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PETITIONER: DR. TARAKPRASAD RAJARAM

       Vs.

RESPONDENT: SMT. VESTA UKARA (DEAD) BY LRS. AND ORS.

DATE OF JUDGMENT18/09/1990

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) PANDIAN, S.R. (J)

CITATION:  1991 AIR 1034            1990 SCR  Supl. (1) 514  1991 SCC  Supl.  (1)  63 JT 1990 (4)   363  1990 SCALE  (2)744

ACT:     Bombay  Tenancy and Agricultural Lands  Act,  1948--Sec- tions    29,    31-A(d)--Eviction     application--Maintain- ability--Conditions--person  obtained right  by  assignment, transfer  or by auction sale or otherwise including gift  or will--Not ‘Landlord’--Legislative intention of.

HEADNOTE:     Appellant on behalf of minor landlord, who got title  by will, initiated eviction proceeding against the  respondent- tenants  under Section 29 read with section 31-A(d)  of  the Bombay  Tenancy and Agricultural Lands Act. 1948 before  the Mamlatdar on the ground of bona fide requirement of the land for  his  personal cultivation.  Respondent  tenants  raised preliminary objection on the question of maintainability  of the suit on the ground that as the appellant, being a trans- feree of the land and having not inherited the same was  not the  ’landlord’ under Section 31-A. Upholding the  objection of the Respondents the Mamlatdar dismissed the  application. Appellant’s appeal before District Deputy Collector and  his revision  before the Revenue Tribunal were dismissed.  Chal- lenging  the orders of the Revenue Courts, writ  application was  filed in the High Court, which was also  dismissed  and against which the present appeal was filed. Dismissing the appeal, this Court,     HELD:  1.  Section 31(d) requires that the name  of  the person  applying  for the eviction of the tenant or  of  his ancestors  should be recorded as landlord in the  record  of rights  on  1.1.1952 and he should further  be  recorded  as landlord on the appointed day, namely. 15.6.1955. Both these conditions are required to be fulfilled before a suit or  an application  is maintainable by a landlord for the  eviction of  the  tenant.  If either of the two  conditions  are  not satisfied,  the application for eviction the tenant  is  not maintainable. The provisions of clause (d) further  provides that even if the landlord’s name is not recorded, but if the name  of his ancestor is recorded similarly if the  landlord is  a  member  of joint family, the name of  any  member  is recorded the application would be maintainable. This  provi- sion indicates the legislative intent that a person succeed- ing to the property from his ancestor is

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515 entitled  to  maintain  the application for  eviction  of  a tenant  provided he fulfils other conditions. But  a  person who  may  have obtained right to the  agricultural  land  by assignment,  transfer, or by auction sale or in any  similar mode,  is not included within the expression  of  ’landlord’ entitling him to evict the tenant.     2. After the amendment of Section 31A(d) the Legislature made  it clear that transferees and assignees  from  persons whose  name may be appearing in the record of rights  during the  relevant period are not to be treated as landlords  for the  purposes of the Section. The expression ’or  otherwise’ occurring  in  clause (d) indicates that a  person  claiming title  by transfer, assignment, court sale or in  any  other mode  like  gift, or will even from ancestor will not  be  a landlord for the purposes of the Section. A person  inherit- ing  property from his ancestor would be  landlord  provided his  ancestor’s name appears in the record of rights  during the  required  period. But a person claiming  title  on  the basis  of  transfer, assignment. auction sale  or  otherwise including  gift or will from the predecessors-in-title  even though he may be his ancestor, and his name may be  recorded in the record of rights during the required period, will not be entitled to maintain a suit for eviction of a tenant. The Legislature placed this restriction in order to protect  the interest  of  the tenants and to prevent  avoidance  of  the restrictions  placed by the ceiling laws. In the absence  of any  such  provision a landlord could transfer land  to  his descendents by gift or will to evade the ceiling law and  to evict  tenants. Under Section 31-A(d) such a beneficiary  is not entitled to maintain a suit for the eviction of a tenant from the agricultural holding as he would not be a  landlord within the meaning of the Section.     Waman  Ganesh Joshi v. Ganu Guna Khapre, 61 Bombay  L.R. 1267;  Khalliulla Hasmiya v. Yesu, 50 Bombay L.R.  201;over- ruled.     Bhanushanker  Ambalal  v. Laxman Kala  &  Ors.,  [1960], Gujarat Law Reporter 169, approved.     Umraomiya Akbartniya Malek v. Bhulabhai Mathurbhai Patel JUDGMENT: Appeal No. 112/63 decided on 3.3. 1972 (High Court of  Guja- rat) referred.

&     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  786  of 1976.     From  the  Judgment and Order dated 12.1.  1976  of  the Gujarat  High Court in Special Civil Application No. 873  of 1970. 516 P.H. Parekh for the Appellant. Krishan Kumar for the Respondents. The Judgment of the Court was delivered by     SINGH,  J. This appeal is directed against the  judgment and order of the High Court of Gujarat dismissing the appel- lant’s writ petition made under Article 227 of the Constitu- tion  of India challenging the validity of the order of  the Revenue Courts in dismissing the appellant’s suit for  evic- tion of respondents.     Briefly,  the facts giving rise to this appeal are:  the respondents are tenants of agricultural land which had  been let  out to them by the  appellant’s  predecessors-in-title. The  appellant  made applications on behalf of  minor  Ashok

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Kumar for the eviction of the respondents on the ground that the  agricultural land in dispute was bona fide required  by the  landlord  for his personal cultivation.  The  appellant pleaded that the land in dispute had been bequeathed to  him by his maternal grandmother under a Will and as such he  was the  landlord of the disputed land entitled to maintain  the applications  for eviction of the respondents under  Section 29 read with Section 3 IA of the Bombay Tenancy and Agricul- tural Lands Act 1948 (hereinafter referred to as the Act) as applicable  to  the State of Gujarat. The tenants  raised  a preliminary objection to the maintainability of the suit  on the ground that the appellant being a transferee of the land from  his maternal grandmother was not entitled to  maintain the  suit as a landlord under Section 31A of the Act,  inas- much  as he had not inherited the property from  his  ances- tors.  The  Mamlatdar upheld the preliminary  objection  and dismissed the eviction’ suit. On appeal the District  Deputy Collector  upheld the order of the Mamlatdar. The  appellant preferred  revision application before the  Gujarat  Revenue Tribunal at Ahmedabad but the same too was dismissed uphold- ing the tenants’ objection. The appellant thereafter filed a writ  petition under Article 227 of the Constitution  before the High Court challenging the correctness of the view taken by  the  Revenue Courts. The High Court by its  order  dated 12.1.  1976 dismissed the writ petition on the finding  that the  view taken by the Revenue Courts in upholding the  ten- ants’ objection to the maintainability of the eviction  suit was correct. The appellant has preferred this appeal against the aforesaid order of the High Court.     There is no dispute that under Section 31A of the Act  a landlord  has a right to determine tenancy  of  agricultural land and to evict the 517 tenant on fulfilling the conditions prescribed therein.  The conditions prescribed are that if the landlord has no  other land of his own and if he has not. been cultivating  person- ally  any other land, he is entitled to take  possession  of the  land let out to a tenant to the extent  of  permissible ceiling area. If the land cultivated by the landlord person- ally  is less than the ceiling area he is entitled  to  take possession of so much area of land as would be sufficient to make up the area in his possession to the extent of  ceiling area.  further the income by the cultivation of the land  of which he is entitled to take possession should be the  prin- cipal source of income for his maintenance. These conditions as  laid down in clauses (a), (b) and (c) of Section 31A  of the Act must be satisfied for making an application for  the eviction of a tenant from agricultural land. In addition  to these  conditions, clause (d) further prescribes  additional conditions  which  must also be fulfilled by  the  landlord. Section  31A(d)  as amended by the Gujarat Act  No.  XVI  of 196(1 reads as under: "31.A  The  right of a landlord to terminate a  tenancy  for cultivating  the land personally under Section 31  shall  be subject to the following conditions.  (a)  ..............................................  (b)  ..............................................  (c)  ..............................................  (d)  The land leased stands in the record of rights  or  in any  public record or similar revenue record on the 1st  day of  January, 1952 and thereafter during the  period  between the  said  ,date and the appointed day in the  name  of  the landlord himself. or of any of his ancestors (but not of any person from whom title is derived, whether by assignment  or Court sale or otherwise) or if the landlord is a member of a

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joint family, in the name of a member of such family." The above provision primarily requires that the name of  the person  applying  for the eviction of the tenant or  of  his ancestors  should be recorded as landlord in the  record  of rights  on  1.1. 1952 and he should further be  recorded  as landlord  on  the appointed day, namely,  15.6.  1955.  Both these conditions are required to be fulfilled before a  suit or  an  application is maintainable by a  landlord  for  the eviction of the tenant. If either of the two conditions  are not  satisfied, the application for eviction of  the  tenant will not be maintainable. The provision 518 of  clause (d) further provides that even if the  landlord’s name  is  not recorded. but if the name of his  ancestor  is recorded  similarly  if the landlord is a  member  of  joint family,  the name of any member is recorded the  application would be maintainable. This provision indicates the legisla- tive  intent that a person succeeding to the  property  from his  ancestor  is entitled to maintain the  application  for eviction  of a tenant provided he fulfils other  conditions. But a person who may have obtained right to the agricultural land  by assignment, transfer, or by auction sale or in  any similar  mode,  is  not included within  the  expression  of ’landlord’ entitling him to evict the tenant. Clause (d)  of Section  31A of the Act as it stood before its amendment  by the Gujarat Act XVI of 1960 reads as follows: "The  land leased stands in the record of rights or  in  any public  record or similar revenue record on the 1st  day  of January  1952 and thereafter during the period  between  the said date and the appointed day in the name of the  landlord himself, or of any of his ancestors, or if the landlord is a member  of  a joint family in the name of a member  of  such family." The above provision before its amendment was interpreted  by the  Bombay  High Court in Waman Ganesh Joshi v.  Ganu  Guna Khapre, 61 Bombay L.R. 1267. The High Court placing reliance on Khalliulla Hasmiya v. Yesu, 50 Bombay L.R. 201 held  that the  term ’landlord’ according to clause (d) of Section  31A of  the Act included any person from or through whom he  may have derived his title to the land, and therefore for proper compliance  of  the conditions mentioned in  clause  (d)  of Section  3 IA it is sufficient that either the name  of  the claimant  or his predecessors-in-title stands in the  record of  fights during the required period. A Full Bench  of  the Gujarat High Court in Bhanushanker Ambalal v. Laxman Kala  & Ors.,  [1960] 1 Gujarat Law Reporter 169 disagreed with  the view taken by the Bombay High Court in Warnan Ganesh Joshi’s case  (supra). The Full Bench held that the  expression  "in the  name  of landlord himself" occurring in clause  (d)  of Section  3 IA must be read as the landlord individually  and not any one claiming through him as a successor in interest, therefore  a  transferee from a landlord in whose  name  the land is shown to stand cannot fit into the structure of  the clause.  The Full Bench judgment was rendered on 28.7.  1960 prior to the amendment of the Section by the Gujarat Act XVI of  1960. After the amendment of Section by Gujarat Act  XVI of 1960, the Legislature made it clear that transferees  and assignees  from persons whose name may be appearing  in  the record of 519 right  during the relevant period were not to be treated  as landlords  for the purposes of the Section.  The  expression ’or  otherwise’  occurring in clause (d)  indicates  that  a person claiming title by transfer, assignment. court sale or in any other mode like gift, or will even from ancestor will

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not  be  a  landlord for the purposes of  the  Section.  The Legislature  has clearly laid down that a person  inheriting property  from his ancestor would be landlord  provided  his ancestor’s  name appears in the record of right  during  the required period. But a person claiming title on the basis of transfer,  assignment, auction sale or  otherwise  including gift  or will from the predecessors-in-title even though  he may  be  his ancestor, and his name may be recorded  in  the record  of  rights during the required period, will  not  be entitled  to maintain a suit for eviction of a  tenant.  The Legislature placed this restriction in order to protect  the interest  of  the tenants and to prevent  avoidance  of  the restrictions  placed by the ceiling laws. In the absence  of any  such  provision a landlord could transfer land  to  his descendants by gift or will to evade the ceiling law and  to evict  tenants. Under Section 31A(d) such a  beneficiary  is not entitled to maintain a suit for the eviction of a tenant from the agricultural holding as he would not be a  landlord within the meaning of the Section.     In  Umraomiya  Akbarmiya Malek v.  Bhulabhai  Mathurbhai Patel  & Anr., [1965] 6 Gujarat Law Reporter 788  the  peti- tioner  therein  made  application for  eviction  of  tenant claiming  to be landlord on the basis of a gift made in  his favour by his maternal grand-father who was recorded in  the record  of rights during the required period.  The  question arose whether the once who had acquired the property under a gift made by his maternal grand-father was a landlord within the meaning of clause (d) of Section 31A. The High Court  on an elaborate discussion held that the petitioner therein was not a landlord within the meaning of the Section. A Division Bench  of the High Court of Gujarat in Special Civil  Appeal No. 112/63 decided on March 3, 1972 considered the  question whether a person who obtained the property under a Will from his grand-mother was a landlord under clause (d) of  Section 31A  of the Act, the Division Bench held that having  regard to the context, the object and scheme of the enactment  such a person was not a landlord within the meaning of clause (d) of  Section  31A.  The        Bench further  held  that  the Legislature  intended to restrict the right of  landlord  to obtain possession for bona fide cultivation purposes, and it did not intend to include the case of a landlord who derived title under a Will. We arc in agreement with the view  taken by the Division" Bench. The learned single Judge of the High Court  while rendering the, impugned judgment  followed  the view taken by the aforesaid Division 520 Bench.  In  this  view, we find no legal  infirmity  in  the impugned judgment of the High Court.     Learned  counsel for the appellant-referred  to  certain decisions  of the Bombay High Court where contrary view  had been  taken. Since the interpretation of Section  31A(d)  of the  Act as made by the Gujarat High Court in the  aforesaid decision has been the law for the last 25 years. and as that interpretation is justified having regard to the legislative history  of the Section, we do not consider it necessary  to deal  with those decisions. The appeal fails and is  accord- ingly dismissed. but there will be no order as to costs. V.P.R.                            Appeal dismissed. 521