Case: Mohd. Illahamuddin &amp; Others Vs. Bhivasan &amp; Another

2. The first appellant (to be hereinafter referred to as thewas the owner of the properties with which we are concerned in this appeal. He had leased out those properties to the tenants. In 1952 theterminated the tenancy of the tenants and thereafter moved the tenancy court for possession of the leased lands. During the pendency of the said proceedings, the parties entered into a compromise in pursuance of which the lands in question were delivered to the landholder. Under clause (5) of the compromise the parties agreed that after obtaining the possession of the lands, the landholder should cultivate the lands personally and further that if he failed to cultivate them personally, he shall not lease them out to anyone save the respondents. But it appears that in the year 1962, the landholder put those lands in the possession of appellants Nos. 2 to 5 under agreement to sell the same to them. Thereafter the tenants moved the aforementioned application under Section 32 for possession of those lands on the ground that the landholder had contravened the terms of the compromise. The Tehsildar dismissed the said application on the ground that the same having been made more than two years after the possession was delivered by the landholder, it is barred. His decision was reversed by the Deputy Collector in appeal but the same was restored by the Revenue Tribunal. As mentioned earlier, the High Court reversed the order of the Tribunal.3. The Tehsildar, the Deputy Collector, the Tribunal as well as the High Court have concurrently come to the conclusion that if the tenants application for possession is held to have been made under Section 32, the same is barred by limitation. That conclusion was not challenged before us. As mentioned earlier, the tenants application purports to be one under Section 32. But yet the High Court opined that in effect it is an application under Section 46 and consequently, it is not barred by limitation. The application for possession made by the landholder is not on record. Hence we do not know the exact ground urged in support of the relief prayed for therein. The learned Judge of the High Court who decided the case, has mentioned in the order under appeal that it was an application under Section 19 on the ground that the tenants had committed default in the payment of the rent. This conclusion of his conflicts with his latter finding that the landholders application must have been one under Section 46 (44?). From the order, it is not possible to find out the basis on which the learned Judge came to the conclusion that the application made by the landholder must have been one under Section 46. It appears from the order of the Revenue Tribunal that it was conceded before it by the learned Counsel for the tenants that Section 46 of the Act in terms does not apply to the present proceedings. But yet, for reasons not stated in his order, the learned Judge of the High Court came to the cosnclusion that it must have been an application under Section 46. A somewhat similar conclusion had been arrived at by the Deputy Collector.

Reasoning:
5. The tenants did not mention in their petition that the landholder had terminated their tenancy under Section 44, nor did they plead therein that they were entitled to the possession of the properties on the ground that the landholder had contravened S. 45. Their application not only does not refer to Ss. 44 to 46, the facts stated therein do not bring the case within the scope of those provisions. It is a bald petition.The only ground on which the possession was asked for was that the landholder had failed to comply with clause (5) of the compromise though no doubt in the rejoinder they stated that the landholder had applied for possession on the ground that he required the land for personal cultivation.We do not know the basis on which the Dy. Collector and the learned Single Judge of the High Court came to the conclusion that there was a termination of the tenancy under Section 44.From the mere fact that the landholder had agreed under the compromise petition to lease out the lands to the tenants in the event of his failing to cultivate them personally, they could not have drawn the conclusion that the application made by the landholder was one under Section 44. If the High Court wanted to satisfy itself as to the true nature of the proceedings initiated by the landholder, it should have called for the application made by him and found out whether there was any termination of the tenancy under Section 44. If there was no termination of the tenancy on the ground that the lands in question were required for personal cultivation, the tenants application could not have been made under Section 46.7. For the reasons mentioned above, we are of the opinion that the finding of the High Court that the action taken by the landholder was under Section 44 is clearly without basis. It may be that on a perusal of the application in question it will be found that the same was one based on the termination of the tenancyd under Section 44 but such a conclusion is not possible on the material before us. But if all that is established is that there was a contravention of one of the terms of the compromise, no aid from Section 46 could be taken by the tenants.