c BHAGWANT PUNDALIK & ANR. v. KISHAN GANPAT BHARASKAL & ORS. October 19, 1970 [J. c. SHAH, K. s. llEGDE AND A. N. GROVER, JJ.] Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act 1958, s~. 20 and 36–Surrender of !and 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 pelrsonally, the respondents surren· dered 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 year-s, 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 leaal, this Court,
HELD : Possession obtained by. the landlord was not lawful, for, he obtained J>')SSession of the .lands from the tenants without complyina 'with tho requirement~ of s. 20 and sub-s. (2) of s. 36. Sub-section (2) of s. 36 prohibits the landlord from obtaining poss11ssion of any land beld by a tenant except un\ler an order of Tahsildar. Delivery of posseslion volun- tarily 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, !659 El By s. 20 of the Act which deals with surrender it is expressly pro- vided that surrender shall be in writing and shall be verified in the pres· oribed manner.
Surrender of tenancy which does not comply with the requirements of s. 20 is ineffective. Again the terms of suli-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 Tahsi!dar is valid. L659 HJ
In the present case there is no surrender of tenancy in writing and no varification of surrender by the Tahsildar. Madho SI o Talya Sonar v. Maharashtra Revenue Tribunal & Ors. Special Civil Application No. 206/1967 dt, 11-12-1969, followed. CML APPELLATE JURISDICTION: Civil Appeals Nos. 1409
a00 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 Civi.l 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 (w both the appeals). (1971] 2 S.C.R.
The J udgm•nt 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 culti- vation 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 there- after on January 18, 1961 he granted a lease of the lands for four years to Bhagwant son of Pundalik Kishan and Manik then appli- ed 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 applica- tion, 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 · (Vi<larbha 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 culti- vate the lands for the following two years, they had no right to be reinstated into possession of the lands, especially after tb.e 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.''
c c 1!HAGWANT v. KISHAN (Shah, /,) Sectfon 3 6 of the Act provides : ( 1 ) A tenant . . entitled to posses- sion of any land . . under any of the pro- visions of this Act or as a result of eviction in contraven- tion 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 deem- ed 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 pos- session 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 1h writing and verified before the Tahsildar and in the prescribed manner.
Possession obtained by Badridas was not lawful, fot· 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 pos-· session 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 Badriilas 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. Coul)sel for the appellant contended that s. 36(2) does not commence with the expression "Notwithsta.nding any agreement,. usage, decree or order of a court of Jaw" as s. 19 of the Act does, and on that account it may reasonably be inferred that the Legis- lature intended that only those tenants shall be deemed entitled to possession within the meaning of s. 3 6(1) who were dispossessed by fraud, coercion or misrepresentation, and not tenant who haa voluntarily parted with possession of the lands.
We are unable to agree with that contention. Section 19 provides that notwith- standing any agreement, usage, decree or order of a court of law tenancy of any land held by a tenant shall not be terminated except in the cases specified therein. Thereby it was intended .to. make the provisions of s. 19 paramount. In s. 2(1 of the Act which dea!s with surrender it is expressly enacted that surrender shall be m 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, sub-s. (2J 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 sub- s: (2). of s. 36 are explicit : they are rtot subject to any implication that possession obtained with the consent of the tenant, but with- out an order of the Tahsildar is valid
In a recent judgment Madhao s/o Tatya Sonar v. The Maharashtra Revenue Tribunal and ors.(') the High Court of Bombay held thats. 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 110 opinion on the question whther 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 are dismissed. Having regard to al! 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 standirtg on the lands, and prayed that the appellant may be a Uowed to reap them.
One month's time from the date of this judgment is given to the appellant to deliver possession of the lands. Y.P. (I) Special Civil Application No. 206 of 1967 ·decided on September 11/12, 1969.
Appeals dismissed. c