Dr. Tarakprasad
Rajaram Vs. Smt. Vesta Ukara (Dead) by Lrs. & Ors [1990] INSC 290 (18 September 1990)
Singh,
K.N. (J) Singh, K.N. (J) Pandian, S.R. (J)
CITATION:
1991 AIR 1034 1990 SCR Supl. (1) 514 1991 SCC Supl. (1) 63 JT 1990 (4) 363 1990
SCALE (2)744
ACT:
Bombay
Tenancy and Agricultural Lands Act, 1948--Sec- tions 29, 31-A(d)--Eviction
application--Maintain- ability--Conditions--person obtained right by
assignment, transfer or by auction sale or otherwise including gift or
will--Not `Landlord'--Legislative intention of.
HEAD NOTE:
Appellant
on behalf of minor landlord, who got title by will, initiated eviction
proceeding against the respondent- tenants under Section 29 read with section
31-A(d) of the Bombay Tenancy and Agricultural Lands Act. 1948 before the Mamlatdar
on the ground of bona fide requirement of the land for his personal
cultivation. Respondent tenants raised preliminary objection on the question of
maintainability of the suit on the ground that as the appellant, being a trans-
feree of the land and having not inherited the same was not the 'landlord'
under Section 31-A. Upholding the objection of the Respondents the Mamlatdar
dismissed the application.
Appellant's
appeal before District Deputy Collector and his revision before the Revenue
Tribunal were dismissed. Chal- lenging the orders of the Revenue Courts, writ
application was filed in the High Court, which was also dismissed and against
which the present appeal was filed.
Dismissing
the appeal, this Court,
HELD:
1. Section 31(d) requires that the name of the person applying for the eviction
of the tenant or of his ancestors should be recorded as landlord in the record
of rights on 1.1.1952 and he should further be recorded as landlord on the
appointed day, namely. 15.6.1955. Both these conditions are required to be
fulfilled before a suit or an application is maintainable by a landlord for the
eviction of the tenant. If either of the two conditions are not satisfied, the
application for eviction the tenant is not maintainable. The provisions of
clause (d) further provides that even if the landlord's name is not recorded,
but if the name of his ancestor is recorded similarly if the landlord is a
member of joint family, the name of any member is recorded the application
would be maintainable. This provi- sion indicates the legislative intent that a
person succeed- ing to the property from his ancestor is 515 entitled to
maintain the application for eviction of a tenant provided he fulfils other
conditions. But a person who may have obtained right to the agricultural land
by assignment, transfer, or by auction sale or in any similar mode, is not
included within the expression of 'landlord' entitling him to evict the tenant.
2.
After the amendment of Section 31A(d) the Legislature made it clear that
transferees and assignees from persons whose name may be appearing in the
record of rights during the relevant period are not to be treated as landlords
for the purposes of the Section. The expression 'or otherwise' occurring in
clause (d) indicates that a person claiming title by transfer, assignment,
court sale or in any other mode like gift, or will even from ancestor will not
be a landlord for the purposes of the Section. A person inherit- ing property
from his ancestor would be landlord provided his ancestor's name appears in the
record of rights during the required period. But a person claiming title on the
basis of transfer, assignment. auction sale or otherwise including gift or will
from the predecessors-in-title even though he may be his ancestor, and his name
may be recorded in the record of rights during the required period, will not be
entitled to maintain a suit for eviction of a tenant. The Legislature placed
this restriction in order to protect the interest of the tenants and to prevent
avoidance of the restrictions placed by the ceiling laws. In the absence of any
such provision a landlord could transfer land to his descendents by gift or
will to evade the ceiling law and to evict tenants. Under Section 31-A(d) such
a beneficiary is not entitled to maintain a suit for the eviction of a tenant
from the agricultural holding as he would not be a landlord within the meaning
of the Section.
Waman Ganesh
Joshi v. Ganu Guna Khapre, 61 Bombay L.R. 1267; Khalliulla Hasmiya v. Yesu, 50
Bombay L.R. 201;over- ruled.
Bhanushanker
Ambalal v. Laxman Kala & Ors., [1960], Gujarat Law Reporter 169, approved.
Umraomiya
Akbartniya Malek v. Bhulabhai Mathurbhai Patel
Appeal
No. 112/63 decided on 3.3. 1972 (High Court of Guja- rat) referred. & CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 786 of 1976.
From
the Judgment and Order dated 12.1. 1976 of the Gujarat High Court in Special Civil Application No. 873 of 1970.
516
P.H. Parekh for the Appellant.
Krishan
Kumar for the Respondents.
The
Judgment of the Court was delivered by SINGH, J. This appeal is directed
against the judgment and order of the High Court of Gujarat dismissing the appel-
lant's writ petition made under Article 227 of the Constitu- tion of India
challenging the validity of the order of the Revenue Courts in dismissing the
appellant's suit for evic- tion of respondents.
Briefly,
the facts giving rise to this appeal are: the respondents are tenants of
agricultural land which had been let out to them by the appellant's predecessors-in-title.
The
appellant made applications on behalf of minor Ashok Kumar for the eviction of
the respondents on the ground that the agricultural land in dispute was bona
fide required by the landlord for his personal cultivation. The appellant
pleaded that the land in dispute had been bequeathed to him by his maternal
grandmother under a Will and as such he was the landlord of the disputed land
entitled to maintain the applications for eviction of the respondents under
Section 29 read with Section 3 IA of the Bombay Tenancy and Agricul- tural
Lands Act 1948 (hereinafter referred to as the Act) as applicable to the State
of Gujarat. The tenants raised a preliminary objection to the maintainability
of the suit on the ground that the appellant being a transferee of the land
from his maternal grandmother was not entitled to maintain the suit as a
landlord under Section 31A of the Act, inas- much as he had not inherited the
property from his ances- tors. The Mamlatdar upheld the preliminary objection
and dismissed the eviction' suit. On appeal the District Deputy Collector
upheld the order of the Mamlatdar. The appellant preferred revision application
before the Gujarat Revenue Tribunal at Ahmedabad but the same too was dismissed
uphold- ing the tenants' objection. The appellant thereafter filed a writ
petition under Article 227 of the Constitution before the High Court
challenging the correctness of the view taken by the Revenue Courts. The High
Court by its order dated 12.1. 1976 dismissed the writ petition on the finding
that the view taken by the Revenue Courts in upholding the ten- ants' objection
to the maintainability of the eviction suit was correct. The appellant has
preferred this appeal against the aforesaid order of the High Court.
There
is no dispute that under Section 31A of the Act a landlord has a right to
determine tenancy of agricultural land and to evict the 517 tenant on
fulfilling the conditions prescribed therein. The conditions prescribed are
that if the landlord has no other land of his own and if he has not. been
cultivating person- ally any other land, he is entitled to take possession of
the land let out to a tenant to the extent of permissible ceiling area. If the
land cultivated by the landlord person- ally is less than the ceiling area he
is entitled to take possession of so much area of land as would be sufficient
to make up the area in his possession to the extent of ceiling area. further
the income by the cultivation of the land of which he is entitled to take
possession should be the prin- cipal source of income for his maintenance.
These conditions as laid down in clauses (a), (b) and (c) of Section 31A of the
Act must be satisfied for making an application for the eviction of a tenant
from agricultural land. In addition to these conditions, clause (d) further
prescribes additional conditions which must also be fulfilled by the landlord.
Section
31A(d) as amended by the Gujarat Act No. XVI of 196(1 reads as under:
"31.A
The right of a landlord to terminate a tenancy for cultivating the land
personally under Section 31 shall be subject to the following conditions.
(a)
..............................................
(b)
..............................................
(c)
..............................................
(d)
The land leased stands in the record of rights or in any public record or
similar revenue record on the 1st day of January, 1952 and thereafter during
the period between the said ,date and the appointed day in the name of the
landlord himself. or of any of his ancestors (but not of any person from whom
title is derived, whether by assignment or Court sale or otherwise) or if the
landlord is a member of a joint family, in the name of a member of such
family." The above provision primarily requires that the name of the
person applying for the eviction of the tenant or of his ancestors should be
recorded as landlord in the record of rights on 1.1. 1952 and he should further
be recorded as landlord on the appointed day, namely, 15.6. 1955. Both these
conditions are required to be fulfilled before a suit or an application is
maintainable by a landlord for the eviction of the tenant. If either of the two
conditions are not satisfied, the application for eviction of the tenant will
not be maintainable. The provision 518 of clause (d) further provides that even
if the landlord's name is not recorded. but if the name of his ancestor is
recorded similarly if the landlord is a member of joint family, the name of any
member is recorded the application would be maintainable. This provision
indicates the legisla- tive intent that a person succeeding to the property
from his ancestor is entitled to maintain the application for eviction of a
tenant provided he fulfils other conditions.
But a
person who may have obtained right to the agricultural land by assignment,
transfer, or by auction sale or in any similar mode, is not included within the
expression of 'landlord' entitling him to evict the tenant. Clause (d) of
Section 31A of the Act as it stood before its amendment by the Gujarat Act XVI
of 1960 reads as follows:
"The
land leased stands in the record of rights or in any public record or similar
revenue record on the 1st day of January 1952 and thereafter during the period
between the said date and the appointed day in the name of the landlord
himself, or of any of his ancestors, or if the landlord is a member of a joint
family in the name of a member of such family." The above provision before
its amendment was interpreted by the Bombay High Court in Waman Ganesh Joshi v.
Ganu Guna Khapre, 61 Bombay L.R. 1267. The High Court placing reliance on Khalliulla
Hasmiya v. Yesu, 50 Bombay L.R. 201 held that the term 'landlord' according to
clause (d) of Section 31A of the Act included any person from or through whom
he may have derived his title to the land, and therefore for proper compliance
of the conditions mentioned in clause (d) of Section 3 IA it is sufficient that
either the name of the claimant or his predecessors-in-title stands in the
record of fights during the required period. A Full Bench of the Gujarat High
Court in Bhanushanker Ambalal v. Laxman Kala & Ors., [1960] 1 Gujarat Law
Reporter 169 disagreed with the view taken by the Bombay High Court in Warnan Ganesh
Joshi's case (supra). The Full Bench held that the expression "in the name
of landlord himself" occurring in clause (d) of Section 3 IA must be read
as the landlord individually and not any one claiming through him as a
successor in interest, therefore a transferee from a landlord in whose name the
land is shown to stand cannot fit into the structure of the clause. The Full
Bench judgment was rendered on 28.7. 1960 prior to the amendment of the Section
by the Gujarat Act XVI of 1960. After the amendment of Section by Gujarat Act
XVI of 1960, the Legislature made it clear that transferees and assignees from
persons whose name may be appearing in the record of 519 right during the
relevant period were not to be treated as landlords for the purposes of the
Section. The expression 'or otherwise' occurring in clause (d) indicates that a
person claiming title by transfer, assignment. court sale or in any other mode
like gift, or will even from ancestor will not be a landlord for the purposes
of the Section. The Legislature has clearly laid down that a person inheriting
property from his ancestor would be landlord provided his ancestor's name
appears in the record of right during the required period. But a person
claiming title on the basis of transfer, assignment, auction sale or otherwise
including gift or will from the predecessors-in-title even though he may be his
ancestor, and his name may be recorded in the record of rights during the
required period, will not be entitled to maintain a suit for eviction of a
tenant. The Legislature placed this restriction in order to protect the
interest of the tenants and to prevent avoidance of the restrictions placed by
the ceiling laws. In the absence of any such provision a landlord could
transfer land to his descendants by gift or will to evade the ceiling law and
to evict tenants. Under Section 31A(d) such a beneficiary is not entitled to
maintain a suit for the eviction of a tenant from the agricultural holding as
he would not be a landlord within the meaning of the Section.
In Umraomiya
Akbarmiya Malek v. Bhulabhai Mathurbhai Patel & Anr., [1965] 6 Gujarat Law
Reporter 788 the peti- tioner therein made application for eviction of tenant
claiming to be landlord on the basis of a gift made in his favour by his
maternal grand-father who was recorded in the record of rights during the required
period. The question arose whether the once who had acquired the property under
a gift made by his maternal grand-father was a landlord within the meaning of
clause (d) of Section 31A. The High Court on an elaborate discussion held that
the petitioner therein was not a landlord within the meaning of the Section. A
Division Bench of the High Court of Gujarat in Special Civil Appeal No. 112/63
decided on March 3, 1972 considered the question whether a person who obtained
the property under a Will from his grand-mother was a landlord under clause (d)
of Section 31A of the Act, the Division Bench held that having regard to the
context, the object and scheme of the enactment such a person was not a
landlord within the meaning of clause (d) of Section 31A. The Bench further
held that the Legislature intended to restrict the right of landlord to obtain
possession for bona fide cultivation purposes, and it did not intend to include
the case of a landlord who derived title under a Will. We arc in agreement with
the view taken by the Division" Bench. The learned single Judge of the
High Court while rendering the, impugned judgment followed the view taken by
the aforesaid Division 520 Bench. In this view, we find no legal infirmity in
the impugned judgment of the High Court.
Learned
counsel for the appellant-referred to certain decisions of the Bombay High
Court where contrary view had been taken. Since the interpretation of Section 31A(d)
of the Act as made by the Gujarat High Court in the aforesaid decision has been
the law for the last 25 years. and as that interpretation is justified having
regard to the legislative history of the Section, we do not consider it
necessary to deal with those decisions. The appeal fails and is accord- ingly
dismissed. but there will be no order as to costs.
V.P.R.
Appeal dismissed.
Back
