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PETITIONER: JAGAN@,JAGANNATH UMAJI

       Vs.

RESPONDENT: GOKULDAS HIRALAL TAWARI

DATE OF JUDGMENT28/10/1987

BENCH: KANIA, M.H. BENCH: KANIA, M.H. DUTT, M.M. (J)

CITATION:  1987 AIR 2429            1988 SCR  (1) 672  1987 SCC  Supl.  566     JT 1987 (4)   215  1987 SCALE  (2)870

ACT:      Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958  Whether the  appellant was a deemed tenant of the lands he was cultivating, under section 6 thereof.

HEADNOTE: %      Under an  agreement with  the respondent-landlord,  the appellant had  been appointed  to do worshipping in a temple as pujari  to look  after the management of two dharamshalas and to  cultivate three  agricultural, lands,  and  for  all these services,  he had  been allowed to take crop share-the whole crop  from the lands cultivated by him, instead of his being paid  any wages  in cash.  The respondent filed a suit for possession  of the  agricultural lands.  The appellant’s defence was  that he was a deemed tenant as understood under section 6  of the  Bombay  Tenancy  and  Agricultural  Lands (Vidarbha Region)  Act, 1958,  and was in lawful cultivation of the  lands. The  Naib-Tahsildar, who  decided  the  suit, passed an  order, holding  the appellant to be a tenant. The Sub-Divisional officer,  in appeal  by the  respondent,  set aside the  order of  the  Naib-Tahsildar  and  remanded  the matter. Against the order of the Sub-Divisional officer, the appellant appealed  in revision  to the  Maharashtra Revenue Tribunal. The  Revenue Tribunal  set aside  the order of the Sub-Divisional  officer   and  restored  that  of  the  Naib Tahsildar. The  respondent moved  the High  Court. The  High Court decided  that the  appellant was not entitled to claim the rights of a deemed tenant, and quashed the orders of the authorities below  holding the  contrary view. The appellant appealed to this Court by Special Leave against the order of the High Court.      Allowing the appeal, the Court, ^      HELD: The appellant was lawfully cultivating the lands, having been permitted to do so by the landlord. He was not a member of  the landlord’s  family,  nor  was  he  his  hired labourer. The  landlord did not belong to any of the classes specified in  Sub-Section (2)  of section  41. The appellant was rendering  service as  pujari and the service of looking after the  dharamshalas, and for these services, he had been

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given the  right to  cultivate the lands and appropriate the crop share-the entire 673 crop instead  of being paid any wages in cash. The appellant was not  hit by  the provisions of clause (b) of Sub-section (1) of  section 6  of the  Act, and  he must be held to be a deemed tenant  under the  provisions of  section  6.  [676G- H;677B-C]      Dahya Lal  and others  v. Rasul  Mohammad Abdul  Rahim, [1963] 3 S.C.R. 1 at 6, 7, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 668(N) of 1971,      From the  Judgment and  order dated  14.1.1970  of  the Bombay High Court in S.C.A. No. 789 of 1969.      E.C. Agarwala,  Vijay Pandita  and Atul  Sharma for the Appellant.      The Judgment of the Court was delivered by      KANIA, J.  This is  an appeal  by Special Leave against the judgment  of a  learned Single  Judge of the Bombay High Court.      The facts  necessary for the disposal of the Appeal can be shortly  stated. The  Respondent before  us, who  was the petitioner before  the Bombay  High Court,  is the  owner of three agricultural  lands described in the judgment appealed against,  situated  at  Talkhed,  Taluk  Malkapur,  District Buldana in  the Vidarbha  area of  Maharashtra.  Originally, these fields  belonged to  one Hiralal  who  died  in  1916. Hiralal started  the construction  of a  dharamshala  and  a temple in  1912 in  the said  lands which  construction  was completed by  the Respondent’s mother during the minority of the Respondent.  The Respondent’s  mother  also  constructed another dharamshala  on a  separate piece of land. The facts on record  show that Umaji, the father of the Appellant, was appointed a Pujari by the then landlord to worship the idols in the  aforesaid temple and to look after the management of the  dharamshalas  on  behalf  of  the  landlord.  Under  an agreement   with   the   landlord,   the   aforesaid   three agricultural lands  were cultivated  by Umaji but instead of being paid  in cash  for the services rendered by him to the landlord in  the form of looking after the management of the property and worshipping in the temple, Umaji was allowed to cultivate the  said  fields  and  to  take  the  crops.  The Appellant is  the son  of Umaji and records show that, after the death  of Umaji,  he was given the same work as Umaji on the same terms and conditions. On 674 February 12,  1963, the  Appellant was  served with a notice calling upon  him to  hand over the belongings of the temple as well  as the  immovable property  to the  Respondent. The Respondent then filed a suit for possession of the aforesaid lands in  which the  Appellant took  a defence that he was a tenant of  these lands  and  protected  under  the  relevant legislation  against   eviction.  The   issue  whether   the Appellant was  the tenant  of the  said lands was framed and referred to the Tahsildar for decision.      The aforesaid  issue was  decided in the first instance by the  Naib Tahsildar.  Before him  the Appellant contended that he was a deemed tenant as understood under Section 6 of the Bombay  Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958  (hereinafter referred to as ’the Vidarbha Tenancy Act’). It  was contended  by the  Appellant that  he was  in

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lawful cultivation of the said agricultural lands and should be declared  to be  a tenant.  The Respondent,  on the other hand, reiterated  his claim  that the  Appellant was  not  a tenant. The  Naib Tahsildar  passed an order on November 30, 1965 holding that the Appellant was the tenant in respect of the said  lands because he was lawfully cultivating the said lands which  belonged to  the Respondent. Against this order the Respondent  herein filed  an appeal.  The Sub-Divisional officer, who decided the appeal, set aside the order of Naib Tahsildar and  remanded the  matter  for  fresh  inquiry  on several issues  including the  issue as to how the Appellant herein came  to be  in possession  of the  said  lands.  The Appellant then  filed  a  revision  application  before  the Maharashtra Revenue  Tribunal  against  this  decision.  The Revenue Tribunal  set aside  the order of the Sub-Divisional officer and  restored the  order of  the Naib Tahsildar. The Tribunal took  notice. Of  the admission  of the  Respondent that the  Appellant herein  was cultivating  the said  lands lawfully and  on this  basis came to the conclusion that the Appellant herein  was the  tenant of  the said  lands.  This conclusion of  the Tribunal was challenged by the Respondent herein before the Bombay High Court.      The learned  Judge, who  disposed of  the Special Civil Application or  writ petition  noted  that  it  was  not  in dispute that  the Appellant  was cultivating  the said lands but he  was doing  so and  appropriating the crop in lieu of payment of services which he rendered to the landlord as the Pujari worshipping  the Gods  in the said temple and looking after the  management of  the dharamshalas. Instead of being paid in  cash for  these services, the Appellant was allowed to cultivate  the fields  and take  the crops  thereof.  The learned Judge  came to  the conclusion that, on these facts, the lawful cultivation of the fields by 675 the Appellant  was referable  to a particular contract which alone must govern the relationship between the parties. That contract constituted  or created  a relationship of employer and employee.  It was  held that the Appellant herein was an employee of  the Respondent  in his capacity as a Pujari and person looking  after the management of the dharamshalas. On these facts,  the learned  Judge came to the conclusion that the Appellant herein was not entitled to claim the rights of a deemed  tenant, and held that the decision to the contrary arrived at  by the  Tribunal was  erroneous and liable to be set aside.  The learned  Judge allowed the writ petition and quashed the  order made  by the  Tribunal  and  the  Revenue Authorities and  held that the Appellant had failed to prove that he  was a  tenant of the said agricultural lands. It is this conclusion  of the learned Judge which is challenged in this appeal.      The contention  of Mr.  Aggarwala, learned  counsel for the Appellant,  is that  his client was admittedly in lawful possession of  the lands in question and was cultivating the same at  the relevant time. In view of this, it must he held that he  was a  deemed tenant  of the  said lands  under the provisions of  Section 6 of the Vidarbha Tenancy Act and the Respondent was  not entitled  to evict him. It was submitted by him that the learned Judge of the High Court who disposed of the  Special Leave  Application  was  in  error  when  he proceeded on  the footing  that the  Appellant was  not  the tenant of the said lands as the right to cultivate the lands and appropriate  the produce was given to him and his father earlier as  the Pujari  of  the  aforesaid  temple  and  for looking after  the management  of the  dharamshalas and  the said lands.  It was  urged by him that even if the Appellant

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could be  said to  be a  servant of  the Respondent,  he was admittedly in  lawful personal cultivation of the said lands and was not paid in cash or kind but by way of a crop share, the crop  share being  equivalent to  the entire  crop.  The Respondent has not chosen to appear before us.      In order  to examine  the correctness  of the aforesaid contentions of  Mr. Aggarwala,  we may,  at this stage, take note of the relevant provisions of the Vidarbha Tenancy Act. The term  ’tenant’ is defined in sub-section (32) of Section 2 of that Act as follows:           "(32)‘tenant’ means  a person  who holds  land  on                lease and includes-                (a)   person who  is deemed  to be  a  tenant                     under Sections 6, 7 or 8, 676                (b)  a person  who is  a protected  lessee or                     occupancy tenant and the word ’landlord’                     shall be cons trued accordingly".      Under sub-section ( 17) of Section 2, land, inter alia, means, land  which is  used or  capable of  being  used  for agricultural purposes  and 13  includes the  sites  of  farm building appurtenant to such land. Subsection (1) of Section 6 which is the material provision before us runs as follows:           "6. Persons deemed to be tenants.                (1) A  person lawfully  cultivating any  land           belonging to  another person shall be deemed to be           a tenant if such land is not cultivated personally           by the owner and if such person is not-                (a) a member of the owner’s family, or                (b)  a servant  on wages  payable in  cash or                     kind but  not in  crop share  or a hired                     labourer cultivating  the land under the                     personal supervision of the owner or any                     member of the owner’s family, or                (c) a mortgage in possession." Section 41  of the Vidarbha Tenancy Act deals with the right of a  tenant to purchase land held by him as a tenant. Under the provisions of that Act, a tenant other than an occupancy tenant shall  be entitled  to purchase from the landlord the land  held  by  him  as  a  tenant  and  cultivated  by  him personally  except  whether  the  landlord  belongs  to  any category specified  in sub-section  (2). Section  46 of  the Vidarbha Tenancy  Act, inter alia, provides that with effect on and  from the  first day of April, 1961, the ownership of all lands  held  by  tenants  which  they  are  entitled  to purchase  from  their  landlords  under  the  provisions  of Chapter  III   of  the  Vidarbha  Tenancy  Act  shall  stand transferred to ( i and vested in such tenants.      As far  as the  case before  us is concerned as we have already  pointed  out  that  the  Appellant  was  admittedly cultivating the  lands in  question and  was not a member of the landlord’s  family nor  was he  a  hired  labourer.  The landlord did  not belong  to any of the classes specified in sub-section (2) of Section 41. The aforesaid cultivation was 677 clearly lawful  because the  Respondent to  whom  the  lands belonged had  permitted him  to do  so. It  is true that the record shows  that this  right to  cultivate  the  land  and appropriate the  produce was  given to the Appellant because of the  services he  was  performing  as  a  Pujari  of  the aforesaid temple  of the  Respondent and  as he  was looking after the  dharamshalas. By  reason of these facts, it might be said  that he was cultivating the said lands as a servant of the  Respondent, but  he was  not being paid any wages in cash or kind but by way of a crop share, the share being the

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entire crop. In these circumstances, he must be held to be a deemed tenant  of the  said lands  under the  provisions  of Section 6  of the  Vidarbha Tenancy  Act. The  fact  of  his cultivating the  land as  a servant  of the Respondent would make no  difference  because  he  was  being  paid  for  his services by way of a crop share and hence was not covered by the provisions  of clause  (b) of sub-section (1) of Section 6. The  learned Judge  of the  High Court  was in  error  in coming to  the conclusion that, merely because the Appellant was a  servant of the Respondent, he could not be held to be a tenant  in respect  of the  said lands.  The learned Judge altogether failed  to notice that although the appellant was a servant,  he was not given wages payable either in cash or kind but by way of a crop share and hence not covered by the exception carved  out by  clause (b)  of sub-section  (1) of Section 6.  From the observations made by the learned Judge, it appears  that he  proceeded on  the wrong footing that in order to  be a  deemed tenant,  a person  must show that his lawful cultivation  owes its origin to some sort of tenancy. In fact,  the whole  aim of  Section 6  is to  confer deemed tenancy upon persons who are not already tenants of the land in question.  We may  point out  that this  conclusion finds some support  from the  decision of  this Court in Dahya Lal and others v. Rasul Mohammed Abdul Rahim, [ 1963] 3 S.C.R. l at pp  6-7 decided by a Bench of five learned Judges of this Court.  In  that  case  the  provision  which  came  up  for consideration was  Section  4  of  the  Bombay  Tenancy  and Agricultural Land  Act, 1948,  the material portion of which runs as follows .      "A person  lawfully cultivating  any land  belonging to      another person  shall be  deemed to be a tenant if such      land is not ...... It was  held that  this Act  encompassed with its beneficent provisions not  only tenants  who held  land for  purpose of cultivation under contracts from the land owners but persons who are deemed to be the tenants. 678      In the  result, the  Appeal is  allowed.  The  impugned judgment and  order of  the High Court are set aside and the order of  Naib Tahsildar,  confirmed by Revenue Tribunal, is restored.      There will be no order as to the costs of the Appeal. S.L.                                         Appeal allowed. 679