DHONDIRAM TATOBA KADAM versus RAMCHANDRA BALWANTRAO DUBAL

DHONDIRAM TATOBA KADAM v. RAMCHANDRA BALWANTRAO DUBAL (SINCE DECEASED) BY HIS LRS. AND ANR. JULY 27, 1993 [DR. T.K. THOMMEN, V. RAMASWAMI AND R.M. SAHA!, JJ.] Tenancy Laws: Bombay Tenancy and Agricultural Lands Act, 1948 : Section 32( 1-B )-Tenant su"endering the tenancy-Whether could be said to have been dispossesse(}-Whether could claim the benefit under this section. Respondent No.1 filed a suit against Respondent No.2 and the appellant, alleging that a conditional mortgage was executed by him in favour of Respondent No.2 in 1952 after getting the land surrendered from the appellant. It was claimed that despite the offer of paying the mortgage amount, defendant was not willing to hand over possession to the plaintiff. D Therefore it was prayed that a declaration be granted that the plaintiff was the owner of the said land on payment of the mortgage amount to the defendant.

In the written statement the defendant pleaded that the land was let E out to the appellant and so the possession was with the appellant. The trial court framed the issues regarding the tenancy and referred . them for decision to the Revenue authorities, who decided in favour of the plaintiff, The appeal preferred by the defendant and the appellant was dismissed by the appellate authority, holding that the appellant was not F the tenant from 1952 to 1968,

The Revenue Tribunal allowed the revision preferred by the appel· lant and set aside the order passed by the two authorities. Against this order, the plaintiff filed a civil miscellaneous application before the High Court. The application was allowed and the order of the Tribunal was set G aside. The High Court found that the appellant continued to possess the land till he surrendered in 1956, and that he was not in possession from 1956-57 till 1968·69. Since the appellant did nut move any application within two years under section 29 of the Bombay Tenancy and Agricultural Lands Act,1948, his remedy to recover possession became barred by limita- H A !ion and so the right of the appellant extinguished. The High court dis- agreed with the Revenue Tribunal on collusion between the appellant and defendant.

The present appeal is against the said decision of the High Court. Dismissing the appeal, this Court HELD: Per Majority (Sahai, J. for himself and Dr. Thommen, /)" 1.1 Section 32(1-B) of the Bm~bay Tenancy and Agricultural Lands C Act, 1948 should be construed in a manner which must effectuate the legislative objective of making every tenant purchaser of the land if he satisfies the conditions laid down in Section 32(1-B) of the Act whether he was in possession or not. [427-G]

1.2 Section 32(1-B) entitles a tenant to restoration of possession D provided he was in possession on the appointed date, i.e.15th June 1955, and was dispossessed before 1st April 1957 and his landlord was in possession on 31st July 1969. The Section is, thus, in two parts, one creating right and other entitling restoration of possession. Proceedings for restoration could take place. either at the instance of the tenant or suo E moto by the Tehsildar. But the order could be passed only if the primary requirements of tenant being in possession on the appointed date and his dispossession before 1st April 1957 were satisfied. The language of the latter part of the section, directing the Tehsildar to take possession of the land from the landlord and restore it to the tenant who, on restoration by operation of law, becomes purchaser from the date of restoration, is clear F legislative indication to construe the section liberally in favour of the tenant. [426-F-H]

1.3 The language of the sub-section (1-B) of section 32 is clear that it does not grant•any protection to a tenant who was in possession Of\" 031st July, 1969. But reading the section in such a narrow manner would be G defeating the legislative objective of enacting a beneficient legislation endeavouring to make the tillers of soil as purchaser and owner. This is clear from amendments made from time to time between 1957 and 1969. When Section 32 was renumbered and sub-section(1) was added in 1957, 1.st April 1957 was declared as tillers' day and it was provided that every H tenant who was one of those mentioned in the sub-section and was cultivat- ing the land personally was entitled to became purchaser of such land from A his landlord free of all encumbrances subsisting on that date. In 1958 similar rights were granted by Sub-section (1-A) added to Section 32, to those tenants who had been evicted prior to the tillers' day and were not in possession but had made an application for possession of the,land under sub-section (1) of Section 29. In 1969 yet another right was granted by Section 32(1-B). There can, thus, be no doubt that the legislature intended not only to grant rights to those tenants who were in possession but also to restore the land from which the tenant had been evicted prior to 1957 on satisfying the conditions mentioned in Section 32(1-A) and (1-B) and make such a person the purchaser of the land an restoration of possession. A tenant who is otherwise entitled to restoration of possession C due to operation of the first part of the section is found to be in possession after 31st July 1969 either with permission of the landlord or in any other manner, is not liable to be evicted as it would result in conferring higher rights on a person who is not in possession than a person who is in possession. [427-B-G]

2.1 Both the tribunal and the High Court concurred on the surrender by the appellant. The effect of surrender was that the appellant ceased to be tenant. Assuming that surrender was invalid and the appellant left the possession over land of his own accord, such voluntary giving up of possession does not amount to dispossession unless the law provides for E it. The dispossession should have been either by legal process or by physical act of exclusion. It would not include leaving possession volun- tarily or by surrender. If the words would have been that if such a person was not" in possession before 1st April 1957 then a tenant who surrendered or left the possession voluntarily could be included in it. But the legislature F having used a stronger word, it should, in the absence of any indication to the contrary, be understood in its normal sense. A tenant surrendering the land either in accordance with the provisions of law of leaving possession voluntarily would not be covered in the expression 'dispossessed'. The appellant, on the finding of the High Court, therefore, was not dispos· sessed. [ 428-D-F)

2.2. Even if the surrender was not valid as found by the tribunal then the appellant should be deemed to have left possession voluntarily. In either case it was not dispossession. The appellant, therefore, did not satisfy the second requirement. Consequently, he did not become pur- H A chaser of the land under Section 32(1-B) of the Act. [428-G] Per V. Ramaswami, J. (Corltra):

1. The execution of the registered lease deed in favour of the first defendant on 30th June, 1952 might not necessarily lead to the conclusion B that there was' a surrender of possession. The tenant might have agreed to accept the first defendant-purchase~ from the original owner as bis landlord and in token thereof attorned the tenancy and executed the registered rent deed. In fact the High Court concurred with the findings of the Tribunal that the tenant was in possession and cultivation during C the years 1950-51to1956-57. Assuming that there was a legal surrender of the original tenancy right, a fresh tenancy right bas been created by the alleged purchaser if the deed dated 23.6.1952 is to be treated as a sale deed. Even if it is a mortgage by conditional sale the fires! defendant was entitled to lease the property to the second defendant. There was no plea in the suit that subsequent to 1952 there was any oral surrender by the tenant. D It is not also possible to infer from the entry made by the Talathl as to when the surrender of possession, if any, was made. One could infer that on the date of intimation, namely, 14.12.1956 there was a surrender. If it is to be a date earlier than that there shonld be a positive evidence to that effect. In the absence of any positive evidence as to when actual surr_ender E was effected it is not possible to infer that it was effected prfor to 1st August, 1956. (431-C-F)

2. The Revenue Tribunal bas found that the appellant had continued to be in possession right from 1949 and infact the snit itself is for possession. The plaintiff has not stated that because of any surrender of F possession the tenant had lost his right to be in possession Therefore, the provisions of Section 29(2) is not applicable to this case. There is no clear finding as to the nature of the document dated 23rd June, 1952 either. If it is a sale deed then the plaintiff's suit will have to be dismissed. If it is a mortgage by conditional sale it has to be treated as subject of the tenancy G right and the plaintiff would be entitled to only to whatever right, title or interest that was conveyed under the document dated 23.6.1952. The plain- tiff did not even plead that before he executed the deed dated 23.6.1952 the second defendant surrendered his possession or his tenancy right. In either case, therefore, on the facts, the findings of the Revenue Tribunal were correct and the High Court could not have interfered with the same. [431-G-H; 432-A-Bl CIVIL APPELLATE JURISDICTION : Civil Appeal No. 550 of A 1981. From the Judgment and Order dated 21-6-1980 of the Bombay High Court in S.CA. No. 2655 of 1975.

S.B. Bhasme and A.S. Bhasme for the appellant. V.N. Ganpule A.M. Khanwilkar, Ms. Poonam Kumari and C.L. Sahu for the respondents. The Judgment of the Court was delivered by R.M. SAHAI, J. The short question of law that arises for considera- tion in this appeal, by grant of special leave under Article 136 of the Constitution of India, is if a tenant under the Bombay Tenancy & Agricul- tural Land Act, 1948 (hereinafter referred to as the Act) who surrendered c

the tenancy can be said to have been dispossessed so as to claim benefit under Section 32(1B) of the Act added, in 1969, in Chapter III, dealing D with 'Special Rights and privileges of Tenants and Provisions for Distribu- tion of Land for Personal Cultivation'.

For this purpose it is necessary to narrate facts in brief. A suit was filed by the respondent no.I – plaintiff (referred to as plaintiff) against E respondent no.2 – defendant (referred to as the defendant) and the appel- lant – defendant No.2 (referred to as the appellant), on the allegation that a conditional mortgage was executed by the plaintiff in favour of defendant in 1952 after getting the land surrendered from the appellant but since the defendant was not willing to hand over possession despite offer of paying the mortgage amount, a declaration may be granted that he was the owner F of the land in dispute on payment of the mortgage amount lo the defen- dant. In the written statement filed by the defendant it was claimed that he was the owner of the land in dispute. Apart from, that, one of the pleas raised was that the land in dispute was let out by him to the appellant who was in possession since then. On the pleadings one of the questions that G arose was whether the appellant was the tenant of the lane in dispute. Since the question of tenancy could be decided. by the revenue authorities only, two iss~es were framed to the following effect:

1. Does defendant no.2 prove that he was a tenant over the suit land since prior to mortgage transaction dated 23.6.1952. 2. Does defendant no.2 (present applicant) further prove that he is the tenant of defendant no.1 over the suit land since 1952. The issues were referred for decision to the Sub- Divisional Officer. They were decided in favour of the plaintiff against which the appeal filed by the defendant and appellant was dismissed. The appellate authoriiy held that B the appellant was the tenant even in 1949 but he surrendered his tenancy at the time of mortgage by the plaintiff. It was further held that he was not the tenant from 1952 to 1968. And his claim was falsified by absence of his name in revenue records from 1956 to 1968. It was supported by drawing an inference against the appellant as the defendant did not refer to his C tenancy in the reply sent by him to the notice sent by the plaintiff in 1969.

The revenue tribunal, however, allowed the revision, setting aside the order passed by the two authorities and answered the issues referred to it in the affirmative in favour of the appellant. It found tha\ the appellant had not surrendered in 1952. It was held that there was no iota of evidence to support it. Jn' respect of second surrender in 1956 the tribunal even after D recording the finding that there was little doubt that the appellant had surrendered the possession held that the relationship of landlord and tenant between the appellant and the defendant did not cease. It was further held that surrender having been entered in revenue records in December 1956 and the law having been amended in August by Act XIII E of 1956 making it obligatory for surrender to be in writing the surrender by the appellant was invalid. Consequently it found that as appellant was in possession of the land as tenant mi 15th June 1955 and was dispossessed before 1st April 1957 otherwise than in the manner and by an order of the Tahsildar as provided in Section 29 he was en:titled to benefit of Section 32( 1-B) of the Act. The two issues were answered thus,

"Issue No.1 : the defendant No. 2 (i.e. the present revision ap- plicant) does prove that the was a tenant over the suit property since prior to the mortgage transaction dated 23.6.52.

Issue No.2 : He further proves that he is undisputably the present .tenant of the land and further he had not ceased to be so, despite his alleged surrender of possession in December 1956."

Against this order the plaintiff filed a civil miscellaneous application before the High Court which was allower,I and the order of the tribunal was set H aside. The High Court found that is was not disputed that the appellant

was the\tenant under registered lease deed executed on 15-6-1949 nor there A was any disp~ that there was a conditional sale deed in favour of the defendant. Therefore, even though there was no evidence lo support the surrender but since, under the provisions of the Act, no transfer of interest was possible without the consent of the tenant, as he alone was entitled to purchase the land, an inference in law arose that when conditional mortgage was executed th~- te~ant must have surrendered the land in dispute in favour of the plaintiff. This finding was supported by the state- ment of the appellant who, appears to have, admitted in his deposition that there was a surrender and the defendant was put in possession of the land. It was further held that appearance of appellant's name in revenue records did not negative surrender. The appellant was tenant of plaintiff since 1949 till surrender and of defendant from 1952 till he surrendered again in 1956. The High Court found it as a fact that the appellant continued in posses- c

sion of the land till he surrendered in 1956. The High Court held that surrender was proved by entry in December 1956. When was the actual surrender made could have been proved by the defendant. In absence of D any evidence led by defendant the Court inferred that it must have been made prior to August 1956. The factum of surrender stood proved by follow up actjon of not only deletion of appellant's name from record but its absence till the plaintiff gave notice in 1969. Since the tribunal in · reeording finding on both the surrender misdirected itself by not adverting to relevant material and drawing on conjectl)res the )'figh Court was well• E within its jurisdiction to set aside the order.. The High Court found that tJ¥' entry havini{ appeared in 1968-69 it was clear that the tenant Was not/in possession from 1956-57 till 1968-69. Further since the appellant dia/not move any application ~thin two year under Section 29 of the Act, his remedy to recover possession became barred by limitation. It also held that since the remedy was lost the right of the appellant extinguished. The High Court dis~greed with the tribunal on collusion between the appellant and the defendant and held that it exceeded it jurisdiction in setting aside the finding of the two authorities on this score.

Two question ~rise in this appeal, one if the High Court was right, G in law, in negativing Jlaim of the appellant under Section 32(1-B) and other if~ tribunal in setting aside the finding on collusion in revision exceed6d · its jurisdiction. Out of the two it is proposed to take up legal issue on applicability of Section 32(1B) as if the appellant cannot successfully assail this finding then the, finding on collusioh becomes 'l,cadernic only. s~'hibn H . A 32 (1-B) of the Act is extracted below:

c 'Where a tenant who was in possession on the appointed day and who on account of his being dispossessed before the !st day of April 1957 otherwise t_han in the manner and by an order of the Tahsildar as provided in Section 29, is not in possession of the land on the said date and the land is in the possession of landlord or his successor-in-interest on the 31st day of July 1969 and the land is not put to a non-agricultural use on or before the last mentioned date, then, the Tahsildar shall, notwithstanding anything contained in the said section 29, either suo motu or on the application of the tenant, hold and inquiry and direct that such land shall be taken from the possession 9f the landlord or, as the case may be, his successor-in-interest, and shall be restored to the tenant; and thereafter, the provisiohs of this section and sections 32A to 32R – (both inclusive) shau;1 in so far as they may be applicable, apply the~eto, subject to ,the modification that the tenant spa11 be deemed toihave pureha_sed the 1land on the,1 date on which the land is restored to him:

Provided that, the tenant shall be entitled to restoration of the land under this sub-section .only if ~e undertakes to cultivate the land personally a_nd of so much thereof as together with the other land held lly him as owner or tenant shall not exceed the ceiling area.

The Section entitles a tenant to resto,Cation of possession provided he was p. in possession on the appointed date, i.e. 15th June 1955 and was dispos- .. sessed before 1st April 1957 and ,his landlord was in possession on 31st July 1969. The Section is, thi'is, in t~o parts one creating right and other entitling restoration of poss<;ssidn. Proceedings for restoration could take place either at the instance of the tenant or suo motu by the Tahsildar. But the order could be passed only if the primary requirements of tenant being G in possession on the appointed date and his dispossession before 1st April _ 1957 were satisfied. The language of the latter ·part of the Section directing the Tahsildar to take possession of the land from the landlord and restore it to the tenant who on restoration by operation of law becomes purchaser from the date of restoration are clear legislative indications 1 o construe the Section liberally in fav?ur of the tenant. What happens it a tenant who t

D.T. KADAM v. R.S. DUBAI.. [SARAI, J.] . satisfied the requirements as provided in the Section is found to be in A possession on 31st July 1969. Could he be evicted in any proceeding even though he· ~ntisfied the requirement of being in possession on appointed date and was evicted before 1st April 1957. Would such construction of the Section be in coµsonance with the spirit of the Act. On the language the s11!J..section does not grant any protection to a tenant who was in B possession on 31st July 1969. But reading the Section in such a narrow would be defeating the legislative objective of .enacting a beneficient legis- lation endeavouring ro make the tillers of soil as purchaser and owner. This ·is i;lear from amendments made in Section 32 from time to time between 1957 to 1969. When Section 32 was renumbered and sub-section (1) was added in 1957, 1st April 1957 was declared as tillers date and it was C provided that every tenant who was one of those mentioned in the sub-Sec- tion and was cultivating the land personally was entitled to become pur- chaser of such land from his landlord free of all encumbrance subsisting on that date.

In 1958 similar rights were granted by sub-section (1-A) ad.ded to Section 32, to those tenants who had been evicted prior to the D tillers date and were not in po~ession but had made an application for possession but had made an application for possession of the land under sub-Section (1) of Section 29. 1n 1969 yet another right was granted by Section 32{1-B) which has been eXtracted above. There can, thus, be no doubt that the legislature intended not onfy-to grant rights to thqse tenants who were in possession ou~ also to restore the land from which the tenant E had been evicted prior to 1957 on.satisfying the conditions mentioned in Section 32{1-A) :an<l {1-B). and make such a person on restoration of possession purchaser of the land. What'happens if a tenant who is other- wise entitled to re•toration of possession due to operation of the first part of the Section is found to be in possession after 31st July 1969 either with permission of the landlord or in any other manner.

Is such a tenant liable to evicf:ion? The answer should be in the negative as it would result in conferri.tlg higher rights on a person who is not in possession than a person -who is in possession. In our opinion, Section 32{1-B) should be construe·· in a manner which must effectuate the legislative objective of making every tenant purchaser of the land if he satisfies the conditions laid down 'in G Section 32(1-B) of the Act whether he was in possession or not. Even then the question is if the appellant on facts found is entitled to the declaration that he became a purchaser of !arid by operation of law under Section 32(1-B). It has been found by the High Court that the appel-. H A !ant was in possessio~ from 1~52 to 1956, thus, he satisfied the first require- ment of being in possession dn the appointed date. But that alone was not sufficient as a tenant shpuld h~ve be~n dispossessed before the 1st day of April 1957.

It was found by the 'High 'court that the appellant surrendered sometime before August 1956 which Was established by an entry in the I, B revenue records made in December 1956. Th' tribunal too found that the appellant had surrendered his po~se~sien. ~s·\was ~]ear from the mutati?n entry supported by absence of entnes m favour of appellant from 1957-58 to 1968- 69. The difference between the tribiinal and the High Court was in constructioiHzf the nature of surrender. The tribunal found it to be invalid as no oral surrender could be effected after Amendment Act 13 of 1956 C whereas the High Court was(;f opinion that in absence of any evidence as to. the actual date of surrender, there was no reason not to accept the case of , plaintiff that surrender was before December 1956 and, therefore, it was in ' laccordance with law. In any case both the tribunal and the High Court concurred on the e~rrender by the appellant ceased to be tenant.

Assuming D that surrender was invalid and the appellant left the possession over land of his own accord. Was he dispossessed as contemplated in Section 32(1-B) of the Act? Voluntary giving up of possession does not amount to dispossession unless the law prpvidcs for it 'Dispossess' according to Black's Law Diction- ary means 'to oust from land by legal process; to eject, to exclude from realty'. The Cit' possession should have been, therefore, either by legal E process otby hysi,cal act of exclusion. It would not include leaving posses- sion voluntari y or iby surrender. If the words would have been that if such a person was no ll)ipossession before 1st April 1957 then a tenant who sur- rendered or left the possession voluntarily could be included in it. But the legislature having used a stronger word it should, in a absence of any in,dica- F lion to the contrary, be understood in its normal sense.

A tenant surrender- ing the land either in accordance with the provisions of law or leaving possession voluntarily would not be covered in the expression 'dispossessed'. The appellant, on the fin,ding of the High Court, therefore, was no dispos- sessed. Even if the surrender was not valid as found by the tribunal then the appellant shall be deemed to have left possession voluntarily. In either case G it was not dispossession. The appellant therefore did not satisfy the second requirement. Consequently he did not become purchaser of the land under Section 32(1-B) of the Act.

In \he result this appeal fails and is dismissed. Parties shall bear own H cost.'" V. RAMASWAMI, J. Jn my view on the facts the interpretation of A the provision in Section 32(1-B) of Bombay Tenancy & Agricultural Lands Act, 1948 does not arise for consideration. One facts with great respect I am unable to agree either on the assessment of facts or on the ultimate conclusion in the Judgment.

One Ramchandra Balwantrao Dubai, Respondent No. 1 in this ap- peal (since dead and is now represented by his legal representatives) filed a suit for redemption of a mortgage by conditional sale dated 23rd June, 1952 against the second respondent who was shown as first defendant in the suit. The appellant herein was impleadeil as a second defendant. The case of the first respohdent- plaintiff in the suit was that the said deed dated 23rd June, 1952 was a mortgage by conditional sale, that the property c

was to be in possession of the second respondent (first defendant in the suit) till the mortgage is redeemed and that the plaintiff was entitled to redeem the same without payment of any money ,and get possession of the property from the first defendant. Alternatively', he pleaded that the six . D years period of redemption stipulated in the deed having expired he is entitled to get executed a deed of re-conveyance from the second respon- dent (defendant No. 1). He further stated in the plaint that with an intention of creating some obstruction, if possible, the second respondent (defendant No.l) had made an entry of the appellant's name in the column of tenant in the records in collusion with the Talathi and that it was a bogus entry. He further contended that the second defendant had no concern with the land nor was he ever a tenant in the suit property. The first defendant (second respondent herein) filed a written statement stating that the deed dated 23rd June, 1952 was not a mortgage by conditional sale but that it was an absolute sale and that under that document he purchased the property from the plaintiff and had become the owner of the same. He further stated that after he purchased the property the second defendant (the appellant herein) became his tenant and has been in the possession of the property as his tenant since the year 1952.

The second defendant (appellant· herein) filed a separate written statement contending that he was a tenant in respect of the suit property under a registered lease deed dated 15th June, 1949 executed in favour of the plaintiff and that after the purchase of the suit property by the first defendant, (second respondent herein) he executed another registered H A leased deed in favour of the purchaser and that he had continued in the possession and enjoyment of the property ever since 1949 and the suit for possession against him is liable to be dismissed.

When the suit was taken up for trial in the ~idw that a question of B . tenancy is involved, the matter was referred to the Revenue Authorities constituted under the Bombay Tenancy and Agricultural Land Act, 1948. The two issues that were referred to the authorities were :

1. Does defendant No. 2 ( appellant) prove that he was a tenant over the suit property since prior to the mortgage transaction dated c

23.6.1952.

2. Does he further prove that the he is the tenant of defendant No. 1 (second respondent) over the suit land since 1952. D Though the Original Authority and the First Appellant Authority under the Act answered both the issues in the negative and held that the appellant was neither a tenant before 23.6.1952 nor was a tenant after that, the Revenue Tribunal in its order dated 31.3.1975 held that the appellant was a tenant under a registered rent not dated 15.6.1949, that he had never surrendered possession though he executed a registered rent deed again in E favour of the first defendant (second respondent herein) after the transac- tion dated 23.6.1952. The Tribunal also held that there was no surrender by the second defendant subsequent to 1952 and the entries in the relevant register showed that since 1950-51 to 1956-57 the appellant cultivated the land without any break or without any interruption. Though from 1957-58 F to 1968-69 the entries do not show the name' of the second defendant as tenant it reappeared in the register since 1969-70 and that therefore the plaintiff (first respondent) had no right to deny the appellant's status as a tenant of the land and in that view answered the two issues referred to b,y the Civil Court in favour of the appellant and held thaMhe appellant was a tenant over the suit property since prior to the transaction dated G 23.6.1952 and that he continued to be the tenant and had not ceased to be so.

The plaintiff filed a petition before the High Court under Article 227 of the Constitution against this finding of the Tribunal. The High Court fl acccpte,d that the appellant was a tenant under a registered lease deed D.T. KADi\M v. RS. DUBAL [V. RAMASWi\MI, J.]

executed on the 15th June, 1949 but in the view that the transaction of A conditional sale dated 23rd June, 1952 could not have come into existance without the surrender of tenancy rights by the tenant, took the view that the appellant should have iurrendered the land to the plaintiff before 23rd June, 1952. The High Court then observed that since the Tal~thi had made an entry in the register to the effect that on the basis of an intimation dated B 14.12.1956 given by the appellant herein the name of the ·appellant had been deleted from the tenancy column, came to the conclusion that there was a surrender by the appellant-tenant sometime before 1'4.12.1956. I am unable to see how the High C0urt could hav~ interfered wjth the findings c

on facts given by the Revenue Tribunal in-· exercise of_,its power under Article 227 of the Constitution in this regard. Even without going into the jurisdiction the inference drawn by the High Court is not warranted by the facts. The execution of the registered lease deed in favour of the first defendant (second respondent herein) on 30th June, 1952 might not neces- sarily lead to the conclusion that there was a surrender of possession. The tenant might have agree to accept the first defendant-purchaser from the D original owner as his landlord and in token thereof attorned the tenancy and executed the registered rent deed. In fact the High Court concurred with the findings of the Tribunal that the tenant was in possession and cultivation during the years 1950-51 to 1956-57. Even if, it is to be assumed that there was a legal surrendei\ o\ the original tenancy right, a fresh E tenancy right has been created by ·'the alleged purchaser if the deed dated 23.6.1952 is to be treated as a sale deed.

Even if it is a mortgage by conditional sale the first defendant was entitled to lease the property to the second defendant. There was no plea in the suit that subsequent to . 1952 there was any oral surrender by the tenant. It is not also possible to infer from the entry made by the Talathi as to when the surrender of possession, if any, was made. One· c0uld infer that on the date of intimation, namely, 14.12.1956 there was a surrender. If it is to be a date earlier than. that there should be a positive evidence to that effect. In the absence of any positive evidence as to when actual surrender was effected it is not possible to infer that it was effected prior to 1st August,- 1956. The Revenue G Tribunal has found that the appellant had continued to be in possession right from 1949 and in fact suit itself is for possession. The plaintiff has not stated that because of .iny surrender of possession the tenant had lost his right to be in possession.

Therefore, the provisions of Section 29(2) is not A applicable to this case. There is no clear finding as to -the nature of t'.iie document dated 23rd June, 1952 either. If it is a sale deed as contended by the first defendant thea1hc plaintiff suit will have to be dismissed. If it is to be held a mortgage by conditional sale it has to be treated as subject to the tenancy right and the plaintiff would be entitled to only to whatever B right, titl<; or interest that was conveyed under the document dated 23.6.1952. In fact as already stated the plaintiff did not even plead that before he executed the deed dated 23.6.1952 the second defendant s~r­ rendered his possession or his tenancy right. In either case, therefore, on the facts the findings of the Revenue Tribunal were correct and could nqt have been interferred with the High Court, therefore erred in setting aside c the order of the Revenue Tribunal. In the result appeal succeeds 1 and the order of the High Court is set aside and that of the Revenue Tribunal is restored. However, there will be no order as to costs.

G.N. Appe,al dismiss'ed.