BAPURAO Vs. WAMAN
LAWS(BOM)-1962-3-1
HIGH COURT OF BOMBAY (FROM: NAGPUR)
Decided on March 29,1962

BAPURAO Appellant
VERSUS
WAMAN Respondents


Referred Judgements :-

ABDUL RASHID KHAN V. SAFAR ALI [REFERRED TO]
DATTATRAYA VISHNU VS. GANPAT RAGHO [REFERRED TO]
PURAN MAL JAISWAL VS. ONKAR NATH CHOUDHARY [REFERRED TO]



Cited Judgements :-

SIRAJUDDIN VS. PREM VANTI [LAWS(DLH)-1967-5-13] [REFERRED 3.]
RAJ KRISHAN JAIN VS. HOSHIAR SINGH [LAWS(DLH)-1971-2-14] [REFERRED TO]
SARABJIT SINGH VS. MOHAN SINGH [LAWS(DLH)-1976-12-24] [REFERRED TO]
DAHYABHAI LIMJIBHAI DECD VS. AMARCHAND JAGJIVAN [LAWS(GJH)-1970-1-3] [REFERRED]
NETHRAM VS. SHANKARLAL DHORULAJI PALIWAL [LAWS(BOM)-1966-6-1] [REFERRED TO]
ROSHANLAL VS. KAILASH PRASAD [LAWS(RAJ)-1972-11-22] [REFERRED TO]


JUDGEMENT

Shah, J. - (1.)This is an application filed by a tenant against the landlord-respondents challenging the order passed by the Maharashtra Revenue Tribunal in revision against the order passed by the Sub-Divisional Officer who, in his turn, reversed the decision of the Naib Tahsildar in an application made by the landlords for possession of the land in question on the ground of personal bona fide cultivation. The landlords before making the application to the Naib Tahsildar, gave notice to the tenant on 26th March, 1959, under Section 39 (I) of the Bombay Tenancy and Agricultural Lands (Vidara-bha Region and Kutch Area) Act, 1958 (hereinafter referred to as the Tenancy Act). Thereafter, an application for possession of the land was made to the Naib Tahsildar under Section 36 of the Tenancy Act on 23-7-1959. This application was resisted by the tenant on several grounds. The Naib Tahsildar, however, allowed the landlord's application on 22nd of March 1960 and ordered the tenant to deliver possession to the landlords. As against this order the tenant took an appeal to the Sub-Divisional Officer who, after considering the evidence recorded in the case and having dus regard to the arguments advanced on both the sides, reversed the decision of the Naib Tahsildar on all the counts and dismissed the landlords' application on 19th July, 1960. The landlords' being aggrieved by the decision of the Sub-Divisional Officer, filed a revision application before the Maharashtra Revenue Tribunal and that application was allowed by the Tribunal on 18-2-1961 and the landlords, accordingly, became entitled to recover possession of the land from the tenant. Following upon this decision of the Tribunal, the tenant filed the present petition in this Court under Articles 226 and 227 of the Constitution and challenged the validity of the order o the Tribunal.
(2.)It appears that while this writ-petition was pending in this Court, the landlords filed a civil suit in the Court of the Civil Judge, Senior Division, at Yeofmal for the recovery of rents from the tenant for a period of three years, that is to say, for the years 1958-59, 1959-60 and 1960-61. The tenant came to know about the; filing of this suit by the landlords and immediately thereafter, he made an application to this Court on 16-8-1961 for amendment of the petition to the effect that the landlords being the reversioners, by reason of their having filed a suit for rent, should be deemed, as a matter of law, to have ratified the original lease granted by Jani and, therefore, they could not be allowed to claim possession of the field from him. Rule was issued upon this application and it was served upon the landlords in due course. The landlords, however, do not seem to have cared to file any affidavit in reply to this application for amendment. At the time when the rule was issued upon this application it was ordered that it would be heard along with the present petition filed by the tenant. The petition as also this amendment application, accordingly, came up for hearing yesterday before us, and it was urged on behalf of the tenant by Mr. Qazi that in view of the conduct of the landlords in filing the suit for rent for the three years, the landlords had recognized the tenant as a tenant despite the order for possession made by the Maharashtra. Revenue Tribunal as aforesaid and that, accordingly, the landlords must be deemed to have waived their right to recover possession in pursuance of that right. Mr. Kherdekar, on the other hand, urged that 'waiver' was a question of fact and that there was not enough material before us in order to enable us to decide as to whether there was any such waiver on the part of the landlords by reason of their having filed the suit for recovery of rent against the tenant. He also invited our attention to some cases which, however, turned out to be those in which claims for damages were also included. Obviously, where in a suit for ejectment claim for damages is included by way of compensation for use and occupation of the premises after the termination of the tenancy, there could be no question of waiver at all on the part of the landlord. In one of the cases Puran Mal v. Onkar Nath, AIR 1959 Pat 128 there was a claim both for damages as well as rent--rent in respect of the period prior to the date of: the notice of ejectment and damages in respect of the period subsequent to the notice. In this case also, it was rightly held, with respect, that there could not be any question of waiver because the landlords had not asked for any rent from the tenant in the suit subsequent to the date of the notice. On the contrary, there are decisions wherein it has been definitely held that if in a suit for ejectment a prayer for rent has been included for a period subsequent to the date of the notice of ejectment, the suit itself would be bad and no decree for ejectment could be passed, because, by the very averments in the plaint itself, the plaintiff would be deemed to have waived his right to recover possession. See Abdul Rashid Khan v. Safer Ali, AIR 1918 Cal 552(2). In the present case, the landlords have not asked for any damages as such. As already stated, the notice of ejectment was given by the landlords to the tenant on 26-3-1959 under Section 39 (1) of the Tenancy Act. The notice required under the section is clearly one which seeks to terminate the tenancy of a tenant.
(3.)Mr. Kherdekar contended that merely by giving a notice under Section 39 (1), the tenancy was not terminated and that it would be terminated only when an order for possession was made. We are afraid, we cannot accept this contention. The wording of Sub-section (1) of Section 39 of the Tenancy Act is very clear in this behalf and it is as follows: "39. Right of certain landlords to terminate tenancy for cultivating personally: -- (1) Notwithstanding anything contained in Sections 9, 19 or 38 but subject to the provisions of sub-section (2), a landlord who holds an area not exceeding a family holding, may terminate such tenancy created by him not earlier than the first day of April 1957 as could have been terminated but for the provisions of the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Ordinance, 1957 or the Bombay Vidarbha Region Agricultural Tenants (Protection from Eviction and Amendment of Tenancy Laws) Act, 1957, by giving to the tenant a notice in writing and making an application for possession as provided in Sub-section (2) of Section 36 before 31-3-1959 if he bona fide requires the land for cultivating it personally." It is clear from this sub-section that a landlord can terminate the tenancy created by him by giving to a tenant a, notice in writing and making an application for possession as provided in Sub-section (2) of Section 36 within the period prescribed in the sub-section. In this case it is clear that not only the notice to terminate the tenancy was given on 26-3-1959, but also, the application for possession, as referred to in that sub-section, was made on 23-7-1959. With these two preliminaries completed, the tenancy of the tenant was terminated. We cannot, accordingly, accept Mr. Kherdekar's contention that the termination o the tenancy should wait till the order of possession in actually made.


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