Kasambhai Mohammadbhai vs Maharashtra Revenue Tribunal, Nagpur and others

N.L. Abhyankar, J.—This is a petition by one Kasambhai son of Mohammad Bhai, Kachhi, challenging the order of the Maharashtra Revenue Tribunal, holding that the Petitioner was not a tenant of survey No. 126/2, inasmuch as he has not proved than he was a protected lessee of that field under the Berar Regulation of Agricultural Leases Act.

Respondent No. 4 Ganesh filed a suit in the Court of Civil Judge, Junior Division, Kelapur for specific performance of a contract of sale entered into between Ganesh and the Petitioner. The contract is said to have been entered into on 13-2-1954 under which the Petitioner agreed to purchase the field for a consideration of Rs. 1,750 out of which Rs. 100 were paid on the date of the agreement. The agreement is alleged to have been executed by Respondent Ganesh in favour of the Petitioner. The balance of consideration was to be paid and the deed was to be executed by 15-4-54. As no such transfer was effected, Ganesh filed the suit for specific performance. Ganesh also claimed in this suit that if for any reason specific performance of the agreement could not be granted, he may be given damages and the possession of the field may be restored to Ganesh.

The Petitioner resisted the suit on several grounds. He denied that there was any such agreement of sale. One of the contentions raised by the Petitioner is that he was a tenant of this field for the year 1952-53 under a Kabuliyat. He continued in possession of the field even after 1953 and was a tenant on land in 1954 and was therefore a protected lessee of the field. He therefore claimed that in any case possession cannot be restored to the Plaintiff Ganesh as he has a right of a protected lessee in the field. Ganesh denied this position. He said that the cultivation of the field by the Petitioner during the year 1952-53 was under a one year agreement of lease. That lease terminated by efflux of time. In addition, he had given a notice in December 1952, calling upon the Petitioner to restore possession terminating the lease at the end of the agricultural year. Thereafter the Petitioner had no right as a tenant or any other legal right to continue in possession of the land, and was therefore a trespasser. The Petitioner was thus liable to restore possession. In any case, even if the Plaintiff failed to prove the agreement of sale, possession should be restored.

As the issue of the status of the Petitioner arose from the pleadings between the parties, the civil Court framed the following issue:

Is the Defendant tenant of the suit field within the meaning of Act 99/58 even after 13-2-1954.--

The issue was referred to the Revenue Court u/s 125 of the New Tenancy Act which had by then come into force. Even though there is a reference to the New Tenancy Act, namely, Bombay Act No. 99 of 1958, it is an admitted position that the Petitioner claims the status of a protected lessee under the Berar Regulation of Agricultural Leases Act and not as a tenant or a deemed tenant under the New Tenancy Act. The Naib-Tahsildar who has held enquiry under reference found that the Respondent No. 4 had failed to prove any agreement or the contract of sale. He therefore gave a declaration that the Petitioner was a tenant. This order was affirmed by the Sub-Divisional Officer in an appeal preferred by Respondent Ganesh. Ganesh then approached the Maharashtra Revenue Tribunal and the Tribunal has reversed the orders of the two authorities below and held that the Petitioner has failed to establish that he was a protected lessee. In coming to this conclusion the Tribunal has pointed out that Respondent No. 4 Ganesh claimed to be a Bhumidhari of survey No. 126/2. This field was situated at village Wadhona Bazar in Kelapur taluq. The village Wadhona Bazar was an Isara Village, or in other words, an alienated village, within the meaning of the Berar Alienated Villages Tenancy Law. It is not disputed that Respondent No. 4 Ganesh was a specified tenant of this land survey No. 126/2, in respect of which the dispute arises, and that he was not a superior holder either in the village or of this field. The Tribunal therefore took the view that a tenant of lands held by a person as Bhumidhari under the Madhya Pradesh Land Revenue Code, or as a specified tenant within the meaning of the Madhya Pradesh Abolition of Proprietary Rights Act, was not an occupant and therefore not a landholder within the meaning of Section 2 (d) of the Berar Regulation of Agricultural Leases Act, 5.

The learned Counsel for the Petitioner has challenged before US the finding of the Tribunal that Respondent No. 4 Ganesh could not be held to be a tenant in respect of survey No. 126/2 of Wadhona Bazar. According to the Petitioner definition of a "landholder" under the Berar Regulation of Agricultural Leases Act in Election 2(2) means an occupant including a person becoming an occupant u/s 68 of the Madhya Pradesh Abolition of Proprietary Rights Act. u/s 2 (k) of the Leases Act, words and expressions used in that Act but not defined in the definition section shall have the meanings assigned to them in the Berar Land Revenue Code, 1928. Under the Berar Land Revenue Code. 1928, Section 54 defines an occupant. That definition is as follows:

(1) The person who acquires the right to occupy land u/s 53 is called an occupant of such land, and shall hold it in accordance with the provisions of this law.

(2) All persons who, prior to the commencement of this law, have been granted rights in unalienated agricultural land under the style of ''occupant'', or have been granted or have held rights in unalienated non-agricultural land under the style of ''occupant'' or under leases which entitle them to hold in perpetuity, shall be deemed to be occupants within the meaning of this section, and all restrictions hitherto imposed on their rights shall henceforth be of no effect in so far as they may be inconsistent with the provisions of this law.

Referring to this definition the learned Counsel wants to urge that in the definition of ''occupant'' in Sub-section (2) of Section 54, there is an implicit inclusion of a person who might hold land even under a lease from the Government. It is not disputed that Respondent No. 4 who was a specified tenant became a Government lessee under Sub-section (2) of Section 68 of the Madhya Pradesh Abolition of proprietary Rights Act. But what is claimed is that the definition of the word ''landholder" in the Berar Leases Act is an inclusive definition and includes person who is an occupant u/s 68 of the Abolition of Proprietary Rights Act and should therefore be extended to include a person like Respondent No. 4 who is a Government lessee u/s 68(2),

6.We have not found it possible to accept this construction of the definition of the word "landholder" in Section 2 (d) of the Berar Regulation of Agricultural Leases Act. Under the definition a person who is an occupant and answers the description of an occupant under the definition of the word in the Berar Land Revenue Code, will undoubtedly be a landholder. It can hardly be contested that the Respondent No. 4 was not a person who would expressly answer the description of an occupant u/s 54 of the Berar Land Revenue Code. Respondent No. 4 had become a Government lessee by reason of the provisions of the statute, namely, Section 68(2) of the Madhya Pradesh Abolition of Proprietary Rights Act. A comparison of Sub-section (2) of Section 68 with Sub-section (t) of that section will clearly show that under sub-section (1) a home-farm land held by a superior holder or land held by a plot-holder on a specified date may be held by him as an occupant, and that such person holding such land is an occupant, but in the case of specified tenants who were given the status of a Government lessee under Sub-section (2), they could not be treated as occupants ipso facto because they were Government lessees. In their case Section 69(1) made a specific provision enabling such lessees to become occupants by paying a certain amount by way of premium within a specified time, and under Sub-section (2) of Section 69 on receipt of an application and payment made, the Deputy Commissioner could confer the rights of an occupant on such a lessee and it is only after conferment of such rights that the Government lessee shall be entitled to all rights and subject to all liabilities of an occupant. Thus, the status of an occupant within the meaning of the Berar Land Revenue Code, which is the meaning given to the word "occupant" even under the Madhya Pradesh Abolition of Proprietary Rights Act and in view of the express provision in Section 2 (d) of the Berar Regulation of Agricultural Leases Act which, as it were, adopted the definition of the word "occupant" given in the Berar Alienated Villages Tenancy Law or in the Berar Land Revenue Code, 1928, a person could not become an occupant unless he complied with the conditions prescribed in Section 69 if he were a Government lessee. We therefore fail to see how the Petitioner can reasonably contend that his lessor should be treated as an occupant within the meaning of the Berar Land Revenue Code, even though there is no proof nor any averment that Respondent No. 4 did anything to acquire the status of an occupant. In fact, the case of Respondent No. 4 is that he is a mere Bhumidhari.

Now, a Bhumidhari is defined in Section 147 of the Madhya Pradesh Land Revenue Code as a person who held land as lessee of the State Government under Sub-section (2) of Section 68. On the other hand, a person who held land as an occupant is described and defined as "Bhumiswami" u/s 146 (e) of the Madhya Pradesh Land Revenue Code. Thus, the Code having made a well understood distinction between a Bhumiswami and Bhumidhari, it is difficult for us to accept that a person who claims to be a Bhumidhari because he is a Government lessee would still be held to be a Bhumiswami by an artificial extension of the definition of the word "Landholder" in the Leases Act, as contended for by the Petitioner. We do not think it is permissible so to include Respondent No. 4 in the definition of a "landholder".

Once it is held that Respondent No, 4 was not an occupant but a Government lessee, it must follow that a person cultivating land under such a Bhumidhari or a Government lessee does not acquire the rights of a protected lessee under the Berar Regulation of Agricultural Leases Act. Under that Act a person could acquire the rights of a protected lessee only if he holds under a landlord or a landholder who is an ''occupant'' or a person who became an occupant u/s 68 of the Abolition of Proprietary Rights Act which status must be confined to the person designated in Sub-section (1) of Section 68.

It is, therefore, clear that the view taken by the Maharashtra Revenue Tribunal that Respondent No. 4 being himself a Bhumidhari and not a Bhumiswami, the Petitioner could not have acquired the rights of a protected lessee even though he cultivated the land under Respondent No. 4 for the year 1952-53 is correct and must be upheld. We hold accordingly. The petition fails and la dismissed. There will be no order as to costs.