Case: Venkatesh Narahar Kattl Vs. Haji Saheb Khadir Saheb Mulla And Another

1. The appellant is the landlord and respondent No. 1 is the tenant of S. Nos. 180 and 132 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. 1 three months notice in writing under section 14(1)(b) ofthe 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 S. 29(2) read with S. 14(1) 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 Art. 227 of the Constitution was summarily rejected by the Mysore High Court. The appellant now appeals to this Court by special leave.

Reasoning: 7. The Bombay Revenue Tribunal, therefore, ruled that an application under S. 29(2) must be made within six months from the date when the cause of action accrues, see A. S. Desais Bombay Tenancy and Agricultural Lands Act, Second Edn., pp. 137-38, 287-88 and in view of S. 5(4) 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 S. 29 by providing for two years period of limitation and also S. 72 by inserting the words "save as provided in S. 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 limitation; 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 him8. The Tenancy Act was amended from time to time. The requirement of a notice for terminating the tenancy under S. 14(1) was introduced by Bombay Act No. 33 of 1952, and is repeated in the new S. 14 substituted for the original section by Bombay Act No. 13 of 1956. Before the tenancy can be terminated under the new S. 14(1), two conditions must be fulfilled. Firstly the tenant must be guilty of one of the breaches mentioned in S. 14(1)(a). Secondly the landlord must give three months notice in writing under S. 14(1)(b) 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 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 S. 29(2) read with S. 14(1) begins to run9. In Chimanabai Rama v. Ganpat Jagannath, ILR (1958) Bom 917  : (AIR 1950 Bom 425), a Full Bench of the Bombay High Court held that the period of limitation under section 29(2) for applying to the Mamlatdar for possession of the land on the ground that the tenant has 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 S. 29(2) 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 S. 14(1)(b) and before the order for possession under S. 29 (2), the landlord has no right to obtain possession of the land; nevertheless, this right is then deemed to accrue to him, so that be may apply immediately for an order for possession under S. 29(2). The sub-letting alone does not give him this right to apply under S. 29(2). 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 S. 29(2). It is difficult to impute to the Legislature the intention that limitation would begin to run against the landlord immediately on the subletting, 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 S. 29(2) 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 rent10. In the instant case, three months notice in writing under S. 14(1)(b) terminating the tenancy was given on December 8, 1956. The application under S. 29(2) read with S. 14(1) being filed on June 24, 1957 within two years of the termination of the tenancy is not barred by limitation.