- (1.) The short question of law that arises for consideration in this appeal, by grant of special leave under Art. 136 of the Constitution of India, is if a tenant under the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act') who surrendered the tenancy can be said to have been dispossessed so as to claim benefit under Sec. 32(1-B) of the Act added, in 1969 in Chapter III, dealing with "Special Rights and Privileges of Tenants and Provisions for Distribution of Land for Personal Cultivation".
(2.) For this purpose, it is necessary to state facts in brief. A suit was filed by Respondent 1 -plaintiff (referred to as plaintiff) against Respondent 2-defendant (referred to as the defendant) and the appellant-defendant 2 (referred to as the appellant), on the allegation that a conditional mortgage was executed by the plaintiff in favour of defendant in 1952 after getting the land surrendered from the appellant but since the defendant was not willing to hand over possession despite offer of paying the mortgage amount, a declaration may be granted that he was the owner of the land in dispute on payment of the mortgage amount to the defendant. In the written statement filed by the defendant it was claimed that he was the owner of the land in dispute. Apart from that, one of the pleas raised was that the land in dispute was let out by him to the appellant who was in possession since then. On the pleadings one of the questions that arose was whether the appellant was the tenant of the land in dispute. Since the question of tenancy could be decided by the revenue authorities only, two issues were framed to the following effect : 1. Does defendant 2 prove that he was a tenant over the suit land since prior to mortgage transaction dated June 23, 1952. 2. Does defendant 2 (present applicant) further prove that he is the tenant of defendant 1 over the suit land since 1952. The issues were referred for decision to the Sub-Divisional Officer. They were decided in favour of the plaintiff against which the appeal filed by the defendant and applellant was dismissed. The appellate authority held that the appellant was the tenant even in 1949 but he surrendered his tenancy at the time of mortgage by the plaintiff. It was further held that he was not the tenant from 1952 to 1968. And his claim was falsified by absence of his name in revenue records from 1956 to 1968. It was supported by drawing an inference against the appellant as the defendant did not refer to his tenancy in the reply sent by him to the notice sent by the plaintiff in 1969. The Revenue Trubunal, however, allowed the revision, setting aside the order passed by the two authorities and answered the issues referred to it in the affirmative in favour of the appellant. It found that the appellant had not surrendered in 1952. It was held that there was no iota of evidence to support it. In respect of second surrender in 1956 the Tribunal even after recording the finding that there was little doubt that the appellant had surrendered the possession held that the relationship of landlord and tenant between the appellant and the defendant did not cease. It was further held that surrender having been entered in revenue records in December 1956 and the law having been amended in August by Act XIII of 1956 making it obligatory for surrender to be in writing the surrender by the appellant was invalid. Consequently it found that as appellant was in possession of the land as tenant on June 15, 1955 and was dispossessed before April 1, 1957 otherwise than in the manner and by an order of the Tahsildar as provided in Sec. 29 he was entitled to benefit of Sec. 32(1-B) of the Act. The two issues were answered thus: "Issue No. 1. - Defendant 2 (i.e. the present revision applicant) does prove that he was tenant over the suit property since prior to the mortgage transaction dated June 23, 1952. Issue No. 2. - He further proves that he is undisputably the present tenant of the land and further he had not ceased to be so, despite his alleged surrender of possession in December 1956." Against this order the plaintiff filed a civil miscellaneous application before the High Court which was allowed and the order of the Tribunal was set aside. The High Court found that it was not disputed that the appellant was the tenant under registered lease deed executed on June 15,1949 nor was there any dispute that there was a conditional sale deed in favour of the defendant. Therefore, even though there was no evidence to support the surrender but since, under the provisions of the Act, no transfer of interest was possible without the consent of the tenant, as he alone was entitled to purchase the land, an inference in law arose that when conditional mortgage was executed the tenant must have surrendered the land in dispute in favour of the plaintiff. This finding was supported by the statement of the appellant who, appears to have, admitted in his depostion that there was a surrender and the defendant was put in possession of the land. It was further held that appearance of appellant's name in revenue records did not negative surrender. The appellant was tenant of plaintiff since 1949 till surrender and of defendant from 1952 till he surrendered again in 1956. The High Court found it as a fact that the appellant continued in possession of the land till he surrendered in 1956. The High Court held that surrender was proved by entry in December 1956. When was the actual surrender made could have been proved by the defendant. In absence of any evidence led by defendant the Court inferred that it must have been made prior to August 1956. The factum of surrender stood proved by follow-up action of not only deletion of appellant's name from record but its absence till the plaintiff gave notice in 1969. Since the Tribunal in recording finding on both the surrender misdirected itself by not adverting to relevant material and drawing on conjectures the High Court was well within its jurisdiction to set aside the order. The High Court found that the entry having appeared in 1968-69 it was clear that the tenant was not in possession from 1956-57 till 1968-69. Further since the appellant did not move any application within two years under Sec. 29 of the Act, his remedy to recover possession became barred by limitation. It also held that since the remedy was lost the right of the appellant extinguished. The High Court disagreed with the Tribunal on collusion between the appellant and the defendant and held that it exceeded its jurisdiction in setting aside the finding of the two authorities on this score.
(3.) Two questions arise in this appeal, one if the High Court was right, in law, in negativing claim of the appellant under Sec. 32(1-B) and other if the Tribunal in setting aside the finding on collusion in revision exceeded its jurisdiction. Out of the two it is proposed to take up legal issue on applicability of Sec. 32(1-B) as if the appellant cannot successfully assail this finding then the finding on collusion becomes academic only. Section 32(1-B) of the Act is extracted below : "Where a tenant who was in possession on the appointed day and who on account of his being dispossessed before the 1st day of April 1957 otherwise than in the manner and by an order of the Tahsildar as provided in Sec. 29, is not in possession of the land on the said date and the land is in the possession of the landlord or his successor-in-interest on the 31st day of July 1969 and the land is not put to a non-agricultural use on or before the last mentioned date, then, the Tahsildar shall, notwithstanding anything contained in the said Sec. 29, either suo motu or on the application of the tenant, hold an inquiry and direct that such land shall be taken from the possession of the landlord or, as the case may be, his successor-in-interest, and shall be restored to the tenant; and thereafter, the provisions of this section and Secs. 32-A to 32-R (both inclusive) shall, insofar as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased the land on the date on which the land is restored to him : Provided that, the tenant shall be entitled to restoration of the land under his sub-section only if he undertakes to cultivate the land personally and of so much thereof as together with the other land held by him as owner or tenant shall not exceed the ceiling area." The section entitles a tenant to restoration of possession provided he was in possession on the appointed date, i.e., June 15, 1955 and was dispossessed before April 1, 1957 and his landlord was in possession on July 31, 1969. The section is, thus, in two parts - one creating right and other entitling restoration of possession. Proceedings for restoration could take place either at the instance of the tenant or suo motu by the Tahsildar. But the order could be passed only if the primary requirements of tenant being in possession on the appointed date and his dispossession before April 1, 1957 were satisfied. The language of the latter part of the section directing the Tahsildar to take possession of the land from the landlord and restore it to the tenant who on restoration by operation of law becomes purchaser from the date of restoration are clear legislative indications to construe the section liberally in favour of the tenant. What happens if a tenant who satisfied the requirements as provided in the section is found to be in possession on July 31,1969 Could he be evicted in any proceeding even though he satisfied the requirement of being in possession on appointed date and was evicted before April 1, 1957 Would such construction of the section be in consonance with the spirit of the Act On the language the sub-section does not grant any protection to a tenant who was in possession on July 31, 1969. But reading the section in such a narrow manner would be defeating the legislative objective of enacting a beneficent legislation endeavouring to make the tillers of soil as purchaser and owner. This is clear from amendments made in Sec. 32 from time to time between 1957 to 1969. When Sec. 32 was renumbered and sub-section (1) was added in 1957, April 1, 1957 was declared as Tillers' date and it was provided that every tenant who was one of those mentioned in the sub-section and was cultivating the land personally was entitled to become purchaser of such land from his landlord free of all encumbrances subsisting on that date. In 1958 similar rights were granted by sub-section (1-A) added to Sec. 32, to those tenants who had been evicted prior to the Tillers' date and were not in possession but had made an application for possesstion of the land under sub-Sec. (1) of Sec. 29. In 1969 yet another right was granted by Sec. 32(1-B) which has been extracted above. There can, thus, be no doubt that the legislature intended not only to grant rights to those tenants who were in possession but also to restore the land from which the tenant had been evicted prior to 1957 on satisfying the conditions mentioned in Sec. 32(1-A) and (1-B) and make such a person on restoration of possession, purchaser of the land. What happens if a tenant who is otherwise entitled to restoration of possession due to operation of the first part of the section is found to be in possession after July 31,1969 either with permission of the landlord or in any other manner Is such a tenant liable to eviction The answer should be in the negative as it would result in conferring higher rights on a person who is not in possession than a person who is in possession. In our opinion, Sec. 32 (1-B) should be construed in a manner which must effectuate the legislative objective of making every tenant purchaser of the land if he satisfies the conditions laid down in Sec. 32(1-B) of the Act whether he was in possession or not.;