Case: Ganpati Joti Kumbhar Vs. Jayasingrao Abasaheb &amp; Others

the language of S. 88(1)(b). The lease is in respect of lands held on lease for the benefit of an industrial or commercial undertaking.Mr. Desai has pointed out that the meaning of the expression held may better be understood by a reference to the expression to hold which occurs in S. 3(11), Land Revenue Code. That this course is permissible will be clear from S. 2(21) Bombay Tenancy and Agricultural Lands Act, 1948, which provides :"Words and expressions used in this Act but not defined shall have the meaning assigned to them in the Bombay Land Revenue Code, 1879, and the Transfer of Property Act, 1882, as the case may be."Section 3(11), Bombay Land Revenue Code provides that to hold land, or to be a landholder or holder of land means to be lawfully in possession of land, whether such possession is actual or not. In this connection it is necessary to examine the argument which has been pressed upon us by Mr. Kotwal. He contends that it cannot reasonably be said of the limited company that the company is holding lands upon a lease in so far as the lands in possession of the two applicants are concerned. He says that the tenants, who are the applicants in the two special applications, were in actual physical possession and they were also in lawful possession of the lands demised.If these persons were, therefore, lawfully in possession of their respective lands, it is not possible to accept the argument that the company would, at the same time, hold those lands in its possession. It is true that the two different persons would not be in a position to physically hold the lands in their possession at one and the same time. If a tenant is in possession, then no other person can be in possession because the landlord in these circumstances would be in constructive possession of the property and Mr. Kotwals contention is that S. 88(1)(b) requires that the person must be in lawful possession of the property.Now, if the interest which was conveyed by the Rajesaheb to the company was the transfer of a limited interest which still remained in him after the transfer of the right to enjoy the property in favour of the tenants, who are the applicants in the two special applications, it was the transfer of the remaining interest in the landlord which was conferred upon the limited company. After the expiry of the period of the two leases the Rajesaheb, as a landlord, would have the right to recover possession. That right was transferred in favour of the limited company and it is clear that there can be a transfer of a part of the interest held by the landlord.Likewise the Rajesaheb had a right to recover rent. That right also was conferred upon the limited company. In so far as there was a right to recover the amount of the rent, it was a right which remained in the landlord i.e. Rajesaheb and there was the transfer of that limited right.It was, therefore, the transfer of a limited interest in favour of the company. The only question is whether it can be said of the company that the company was in possession of the lands given to them under the lease.Now, so long as the tenants were in actual physical possession the company could not claim to be in actual physical possession because the two rights would conflict and so long as the tenants had a right to remain lawfully in possession, the occupancy could not, at the same time, claim to be in actual physical possession of the lands in dispute. But if the right to recover rent was conferred upon the company I do not see why it should not be held that the company was not in constructive possession of the lands in dispute.The company was not merely a Collector of the amount of the rent like an ordinary Mehtaji or a servant of the Rajasaheb. Under a document executed in favour of the company the right to recover rent was specifically transferred and I do not think that it would be a violence of language to suggest that by transferring the right to recover possession, it cannot reasonably be said that the company was not in constructive possession of the lands in dispute.If the company was therefore in constructive possession of the lands in dispute, it seems to us that that is sufficient possession for the purpose of S. 88(1)(b). On all these grounds, we think that the view taken by the tribunal is right.8. But then Mr. Kotwal has argued that it was his contention that the company in whose favour the lease was executed on 19-2-1949 was a nominal company or a bogus company.This is denied by the company. It is, therefore, a disputed question of fact and this disputed question of fact cannot be decided upon a writ petition. He also contended that if the lease of 19-2-1949 were permitted to stand, it would result in circumventing the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948.Mr. Kotwal says that the applicants in the two special applications were tenants under the leases executed in their favour, and therefore, they were entitled to take advantage of the provisions of the Act. This argument seeks to invoke sympathy, but it is not convincing.There is nothing in the Act to suggest that the execution of a lease like the one of 19-2-1949 is invalid.There is no suggestion that the lease is illegal. If the lease is a perfectly legal lease in the sense that the owner has a right to grant the lease, it is not understood as to why we should not give effect to the full operation of the lease because persons like the applicants in the two special applications would thereby have their rights, if any, adversely affected. In our view, therefore, none of the arguments are valid and there is no ground to interfere.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is obvious that onthe Rajesaheb of Kagal could not actually convey to the company the interest which the Rajesaheb of Kagal had already conveyed in favour of the tenants who are the applicants in the two special applications. That interest was the right to enjoy the property and so long as the leases were in operation, the Rajesaheb could not effectively transfer the right to enjoy the property in favour of the company.But two rights were conferred upon the company by the lease ofThe first of these was the right to recover the rent from the tenants i.e. from the applicants in the two special applications. The lease says that the right to recover the rent which was in the Rajesaheb was given to the company. The lease also says that the right which the Rajesaheb had to recover actual physical possession after the expiration of the periods of the leases was also conveyed to the company. If transfer of property can take place with respect to property in present and also with respect to property in future, it is difficult to see as to why the lease should not be an effective lease even with respect to the property in the possession of the tenants.It may be that the limited company would not be entitled to actual physical possession so long as the tenants were in lawful possession under their respective leases.the present case although the Rajesaheb had executed the two leases in favour of the tenants, he had still in him the reversion and that reversion is composed of various rights e.g., he has a right to recover the rent from his tenants; he has a right to recover possession after the expiration of the periods of the leases after due notice to the tenants and these two rights have been conferred upon the limited company by thethe lease ofand this lease was executed at a time when the Bombay Tenancy and Agricultural Lands Act, 1948, was not made applicable to the place from which these mattersshows that although the leasehold interest given to the company was to arise in future in respect of the lands which were in possession of the tenants, it is still effective as a lease. If, therefore,the lease ofwas effective not merely with respect to the lands which were given to the company other than the lands in possession of the tenants, the lease was equally effective with respect to the lands which were then in the possession of the tenants.But the lease was to be effective from a future date which would bein the one case andin the other. If this is the true position in law, it is difficult to see as to whythe lease ofwould not fall within the language of S. 88(1)(b). The lease is in respect of lands held on lease for the benefit of an industrial or commercialif the interest which was conveyed by the Rajesaheb to the company was the transfer of a limited interest which still remained in him after the transfer of the right to enjoy the property in favour of the tenants, who are the applicants in the two special applications, it was the transfer of the remaining interest in the landlord which was conferred upon the limited company. After the expiry of the period of the two leases the Rajesaheb, as a landlord, would have the right to recover possession. That right was transferred in favour of the limited company and it is clear that there can be a transfer of a part of the interest held by the landlord.Likewise the Rajesaheb had a right to recover rent. That right also was conferred upon the limited company. In so far as there was a right to recover the amount of the rent, it was a right which remained in the landlord i.e. Rajesaheb and there was the transfer of that limited right.It was, therefore, the transfer of a limited interest in favour of the company. The only question is whether it can be said of the company that the company was in possession of the lands given to them under the lease.Now, so long as the tenants were in actual physical possession the company could not claim to be in actual physical possession because the two rights would conflict and so long as the tenants had a right to remain lawfully in possession, the occupancy could not, at the same time, claim to be in actual physical possession of the lands in dispute. But if the right to recover rent was conferred upon the company I do not see why it should not be held that the company was not in constructive possession of the lands in dispute.The company was not merely a Collector of the amount of the rent like an ordinary Mehtaji or a servant of the Rajasaheb. Under a document executed in favour of the company the right to recover rent was specifically transferred and I do not think that it would be a violence of language to suggest that by transferring the right to recover possession, it cannot reasonably be said that the company was not in constructive possession of the lands in dispute.If the company was therefore in constructive possession of the lands in dispute, it seems to us that that is sufficient possession for the purpose of S. 88(1)(b). On all these grounds, we think that the view taken by the tribunal is right.t then Mr. Kotwal has argued that it was his contention that the company in whose favour the lease was executed onwas a nominal company or a boguscompany.This is denied by the company. It is, therefore, a disputed question of fact and this disputed question of fact cannot be decided upon a writ petition. Healso contended that ifthe lease ofe permitted to stand, it would result in circumventing the provisions of the Bombay Tenancy and Agricultural Lands Act,is no suggestion that the lease is illegal. If the lease is a perfectly legal lease in the sense that the owner has a right to grant the lease, it is not understood as to why we should not give effect to the full operation of the lease because persons like the applicants in the two special applications would thereby have their rights, if any, adversely affected. In our view, therefore, none of the arguments are valid and there is no ground to interfere.