RAMCHANDRA ANANT JOSHI Vs. JANARDAN TULSHIRAM GHUGE
LAWS(BOM)-1962-8-34
HIGH COURT OF BOMBAY
Decided on August 24,1962

RAMCHANDRA ANANT JOSHI Appellant
VERSUS
JANARDAN TULSHIRAM GHUGE Respondents


Cited Judgements :-

NETHRAM VS. SHANKARLAL DHORULAJI PALIWAL [LAWS(BOM)-1966-6-1] [REFERRED TO]
MADHAO TATYA SONAR VS. MAHARASHTRA REVENUE TRIBUNAL AT NAGPUR [LAWS(BOM)-1969-9-6] [REFERRED TO]
SURYAKANT RAMCHANDRA MUDAKE VS. SHIVLINGA VISHWANATH GHONGADE [LAWS(BOM)-1972-4-11] [REFERRED TO]
DADU NANUBHAI BHAGOJI PATIL VS. RAMAKANT DATTATRAYA DESHPANDE [LAWS(BOM)-1997-11-52] [REFERRED TO]
ATMARAM ONKAR TALELE VS. ANANDA SHRAWAN KOLAMBE [LAWS(BOM)-1969-8-9] [REFERRED TO]
YADAV YESHWANT MALI VS. PUNDLIK PANDURANG PATIL [LAWS(BOM)-1970-12-8] [REFERRED TO]
PATEL CHUNIBHAI DAJIBHA VS. NARAYANRAO KHANDERAO JAMBEKAR ANOTHER [LAWS(SC)-1964-12-10] [REFERRED.]
NAMDEO VISHNU JOSHI VS. RAGHUNATH GANU KADAM [LAWS(BOM)-1974-1-6] [REFERRED TO]
DATTATRAYA SADASHIV DHOND VS. GANPATI RANGHU GAOLI [LAWS(BOM)-1965-3-26] [REFERRED TO]
BALKISAN GAMBHIRSHET AGARWAL VS. TUKARAM SHAHADU MALI [LAWS(BOM)-1966-4-8] [REFERRED TO]


JUDGEMENT

Chainani, C.J. - (1.)The petitioners landlords had given a notice to their tenant opponent No. 1 before 3ist December, 1956 under Section 31 of the Bombay Tenancy and Agricultural Lands Act terminating the tenancy on the ground that they requited the lands bona fide for personal cultivation. Subsequently before 1st March 1957, they made an application to the Mamlatdar for obtaining possession of the lauds on the ground that they required them for personal cultivation. That application has not yet been finally disposed of and the matter is pending in appeal before the Deputy Collector. During the pendency of that application on 17th July 1958, the petitioners gave another notice to opponent No. 1 under Section 14 of the Act terminating the tenancy on the ground of defaults in the payment of rent. On nth December 1958, the petitioners made an application under Section 29 read with Section 14 to the Mamlatdar for obtaining possession of the lands on the ground that there were defaults in the payment of rent for the years 1953-54 to 1957-58. The Tenancy Aval Karkun directed that possession of the lands should be restored to the petitioners. His order was set aside in Appeal by the Deputy Collector, as according to the Deputy Collector the second application made for possession by the petitioners on nth December 1958 was not maintainable. The order of the Deputy Collector has been confirmed in revision by the Revenue Tribunal. Against that order, the present special Civil Application has been filed.
(2.)The Division Bench, before which this application came up for hearing, has referred the following two questions to the Full Bench:
"Whether the landlords' application for pos-session-under Section 29 read with Section 14 was not tenable on the ground that the landlords, having once terminated the tenancy under Section 31 of the Act. were not entitled to terminate the tenancy again on any of the grounds mentioned in Section 14 of the Act; and Whether the landlords' application under Section 29 read with Section 14 was not tenable on the ground that it was filed after the 31st of March 1957."

(3.)In regard to the first question, the principal argument, which has been advanced on behalf of the tenant, is that the tenancy having been already terminated by a notice given under Section 31, there was no tenancy in existence thereafter, which could be terminated by the second notice and that consequently the second application, in which possession was claimed on the basis of termination of a tenancy, which did not exist, was not maintainable. There does not appear to be much force in this argument. It assumes that a notice given by the landlord always results in determination of the tenancy. If the notice is for any reason detective, it will have no effect and the tenancy will cotinue. The landlord may also waive the notice in some cases with the assent of the tenant and in others, like those involving forfeiture, without such assent. For instance, if after giving a notice under Section 31, the landlord does not follow it up with an application for possession to the Mamlatdar, the notice will be deemed to have been waived. The consequence of waiver is to revive or restore the old tenancy, see Mulla's Transfer of Property Act, p. 696, fourth edition-The giving of a notice determining the tenancy will not therefore preclude the landlord from giving another notice. It is also clear from the provisions of Section 113 of the Transfer of Property Act and Illustration (b) to this section that under the ordinary law a second notice for terminating the tenancy can be given. Clause (h) in Section 111 of the Transfer of Property Act provides that a lease of immovable property determines on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. Section 113 states that a notice given under Section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Illustration (b) to this section is as follows :
"A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived."
This Illustration makes it clear that a second notice to quit the property leased may be given even though a similar notice has been given previously. It is not necessary for us to consider in this case what the consequences of the second notice will be. These will depend upon the facts and circumstances of each case. . The second notice may in certain circumstances result in a waiver of the first notice. If it is given without prejudice to the rights created by the first notice, it may furnish to the landlord an alternative ground for obtaining possession of the property leased. If there is no waiver and if the lease came to an end by reason of the first notice, the second notice may become ineffective. On the other hand, the first notice may for some reason not be effective in terminating the tenancy and the second may be. But whatever may be the effect of the second notice, it is not invalid, merely because another notice terminating the tenancy has been already given. This is the position under the ordinary law and the position under the Tenancy Act cannot be different. In fact Section 3 of the Tenancy Act states that the provisions of Chapter V of the Transfer of Property Act shall, in so far as they are not inconsistent with the provisions of the Tenancy Act, apply to the tenancies and leases of land to which the Tenancy Act applies. Section 29 of the Tenancy Act stales that no landlord shall take possession of any land held by a tenant except under an order of the Mamlatdar. A landlord cannot therefore obtain possession of the land from his tenant, even if the tenant is willing to hand over possession to him. He has to approach the Mamlatdar for the purpose. Under the ordinary law, if a tenant continues in possession after his tenancy has been determined, his possession is protected by law and he cannot be ousted except in due course of law, but he has no right to possession after the termination of tenancy. Under the Tenancy Act, however, even after his tenancy has been determined by a notice given by his landlord, the tenant has a legal right to continue in possession, until the Mamlatdar has made an order for possession being restored to the landlord. During the intervening period, the tenant has an estate in possession, of which he can only be deprived by an order of the Mamlatdar. A landlord cannot say for certain whether his application for possession based on the termination of the tenancy by him will be granted by the Mamlaldar. Consequently, if during the above period, i.e. the period between the termination of the tenancy by a notice given by the landlord and the disposal of the application for possession made to the Mamlatdar by the landlord, another ground for taking back possession of the land under the provisions of the Tenancy Act becomes available to the landlord, there is no reason why he should not be able to terminate the lenancy and apply for possession on that ground also. It seems to us, therefore, that even after the landlord has terminated the tenancy by giving a notice under Section 31, it is open to him to give another notice intimating to the tenant his intention to terminate the tenancy under Section 14 and to approach the Tenancy Court for possession on the grounds mentioned in this Section 14.


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