SURYAKANT RAMCHANDRA MUDAKE Vs. SHIVLINGA VISHWANATH GHONGADE
LAWS(BOM)-1972-4-11
HIGH COURT OF BOMBAY
Decided on April 12,1972

SURYAKANT RAMCHANDRA MUDAKE Appellant
VERSUS
SHIVLINGA VISHWANATH GHONGADE Respondents

JUDGEMENT

- (1.) THE appellant-plaintiff filed Regular civil Suit no. 675 of 1962 out of which the present appeal arises, for mesne profits in respect of half of the land Survey No. 247/1 situate in village of Mardi in Taluka North Sholapur of Sholapur District, for the years from 1957-58 to 1961-62. The plaintiff alleged that he had filed Tenancy Case No. 288 of 1957 against the respondent-defendant, who was his tenant in respect of the whole of the land Survey No. 247/1, for possession on the ground that he required the land bona fide for personal cultivation. The notice terminating the tenancy was issued with effect from 31st December 1956 and thereafter he filed the application under Section 31 of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter called "the Act") for possession. The Mamlatdar dismissed the application on 31st August 1957. The plaintiff then went in appeal to the Deputy Collector and the Deputy Collector in appeal ordered delivery of possession of half of the suit land, that is to say, 5 acres and 17 1/2 gunthas, on 7th June 1958. The defendant then went in revision to the Revenue Tribunal. The Tribunal confirmed the order of the Deputy Collector on 14th October 1960. It appears that thereafter the defendant filed Special Civil Application under Article 227 of the Constitution of India in this Court. But we do not know from the record nor either of the learned Counsel could state, whether that application was summarily dismissed or was dismissed after hearing the parties on both the sides. We also do not know from the record when the Special Civil Application was filed in this Court and on which date it was imposed of. Thereafter the plaintiff obtained possession of the land on 21st January 1962. The plaintiff, therefore, contended that since the tenancy was terminated till he obtained possession the possession of the defendant was wrongful and, therefore, he was entitled to the mesne profits for the whole of this period from 1957-58 to 1961-62. The defence was that the suit was not maintainable because the possession of the defendant who was a statutory tenant after the termination of the tenancy could not be said to be wrongful, and that all that he was liable to pay to the plaintiff even after the termination of the tenancy was rent which he paid till the end of the year 1961-62. As regards the quantum of mesne profits, the defendant contended that the claim was excessive. Lastly he also claimed compensatory costs.
(2.) THE learned trial Judge, relying on Brigadier K. K. Varma v. The Union of India, 56 Bom LR 308 = (AIR 1954 Bom 358) came to the conclusion that the defendant could not be held to be a trespasser and that his possession being juridical the plaintiff was not entitled to mesne profits. He, therefore, dismissed the suit with costs. The plaintiff then went in appeal to the District Court in Civil Appeal No. 615 of 1963. The learned appellate Judge also took the view that in view of the provisions of Section 31 read with Sections 29 and 73 of the Act and the decision in 56 Bom LR 308 = AIR 1954 Bom 358, the possession of the defendant could not be said to be wrongful and, therefore, the plaintiff was not entitled to mesne profits. The learned appellate Judge, therefore, confirmed the decree of the trial Court and dismissed the appeal with costs. Being aggrieved by this judgment and decree, the plaintiff has come in second appeal to this Court.
(3.) NOW, the learned Counsel Mr. J. R. Lalit, appearing on behalf of the appellant-plaintiff has relied upon Balkissan v. Tukaram (1966) 68 Bom LR 874, and has argued that though he has claimed mesne profits from the date of termination of the tenancy, in view of the decision of this Court, the possession of the defendant became wrongful from the date of the order of the Mamlatdar passed under Section 29 (2) of the Act and, therefore it is from this date that the plaintiff would be entitled to mesne profits. I have already pointed out that in the instant case, the application of the plaintiff for possession under Section 31 read with Section 29 (2) of the Act was dismissed by the Mamlatdar and that order was set aside by the Deputy Collector in appeal and it was the Deputy Collector who ordered delivery of possession under Section 29 920 read with Section 7891) of the Act. It could, therefore, have been argued that inasmuch as the order of delivery of possession was passed by the Deputy Collector setting aside the order of dismissal fo the application by the Mamlatdar under S. 29 (2) read with Section 78 (1) of the Act, the possession of the defendant became wrongful from that date that is to say, from 7th June 1958. But the learned Counsel Mr. Lalit has drawn my attention to the observations made by this Court in the aforesaid decision at p. 877. These observations run thus : - "no doubt, the difficulty would arise if the Mamlatdar refuses possession in which case the landlord has to file an appeal. But then since the terminus a quo is the Mamlatdar's order, the Collector in appeal does nothing but that what the Mamlatdar ought to have done and in my view therefore, when an order of the Mamlatdar refusing to deliver possession either on appeal or revision or a further application to the high Court is made, it must relate back to the date of the Mamlatdar's order refusing to deliver possession, and, that being so, in effect, therefore the order must be deemed to have been made when the Mamlatdar made his earliest order. This view will not create any difficulty even in a case where the Mamlatdar has directed possession to be revised in appeal or revision, because even there also it would be the order the Mamlatdar ought to have made. . . . . . . . . . . . " It is because of these observations of this Court that the learned Counsel Mr. Lalit has argued that the plaintiff in this case is entitled to the mesne profits from the date of the order of dismissal of the application passed by the Mamlatdar on 31st August 1957.;


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