DR. TARAKPRASAD RAJARAM

SMT. VESTA UKARA (DEAD) BY LRS. AND ORS.

SEPTEMBER 18, 1990

[K.N SINGH ANDS. RATNAVEL PANDIA1,, JJ.]

• E

Bombay Tenancy and Agricultural Lands Act, 1948-Sections 29, 3 /-A (di-Eviction application-Maintainability-Conditions-Person

obwined right by assignment, transfer or by auction sale, or otherwise including gift or will-Not 'Landlord'-Legislative intention of.

Appellant on behalf of minor landlord, who got title by will, initiated eviction proceeding against the respondent-tenants under Sec lion 29 read with section 31-A(d) of the Bombay Tenancy and Agri cultural Lands Act. 1948 before the Mamlatdar on the ground of bona .fide requirement of the land for his personal cultivation. Respondent

tenants raised preliminary objection on the question of maintainability of the suit on the ground that as the appellant, being a transferee of the hind and having not inherited the same was not the 'landlord' under Section 31-A. Upholding the objection of the Respondents the Mamlatdar dismissed the application. Appellant's appeal before District Deputy Collector and his revision before the Revenue Tribunal were dismissed. Challenging the orders of the Revenue Courts, writ application was tiled in the High Court, which was also dismissed and against which the present appeal was filed.

Dismissing the appeal, this Court,

F HELD: J. Section 31-A(d) requires that the name of the person applying for the eviction of the tenant or of his ancestors should be reeorded as landlord in the record of rights on I.1.1952 and he should further be recorded as landlord on the appointed day, namely. 15.6.1955. Both these conditions are required to be fulfllled before a suit or an application is maintainable by a landlord for the eviction of G the tenant. If either of the two conditions are not satisfied, the application for eviction the tenant is not maintainable. The provisions of clanse

(d) further provides thai even if the landlord's name is not recorded, but if the name of his ancestor is recorded similarly if the landlord is a member of joint family, the name of any member is recorded the appli cation would be maintainable. This provision indicates the legislative H intent that a person succeeding to the property from his ancestor is

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TARAKPRASAD v. VESTA UKARA 515

entitled to maintain the application for eviction of a tenant provided he fulfils other conditions. But a.person who may have obtained right to the agricultural land by assignment, transfer, or by auction sale or in any similar mode, is not included within the expression of 'landlord' entitling him to evict the tenant.

2. After the amendment of Section 31A(d) the Legislature made it clear that transferees and assignees from persons whose name may be appearing in the record of fights during the relevant period are not to be treated as landlords for the purposes of the Section. The expression 'or otherwise' occurring in clause (d) indicates that a person ctaiming title by transfer, assignment, court sale or in any other mode like gift, or will even from ancestor .will not be a landlord for the purposes of the Section. A person inheriting property from his ancestor would be landlord provided his ancestor's name appears in the record of rights during the required period. But a person claiming title on the basis of transfer, assignment, auction sale or otherwise including gift or will from the predecessors-in-title even though he may be his ancestor, and his name may be recorded in the record of rights during the required period, will not be entitled to maintain a suit for eviction of a tenant. The Legislature placed this _restriction in order to protect the interest of the tenants and to prevent avoidance of the restrictions placed by the ceiling laws. In the absence of any such provision a landlord c9uld transfer land to his descendents by gift or will-to evade the ceiling law and to evict tenants.

Under Section 31-A(d) such a beneficiary is not entitled to maintain a suit for the eviction of a tenant from the agricultur.al holding as he would not be a landlord within the meaning of the Section.

Waman Ganesh Joshi v. Canu Cuna Khapre, 61 Bombay L.R. 1267; Khal/iu/la Hasmiya v. Yesu, 50 Bombay L.R. 201; overruled.

Bl)qnushanker Ambalal v. Laxman Kala &Ors., [1960], Gujarat Law Reporter 169, approved. '

Umraomiya Akbarmiya Malek v. Bhulabhai Mathurbhai Patel & Anr., [1965] 6 Gujarat Law Reporter 788; Special Civil Appeal No.

112/63 decided on 3.3.1972 (High Court of Gujarat) referred.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 786 of 1976.

From the Judgment and Order dated 12.1.1976 of the Gujarat High Court in Special Civil Application No. 873 of 1970.

~1 P.H. Parekh for the Appellant.

Krishan Kumar for the Respondents.

The Judgment of the Court was delivered by

B SINGH, J. This appeal is directed against the judgment and order of the High Court of Gujarat dismissing the appellant's writ petition made under Article 227 of the Constitution of India challenging the validity of the order of the Revenue Courts in dismissing the appellanfs suit for eviction of respondents.

c Briefly, the facts giving rise to this appeal are: the respondents are tenants of agricultural land which had been let out to them by the appellant's predecessors'in-title. The appellant made applications on behalf of minor Ashok Kumar for the eviction of the resl'ondents on the ground that the agricultural land in dispute was bonafide required by the landlord for his personal cultivation. The appellant pleaded that D the land in dispute had been bequeathed to him by his maternal grandmother under a Will and as such he was the landlord of the disputed land entitled to maintain the applications for eviction of the respondents under Section 29 read with Section 3 lA of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Act) as applicable to the State of Gujarat. The tenants raised a preliminary E objection to the maintainability of the suit on the ground that the appellant being a transferee <if the land from his maternal grandmother was not entitled to maintain the suit as a landlord under Section 3 lA of the Act, inasmuch as he had not inherited the pro~ perty from his ancestors. The Mamlatdar upheld the preliminary objecti on and dismissed the eviction suit. On appeal the District Deputy F Collector upheld the order of the Mamlatdar. Te appellant preferred revision application before the Gujarat Revenue Tribunal at Ahmedabad but the same too was dismissed upholding the tenants' objection.

The appellant .thereafter filed a writ petition under Article 227 of the Constitution before the High Court challenging the correctness of the view taken by the Revenue Courts. The High Court by its order dated G

12. 1.1976 dismissed the writ petition on the finding that the view taken by the Revenue Courts in upholding the tenants' objection to the maintainability of the eviction suit was correct. The appellant has preferred this appeal against the aforesaid order of the High Court.

There is no dlspute that under Section 31A of the Act a landlord .....--r.

H has a right to determine tenancy of agricultural land and to evict the

tenant on fulfilling the conditions prescribed therein. The conditions A prescribed are that if the landlord has no other land of his own and if he has not been cultivating personally any other land, he is entitled to take possession of the land let out to a tenant to the extent of permissible ceiling area. If the land cultivated by the landlord personally is less than the ceiling area he is entitled to take possession of so much area of land as would be sufficient to make up the area in his possession to B the extent of ceiling area, further the income by the cultivation of the land of which he is entitled to take possession should be the principal source of income for his maintenance. These conditions as laid down in clauses (a), (b) and (c) of Section 31A of the Act must be satisfied for making an application for the eviction of a tenant from agricultural land. In addition to these conditions. clause (d) further prescribes additional conditions which must also be fulfilled by the landlord.

C Section 3 lA(d) as amended by the Gujarat Act No. XVI of 1960 reads as under:

"31.A The right of a landlord to terminate a tenancy for cultivating the land personally under Section 31 shall be D subject to the following conditions.

(a)

(b) ·:· .... ' ........................................ .

W. ··· ········ ... ······ E

(d) The land leased stands in the record of rights or in any public record or similar revenue record on the 1st day of January. 1952 and thereafter during the period between the said .date and the appointed day in the name of the landlord himself, or of any of his ancestors (but not of any person from whom title is derived, whether by assignment or F Court sale or otherwise) or if the landlord is a member of a joint family, in the name of a member of such family."'

The above provision primarily requires th•t the name of the person applying for the eviction of the tenant or of his ancestors should be recorded as landlord in the record of rights on 1. 1. 1952 and he should G

furthr be recorded as landlord on the appointed day' namely' 15.6.1955. Both these conditions are required to be fulfilled before a suit or an application is maintainable by a landlord for the eviction of the tenant. If either of the two conditions are not satisfied, the application for eviction of the tenant will not be maintainable. The provision H

of clause (d) further provides that el'ell if the landlord's name is not recorded, but if the name of his ancestor is recorded similarly if the landlord is a member of joint family, the name of any member is recorded the application would be maintainable. This provision indicates the legislative intent that a person succeeding to the property from his ancestor is entitled to maintain the application for eviction of a tenant provided he fulfils other conditions. But a person who may have obtained right to the agricultu, ral land by assignment. transfer, or by auction sale or in any similar mode, is not included within the expression of 'landlord' entitling him to evict the tenant. Clause (d) of Section 3 JA of the Act as it stood before its amendment by the Gujarat Act XVI of 1960 reads as follows:

'.'The land leased stands in the record of rights or in any public record or similar revenue record on the 1st day of J ailuary 1952 and thereafter during the period between the said date and the appointed day in the name of the landlord himself, or of any of his ancestors, or if the landlord is a member of a joint family in the name of a member of such , family."

The above provision before its amendment was interpreted by the Bombay High Court in Waman Ganesh Joshi v. Canu Cuna Khapre, 61 Bombay L.R. 1267. The High Court placing reliance on Khal/iulla E Hasmiya v. Yesu, 50 Bombay LR. 201 held that the term 'landlord' according to dause ( d) of Section 3 lA of the Act included any person from or through whom he may have derived his title to the land, and therefore for proper compliance of the conditions mentioned in clause ( d) of Section 3 lA it is sufficient that either the name of the claimant or his predecessors-in-title stands in the. record of r'ights during the F required period. A Full Bench of the Gujarat High Court in Bhanushanker Ambalal v. Laxman Kala .& Ors., [1960] 1 Gujarat Law Reporter 169 disagreed with the view taken by the Bombay High Court in Waman Ganesh Joshi's case (supra). The Full Bench held that the expression "in the name of landlord himself' occurring in clause ( d) of Section 3 lA must be read as the landlord individually and not any G one claiming through him as a successor in interest, therefore a transferee from a landlord in whose name the land is shown to stand cannot fit into the structure of the clause. The Full Bench judgment was rendered on 28. 7.1960 prior to the amendment of the Section by the Gujarat Act XVI of 1960. After the amendment of Section by Gujarat Act XVI of 1960, the Legislature made it clear that transferees and H assignees from persons whose name may be appearing in the record of

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right during the relevant period were not to be treated as landlords for the purposes ofthe Section. The ex_pression 'or otherwise' occurring in clause (d) indicates that a person claiming title by transfer, __ assignment, court sale or in any other mode like gift, or will even from ancestor will not be a landlord for the purposes of the Section. The Legislature has clearly laid down that a person inheriting property from his ancestor would be landlord provided his ancestor's name appears in the record of right during the required period. But a person claiming title on the basis of transfer, assignment, auction sale or otherwise including gift or will from the predecessors-in-title even though he may be his ancestor, and his name may be recorded in the record of rights during the required period, will not be entitled to maintain a suit for eviction of a tenant. The Legislature placed this restriction in order to protect the interest of the tenants and to prevent avoidance of the restrictions placed by the ceiling laws. In the absence of any such provision a landlord could .transfer land to his descendants by gift or will to evade the. ceiling law and to evict tenants. Under Section 31A(d) such a beneficiary is not entitled to maintain a suit for

the eviction of a tenant from the_ agricultural holding as he would not D be a landlord within the meaning of the Section.

In Umraomiya Akbarmiya Malek v. Bhulabhai Mathurbhai Patel & Anr., [1965) 6 Gujarat Law Reporter-788 the petitioner thereiit made application for eviction of tenant claiming to be landlord on the _ba_sis of a gift made in hisfavom by his maternal grand-father whp was E recorded in the record of rights during the required period. The question arose whether the donee who had acquired the property under a gift made by his maternal grand-father was a landlord within the meaning of clause ( d) of Section 3 IA. The High Court on an elaborate discussion held that the jletitioner the_reil!_ was not a landlord within the meaning of the Section. A Division Bench of the High Court of F Gujarat in Special Civil Appeal No. 112/63 decided on March 3, 1972 considered the question whether a person who obtained the property under a Will from his grand-mother was a landlord under clause (d) of Section 3 !A of the Act, the Division Bench held that having regard to the context, the object and scheme of the enactment such a person was not a landlord within the meaning of clause (d) of Section 31A. The G Bench further held that the Legislature intended to restrict the right of landlord to obtain possession for bona fide cultivation purposes, and it did not intend to include the case of a landlord who derived title under a Will. We are in agreement with the view taken by the Division Bench. The learned single Judge of the High Court while rendering the impugned judgment followed the view taken by the aforesaid Division H

Bench. In this view, we fina no legal infirmity in the impugned judgment of the High Court.

Learned counsel for the appellant-referred to certain decisions of the Bombay High Court where contrary view had been taken. Since the interpretation of Section 3 IA(d) of the Act as made by the Gujarat High Court in the aforesaid decision has been the. law for the last 25 years, and as that interpretation is justified having regard to the legislative history of the Section, we do not consider it necessary to deal with those decisions. The appeal fails and is accordingly dismissed, but there will be no order as to costs.

V.P.R.

Appeal dismissed.