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PETITIONER: HANMANTA DAULAPPA NIMBAL SINCE DECEASED BY HIS HEIRS ANDLRS.

       Vs.

RESPONDENT: BABASAHEB DAJISAHEB LONDHE

DATE OF JUDGMENT29/08/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  223            1995 SCC  (6)  58  JT 1995 (6)   654        1995 SCALE  (5)196

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the  High Court  at Bombay  in Special  Civil Application No.277 of  1972 dated  8th September,  1977. The respondent- landlord filed  Civil Suit  No.10/68 in  the Court  of Civil Judge, J.D.  at Akkalkot. Since the appellant raised plea of oral tenancy  for the year 1968-69, the Civil Court referred the issue  : "Does the defendant prove tenancy over the suit land thereon?"  to the Tehsildar who in his proceedings held that in  respect of Survey No.3 to the extent of 16 acres 26 Gunthas  situated   in  Mirajgi   village  belongs   to  the respondent and  the appellant  had not  proved oral tenancy. Thereon, the  appellant carried  the matter in appeal to the Special Deputy  Collector, Tenancy  Appeals,  Sholapur,  who held that  oral tenancy was established. Even otherwise, the appellant is a deemed tenant under s.4 of the Bombay Tenancy and Agricultural  Land Act, 1948 (for short, ‘Tenancy Act"). On revision,  Maharashtra Revenue  Tribunal, Pune, confirmed the findings. A writ Petition was filed under Article 227 of the Constitution.      The learned  Single Judge  of  the  High  Court,  while holding that  since the issue referred to the Tribunal under the Tenancy Act is only the contractual tenancy for the year 1968-69, the Tribunals could not have gone into the question of deemed tenancy under s.4. On the question of tenancy, the High Court  came to the conclusion that the oral tenancy has not been  proved on  the grounds  that the  entries  in  the revenue records  for the  year  1968-69  were  made  without notice to  the landlord.  When the  parties were  litigating their rights, it cannot be said that the landlord had agreed for creating  oral tenancy  in favour of the appellant. Thus on that premise, reversed the orders of the Tribunals below, accepted the  finding of  the  Tehsildar  and  referred  the matter to  the Civil  Court for  decision according  to  the finding of the Tehsildar. Thus, this appeal.

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    The only  question that  arises  for  consideration  is whether  the  appellant  is  in  lawful  possession  of  the property. Admittedly,  there is  no written lease granted in favour of  the appellant.  He claimed  that the landlord had agreed for  an oral lease for the year 1968-69. The admitted facts are  that the landlord was a minor and was prosecuting his studies  and his  maternal uncle  was looking  after the properties. The  suit property  was subject of hypothecation and the  mortgagee had  inducted one Somanna who remained in possession and cultivated the land till 1964-65. Thereafter, the maternal uncle of the respondent claimed to have been in possession and cultivated the land. The question whether who cultivated the  land upto  year 1967-68  is not material for the reason  that the  appellant is  not laying any claim for that period.  In view  of the  admitted  position  that  the respondent is the owner and, being minor, his maternal uncle must be deemed in law to be in possession.      The only material question is whether the appellant had any tenancy  rights in  respect of the land in question? His claim is that he came into possession under the oral tenancy for 1968-69.  That was  denied by the maternal uncle who was examined on  behalf of  the respondent-landlord.  It is true that one witness was examined on behalf of the appellant and that evidence  was believed  by the Appellate Authority, and the Revisional  Authority did  not disturb that finding. But the Revisional  Authority primarily proceeded on the finding that  the  appellant  is  a  deemed  tenant.  The  question, therefore, is  whether the ingredients of s.4 of the Tenancy Act are satisfied. Section 4 reads thus:      "A person  lawfully cultivating any land      belonging to  another  person  shall  be      deemed to  be a  tenant if  such land is      not culltivated  personally by the owner      and if such person is not----"      The other  criteria as  enumerated in  clauses (a), (b) and (c)  and the Explanation re not relevant for the purpose of this case.      The question springing for consideration is whether the appellant has  lawfully cultivated  the land  for  the  year 1968-69? The  admitted position is that the respondent filed the suit  for injunction  on January 20, 1969 and ad-interim injunction was  issued on  January 21,  1969. The  appellant issued notice  on January 22, 1969 claiming oral tenancy. In other words,  the appellant  had raised  his claim  for  the first time,  after the  landlord had  filed  the  suit.  The appellant could  have got  lawful possession over the lands, if there would have been an agreement with the landlord, and pursuant  thereto   the  landlord  inducted  the  tenant  in possession for  beneficial enjoyment  of the demised land on payment of  premium or  rent etc.,  or there would have been acquiescence of  the landlord,  for the tenant continuing to possess by  accepting the  rent.  Since  the  claim  of  the appellant that  he came  into possession in the year 1968-69 under oral  lease was not conclusively accepted and there is no proof  that the  landlord  had  accepted  any  rent,  the appellant is  a trespasser  on the  land. The suit was filed for injunction  against the  appellant. The burden is on the appellant to  establish his  lawful possession.  Except  the oral tenancy,  no other  evidence  was  brought  on  record. Entries in  the  revenue  records  cannot  establish  lawful possession, when,  admittedly, no  notice was  given to  the respondent  before   making   those   entries.   The   other circumstance is  payment of  land revenue  to the Government through Talatti  (village servant).  For the payment thereof also, there is no notice or acquiescence by the landlord.

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    If these  two circumstances are excluded, then the only fact is on the land, but the possession cannot be said to be lawful possession.  In other  words, his  possession is of a trespasser, which  is not protected by the Act. The question of benefit of s.4 does not arise. Though the Tribunals below or the  High Court  has not  adverted to  this aspect of the matter, we  feel that  the order  passed by  the High  Court needs no interference.      The appeal  is, therefore, dismissed with costs through out.