Decided on February 21,1962

Panchfulabai Bapubao Deshmukh Appellant

Referred Judgements :-



ABHYANKAR,J. - (1.)This judgment will also govern the disposal of Special Civil Applications Nos. 209 and 210 of 1961.
(2.)THE petitioner Panchfulabai claims to be a protected lessee of field S.No. 30, area 28 acres 20 gunthas, revenue Rs. 12, situate at mauza Sakhra Khurd, in Kelapur taluq of Yeotraal district. Respondent No. 2 Shankarrao Mankar was the landholder of this field. This field was in cultivating possession of one Kesheo who was a minor son of the petitioner. Kesheo was in possession of the land as a protected lessee on January 1, 1953. It appears that Shankarrao had leased out another field S. No. 33 to Bapurao, father of Kesheo. Shankarrao filed a suit for arrears of lease money in the civil Court against Bapurao. It is riot clear from the record whether the protected lessee Kesheo was impleaded in that suit. During the pendency of the suit on May 3, 1956, a compromise was arrived at between the landholder Shankarrao and Bapurao, the tenant. It is alleged that as a result of this compromise over and above the payment of arrears of lease money being made, the rights as a protected lessee in respect of S. No. 30 were also surrendered by Kesheo in favour of the landholder Shankarrao, the plaintiff. Shankarrao obtained possession as a result of this compromise in respect of S. No. 30 in that suit. Subsequently, Shankarrao sold field No. 30 to respondent No. 3 Ragho and respondent No. 4 Jaita, each having purchased different portions of the same field. Thus, the admitted position is that from May 12, 1956, Kesheo was not in possession of the property.
The Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, Act XCIX of 1958, came into force in the Vidarbha Region on December 30, 1958. Kesheo made an application on June 29, 1959, before the Naib Tahsildar under Section 10(1) read with Section 36(1) of the said Bombay Tenancy and Agricultural Lands Act, which will hereafter be referred to as the new Tenancy Act. Kesheo's application was founded on the allegation that he was dispossessed of field S.No. 30 by Shankarrao on May 3, 1956, under compulsion and that he and his father were harassed by civil and criminal proceedings pending against them and under pressure they were made to surrender the tenancy by a writing dated May 3, 1956. The alleged writing is not on the record of this case nor either party has included the same in the Paper Book. It is not, therefore, possible to ascertain what are the terms on which the surrender of tenancy was effected under the document. After this application was filed, Kesheo died on August 18, 1959, and in his place, the name of the present petitioner Panchfulabai was substituted by the Naib Tahsildar on October 26, 1959. The application for possession was resisted by respondents Nos. 2 to 4. The written statement filed by the respondents is not on record but it would appear from the order of the Naib Tahsildar that the defence was that there was a valid surrender on May 3, 1956, as a result of the compromise of the civil suit. If the protected lessee was in any way aggrieved by the compromise, it was open for him to seek redress under Section 19(2) of the Berar Regulation of Agricultural Leases Act. This not having been done, the tenant was not entitled to claim possession under Section 10(1) of the new Tenancy Act. No other specific plea seems to have been raised in the first Court. The Naib Tahsildar rejected the application of Panchfulabai holding that the provisions of the new Tenancy Act did not apply to the case as the rights obtained by the landholder Shankarrao were preserved under Section 132(2) of the new Tenancy Act.

(3.)THE tenant Panchfulabai preferred an appeal before the Deputy Collector with appellate powers. The Deputy Collector rejected the contention of the landholder and the transferee that Kesheo or Panchfulabai who claimed to step in his shoes was not a protected lessee at the relevant time. The appellate authority accepted the evidence of Bapurao, father of Kesheo, that the laud was relinquished because of the pressure of the civil suit. It, therefore, held that the case clearly fell under the provisions of Sub -sections (1) and (2) of Section 10 of the new Tenancy Act and in that view ordered restoration of possession to the petitioner. The appellate authority made a reference to the decision of the Bombay Revenue Tribunal in Lachanna v. Baliram [1958] N.L.J. 224 but held that the decision was not applicable nor the provisions of the Transfer of Property Act. It also held that Section 132 (2) of the new Tenancy Act did not safeguard interests of the landholders, or the transferees in the manner contended by them.

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