Case: Dahya Lal And Others Vs. Rasul Mohammed Abdul Rahim

1. Survey No. 126 admeasuring 11 acres and 20 gunthas of Mouje Telod District Broach belonged to the ancestors of the appellants. By deed dated July 24, 1891, the owners mortgaged the land to one Umiyashankar with possession. Shortly after the mortgage, the mortgagee inducted one Mohammed Abdul Rahim as a tenant on the land.2. The appellants as owners of the equity of redemption applied to the court constituted under the Bombay Agricultural Debtors Relief Act, 28 of 1947, for adjustment of the debt due under the deed dated July 24, 1891 and for redemption of the land mortgaged. On February 19, 1954, an award was made in this application by compromise between the parties declaring that Rs. 3,000 were due to the mortgagee under the deed dated July 24, 1891, that "the land in dispute was in the possession of Mohammed Abdul Rahim as tenant of the mortgagee, and that the mortgagor had the right to take possession of the land from the said tenant." In execution of the award, Mohammed Abdul Rahim - who will hereinafter be referred to as the respondent - was evicted. On June 7, 1954, the respondent applied to the Mahalkari of Hansot for an order under S. 29 of the Bombay Tenancy and Agricultural Lands Act 1948 restoring possession of the land. The Mahalkari rejected the application and that order was confirmed in appeal by the District Deputy Collector, and by the Bombay Revenue Tribunal in revision from the order of the Deputy Collector. The High Court of Judicature at Bombay was then moved by the respondent under Art. 227 of the Constitution. The High Court following its earlier judgment in Jaswantrai Tricumlal v. Bai Jiwi, ILR (1957) Bom 342   : ( (S) AIR 1957 Bom 195  ) set aside the order passed by the Tribunal and ordered that possession of the land be restored to the respondent and declared that the respondent was entitled to continue in occupation as tenant on the same terms on which he was a tenant of the mortgagee. The mortgagors have applied to this Court against that order of the High Court with special leave.

Reasoning: We are unable to agree with these contentions. The Bombay Tenancy Act of 1939 conferred protection upon tenants against eviction, converted all subsisting contractual tenancies for less than ten years into tenancies for ten years restricted the rights of landlords to obtain possession of land even on surrender, granted the status of protected tenants to all persons who had personally cultivated land for six years prior to the date specified, provided for fixation of maximum rates of rent, abolition of cesses and suspension and remission of rents in certain contingencies, and barred eviction of tenants from dwelling houses. The Act was found inadequate and was substituted by the Bombay Tenancy and Agricultural Lands Act of 1948. The latter Act preserves the essential features of the Act of 1939 and provides for additional rights and protection to tenants such as fixation of reasonable rent, commutation of crop share into cash, right to produce of naturally growing trees on land, relief against termination of tenancy for non-payment of rent, special rights and privileges of protected tenants, vesting of estates in Government for management, restriction on transfer of agricultural land and the constitution of Special Tribunals for deciding disputes relating to value of land. The two Acts were manifestly steps in the process of agrarian reform launched with the object of improving the economic condition of the peasants and ensuring full and efficient use of land for agricultural purpose. The provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 must be viewed in the light of the social reform envisaged thereby.6. The Act of 1948, it is undisputed, seeks to encompass its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from the owners but persons who are deemed to be tenants also. The point in controversy iswhether a person claiming the status of a deemed tenant must have been cultivating land with the consent or under the authority of theCounsel for the appellants submits that tenancy postulates a relation based on contract between the owner of land, and the person in occupation of the land, and there can be no tenancy without the consent or authority of the owner to the occupation of that land. But the Act has by S. 2 (18) devised a special definition of tenant and included therein persons who are not contractual tenants. It would therefore be difficult to assume in construing S. 4 that the person who claims the status of a deemed tenant must be cultivating land with the consent or authority of the owner. The relevant condition imposed by the statute is only that the person claiming the status of a deemed tenant must be cultivating land "lawfully: It is not the condition that he must cultivate land with the consent of or under authority derived directly from the owner. To import such a condition is to rewrite the section, and destroy its practical utility. A person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a "deemed tenant. Persons such as licencees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to others, but it cannot be assumed therefrom that they are the only persons who are covered by the section. The Act affords protection to all persons who hold agricultural lands as contractual tenants and subject to the exceptions specified all persons lawfully cultivating lands belonging to others, and it would be unduly restricting the intention of the Legislature to limit the benefit of its provisions to persons who derive their authority from the owner, either under a contract of tenancy, or otherwise. In our view, all persons other than those mentioned in cls. (a), (b) and (c) of S. 4 who lawfully cultivate land belonging to other persons whether or not; their authority is derived directly from the owner of the land must be deemed tenants of the lands.7. Under the Transfer of Property Act, the right of a tenant who has been inducted by a mortgagee in possession ordinarily comes to an end with the extinction of the mortgage by redemption, but that rule, in our judgment, has no application in the interpretation of a statute which has been enacted with the object of granting protection to persons lawfully cultivating agricultural lands. Nor has the contention that the expression "mortgagee in possession includes a tenant from such a mortgagee any force. A mortgagee in possession is excluded from the class of deemed tenants on grounds of public policy, to confer that status upon a mortgagee in possession would be to invest him with rights inconsistent with his fiduciary character. A transferee of the totality of the rights of a mortgagee in possession may also be deemed to be a mortgagee in possession. But a tenant of the mortgagee in possession is inducted on the land in the ordinary course of management under authority derived from the mortgagor and so long as the mortgage subsists, even under the ordinary law he is not liable to be evicted by the mortgagor. It appears that the Legislature by restricting the exclusion to mortgagees in possession from the class of deemed tenants intended that the tenant lawfully inducted by the mortgagee shall on redemption of the mortgage be deemed to be tenant of the mortgagor. In our view, therefore, the High Court was right in holding that the respondent was entitled to claim the protection of the Bombay Tenancy and Agricultural Lands Act, 1948 as a deemedHigh Court in setting aside the order of the Revenue Tribunal exercised jurisdiction under Art. 227 of the Constitution, and it was urged by counsel for the appellants that this was not a fit case for exercise of that jurisdiction. But the Legislature has expressly prohibited, by S. 29(2) of the Act, landlords from obtaining possession of any lands otherwise than under an order of the Mamlatdar. The possession of the disputed land was obtained by the appellants in execution of the award of the debt adjustment court, and without an order of the Mamlatdar. The respondent was therefore unlawfully dispossessed of the land, and the Revenue Authorities in refusing to give him assistance illegally refused to exercise jurisdiction vested in them by law. The question being one of jurisdiction, the High Court was, in our view, competent to exercise the powers vested in it by Art. 227.