Bhagwant Pundalik & ANR Vs. Kishan
Ganpat Bharaskal & Ors  INSC 225 (19 October 1970)
19/10/1970 SHAH, J.C.
CITATION: 1971 AIR 435 1971 SCR (2) 657 1971
SCC (1) 15
Bombay Tenancy and Agricultural Lands (Vidarbha
Region) Act 1958, ss. 20 and 36-Surrender of land by tenant-Neither written nor
verified before Tehsildar-Validity.
The respondents obtained a lease for
cultivation of land.
On the landlord's desire to cultivate the
land personally, the respondents surrendered the lands to the landlord. The
surrender was not in writing nor was there verification of the surrender by the
Tehsildar. The landlord cultivated the land for a few years, and thereafter
granted a lease to the appellant. The respondents applied under s. 36 of the
Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, for
restoration of possession to them. On the question whether the eviction of
respondent was legal, this Court,
HELD : Possession obtained by the landlord
was not lawful for, he obtained possession of the lands from the tenants
without complying with the requirements of s. 20 and sub-s. (2) of s. 36.
Sub-section (2) of s. 36 prohibits the landlord from obtaining possession of
any land held by a tenant except under an order of Tahsildar. Delivery of
possession voluntarily by the respondents did not render possession of the
landlord valid. Under s.36(1) a tenant who has been evicted in contravention of
sub-s. (2) may apply in writing to the Tahsildar for such possession. [1659 E]
By s. 20 of the Act which deals with surrender it is expressly provided that
surrender shall be in writing and shall be verified in the prescribed manner.
Surrender of tenancy which does not comply with the requirements of s. 20 is ineffective.
Again the terms of sub-s. (2) of s. 36 are explicit; they are not subject to
any implication that possession obtained with the consent of the tenant, but
without an order of the Tahsildar is valid. [659 H] In the present case there
is no surrender of tenancy in writing and no verification of surrender by the
Madho S/o Tatya Sonar v. Maharashtra Revenue
Tribunal & Ors. Special Civil Application No. 206/1967 dt. 11-12-1969,
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1409 and 1721 of 1966.
Appeals by special leave from the judgment
and order dated November 15, 1965 of the Bombay High Court, Nagpur Bench in
Special Civil Application Nos. 746 and 747 of. 1964.
S. K. Mehta and K. L. Mehta. for the
appellants (in both the appeals).
M. S. Gupta, for respondents Nos. 1 and 2 (in
C.A. No. 1409 of 1966.
S. S. KhanduJa, for respondent No. 3 (in both
658 The Judgment of the Court was delivered
by Shah, J.-Badridas son of Ramgopal was the owner of fields Survey Nos. 2 and
9/2 of village Bhamberi, taluq Akot, District Akola. On February 26, 1958,
Badridas granted a lease for cultivation of the lands to two brothers Kishan
and Manik. At the end of the agricultural year 1958-59 Badridas' took
possession of the lands from Kishan and Manik representating that he desired to
cultivate the lands personally. Badridas cultivated the lands during the
agricultural years 1959-60 and 1960-61, and thereafter on January 18, 1961 he
granted a lease of the lands for four years to Bhagwant son of Pundalik Kishan
and Manik then applied on June 30, 1961 under S. 36(1) of the Bombay Tenancy
and Agricultural Lands (Vidarbha Region) Act, 1958, for an order restored them
to possession alleging that their eviction from the lands was illegal. The
Additional Tahsildar dismissed the application, but in appeal the order was
reversed. In the view of the appellate authority Kishan and Manik were in
1958-59 tenants of the lands and they were evicted otherwise than in accordance
with the law, and that they were entitled to be restored to possession under S.
36(1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958.
In a petition by Bhagwant the Revenue Tribunal reversed the order of the
appellate authority. The Tribunal held that since Kishan and Manik had given up
pos- session of the lands volutarily and had allowed Badridas to cultivate the
lands for the following two years, they had no right to be reinstated into
possession of the lands, especially after the lands were let out by Badridas to
Bhagwant. Kishan and Manik then moved in the High Court of Bombay at Nagpur,
two Special Civil Applications Nos. 746 and 747 of 1964 in respect of the two
fields Survey Nos. 2 and 9/2 separately. The High Court set aside the order of
the Revenue Tribunal and directed that an order for pos- session be made in
favour of Kishan and Manik in respect of the two lands. With special leave,
these appeals have been preferred by Bhagwant.
The Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act, 1958, was brought into force on December 30, 1958.
Section 20 provides:
"A tenant may terminate the tenancy at
any time by surrendering his interest of a tenant in favour of the landlord.
Provided that such surrender shall be in
writing and shall be verified before the Tahsildar in the prescribed
manner." 659 Section 36 of the Act provides :
( 1 ) A tenant . . . . entitled to possession
of any land . under any of the provisions of this Act or as a result of eviction
in contravention of sub-section (2) may apply in writing for each. possession
to the Tahsildar.
(2) No landlord shall obtain possession of
any land, held by a tenant except under an order of the Tahsildar. For
obtaining such order he shall make an application in the prescribed form and 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:
For the agricultural year 1958-59 Kishan and
Manik were tenants in respect of two lands in question. Badridas took possession
of the lands at the end of that year. Granting that Kishan and Manik delivered
the lands voluntarily, there could not under S-20 of the Act be a valid
surrender, unless the surrender was in writing and verified before the
Tahsildar and in the prescribed manner. Possession obtained by Badridas was not
lawful, for Badridas obtained possession of the land from the tenants without
complying with the requirements of s. 20 and of sub-s. (2) of s. 36. Sub-
section (2) of s. 36 prohibits the landlord from obtaining possession of any
land held by a tenant except under an order of the Tahsildar. Delivery of
possession voluntarily by Kishan and Manik did not render the possession of
Badridas-valid. Under s. 36(1) a tenant who has been evicted in contravention
of sub-s. (2) may apply in writing to the Tahsildar for such possession.
Counsel for the appellant contended that s.
36(2) does not- commence with the expression "Notwithstanding any
agreement,. usage, decree or order of a court of law" as s. 19 of the Act
does and on that account it may reasonably be inferred that the Legislature
intended that only those tenants shall be deemed entitled to possession within
the meaning of s. 36(1) who were dispossessed by fraud, coercion or
misrepresentation, and not tenant who had voluntarily parted with possession of
the lands. We are unable to agree with that contention. Section 19 provides
that not with- standing any agreement, usage, decree or order of a court of law
tenancy of any land held by a tenant shall not be terminated exception the
cases specified therein. Thereby it was intended to make the provisions of s.
In s. 20'of the Act which deals with
surrender it is expressly enacted that surrender shall be in writing and shall
be Verified in the prescribed manner. Surrender of tenancy which does not
comply with the requirements of s. 20, 660 is ineffective. Again, sub-s. (2) of
S. 36 imposes a disability upon the landlord from obtaining possession of any
land occupied by a tenant except under an order of the Tahsildar. The terms of
subs. (2) of S. 36 are explicit:
they are not subject to any implication' that
possession obtained with the consent of the tenant, but without an order of the
Tahsildar is valid In a recent judgment Madhao s/o Tatya Sonar v. The
Maharashtra Revenue Tribunal and ors. (1) the High Court of Bombay held that S.
36(2) is plenary and controls S. 20 of the Act. In the present case- there is
no surrender of tenancy in writing and no verification of surrender by the
Tahsildar. We need express no opinion on the question Whether mere verification
by the Tahsildar without an order of the Tahsildar authorising the landlord to
obtain possession disentitles the tenant to claim possession under S. 36(1).
The appeals fail and tire dismissed. Having
regard to all the circumstances, however, we think, there should be no order as
to costs in this Court.
Counsel for the appellant Bhagwant submitted
that there are crops standing on the lands, and prayed that the appellant may
be allowed to reap them. 0one months time from the date of this judgment is
given to the appellant to deliver possession of the lands.
Y.P. Appeals dismissed.
(1) Special Civil Application No. 206 of 1967
decided on September 11/12 1969.