Case ID: 2019

Judgment:
Appeal No. 558 of 1963. 216 Appeal by special leave from the judgment and order dated January 19	 1961 of the Mysore High Court in Civil Petition No. 654 of 1960. section G. Patwardhan and K. R. Chaudhury	 for the appellant. A. G. Ratnaparkhi	 for respondent No. 1. The Judgment of the Court was delivered by Bachawat	 J. The appellant is the landlord and respondent No. 1 is the tenant of section Nos. 180 and 182 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. I three months ' notice in writing under section 14(1)(b) of the 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 section 29(2) read with section 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 article 227 of the Constitution was summarily rejected by the Mysore High Court. The appellant now appeals to this Court by special leave. The Tribunals below concurrently found that respondent No. I defaulted in payment of the rent for the years 1951 52	 1953 54 and 1954 55	 the last default took place on May 20	 1955 and the tenancy was properly terminated by the appellant. The first two Tribunals also held that the application was filed within the time	 allowed by law. The Revenue Appellate Tribunal	 however	 held that the application being filed more than two years after May 20	 1955 is barred by limitation. The sole question before us is whether the application was filed within the two years ' period of limitation prescribed by section 29(2) of the Tenancy Act. The appellant contends that the application was filed within the prescribed period of limitation because (1) the right of the appellant to obtain possession of the land is deemed to have accrued to him on the termination of the tenancy by the notice given on December 8	 1956	 (2) in any event	 in computing the two years ' period of limitation	 the period of the three months ' notice should be excluded in view of section 15(2) read with section 29(2) of the Indian Limitation Act	 1908. We are of the opinion that the first contention of the appellant 217 should be accepted. In view of this conclusion	 we do not think it necessary to express any opinion on the second contention advanced on behalf of the appellant. Sections 14(1) and 29(2) of the Tenancy Act	 as they stood at. the relevant time	 are as follows : "14. (1) Notwithstanding any law	 agreement or usage	 or the decree or order of a court	 the tenancy of any land shall not be terminated (a) unless the tenant (i) has failed to pay the rent for any revenue years. before the 31st day of March thereof; (ii) has done any act which is destructive or permanently injurious to the land; (iii) has sub divided	 sub let or assigned the land in 	 contravention of section 27; (iv) has failed to cultivate it personally; or (v) has used such land for a purpose other than agriculture or allied pursuits; and (b) unless the landlord has given three months ' notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination	 and	 within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated. " 29(2) No landlord shall obtain possession of any land	 or dwelling house held by a tenant except under an order of the Mamlatdar. For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house	 as the case may be	 is deemed to. have accrued to him. " At first sight	 it may appear that the Act gives no indication of the time when the right to obtain possession of the land or dwelling house is deemed to have accrued to the landlord as contemplated by section 29(2). But on a close scrutiny of the Act we are satisfied ' that this right must be deemed to have accrued to him on the date of the termination of the tenancy. It is to be noticed that limitation for the application under section 29 (2) commences to run from the date when the right to obtain 218 possession of the land or dwelling house is deemed to have accrued to the landlord. 'Now	 the legislature could not have intended that		 limitation would commence to run before the right to apply accrues. It is reasonable to think that the right to apply also accrues to the 	landlord on the date when limitation for the application begins to run. But the right to apply under section 29(2) read with section 14(1) accrues to the landlord when the tenancy is terminated by the notice under section 14 (1 ) (b). In Raja Ram Mahadev Paranjype vs Aba Maruti Mali(1)	 this Court observed : "The statute having provided for the termination of the tenancy would by necessary implication create a right in the landlord to recover possession. The statute recognises this right by providing by section 29(2) for its enforcement by an application to the Mamlatdar. " It would follow that limitation for the application under section 29(2) read with section 14(1) begins to run from the date when the tenancy is terminated	 by the notice under section 14(1)(b). Consequently	 the date of the termination of the tenancy is also the date when the right to obtain possession is deemed to have accrued to the landlord. But it is argued that on the date of the termination of the tenancy	 the right to obtain possession of the land actually accrues 'to the landlord	 and	 therefore	 the legislature could not have intended that on that date this right is deemed to accrue to him. This 	argument must be rejected. In spite of the termination of the tenancy	 the landlord has no right to obtain possession of the land without an order of the Mamlatdar under section 29(2). Between the date of the termination of the tenancy and the date of the order for possession under section 29(2)	 the tenant continues to be in lawful possession of the land and is liable to pay rent and not mesne profits	 see Ramchandra Avant vs Janardan(2). Thus	 on the termination of the tenancy	 the right to obtain possession of the land	 though in reality not accrued to the landlord	 is	 by a legal fiction	 deemed to have accrued to him so that he may immediately apply under section 29(2) for an order for possession. This conclusion is reinforced if we look at the history of the legislation. The Tenancy Act	 as originally passed in 1948	 did not provide for a special period of limitation for the application to the Mamlatdar under section 29. But it was thought that section 72 of the Tenancy Act attracted the period of limitation prescribed (1) [1961] 1 Supp. S.C.R.730	747. (2) 637	 641. 219 by sub sections (3) and (4) of section 5 of the Mamlatdars ' Courts Act	 1906 (Bombay Act No. 2 of 1906)	 which are as follows : "5(3). No suit shall be entertained by a Mamlatdar 's Court unless it is 'brought within six months from the date on which the cause of action arose. 5 (4). The cause of action shall be deemed to have arisen on the date on which the impediment to the natural flow of surface water or the dispossession	 deprivation or determination	 of tenancy or other right occurred	 or on which the impediment	 disturbance or obstruction	 or the attempted impediment or disturbance or obstruction	 first commenced." The Bombay Revenue Tribunal	 therefore	 ruled that an application under section 29(2) must be made within six months from the date when the cause of action accrues	 see A. section Desai 's Bombay Tenancy and Agricultural Lands Act	 Second Edn.	 pp. 137 38	 287 88; and in view of section 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 section 29 by providing for two years ' period of limitation and also section 72 by inserting the words "save as provided in section 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 limita tion; 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 him. The Tenancy Act was amended from time to time. The requirement of a notice for terminating the tenancy under section 14(1) was introduced by Bombay Act No. 33 of 1952	 and is repeated in the new section 14 substituted for the original section by Bombay Act No. 13 of 1956. Before the tenancy can be terminated under the new section 14(1)	 two conditions must be fulfilled. Firstly	 the tenant must be guilty of one of the breaches mentioned in section 14(1)(a). Secondly	 ' the landlord must give three months ' notice in writing under section 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 C.I./66 15 220 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 section 29(2) read with section 14(1) begins to run. In Chimanbai Rama vs Ganpat Jagannath(1)	 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 had 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 section 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 section 14 (1) (b) and before the order for possession under section 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 he may apply immediately for an order for possession under section 29(2). The sub letting alone does not give him ' this right to apply under section 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 section 29(2). It is difficult to impute to the legislature the intention that limitation would begin to run against the landlord immediately on the sub letting	 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 section 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 rent. In the instant case	 three months ' notice in writing under section 14(1)(b) terminating the tenancy was given on December 8	 1956. The application under section 29(2) read with section 14(1) being filed on June 24	 1957 within two years of the termination of the tenancy is not barred by limitation. In the result	 the appeal is allowed with costs	 the order of the Mysore Revenue Appellate Tribunal	 Belgaum Branch dated July 27	 1960 is set aside and the orders passed by the Tahsildar	 Bijapur and the Assistant Commissioner	 Bijapur are restored. Appeal allowed.

Summary:
On 8th December 1956	 the appellant served on the respondent three months ' notice in writing under section 14(1) (b) of the Bombay Tenancy and Agricultural Lands Act	 1948	 terminating the tenancy on the ground of default in payment of rent. On 24th June 1957 the appellant filed an application under section 29(2) for possession. The Tahsildar allowed he application and the order was confirmed on appeal. But in revision	 the Revenue Tribunal set aside the order on the ground	 that the application was barred by limitation	 because	 it was filed more than two years	 after 20th May 1955	 which was the date of default. A petition ay the appellant under article 227	 was rejected by the High Court. In the appeal to the Supreme Court	 on the question whether the application was filed within the two yea& period of limitation prescribed by section 29 (2). HELD : Limitation for the application began to run from the date of the termination of the tenancy and not from the antecedent date of default in payment of rent and so	 the application	 filed within two years of the termination of the tenancy was not barred by limitation. 220 G] The legislature could not have intended that limitation would commence to run before the right to apply under section 29(2) accrues. The right to apply accrues to the landlord when the tenancy is terminated by notice under section 14(1)(b). But in spite of the termination of the tenancy the landlord has no right to obtain possession without an order under section 29(2). On the termination of the tenancy	 the right to obtain possession	 though in reality not accrued to the landlord	 is	 by a legal fiction	 deemed to have accrued to him. Consequently	 the date of termination of the tenancy is also the date when the right to obtain possession is deemed to have accrued to the landlord. Since the limitation for	 the application under section 29(2) commences to run from the date when the right to obtain possession is deemed to have accrued to the landlord	 it would follow that limitation begins to run from the date when the tenancy is terminated by the notice under section 14(1) (b). [218 A B	 C D	 F G] The history of the legislation also shows that both before and after the Amendment Act	 1951 which provided the two years ' period of limitation the date of the termination of the tenancy is the starting point of limitation. [218 H] Ramachandra Anant vs Janardan	 approved. Chimanbai Rama vs Ganpat Jagannath	 I.L.R. [1958] Dom. 917 (F.B.) overruled.