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CASE NO.: Appeal (civil)  3128 of 2000

PETITIONER: Sudam Ganpat Kutwal P.A. Holder of Shankar Sitaram Bhosle

RESPONDENT: Shevantabai Tukaram Gulumkar (dead) by LR Maruti Shankar Pachpute

DATE OF JUDGMENT: 18/08/2006

BENCH: Arijit Pasayat & R. V. Raveendran

JUDGMENT: J U D G M E N T

RAVEENDRAN, J.

       This appeal by special leave is against the order dated  9.7.1999 passed by the Bombay High Court rejecting W.P.  No.2599 of 1999 filed by the appellant. It is stated that  ’Sudam  Ganpat Kutwal’ shown as appellant is the P.A. Holder of  Shankar Sitaram Bhosle, that he had filed W.P. No.2599/1999  as the Attorney holder of Shankar Sitaram Bhosle, that he filed  the SLP also as Attorney holder of Shankar Sitaram Bhosle, but  that has not been stated in the cause title due to oversight,  though he has specifically mentioned this fact in his rejoinder  affidavit filed on 26.4.2000. In view of it, the appellant is  permitted and directed to amend the cause title so as to describe  him as P.A. Holder of Shankar Sitaram Bhosle. In view of it,  the term appellant in this order would refer to Shankar Sitaram  Bhosle.  

2.      The appellant’s case in brief is as follows :  

2.1)    The appellant was inducted as the tenant of agricultural  land bearing Gat No.332 in village Jogwadi, Taluk Baramati,  District Pune, measuring 25 acres 9 Guntas, in the year 1954  and was cultivating the same personally.  

2.2)    Under section 32 of the Bombay Tenancy and  Agricultural Lands Act, 1948 (’Act’ for short), on the first day  of April, 1956 (referred to as ’tillers day’), every tenant was  deemed to have purchased the land held by him as tenant, from  his landlord, free from all encumbrances subsisting thereon, on  the conditions stated therein being fulfilled. The revenue  records show that though the appellant was registered as the  tenant of the said land on the tillers day, his right to purchase  under the deemed purchase was postponed as the landlord was a  widow.  

2.3)    The landlord (Anusuyabai Bhosle) filed an application  (Tenancy Application No. 3/1958) under Section 31 read with  Section 29 of the Act, seeking possession of the land in the  occupation of the Appellant tenant on the ground that she  required the land for her personal cultivation. The Tenancy  Awal Karkun, Baramati, accepted the claim of the landlord and  made an order dated 30.6.1960 directing that possession of half  of the land should be delivered to the landlord for her bona fide  personal cultivation and possession of the remaining half shall

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remain with the tenant. In pursuance of it, the appellant  delivered half of the land (the eastern portion) to Anusuyabai  and continued in possession of the remaining half portion. It is  alleged that Anusuyabai sold the land which she got for her  personal cultivation, to others under different sale deeds.  

2.4)    Anusuyabai thereafter filed Tenancy Case No.95/1964  before the Mamlatdar, Baramati, seeking possession of the  remaining half of the land on the ground that the appellant had  committed certain defaults. The Mamlatdar rejected the said  petition by the following order dated 9.2.1965 :

"The applicant has already taken possession of half of the  suit land from the opponent tenant. She has now applied to  obtain possession of remaining half land on the ground of  defaults. The opponent has already paid the rent due to the  applicant by money order. The opponent has produced the  money order receipt in the matter. It is therefore clear that  the opponent is not the intentional defaulter. I cannot  therefore grant the request of the applicant to hand over the  possession of the remaining half land. The request of the  applicant is therefore refused. The application of the  applicant is therefore dismissed. The parties should bear  their own cost."

2.5)    The landlord Anusuyabai died on 23.3.1975, and  thereafter, the  name of her sister Shevantabai was entered as  her successor-in-title in the record of rights. The said  Shevantabai filed Application No.72/1994 under Section 32P  read with Section 32F of the Act on 19.1.1994 for a declaration  that the deemed statutory purchase by the tenant be declared as  void and ineffective, as the tenant had failed to fulfil the  mandatory requirement of giving a notice of intimation of  purchase within the time stipulated, under Section 32F (1A) of  the Act.

3.      The Agricultural Land Tribunal made an order dated  30.4.1994 accepting the contention of Shevantabai that the  tenant had failed to issue a notice of purchase. The tenant was,  therefore, directed to deliver possession to Shevantabai under  Section 32P(2)(b) of the Act. Feeling aggrieved, the tenant filed  an appeal under Section 74 of the Act before the Sub-Divisional  Officer, Baramati Division, in Tenancy Case No.35/1994. The  appellate authority by order dated 2.6.1995, set aside the order  of the Tribunal and remitted the matter to the Tribunal, to hold  a detailed inquiry into the matter with reference to the earlier  proceedings.  

4.      The Land Tribunal held an inquiry and made an order  dated 30.9.1995, reiterating its earlier finding that the tenant  had failed to serve a notice of purchase within the stipulated  time and, therefore, had lost the right to purchase the land. The  appellant challenged the said order also in appeal (Tenancy  Case No.27/1995) before the Sub-Divisional Officer, Baramati.  Shevantabai and the Respondent herein who was representing  her then, were the respondents in the said appeal.  

5.      During the pendency of the appeal, Shevantabai died on  15.4.1996. The said appeal was allowed, in part, by order dated  22.4.1996. The Appellate Authority upheld the order of the  Tribunal to the extent that the tenant had failed to exercise his  right by issuing a notice as required under Section 32F (1A) of  the Act. It, however, set aside the direction to the appellant to  deliver the land to Shevantabai, as that portion of the order was

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passed without holding any enquiry as to landlord’s right to  terminate the tenancy. Consequently, the Land Tribunal was  directed to hold a separate enquiry regarding the right of the  landlord under section 31 read with Section 32F and then, if  necessary, a separate enquiry under section 32P.

6.      Both parties, that is the respondent herein (as legal heir of  Sevantabai, claiming to be legatee under her will) as also the  appellant, challenged the order dated 22/24.4.1996 passed by  the Sub-Divisional Officer before the Maharashtra Revenue  Tribunal by filing revision petitions. The Revenue Tribunal by  its common order dated 4.1.1999 rejected the appellant’s  revision and allowed in part, the Respondent’s revision. It held  that after the death of Anusuyabai, the tenant had not exercised  his right to purchase the land, by giving an intimation as  required under section 32F(1A) within the stipulated time and  therefore, his right to purchase became ineffective and the  tenancy came to an end. It also set aside the direction of the  SDO that a separate inquiry should be held regarding the right  of landlord under Section 31 read with Section 32F, followed, if  necessary, by a separate inquiry under Section 32P. A direction  came to be issued for delivering possession of the disputed land  to the Respondent under Section 32P.

7.      The appellant challenged the order of the tribunal in W.P.  No.2599/1999. Before the High Court, the appellant contended  that the landlord (Anusuyabai) though a widow, had exercised  her right of terminating the tenancy and seeking possession of  the land;  and that in pursuance of the order passed in such  proceedings, he had delivered half of the land and therefore the  question of the successor-in-title of Anusuyabai seeking  possession of the balance land which remained with the tenant  (under section 31 B(1) of the Act), did not arise. The Bombay  High Court dismissed the said writ petition by order dated  9.7.1999 holding that the appellant had failed to prove from the  records produced, that Anusuyabai had exercised the right to  get back possession under section 31(1) of the Act or that the  concerned authority had ordered delivery of half of the land to  her. The said order is challenged by the tenant in this appeal by  special leave.

8.      The appellant contended that the High Court committed a  serious error in holding that the records before it did not show  half of the land was ordered to be delivered to the landlord  Anusuyabai under section 31 (1) of the Act. He referred to the  High Court record which contained a copy of the order dated  2.6.1995 of the SDO in Tenancy Case No.35/1994 as an  annexure to the writ petition, wherein it is clearly stated thus :

"This mutation states that the landlady was widow and the  right of tenants to purchase the suit property is postponed.  However, later on there was proceedings under the  Tenancy Act\005. The intimation of this Case No.3/1958 in  Tenancy Case No.518/60 is present in lower court’s papers.  (Page 91) which shows that half of the suit land was  ordered to be handed over to the landlady\005"

The appellant has also produced in this Court, a copy of the  order dated 30.6.1960 in Tenancy Case No.3/1958 directing  delivery of possession of half of the land to Anusuyabai. The  learned counsel for the respondent did not dispute the fact that  half of the land had in fact, been delivered by the tenant to  Anusuyabai in pursuance of the order dated 30.6.1960. This is  even referred to in the list of dates submitted on behalf of

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respondent.     Therefore, the facts that Anusuyabai had exercised  her right to seek possession under Section 31(1), that the  concerned Authority had made an order directing the tenant to  deliver half the land to Anusuyabai for her personal cultivation  and that Anusuyabai took possession of half the tenanted land,  are not in dispute.  

9.      The dispute in this appeal relates to the question as to  whether it was necessary for the tenant to issue a notice of  intimation of purchase under Section 32F (1A) of the Act to the  successor-in-title of Anusuyabai in regard to the half portion  retained by him under section 31 B (1) read with section 31(1)  of the Act and whether the failure to do so resulted in forfeiture  of the tenant’s right to the said land or right to purchase the said  land under the Act.

10.     Reference to relevant Sections of the Act will be useful  to decide this question.         

10.1)   Section 29 deals with the procedure of taking possession.  Sub-section (2) of section 29, as it stood at the relevant point of  time (prior to commencement of Mah. Act 39 of 1964),  provided that no landlord shall obtain possession of any land  held by a tenant except under an order of the Mamlatdar, and  that for obtaining such order he shall make an application in the  prescribed form within a period of two years from the date on  which the right to obtain possession of the land, is deemed to  have accrued to him.

10.2)   Chapter III of the Act deals with the special rights and  privileges of tenants and provisions for distribution of land for  personal cultivation. Part I of the said Chapter (section 31 to 31  D) relates to termination of tenancy for personal cultivation and  non-agricultural use. Part II (section 32 to 33) relates to  purchase of land by tenants. Section 31 relates to landlord’s  right to terminate tenancy for personal cultivation. Sub-section  (1) enables the landlord to terminate the tenancy of any land  after giving notice and making an application for possession as  provided in sub-section (2), if the landlord bona fide requires  the land for cultivating it personally. Sub-section (2) stipulates  that the notice required to be given under sub-section (1) shall  be in writing, shall state the purpose for which the landlord  requires the land and shall be served on the tenant on or before   31.12.1956 and a copy of such notice shall, at the same time, be  sent to the Mamlatdar, and an application for possession under  Section 29 shall be made to the Mamlatdar on or before the  31.3.1957. Sub-section (3) provides as follows :   

"(3) Where a landlord is a minor or a widow, or a person  subject to mental or physical disability, then such notice  may be given and an application for possession under  Section 29 may be made -  

i)      by the minor within one year from the date on  which he attains majority;

ii)     by the successor-in-title of a widow within one year  from the date on which her interest in the land  ceases to exist;  

iii)    within one year from the date on which mental or  physical disability ceases to exist."

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10.3)   Section 31B provides that in no case a tenancy shall be  terminated under Section 31 in such a manner as will result in  leaving with a tenant, after termination, less than half the area  of the land leased to him. Section 31C provides that the tenancy  of any land left with the tenant after the termination of the  tenancy under section 31 shall not at any time afterwards be  liable to termination again on the ground that the landlord bona  fide requires that land for personal cultivation. Section 31D  provides that if in consequence of the termination of tenancy  under section 31, any part of the land leased is left with the  tenant, the rent shall be apportioned in the prescribed manner in  proportion to the area of the land left with the tenant.  

10.4)   Section 32(1) provides that on the first day of April, 1957  (tillers’ day) every tenant shall, subject to the provisions of the  next succeeding sections, be deemed to have purchased from  his landlord, free of all encumbrances subsisting thereon on the  said day, the land held by him as tenant, if \026

"a)     such tenant is a permanent tenant thereof and cultivates  land personally;  

b)      such tenant is not a permanent tenant but cultivates the  land leased personally; and  

(i)     the landlord has not given notice of termination of  his tenancy under section 31; or (ii)    notice has been given under section 31, but the  landlord has not applied to the Mamlatdar on or  before the 31st day of March 1957 under section 29  for obtaining possession of the land; or (iii)   the landlord has not terminated this tenancy on any  of the grounds specified in section 14, or has so  terminated the tenancy but has not applied to [the  Mamlatdar on or before the 31st day of March 1957  under section 29 for obtaining possession of the  lands :"

The words ’subject to the provisions of the next succeeding  sections’ in Section 32(1) was amended as ’subject to other  provisions of this section and the provisions of the next  succeeding sections’ and the following was inserted as sub- section (3), by Bom. Act 63 of 1958 :   "(3) In respect of the land deemed to have been purchased  by a tenant under sub-section (1) ----  

a)      the tenant-purchaser shall be liable to pay to the  former landlord compensation for the use and occupation of  the land, a sum equal to the rent of such land every year,  and  

b)      the former landlord shall continue to be liable to  pay to the State Government the dues, if any, referred to in  clauses (a), (b), (c) and (d) of sub-section (1) of section  10A, where the tenant-purchaser is not liable to pay such  dues under sub-section (3) of that section until the amount  of the purchase price payable by the tenant-purchaser to the  former landlord is determined under section 32H.  

10.5)   Section 32F deals with the right of tenant to purchase  where landlord is minor, or a widow, or a person subject to any  mental or physical disability. Clause (a) of sub-section (1) of  section 32F provides that notwithstanding anything contained in  the preceding sections, where the landlord is a widow, the

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tenant shall have the right to purchase such land under section  32 within one year from the expiry of the period during which  such landlord is entitled to terminate the tenancy under section  31. Sub-section (1A) of section 32F inserted by Bombay Act 38  of 1957, reads thus :                  

"(1A) A tenant desirous of exercising the right conferred on  him under sub-section (1) shall give an intimation in that  behalf to the landlord and the Tribunal in the prescribed  manner within the period specified in that sub-section :"

Sub-section (2) of section 32F provides that the provisions of  section 32 to 32F and 32G to 32R shall, so far as may be  possible, apply to such purchase.  

10.6)  Section 32G requires the Tribunal to issue notice to the  parties, as soon as may be, after the tillers’ day, record the  statement of the tenant, whether he is willing to purchase the  land and then determine the price of the land to be paid by the  tenant. Sub-section (5) provides that in the case of a tenant who  is deemed to have purchased the land on the postponed date, the  Tribunal shall, as soon as may be, after such date, determine the  price of the land.  

11.     The position as disclosed by a combined and harmonious  reading of Sections 31, 32, 32F and 32G may be stated thus :

a)      Where the landlord has not served on the tenant, a  notice of termination (as stated in clause (b) of sub- section (1) of section 32), the tenant is deemed to  have purchased the land on the tillers day  (1.4.1957);

b)      Where the tenant is deemed to have purchased the  land on the Tillers Day (1.4.1957), the Lands  Tribunal is required to issue notice and determine  the price of land to be paid by tenant. Where there is  a deemed purchase, but the right to purchase is  postponed, the Land Tribunal shall determine  the  price of land, as soon as may be after the postponed  date.  

c)      A landlord had a right to give notice and make an  application for possession after terminating the  tenancy, if he wanted the land bona fide for  personal cultivation, provided the notice was served  on the tenant on or before 31.12.1956 (with copy to  Mamlatdar) and application for possession under  section 29 was filed on or before 31.3.1957.  

d)      A landlord widow is also entitled to make an  application for possession under sub-section (1) of  section 31 of the Act. Sub-section (3) of section 31  which is an enabling provision, extends the time  within which the widow can seek possession under  section 31(1) of the Act, beyond 31.12.1956. As a  result, where the landlord is a widow, then the  notice required under sub-section (1) of section 31  may be given and the application for possession  under section 29 may be made by her so long as her  interest in the land exists. Such notice can also be  given by the successor-in-title of the widow within  one year from the date on which the interest of the  widow in the land ceases to exist.

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e)      Where the landlord is a widow (and she does not  exercise her right under section 31(1) of the Act),   the right to purchase under the deemed purchase is  postponed till the expiry of the period during which  such (disabled) landlord is entitled to terminate the  tenancy under section 31 (3). The tenant desirous of  exercising such right shall, however, given an  intimation in that behalf to the landlord and the  tribunal within one year thereafter, as required  under section 32F (1A).   

Consequently, where the landlord, being a widow as  on 1.4.1957, does not choose to terminate the  tenancy for personal cultivation, the tenancy  continues during her lifetime and on the death of the  widow, her successor-in-title will have the right to  terminate the tenancy within one year from the date  of death of the widow. The tenant shall have the  right to purchase such land, under section 32, within  one year from the expiry of the period during which  such successor-in-title of the widow is given the  right to terminate the tenancy under section 31 (3)  by giving an intimation as required under section  32F(1A).  

f)      Where a landlord, who is a widow, exercises her  right of termination and secures possession of part  of the tenanted land for personal cultivation under  section 31(1) of the Act, then there is no question of  her successor-in-title  giving a notice of termination  within one year from the date on which the widow’s  interest ceases to exist. When section 31 (3) ceases  to apply, section 32F also will not apply and there is  no need for the tenant to give any intimation under  section 32F(1A).

g)      On an order for possession being made in favour of  a widow-landlord in regard to land up to 50% of the  tenanted land under section 31(1) read with section  31B(1), the widow will get possession of such land  and the tenant continues in possession in regard to  the remaining land. In regard to the land remaining   with the tenant, rent has to be fixed under section  31D, until the purchase price is determined under  section 32G(5) and is paid by the tenant purchaser.  

12.     If Anusuyabai, the widow landlord who died on  23.3.1975, had died without exercising her right under section  31(1) of the Act, and without taking back half the tenanted land,  her successor-in-title could have exercised the right of  termination for personal use by issuing a notice on or before  23.3.1976 [vide section 31(3) read with section 31(1)&(2) of  the Act]; and the tenant - appellant would have had the right to  purchase the tenanted land under section 32 till 23.3.1977,  provided he gave an intimation to the landlord and the Tribunal   on or before 23.3.1977  under section 32F(1) read with section  32F(1A) of the Act. But as Anusuyabai had exercised her right  to take possession for personal cultivation, under section 31(1)  of the Act, during her life time and got possession of half of the  land, no right survived under section 31(3) to her or her  successor-in-title to seek the remaining land for personal  cultivation having regard to the bar contained in section 31C. If  the widow-landlord and her successor-in-title lost the right to

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terminate the tenancy in regard to the remaining land (having  regard to the bar contained in section 31C) and therefore,  section 31(3) ceased to apply, it follows that section 32F also  did not apply. This is because, the right has to be exercised  under section 32F(1), only where section 31(3) applied. If  section 32F(1) did not apply, there was no need at all for the  tenant to issue any notice of intimation to the landlord or to the  successor-in-title of the landlord proposing to purchase the land   under section 32F(1A).   

13.     Unfortunately, this aspect of the matter has been  completely overlooked by the High Court and the authorities  under the Act. The authorities under the Act proceeded on the  assumption that even where a widow-landlord had terminated  the tenancy and taken possession of the permissible extent of  tenanted land, section 31(3) would continue to apply and  consequently, section 32F will also apply, and therefore, there  was a need for the tenant to give a notice of intimation of  purchase under section 32F(1A), on the death of Anusuyabai.  The High Court, however, did not examine this aspect at all as  it proceeded on the basis that the widow-landlord did not  terminate the tenancy and take possession of the permissible  extent of land.

14.     As the Appellant’s case is governed by section 31(1),  31B(1) and 31C, rent for the land remaining with the tenant  (after the landlord has taken half the land under section 31(1) of  the Act) had to be apportioned as provided in section 31D, and  the liability to pay such rent would continue until price for the  land is determined under section 32G(5) on either the landlord  or the tenant approaching the Tribunal, and such price is paid  by the tenant.  

15.     Learned counsel for the respondent relied on the  decisions of this Court in Amrit Bhikaji Kale & Ors. V.  Kashinath Janardhan Trade & Anr. [1983 (3) SCC 437], Anna  Bhau Magdum (d) by LRs. v. Babasaheb Anandrao Desai [1995  (5) SCC 243], Appa Narsappa Magdum (D) through LRs. v.  Akubai Ganapati Nimbalkar & Ors. [1999 (4) SCC 443] and  Balchandra Anantrao Rakvi & Ors. V. Ramchandra Tukaram  (Dead) by LRs. etc. [2001 (8) SCC 616], to contend that the  tenant has to issue a notice under section 32F within the period  prescribed and if he fails to do so, he loses the right to purchase  the land and the landlord will become entitled to the same  absolutely. These were all cases where the landlord under  disability had not sought possession for personal cultivation  under section 31(1) and where admittedly, section 31(3) and  32F applied and consequently, there was an obligation on the  part of the tenant to send an intimation under section 32F (1A).  None of the cases related to a widow-landlord who had  terminated the tenancy during her lifetime and taken possession  of a portion of the tenanted land. Therefore, the said decisions  will not apply.

16.     As a consequence, we allow this appeal and set aside the  order of the High Court and those of the authorities below and  hold that the appellant-tenant continued to be the tenant of the  land which remained with him after delivering half of the land  to the landlord Anusuyabai in pursuance of the order dated  30.6.1960 made on her application under section 31(1) read  with section 29 of the Act. The appellant shall be entitled to  restoration, if he has been dispossessed by the respondent from

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any part of his land in Gat No.332 in pursuance of the order of  SDO/Revenue Tribunal/High Court. Parties will also be entitled  to seek benefits/reliefs referred to in para 14 above.