NAGESH JANARDAN KULKARNI Vs. JINNAPPA SHIDDAPPA SAMAYI
LAWS(BOM)-1954-7-21
HIGH COURT OF BOMBAY
Decided on July 29,1954

Nagesh Janardan Kulkarni Appellant
VERSUS
Jinnappa Shiddappa Samayi Respondents

JUDGEMENT

M.C.CHAGLA, J. - (1.)THIS appeal arises out of a suit filed by the plaintiff for a declaration that he is a permanent tenant of defendant No. 2 and the suit came to be filed by the plaintiff under the following circumstances. The land in question is survey No. 184 of Yemakamnardi and the landlords were defendants Nos. 1, 2 and 3, and on partition between them the land in question went to the share of defendant No. 2. Defendant No. 2 denied the permanent tenancy of the plaintiff and his case was that the plaintiff was an ordinary tenant and the tenancy was surrendered by the plaintiff in 1938 and that being done, defendant No. 2 gave the tenancy to defendant No. 5 on April 11, 1938. The plaintiff instituted proceedings before a Magistrate under Section 145 of the Criminal Procedure Code. The Magistrate did not give any decision and left the parties to agitate their rights in a competent Court. The Magistrate however appointed a receiver of the land in question and the receiver let out the land to defendant No. 4. The learned trial Judge has held that the plaintiff is a permanent tenant. He has also held that the plaintiff was in possession of the property till the property was attached by the Magistrate under Section 145, and that the defendants' plea that the plaintiff's suit was barred by limitation had not been established. A further question also arose before the learned Judge and that was whether defendant No. 4 had acquired the right under the Tenancy Act to hold possession of the property as a tenant for ten years from 1946, and that contention of defendant No. 4 was negatived by the learned Judge. The learned Judge therefore gave a declaration as sought by the plaintiff and also passed a decree for possession against defendants Nos. 1 to 5. It is from that decision that defendants Nos. 2 and 5 have appealed, which is appeal No. 688 of 1950. Defendant No. 4 has also appealed, which is appeal No. 689 of 1950.
(2.)MR . Datar, who appears for these appellants, contends that the civil Court has no jurisdiction to try the issue with regard to whether the plaintiff was a permanent tenant or not. Our attention is drawn to Section 70 of the Tenancy Act which confers upon the Mamlatdar the jurisdiction to decide whether a person is a tenant or a protected tenant, and it is pointed out that under Section 85 the jurisdiction of the civil Court has been barred with regard to all matters which are to be settled, decided or dealt with by the Mamlatdar under the Act. Mr. Adarkar contends that the power of the Mamlatdar under Section 70 does not extend to deciding a question whether a person is a permanent tenant or not. Mr. Adarkar says that his client's contention is not that he is a tenant, but that he is a permanent tenant and Mr. Adarkar says that permanent tenancy is a concept of law different from that of tenancy. A permanent tenant enjoys rights which are higher and in a certain sense different from rights enjoyed by a tenant, and the Legislature never intended that the Mamlatdar should decide complicated questions that would arise in determining the question as to whether a person is a permanent tenant or not. In this particular case the plaintiff's case is that he is a permanent tenant by reason of the provisions of Section 83 of the Bombay Land Revenue Code ; in other words, he is not in a position to rely on any grant or lease, but he relies on the presumption of law that arises by reason of the antiquity of his tenancy. Now strictly there is no distinction between a tenant in whose favour a lease is executed in perpetuity and a tenant who is a permanent tenant by reason of a lost grant. The Transfer of Property Act in terms provides for a perpetual lease. In that sense our law is different from English law which does not recognise a perpetual tenancy. But whether a tenant is a permanent tenant by reason of an express lease or an express grant or he is a tenant by reason of the antiquity of his tenancy, he is a tenant on a lease and the duration of the lease is perpetuity.
Now, in this particular case the contest between the plaintiff and defendant No. 2 is this. Defendant No. 2 contends that the plaintiff is not a tenant at all and that his tenancy came to an end in 1938. Therefore, according to defendant No. 2, the plaintiff is a trespasser. Therefore the Court will have to decide whether the plaintiff is a trespasser as alleged by defendant No. 2 or he is a tenant as alleged by the plaintiff. Therefore in substance what the civil Court is called upon to decide is the question of the status of the plaintiff. Is he a trespasser or is he a tenant? It seems to us that that is the very question which the Legislature has left for the decision of the Mamlatdar. It would not be correct to say that the plaintiff is contending that he is a permanent tenant and is not contending that he is a tenant. A permanent tenant is also a tenant. The expression 'permanent' merely emphasises the duration of the tenancy. But where a question of status arises, the contradistinction is not between a tenant, the duration of whose tenancy is a particular period, and a tenant the duration of whose tenancy is some other period, but the contradistinction arises between a tenant on the one hand and a trespasser of the other. Therefore it does seem, looking to the language used in Section 70(b) and Section 85 that the Legislature did intend to oust the jurisdiction of the civil Court where the question arose as to whether a person was a tenant in order to repel the contention of the other side that he was a trespasser.

(3.)IT is urged by Mr. Adarkar that the Bombay Tenancy and Agricultural Lands Act was not passed to protect permanent tenants, and therefore it is urged that under Section 70 the duties of the Mamlatdar are to be performed only for the purposes of the Act and if a permanent tenant is not within the ambit and purview of the Tenancy Act, then the Mamlatdar cannot discharge the duties imposed upon him under Section 70. In our opinion, it is not possible to take the view that the Bombay Tenancy Act does not apply to permanent tenants. It may be that a permanent tenant does not need the protection which the law has now given to an ordinary tenant and a protected tenant, but the definition of 'tenant' in Section 2 is wide enough to cover a case of a permanent tenant, and there can be no doubt that with regard to the machinery provided by the Act for taking possession, that machinery would apply as much to a permanent tenant as to a protected or an ordinary tenant. Take for instance Section 29(1). That provides for the manner in which a tenant who is entitled to possession can obtain possession, and he can only do so provided he applies to the Mamlatdar. If the plaintiff was dispossessed and he wanted possession back, he could only get possession provided he followed the procedure laid down in Section 29(1), and in order that he should get possession the Mamlatdar would have to decide whether he is a tenant or not. The question as to the duration of his tenancy might be only relevant for the purpose of deciding whether he is a tenant. Therefore, in our opinion, it cannot be said that the Mamlatdar has not to decide questions indicated in Section 70 where the party concerned is a permanent tenant.


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.