SCA/4519/1997 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4519 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Only paragraph Nos.1 to 4 and 8 to 10 YES 2 To be referred to the Reporter or not ? Only paragraph Nos.1 to 4 and 8 to 10 YES 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= KAILASBA WD/O.JAYENDRASINH GOHIL & 1 - Petitioner(s) Versus KABHAIBHAI S/O.PUNJABHAI PARMAR - Respondent(s) ========================================================= Appearance : MR AJ PATEL for Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3 - 2. None for Respondent(s) : 1, MR YATIN SONI for Respondent(s) : 1.2.1, 1.2.2, 1.3.1, 1.3.2, 1.3.3, 1.3.4, 1.3.5,1.3.6 RULE SERVED for Respondent(s) : 1.2.3, 1.2.4, 1.2.5,1.2.6 ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 10/12/2008 ORAL JUDGMENT 1. This petition has been preferred by the SCA/4519/1997 2/15 JUDGMENT petitioners who are the owners of land bearing Survey No.229/1 admeasuring 2 Acres - 29 Gunthas of Village Kathol, Taluka: Borsad, District: Kheda. The principal grievance raised by the petitioners is formulated by way of the following four questions: (1) Whether the respondents are entitled to claim status of tenants when the land in dispute was mortgaged to them under a document which was styled as a conditional sale? (2) Whether the provisions of Section 25A of the Act would apply to the facts of the present case and vitiate the judgments rendered by the authorities below? (3) Whether in the context of the language employed in Section 25A of the Act the authorities below committed jurisdictional error in holding the plea of the respondents about tenancy when they were mortgagees holding the land in that SCA/4519/1997 3/15 JUDGMENT capacity? (4) Whether on the correct interpretation of the document of mortgage, the plea about tenancy of the respondents could have been upheld by the authorities below as has been erroneously done by them? 2. The petitioners have challenged the order dated 9.5.1997 rendered by Gujarat Revenue Tribunal (“the Tribunal”) in Revision Application No.TEN-BA-405/92 whereby the order made by the Deputy Collector, Land Reforms (Appeal), Kheda, dated 7.3.1992 in Tenancy Appeal No.319 of 1991 came to be confirmed. It is an accepted position that the appellants before the Deputy Collector were the present petitioners and while dismissing the appeal, the Deputy Collector confirmed the order dated 24.4.1985 made by the Mamlatdar and ALT (“ALT”) in Tenancy Case No.273 of 1984. 3. The respondents herein went before the ALT seeking an order in terms of provisions of SCA/4519/1997 4/15 JUDGMENT Section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948 (“the Act”) read with provisions of Section 32G of the Act. The ALT found as a matter of fact that the respondents, through predecessor-in- title, have been tilling the land since 1950-51 and that the respondents were never divested of possession despite entry No.1428 made in 1962-63 deleting the names of the respondents, because the petitioners had failed to place on record any material to disprove the say of the respondents of being in possession. This basic finding has been confirmed by the appellate authority and the Tribunal. 4. On behalf of the petitioners, great reliance is placed on the fact that the predecessor-in-title of the petitioners had mortgaged the land in question to Kheda Jilla Cooperative Bank Limited, Nadiad, against an outstanding loan of Rs.11,000/-, necessary entries in this regard had been made in the record of rights, to submit SCA/4519/1997 5/15 JUDGMENT that at that point of time, the respondents had never raised an objection or claimed possession. Secondly, it was urged that for paying up the outstanding loan of Kheda Jilla Cooperative Bank Limited, the petitioners had entered into a Deed of Sale on 29.6.1964 for a consideration of Rs.15,000/- with one Shri Patel Thakorbhai Talshibhai. That subsequent thereto, a Re- conveyance Deed had been executed by the said Shri Thakorbhai Talshibhai on 14.7.1968 whereby Re-conveyance of the land in question had been made by the said gentleman in favour of the petitioners and even at that point of time, no objection had been raised by the respondents. The learned advocate strenuously urged that neither the Deed of Conveyance nor the Deed of Re-conveyance, which recited the factum of handing over of possession and taking over of possession, were disputed by the respondents nor was there any evidence to draw any adverse inference qua the said SCA/4519/1997 6/15 JUDGMENT recital. Placing reliance on provisions of Section 25A of the Act, it was submitted that when in case of usufructuary mortgage, the legislature envisaged keeping of the tenancy in abeyance during the period of mortgage, a legal inference was required to be drawn in case of a mortgage which was not usufructuary that the tenancy was not kept in abeyance but stood terminated. That, therefore, the authorities and the Tribunal had erred in accepting the statement of the respondents that the respondents were in possession of the land in question as tenants and that the tenancy subsisted as on 1.4.1957. Lastly, a contention was raised whether it was open to the respondents to claim the status of tenants when the land in question was mortgaged to the respondents under a document styled as a conditional sale. The learned advocate therefore vehemently contended that the Tribunal had erred in confirming the orders made by the Deputy SCA/4519/1997 7/15 JUDGMENT Collector and the ALT holding that the respondents were tenants in the land in question as on 1.4.1957. In this connection, the learned advocate also invited attention to the definition of the term `tenant' as appearing in Section 2(18) of the Act, definition of the term “permanent tenant” as appearing in Section 2(10A) of the Act, definition of the term “protected tenant” as appearing in Section 2(14) read with Section 4A and the schedules of the Act, definition of the terms “to cultivate” and “to cultivate personally” as appearing in provisions of Section 2(5) and 2(6) of the Act respectively, as well as provisions of Section 32 of the Act read with Section 29 of the Act and Section 32A of the Act, to submit that the entire scheme of the Act made it clear that it was for the person claiming the status of tenant to establish that such person was in possession of the land in question but the respondents had SCA/4519/1997 8/15 JUDGMENT failed to establish the said fact. 5. Insofar as the impugned order of Tribunal is concerned, it can be seen that the Tribunal has found that merely because the land in question was mortgaged to the Bank, the rights of a tenant would not come to an end in law and hence, whether the respondents object to the mortgage being executed or not does not become relevant. Similarly, in relation to the contention that by virtue of subsequent Conveyance and Re-conveyance Deeds executed by the petitioners and Shri Patel Thakorbhai Talshibhai the possession was with the petitioners and the said gentleman, the Tribunal held that it was not possible to draw an inference that the tenancy had ended or that the tenant had been dispossessed in absence of the said gentleman, namely Shri Thakorbhai Talshibhai having been examined as to whether (1) the possession of the land had been actually handed over and (2) whether SCA/4519/1997 9/15 JUDGMENT there was no tenant in possession of the land in question. The Tribunal has held that in absence of such direct evidence, merely on the basis of recital in the Deeds of Conveyance and Re-conveyance about handing over of possession, an inference as to non-possession of the tenant cannot be drawn. The Tribunal has further found from the record of ALT that at page No.331, vide entry No.946 dated 11.6.1948, the name of deceased father of the respondents appears as a possessor of the land and similarly, subsequent entries for 1953-54, 1954-55, 1955-56, indicate that the names of the tenant came to be entered and continued in the record of rights. It is further found that in 1953-54 and 1954-55, the entry deleting the name of the respondents as tenants was made without authority of law and hence, correct entry has been made after reversing the earlier entry. The Tribunal has, on examination of the revenue records right from 1950-51 to 1969-70, held SCA/4519/1997 10/15 JUDGMENT that the names of the respondents are shown as tenants and they are shown to be in possession of the land in question, that in support of the entries, the respondents have produced necessary receipts, and that there is no evidence to show and establish that the tenancy has been terminated under any provisions of the Tenancy Act. 6. The Tribunal has further found as a matter of fact that the petitioners have failed to establish that the tenancy had been surrendered and the finding in this regard recorded by the Deputy Collector is correct and does not call for interference. It is further found by the Tribunal that merely because the rights of an owner changed hands, it is not possible in law to hold that the rights of a tenant come to an end because those rights are wedded with the land in question and have nothing to do with the rights of ownership. It has further been recorded by the Tribunal that the petitioners have failed to point out SCA/4519/1997 11/15 JUDGMENT that the respondents were not tilling the land in question and were in possession without any rights of tenancy. In relation to provisions of Section 29 of the Act, the Tribunal has found that the examination of the landlord also does not reveal that at any point of time, the possession of the land had been taken over by the landlord from the tenant. Similarly, the Tribunal has, in paragraph No.14 of the impugned order, held that the provisions of Section 32A of the Act cannot terminate the tenancy merely because the land was mortgaged to the Bank. 7. In light of the aforesaid findings of fact which are recorded by the Tribunal and the two subordinate authorities concurrently, it is not possible to state that the Tribunal has committed any legal infirmity so as to warrant interference. 8. The provisions of Section 25A of the Act read as under: SCA/4519/1997 12/15 JUDGMENT “25A. Tenancy to be in abeyance during usufructuary mortgage in favour of tenant – If any land is mortgaged by a landlord by way of a usufructuary mortgage to a tenant cultivating such land, the tenancy of such land shall be in abeyance during the period the mortgage subsists. After the expiry of the said period it shall, notwithstanding any other law for the time being in force, be lawful to the tenant to continue to hold the land on the terms and conditions on which he held it before the mortgage was created.” On a plain reading, it becomes apparent that when any land is mortgaged by a landlord by way of a usufructuary mortgage to a tenant cultivating such land, the tenancy shall remain in abeyance during the subsisting period of the mortgage and after the expiry of the said period, regardless of anything stated in any other law, for the time being in force, it will be lawful for the tenant to continue to hold the land on the same terms and conditions on which the tenant held the land before the SCA/4519/1997 13/15 JUDGMENT mortgage was created. From the aforesaid provision, it is not possible to accept the contention canvassed by the learned advocate for the petitioners that if the mortgage is of any other nature, namely, other than a usufructuary mortgage, the tenancy stands terminated upon creation of such a mortgage. If the legislature intended such a course/ consequence to follow, the legislature would have made specific provision in this regard. The provisions of Section 25A of the Act cannot be read to draw an inference as to a non- existent provision. In fact, provisions of Section 25A of the Act indicate otherwise. In case of an existing tenancy, when the land is mortgaged by a landlord to a tenant cultivating such land, the tenancy remains in abeyance during subsistence of such mortgage. Therefore, it is only in case where a relationship of landlord and tenant exists, the tenant is cultivating the land in question, namely, the land which is SCA/4519/1997 14/15 JUDGMENT mortgaged by the landlord to the tenant, that the status of the tenant as a tenant is kept in abeyance while the status of the tenant becomes that of a mortgagee. From this, it cannot be inferred that in case of any other kind of mortgage, the status of tenancy ceases to exist for all times to come. 9. In the circumstances, the contention based on provisions of Section 25A of the Act does not merit acceptance. The incidental contention in this regard to the effect that the Tribunal has failed to deal with the said contention, namely, in relation to provisions of Section 25A of the Act also does not merit acceptance because no such contention was ever raised before the Tribunal. 10.Hence, in the facts and circumstances of the case, in absence of any legal infirmity in the impugned order of Tribunal, whereby the orders of the Deputy Collector of ALT SCA/4519/1997 15/15 JUDGMENT stand confirmed, the petition is rejected with no order as to costs. Rule discharged. (D.A.Mehta, J.) (sunil)