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PETITIONER: HEIRS & LRS. OF DECEASED SOMABHAI KANJIBHAI BARIA

       Vs.

RESPONDENT: PATEL PARSHOTTAMDAS JAMDAS (D) & ANR.

DATE OF JUDGMENT03/03/1995

BENCH: K RAMASWAMY & B.L. HANSARLA, JJ.

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.   Respondent  Patel Parshottamda Jamnadas has died.   The appellants  ha  filed  an application  to  bring  the  legal representatives  on record.   Ghanshamdasbhai  Parshottamdas Patel, son of the deceased Patel Parshottamdas Jamnadas, has also made an application independently on the basis of  will said  to  have been executed by his father.   Without  going into  the  inter se rights of the legal  representatives  of Patel  Parshottamdas  Jamnadas,  we  bring   Ghanshamdasbhai Parshottamdas  Patel on record to represent his  estate  for the purpose of the disposal of these appeals.  The inter  se rights,   if  any,  would  be  decided  in  an   appropriate proceedings. 2.   The  three  appeals are being disposed of by  a  common order.  The appellants initially were tenants of respondent. The  lands are watan lands.  Though the appellants  remained in  possession  from the year 1939, since  the  lands  being watan  lands, they are not directly governed by  the  Bombay Tenancy  and Agricultural Lands, Act 1 of 1948  (for  short, ’the Tenancy Act’) as extended to the State of Gujarat.  The Gujarat  Watans Abolition ’Act, 1961, abolished  the  watans with effect from 1.4.63. Subsequently, re-grant was made  in favour  of  the  respondent  on  March  23,  1966.   In  the meanwhile,  the  respondent terminated the  tenancy  of  the appellants with effect from 31.3.61 and filed present  civil suit for possession on August 14, 1962. 3.   The  appellants  contended  that  civil  court  has  no jurisdiction  to decide the question whether the  appellants are  tenants  under  the respondent and that  they  are  not liable to ejectment on the basis of termination of  tenancy. The civil court relying upon s.88 of the Tenancy Act,  held, as  preliminary issue, that the appellants are  tenants  and that,  therefore,  until  the  question  of  termination  of tenancy has been duly determined by the mamlatdar, the civil court  has  no jurisdiction.  Accordingly, the  civil  court dismissed  the suit.  On revision, the learned single  Judge of  the-High Court by judgment dated 15.4.77, held that  for application  of  s.88 of the Tenancy Act, read with  s.9  of Watan  Act, 1961, two conditions must be satisfied,  namely, the  lease should have been lawfully made and such  a  lease

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must  be subsisting on the appointed date, namely, April  1, 1963.  Though there was a lease, since it was determined  as effective  from  31.3.61,  there was  no  subsisting  lease. Therefore, the civil court was wrong in its conclusion  that the  tenancy court has jurisdiction to determine the  rights of the tenancy between the parties and accordingly  reversed the  decree and remitted the matter for trial  according  to law.  Thus these appeals by special leave. 4.   Shri   Ganpule,   learned  senior   counsel   for   the appellants,  contended  that by operation  of  sub-s.(6)  of s.32(G)  of  the Tenancy Act, despite the abolition  of  the watan and re-grant in favour of the respondent, the right of tenancy  created  in favour of the tenants  still  subsists. Therefore,-whether  the termination of the tenancy has  been legally done should be decided only by the mamlatdar and not by the civil court.  We find no force in the contention. 5.    Sub-s.(6) of s.32(G) envisages: 386               "If any land which, by or under the provisions               of  any  of the Land  Tenures  Abolition  Acts               referred  to in Schedule 111 of this  Act,  is               re-granted to the holder thereof on  condition               that  it was not transferable, such  condition               shall not be deemed to affect the right of any               person  holding  such land  on  lease  created               before the re-grant and such person shall as a               tenant  be deemed to have purchased  the  land               under  this section, as if the condition  that               it was not transferable was not the  condition               of re-grant.  " 6.   For  application of sub-s.(6) of s.32(G) two  essential conditions  are required to be satisfied.  The kind of  land tenures, referred to in sub-s.(6), should find place in  the IIIrd Schedule.  We have verified Schedule 111 and the Watan Abolition  Act 1961 is not part of Schedule Ill.   Secondly, though  the re-grant is made in favour of the holder of  the watan  with  a condition that it is  not  transferable,  the lease  created before the re-grant must be  subsisting.   In that  event,  the tenant would be entitled to  purchase  the land  under s.32(G). It is already seen and a clear  finding of  fact  was  recorded  by the High Court  and  it  is  not disputed  before  us that the tenancy  was  terminated  with effect from 31.3.1961 and the suit for possession was  filed on 14.8.1962. 7.   The  question then is what is the nature of  possession the appellants held.  This Court in Maneksha Ardeshir  Irani v.  Manekji Edulji Mistry, 1975 (2) SCR 34 1, held  that  on cessation of original tenancy, the right of protected tenant would  continue until it would duly come to an end.  It  was found  that on August 1, 1956 it came to a terminus and  the original  contract  of  tenancy  thereby  had  ceased.   The appellant  therein  was in occupation of the  land  only  on sufferance since the land-lord had not given any consent for the  continuance  of  possession of the  tenant.   When  the landlord  did  not give his consent,  express  or  necessary implication, after the termination of lease, his  possession is  only  by  sufferance  and he cannot be  said  to  be  in possession as a tenant holding over or a tenant at will. 8.   The  same  ratio  applies to the facts  in  this  case. After  the  determination  of  the  tenancy  and  after  the respondent filed the suit, there was no consent given by the landlord either in writing or by acquiescence or by conduct. In  that view of the matter, the civil court was clearly  in error  in holding that there exists a jural relationship  of landlord   and  tenant  between  the  respondent   and   the

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appellants  and  that,  therefore,  the  mamlatdar  is   the competent  authority  to decide the dispute of  the  tenancy rights.   The  High  Court was right  in  holding  that  the condition  precedent  prescribed  under  s.88(IXc)  of   the Tenancy Act read with s.9 of Watan Act has not been complied with  and  that,  therefore,  the  civil  court  alone   has jurisdiction to decide the question. 9.   The appeals are accordingly dismissed.  No costs. 10.In  view of the above findings, the suits stand  decreed, as  nothing  more remains for trial as agreed  by  both  the counsel. 387