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PETITIONER: RAGHUNATH

       Vs.

RESPONDENT: POPAT LAL & ORS.

DATE OF JUDGMENT:       14/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. AHMAD SAGHIR S. (J)

CITATION:  JT 1996 (3)   154        1996 SCALE  (2)629

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The only  question is whether the respondents can claim right as  tenants to  the possession  of the  demised  lands under the  Bombay Tenancy  and Agricultural  Lands Act  1943 (for short  ’the Act’)? The admitted facts are that the land originally  belonged   to   one   Lilachand   Bhandari.   He hypothecated the  lands on  July 27,  1942 in  favour of one Hirachand, the father of respondent Nos. 1 and 4 (defendants 1 &  4) under  the possessory mortgage. In 1947-48 Hirachand leased those lands to respondent Nos.2 and 3 (defendants 2 & 3). While  remaining to  be  tenants,  respondent  No.2  had purchased the  equity of  redemption of the suit lands for a sum  of   Rs.12,000/-  on  December  27,  1949.  The  second respondent in  turn sold  half of the undivided  interest in the land to one Housabai, mother of the appellant on January 19, 1950.  From these  facts the question arose: whether the second and  the third  respondents remained to be tenants in the land  after the Act had come into force? When the matter was referred  to  Mamlatdar  for  decision,  a  finding  was recorded by him and also by the appellate authority that the property  having   been  purchased   by  way  of  equity  of redemption, the  lesser right  of tenancy stood  merged with their larger  right  as  owners  and  that,  therefore,  the respondents  no   longer  remained   to  be   the   tenants; consequently, the  appellant alone  was held to be the owner of undivided  share in the land and the respondent could not claim tenancy  rights under the Act. But, unfortunately, the High Court  in Second   Appeal reversed the said finding and held in the impugned order  that the respondents remained to be tenants  and that,therefore,  the Act got attracted.  The appellant  thereby  had  to  surrender  his  rights  to  the tenants. Thus this appeal by special leave.      It would be seen that though the respondent Nos.2 and 3 had come  into possession  as tenants  in the   year 1947-48 from the  mortgagee Hirachand, after the second respondent’s purchase of  the equity  of redemption on December 27, 1949,

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they became  absolute owner  of the  suit property. Thereby, their  lesser  tenancy  rights  which  they  had  under  the mortgagee Hirachand,stood  merged with their larger interest as owner   of  the lands.  Thereby on  and from December 27, 1949  they  ceased  to  be  the  tenants.  Having  sold  the undivided half  land to  the mother of the appellant who has since died  and the  appellant having  succeeded the land by intestate succession  by registered conveyance dated January 19, 1950  they became  co-owners in  the property.  Thereby, they are  entitled to partition of the same after redemption of the  mortgage in  equal moiety and enjoyment thereof. The suit of  the appellant,  therefore, is clearly maintainable. It is accordingly to be decreed.      We are informed that pursuant to the preliminary decree granted by  the trial  Court, the  appellant had deposited a sum of Rs.4,000/- as directed in the preliminary decree. But it would  appear that  the respondents  have  not  deposited their share. Three month’s time from today is granted to the respondents to  deposit the  same. On deposit being so made, the trial  Court would  draw up the final decree within four weeks thereafter  and pass  appropriate orders  according to law and  deliver possession  of the  land that  fell to  the share of the appellant, within six weeks thereafter.      The appeal is accordingly allowed. No costs.