping the honest and the simple for making them pray of the wily and the dishonest. Therefore, Section 4 does not operate in the field of agreements of sale under which possession has been delivered to the intending vendee.
Thus the ratio of the ruling reported in Salman Raje's case 4 GLR 817-820 and the ratio of the ruling reported in (Ambalal Vallavbhai Patel v. Mangalbhai Dhulabhai Bhoi) 1978 GLR 799 in altogether different fields. The ruling reported in Salman Raje's case 4 GLR 817 therefore, does not require any reconsideration on this count as canvassed by Mr. Shah.
13. (V) Mr. Shah then submitted that Section 2A was very widely construed by the Division Bench in Salman Raje's case 4 GLR 817, The interpretation given to Section 2A was wider than that was justified on the perusal of the preamble to the Act. A reconsideration of the ratio was, therefore, necessary to eschew the wider interpretation given to it by the Division Bench. In support of his submission, he cited and 1950 Vol. I All England Reporter 1082, at page 1084. I do not think it necessary for me to consider the above authorities cited by Mr. Shah, since the canons of construction referred to therein were applied in the light of the facts and circumstances of each of those authorities.
14. Mr. Patel replied that it was necessary to remember that in all 5 Judges of this Court have followed this interpretation, if we include P.D. Desai, J. (as he then was) also who had referred the case to the Division Bench, which was decided by the Division Bench in Dalwadi Jayantilal's case [1978] 19 GLR 88. Mr. Patel submitted that it was also necessary to remember that the interpretation given to Section 2A in Salman Raje's case 4 GLR 817, was in a case decided on 6-2-1963. These decisions are taken as settled law on the point. Mr. Patel submitted that it was too much to ask for reconsideration of these decisions after a passage of 25 years, on the ground that the canons of interpretation required Section 2A to be interpreted differently. I agree with Mr. Patel. In the first place, I do not agree that the canons of interpretation referred to in the authorities submitted by Mr. Shah in any way militate against the interpretation put on Section 2A by the two Division Bench judgments and secondly that to refer these two decisions for reconsideration on this basis is now too late in the day. Again, it is not as if the question of interpretation of Section 2A is not considered by the Division Bench. In Salman Raje's case 4 GLR 817, Shelat, J. (as he then was) observed as under:
It is possible to think, as argued by Mr. Chhatrapati, that such a construction might perhaps entail some of the inconsistencies and hardships pointed out by Bavdekar J. in Dinkar Bhagwant v. Rau Babaji. Nonetheless, it is clear from the decision in Jasvantrai Tricumlal v. Bai Jiwi, that the Full Bench negatived the construction placed in Dinker Bhagwant v. Rau Babaji and in the clearest possible terms held that under the 1939 Act all persons lawfully on the land, who would include both the mortgagee in possession and his tenant, were intended to be protected and that the language of Section 2A of the Act was both plain and unambiguous and furnished no scope for speculating about the intention of the Legislature.
(Emphasis supplied) It is further observed therein as under:
The Rule of construction in such a case is Absoluta sententia expositore indiget That Rule is to intend the Legislature to have meant what it has actually expressed and the underlying principle is that the meaning and intention of a statute must be collected from the plain and umambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient.
It appears that after the 1939 Act had been worked for some time and while they were enacting the 1948 Act, the Legislature thought of excluding from the protection of the tenancy legislation the mortgagee in possession. It would seem that even when the 1948 Act was being enacted, the object was the same viz. to protect the actual tiller who was lawfully on the land. As stated by the Supreme Court in an unreported judgment in Civil Appeal No. 516 of 1960 decided on May 3, 1962 (Dahya Lala v. Rasul Mahomed since reported in 65 Bom. L.R 328) the Act of 1948 affords protection to all persons who hold agricultural lands as contractual tenants and subject to the exceptions specified all persons lawfully cultivating lands belonging to others.
Therefore, the question of construction to be put on Section 2A is considered by the Division Bench and the line of discussion taken therein needs no reconsideration. It may be noted that the object of the Act as stated therein is to protect the actual tiller who was lawfully on the land, and therefore interpretation of Section 2A need not be considered, only in the light of the preamble to the Act of 1939, as canvassed by Mr. Shah. This argument with reference to the need for reinterpretation of Section 2A also does not appeal to me.
15. Mr. Shah submitted that it is impossible to imagine that a person who mortgaged his land because of his financial stringency ever anticipated that mortgagee would become a protected tenant of his land. Mr. Shah submitted that the interpretation as presently accepted would make a poor suffer further at the hands of the rich. It is true that the interpretation is likely to give such a result. This eventuality is also discussed by Shelat, J. He has observed:
When the 1948 Act was being enacted, it appears to have been realised that a third category of excluded persons should be added, viz, a mortgagee in possession. The reason for doing so was the appreciation of the fact as observed by the Supreme Court in the decision above referred to, that to confer the status of a deemed tenant upon a mortgagee in possession would be to invest him with rights inconsistent with his fiduciary character. Even so, the Supreme Court held that a tenant of a mortgagee would not fall within the third category of excluded persons though a transferee of a mortgagee in possession would. It is obvious that but for this exclusion effected by insetting Clause (c) in Section 4 of the 1948 Act, a mortgagee in possession being a person lawfully cultivating the land would have been entitled by the plain language of Section 2A of the 1939 Act and Section 4 of the 1948 Act to the status of a deemed tenant, howsoever inconsistent or hard the result would have been.
16. (VI) Mr. Shah's last submission was indeed ingenious. Mr. Shah submitted that the definition of "tenant" as given in Section 2(18) in the Act of 1948 is different from the definition of "tenant" given in the Act of 1939. He submitted that a deemed tenant under Section 2A or under Section 4 cannot be regarded as a protected tenant, because under the definition of "protected tenant" under Section 3, tenant deemed to be under Section 2A is not included. Such a tenant would therefore not be covered under Section 4(a) of the Act of 1948. To understand Mr. Shah's submission, I may quote the relevant sections. Section 2(18) of the Act of 1948 defines "tenant" as under:
2. (18) "tenant" means a person who holds land on lease and includes:
(a) a person who is deemed to be a tenant under Section 4;
(b) a person who is a protected tenant;
(c) a person who is a permanent tenant;
(d) a person, who, after the surrender of his tenancy in respect of any land at any time after the appointed day but before the specified date has continued or is deemed to have continued, to remain in actual possession, with or without the consent of the landlord, of such land till the specified date.
Section 4 of the Act of 1948 runs as under:
4. Persons to be deemed tenants: 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,
(a) a member of the owner's family, or
(b) a servant on wages payable in cash or kind but not in crop share or a hired labour cultivating the land under the personal supervision of the owner or any member of the owner's family, or
(c) a mortgagee in possession.
Explanation (I): A person shall not be deemed to be tenant under this section if such person has been on an application made by the owner of the land as provided under Section 2A of the ombay Tenancy Act, 1939, declared by a competent authority not to be a tenant.
Section 4A defines "Protected tenants" as under:
For the purposes of this Act, a person shall be recognized to be a protected tenant, if such person has been deemed to be a protected tenant under Sections 3, 3A and 4 of the Bombay Tenancy Act, 1939, referred to in Schedule I to this Act.
Section 3 of the Act of 1939, defines "protected tenants" as under:
Protected tenants.
3. A tenant shall be deemed to be a protected tenant in respect of any land if.
(a) he has held such land continuously for a period of not less than six years immediately preceding either,
(i) the first day of January 1938, or
(ii) the first day of January 1945, and;
(b) he has cultivated such land personally during the aforesaid period.
Mr. Shah submitted that the term "tenant" is meant to include only a contractual tenant and not a deemed tenant under Section 2A of the Act of 1939. The argument advanced by him was that while the contractual tenancy was heritable, a deemed tenancy was not heritable, as held by Ahmadi, J. Special Civil Application No. 1227 of 1977 decided on 11-2-1985, (Ranchhodbhai Bhulabhai Parmar v. Lilabhai Jibhaibhai Parmar 1985 GLT 70 3 : 1985 GLH (UJ-31) page 22) wherein he followed a decision of the Division Bench in Thakorelal v. Gujarat Revenue Tribunal and Ors. 4 GLR 841. Mr. Shah submitted that as held by Ahmadi, J., a deemed tenancy was not heritable. Therefore, by implication, a person who was a deemed tenant under Section 2A of the Act of 1939, was not meant to be included in the definition of "protected tenants" under Section 3 of the said Act. This aspect was completely overlooked in Salman Raje's case 4 GLR 817. Mr. Shah submitted that there was an apparent conflict in the judgment reported in Salman Raje's case 4 GLR 817 and Thakorelal's case 4 GLR 841. It was, therefore, necessary that 4 GLR 817 and 4 GLR 841 should be referred for reconsideration by a Full Bench. The submission of Mr. Shah is ill-conceived, when his argument is scrutinised in the light of the facts of the two cases referred to by him. There is a simple answer to Mr. Shah's argument. According to Ahmadi, J. what is not heritable is the status of a deemed tenant. A person becomes a deemed tenant under the Act of 1939, on that Act coming into force. Therefore, a person who becomes a deemed tenant under the Act of 1939 cannot have such, a tenancy in the land which is heritable by his heirs. So far as the present facts are concerned, the respondents herein, were lawfully cultivating the land which was not cultivated personally by the owner before the Act of 1939 came into force. The heirs were, therefore, deemed tenants in their own rights and not as heirs of the original mortgagees. The respondents themselves were deemed tenants under Section 2A of the Act of 1939 and therefore did become protected tenants under Section 3 of the Act of 1939, which Section 3 was allowed to continue unrepealed by the Act of 1948 and were therefore entitled to statutory protection. The facts of the case reported in Thakorelal's case 4 GLR 841 are however different inasmuch as it was the persons namely, Mr. Laskaria from whom the opponents claimed their rights, who had become deemed tenants after coming into operation of the Act of 1948. It was in that context that it was stated that a deemed tenancy however does not constitute any asset or interest in the land and is therefore not heritable. Mr. Shah, with respect, has completely lost sight of a significant distinguishing factual position which distinguishes the operation of the two principles separately laid down in the aforesaid two decisions.
17. I have dealt with all the submissions made before me by Mr. Shah, and none of them has appealed to me.
18. Mr. Shah then made an oral submission that the matter may be remanded back by me to ascertain whether village Ashi was at the relevant time situated in the erstwhile State of Baroda. I do not find any necessity to do so, as in the first place, this question has never been agitated before, and there is not even a prima facie evidence to support Mr. Shah's assertion. Petitioner had ample time to ascertain this position, but he has absolutely failed to do so. Mr. Shah's request for remand is, therefore, not accepted by me.
19. In the result, therefore, the Gujarat Revenue Tribunal has correctly followed the ratio of the ruling of the Division Bench in Salman Raje v. Madhavsang Banesang and Ors. [1963] 4 GLR 817 and Dalwadi Jayantilal Dahyabhai and Anr. v. Manishanker Maneklal Pandya and Anr. [1978] 19 GLR 88 and hence this petition has no merit. Consequently, this Special Civil Application is dismissed with costs.
PER CURIAM Dated 17th July, 1988 Shukla, J.
20. This Special Civil Application was decided by me by the above judgment dated January 21, 1988. I had made the judgment reportable. It is then brought to my notice that my observation in the last paragraph of the judgment that the Gujarat Revenue Tribunal had correctly followed the ratio of the ruling of the Division Bench in Salman Raje v. Madhavsing Banesang and Ors. [1963] 4 GLR 817 and Dalwadi Jayantilal Dahyabhai and Anr. v. Manishanker Maneklal Pandya and Anr. [1978] 19 GLR 88, is required to be reconsidered in view of the judgment of the Supreme Court in the case of A.A. Shirdone v. Saheb H. Tajbhokari . I, therefore, took the matter in suo motu review and heard Mr. M.C. Shah for the petitioners and Mr. A.J. Patel for the respondents. After pursuing the judgment in Shirdone's case and other relevant judgments, I delete the last paragraph of the judgment and instead the following may be read as the last paragraph in my judgment:
22. In Shirdone's case , the Supreme Court has considered Salman Raje v. Madhavsang Banesang [1963] 4 GLR 817 and has observed: "In view of the aforesaid decision of this Court it cannot be argued for a moment that a mortgage in possession becomes a deemed tenant under Section 2A of the Act of 1939 on the strength of the saving provision in Section 89(2)(b) of the Act of 1948. The contention of the appellants that they became deemed tenants under Section 2A of the Act of 1939 has no force and cannot be accepted.
The ratio of Salmon Raje's case to this extent must be considered as overruled by the Supreme Court. However, the Supreme Court itself added in only the next paragraph of its judgment as follows:
The appellants can however, still succeed on the ground that it was open to the plaintiff-respondent to file an application for declaration before the Mamlatdar that the defendants were not tenants within one year of the coming into force of the Amendment Act of 1946 as provided in Sections 2A and 3A of the Act of 1939. But he did not choose to do so and, therefore, be lost whatever right he had.
The result, therefore, is that in effect the decision reached by the Gujarat Revenue Tribunal must be confirmed. Salman Raje's case (4 GLR 817) and Dalwadi Jayantilal's case (19 GLR 88) are required to be read subject to the judgment of the Supreme Court in Shirdone's case (supra). Even after following Shirdone's case, the result, is that the petition must be dismissed. Consequently the Special Civil Application is dismissed with costs. Rule discharged."