Appeal No 558 of 1963
216 Appeal by special leave from the judgment and order dated January 19 1961 of the Mysore High Court in Civil Petition No 654 of 1960
section G Patwardhan and K R Chaudhury for the appellant
A G Ratnaparkhi for respondent No 1
The Judgment of the Court was delivered by Bachawat J
The appellant is the landlord and respondent No 1 is the tenant of section Nos 180 and 182 of village Dhanyal taluk Bijapur
Respondent No 1 defaulted in payment of rent for the years 1951 52 1953 54 and 1954 55
On December 8 1956 the appellant served on respondent No I three months  notice in writing under section 141b of the Bombay Tenancy and Agricultural Lands Act 1948 Bombay Act No 57 of 1948 hereinafter referred to as the Tenancy Act terminating the tenancy on the ground of default in payment of rent
On June 24 1957 the appellant filed an application under section 292 read with section 141 of the Tenancy Act for possession of the land
The Tahsildar Bijapur allowed the application and directed possession of the land to be delivered to the appellant
This order was affirmed on appeal by the Assistant Commissioner Bijapur
On revision the Mysore Revenue Appellate Tribunal set aside the order of the first two tribunals and dismissed the application
A petition by the appellant under article 227 of the Constitution was summarily rejected by the Mysore High Court
The appellant now appeals to this Court by special leave
The Tribunals below concurrently found that respondent No I defaulted in payment of the rent for the years 1951 52 1953 54 and 1954 55 the last default took place on May 20 1955 and the tenancy was properly terminated by the appellant
The first two Tribunals also held that the application was filed within the time allowed by law
The Revenue Appellate Tribunal however held that the application being filed more than two years after May 20 1955 is barred by limitation
The sole question before us is whether the application was filed within the two years  period of limitation prescribed by section 292 of the Tenancy Act
The appellant contends that the application was filed within the prescribed period of limitation because 1 the right of the appellant to obtain possession of the land is deemed to have accrued to him on the termination of the tenancy by the notice given on December 8 1956 2 in any event in computing the two years  period of limitation the period of the three months  notice should be excluded in view of section 152 read with section 292 of the Indian Limitation Act 1908
We are of the opinion that the first contention of the appellant 217 should be accepted
In view of this conclusion we do not think it necessary to express any opinion on the second contention advanced on behalf of the appellant
Sections 141 and 292 of the Tenancy Act as they stood at
the relevant time are as follows  14
1 Notwithstanding any law agreement or usage or the decree or order of a court the tenancy of any land shall not be terminated a unless the tenant i has failed to pay the rent for any revenue years
before the 31st day of March thereof ii has done any act which is destructive or permanently injurious to the land iii has sub divided sub let or assigned the land in  contravention of section 27 iv has failed to cultivate it personally or v has used such land for a purpose other than agriculture or allied pursuits and b unless the landlord has given three months  notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination and within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated
 292 No landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar
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 or dwelling house as the case may be is deemed to have accrued to him
 At first sight it may appear that the Act gives no indication of the time when the right to obtain possession of the land or dwelling house is deemed to have accrued to the landlord as contemplated by section 292
But on a close scrutiny of the Act we are satisfied  that this right must be deemed to have accrued to him on the date of the termination of the tenancy
It is to be noticed that limitation for the application under section 29 2 commences to run from the date when the right to obtain 218 possession of the land or dwelling house is deemed to have accrued to the landlord Now the legislature could not have intended that limitation would commence to run before the right to apply accrues
It is reasonable to think that the right to apply also accrues to the landlord on the date when limitation for the application begins to run
But the right to apply under section 292 read with section 141 accrues to the landlord when the tenancy is terminated by the notice under section 14 1  b
In Raja Ram Mahadev Paranjype vs Aba Maruti Mali1 this Court observed  The statute having provided for the termination of the tenancy would by necessary implication create a right in the landlord to recover possession
The statute recognises this right by providing by section 292 for its enforcement by an application to the Mamlatdar
 It would follow that limitation for the application under section 292 read with section 141 begins to run from the date when the tenancy is terminated by the notice under section 141b
Consequently the date of the termination of the tenancy is also the date when the right to obtain possession is deemed to have accrued to the landlord
But it is argued that on the date of the termination of the tenancy the right to obtain possession of the land actually accrues to the landlord and therefore the legislature could not have intended that on that date this right is deemed to accrue to him
This argument must be rejected
In spite of the termination of the tenancy the landlord has no right to obtain possession of the land without an order of the Mamlatdar under section 292
Between the date of the termination of the tenancy and the date of the order for possession under section 292 the tenant continues to be in lawful possession of the land and is liable to pay rent and not mesne profits see Ramchandra Avant vs Janardan2
Thus on the termination of the tenancy the right to obtain possession of the land though in reality not accrued to the landlord is by a legal fiction deemed to have accrued to him so that he may immediately apply under section 292 for an order for possession
This conclusion is reinforced if we look at the history of the legislation
The Tenancy Act as originally passed in 1948 did not provide for a special period of limitation for the application to the Mamlatdar under section 29
But it was thought that section 72 of the Tenancy Act attracted the period of limitation prescribed 1 1961 1 Supp
SCR730747
2 637 641
219 by sub sections
3 and 4 of section 5 of the Mamlatdars  Courts Act 1906 Bombay Act No 2 of 1906 which are as follows  53
No suit shall be entertained by a Mamlatdar s Court unless it is brought within six months from the date on which the cause of action arose
5 4
The cause of action shall be deemed to have arisen on the date on which the impediment to the natural flow of surface water or the dispossession deprivation or determination of tenancy or other right occurred or on which the impediment disturbance or obstruction or the attempted impediment or disturbance or obstruction first commenced The Bombay Revenue Tribunal therefore ruled that an application under section 292 must be made within six months from the date when the cause of action accrues see A section Desai s Bombay Tenancy and Agricultural Lands Act Second Edn pp 137 38 287 88 and in view of section 54 of the Mamlatdars  Courts Act 1906 this cause of action was deemed to accrue on the determination of the tenancy
The six months  period of limitation led to hardship and the legislature decided to extend the period of limitation and enacted the Bombay Tenancy and Agricultural Lands Third Amendment Act 1951 Bombay Act No 45 of 1951 which amended section 29 by providing for two years  period of limitation and also section 72 by inserting the words save as provided in section 29
Thus the Amending Act extended the period of limitation from six months to two years but both before and after the Amending Act the date of the termination of the tenancy is the starting point of limita tion formerly because the right to apply was then deemed to accrue to the landlord and now because the right to obtain possession is then deemed to have accrued to him
The Tenancy Act was amended from time to time
The requirement of a notice for terminating the tenancy under section 141 was introduced by Bombay Act No 33 of 1952 and is repeated in the new section 14 substituted for the original section by Bombay Act No 13 of 1956
Before the tenancy can be terminated under the new section 141 two conditions must be fulfilled
Firstly the tenant must be guilty of one of the breaches mentioned in section 141a
Secondly  the landlord must give three months  notice in writing under section 141b and within that period the tenant must have failed to remedy the breach
The tenancy is not terminated unless both these conditions are fulfilled
Neither failure to pay rent nor sub letting nor any CI66 15 220 other breach is sufficient
The breach must be followed by the requisite notice terminating the tenancy
It is on the termination of the tenancy and not earlier that the right to obtain possession of the land is deemed to accrue to the landlord and limitation for the application under section 292 read with section 141 begins to run
In Chimanbai Rama vs Ganpat Jagannath1 a Full Bench of the Bombay High Court held that the period of limitation under section 292 for applying to the Mamlatdar for possession of the land on the ground that the tenant had sub let it began from the date of sub letting and that though the right to obtain possession actually accrues to the landlord on the date when he terminates the tenancy under section 292 it is fictionally deemed to accrue as from an antecedent point of time viz the date of the sub letting
With respect we are unable to agree with this judgment
On the termination of the tenancy by the notice under section 14 1 b and before the order for possession under section 292 the landlord has no right to obtain possession of the land nevertheless this right is then deemed to accrue to him so that he may apply immediately for an order for possession under section 292
The sub letting alone does not give him  this right to apply under section 292
He may if he likes ignore the breach
But where the breach is followed by a notice terminating the tenancy he acquires the right to apply under section 292
It is difficult to impute to the legislature the intention that limitation would begin to run against the landlord immediately on the sub letting though he is not aware of the breach and takes no steps for terminating the tenancy in consequence of the breach
In our opinion limitation for the application under section 292 begins to run from the date of the termination of the tenancy and not from the date of the sub letting or the date of default in payment of rent
In the instant case three months  notice in writing under section 141b terminating the tenancy was given on December 8 1956
The application under section 292 read with section 141 being filed on June 24 1957 within two years of the termination of the tenancy is not barred by limitation
In the result the appeal is allowed with costs the order of the Mysore Revenue Appellate Tribunal Belgaum Branch dated July 27 1960 is set aside and the orders passed by the Tahsildar Bijapur and the Assistant Commissioner Bijapur are restored
Appeal allowed


Summary:
On 8th December 1956 the appellant served on the respondent three months  notice in writing under section 141 b of the Bombay Tenancy and Agricultural Lands Act 1948 terminating the tenancy on the ground of default in payment of rent
On 24th June 1957 the appellant filed an application under section 292 for possession
The Tahsildar allowed he application and the order was confirmed on appeal
But in revision the Revenue Tribunal set aside the order on the ground that the application was barred by limitation because it was filed more than two years after 20th May 1955 which was the date of default
A petition ay the appellant under article 227 was rejected by the High Court
In the appeal to the Supreme Court on the question whether the application was filed within the two yea period of limitation prescribed by section 29 2
HELD  Limitation for the application began to run from the date of the termination of the tenancy and not from the antecedent date of default in payment of rent and so the application filed within two years of the termination of the tenancy was not barred by limitation
220 G The legislature could not have intended that limitation would commence to run before the right to apply under section 292 accrues
The right to apply accrues to the landlord when the tenancy is terminated by notice under section 141b
But in spite of the termination of the tenancy the landlord has no right to obtain possession without an order under section 292
On the termination of the tenancy the right to obtain possession though in reality not accrued to the landlord is by a legal fiction deemed to have accrued to him
Consequently the date of termination of the tenancy is also the date when the right to obtain possession is deemed to have accrued to the landlord
Since the limitation for the application under section 292 commences to run from the date when the right to obtain possession is deemed to have accrued to the landlord it would follow that limitation begins to run from the date when the tenancy is terminated by the notice under section 141 b
218 A B C D F G The history of the legislation also shows that both before and after the Amendment Act 1951 which provided the two years  period of limitation the date of the termination of the tenancy is the starting point of limitation
218 H Ramachandra Anant vs Janardan approved
Chimanbai Rama vs Ganpat Jagannath ILR 1958 Dom 917 FB overruled