SALMAN RAJE Vs. MADHAVSANG BANESANG
LAWS(GJH)-1963-2-10
HIGH COURT OF GUJARAT
Decided on February 06,1963

SALMAN RAJE Appellant
VERSUS
MADHAVSANG BANESANG Respondents

JUDGEMENT

J.M.SHELAT - (1.) The controversy in this application centers round S. No. 357 situate in the village Aniali Bhimji Taluka Dhandhuka District Ahmedabad. On May 31 1943 opponents I and 2 mortgaged this land to the Petitioner. In 1958 they filed suit No. 79 of 1958 in the Court of the learned Civil Judge (J.D.) at Dhandhuka against the petitioner praying for redemption of the mortgage and possession of the land. In that suit the petitioner contended that he was a protected tenant and therefore possession could not be taken from him by virtue of the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 He also contended that he was a tenant long before the mortgage and that being so he was protected by the aforesaid Act. On these contentions the learned Civil Judge framed two issues. The first issue was whether the petitioner was a deemed tenant by virtue of his being a mortgagee in possession before the Bombay Tenancy and Agricultural Lands Act 1948 came into force and the second issue was whether the petitioner was a tenant prior to the date of the mortgage. These two issues were then referred by him to the Mamlatdar Dhandhuka. By his order dated February 15 1961 the Mamlatdar held that the petitioner was not a deemed tenant and that he could not be so by reason of the fact that he was the mortgagee in possession and secondly that he was not a tenant of the land in question prior to the date of the mortgage. The petitioner then filed an appeal before the District Deputy Collector. By his order dated September 30 1961 the District Deputy Collector held that as the petitioner was on the land and was lawfully cultivating it before the 1948 Act came into force he was a deemed tenant entitled to the protection of the 1948 Act. He came to this conclusion relying upon the Pull Bench decision in Jaswantrai Tricumlal v. Bai Jiwi 59 Bom. L. R. 168 He declined to decide the second issue as in his view it was unnecessary to do so in view of his finding on the first issue. Opponent Nos. 1 and 2 having filed a Revision Application against this order the Gujarat Revenue Tribunal by its order dated February 23 1962 held that the petitioner could not be considered a deemed tenant by reason of his being a mortgagee in possession and reversing the order of the District Deputy Collector restored the order of the Mamlatdar. The Tribunal was of the view that the decision in Jaswantrai Tricumlal v. Bai Jiwi would not apply to the facts of the case for the Pull Bench decision dealt not with the mortgagee in possession but with the rights of a tenant of a mortgagee in possession. The Tribunal remanded the case to the District Deputy Collector for his decision on the second issue. In its view a decision on the second issue was necessary because if the petitioner was a tenant of the mortgagor and was on the lands as such tenant before the mortgage was executed then sec. 25A of the 1948 Act would apply and in that event his tenancy which commenced prior to the date of the mortgage would remain in abeyance until the redemption of the mortgage. This application disputes the decision of the Tribunal.
(2.) Before we deal with the contentions raised before us it would be useful first to set out a few pertinent dates. The Bombay Tenancy Act XXIX of 1939 though enacted on April 2 1940 was brought into force in the District of Ahmedabad on and from April 11 1946 Sections 2A 3 and 4 in that Act were added by amendment Act XXVI of 1946 on November 8 1946 The Bombay Tenancy and Agricultural Lands Act 1948 was brought into force on December 25 1948
(3.) Since the mortgage in favour of the petitioner was made in 1943 and the petitioner went into possession by virtue of that mortgage the parties would be governed by the Bombay Tenancy Act XXIX of 1939 which as we have said was applied to the District of Ahmedabad on and from April 1946. Originally there were no provisions in that Act as to a statutory or a deemed tenant and sec. 2A 3 and 4 were introduced as aforesaid in the Act by Amendment Act XXVI of 1946 on and from November 8 1946 Section 2A of that Act 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 if such person is not (a) member of the owners family or (b) a servant one wages or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owners family ;


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