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Judgment
John Beaumont, C.J.—This is an application in revision against an order passed by the Mamlatdar refusing to decree possession in favour of the landlord, which was upheld by the Collector of Belgaum.
The points which arise are under the Bombay Small Holders Relief Act of 1938. That ''Act, as originally passed, was to remain in force up to March 31, 1939, that is to say, for one year. It has subsequently been extended for a year in 1939, 1940, and 1941. I am concerned with the extension in 1940, because the present suit was filed in 1940. Now, u/s 9(7), as extended in the year 1940, it is provided that no tenant, who in effect is an agriculturist, shall be evicted, if such tenant tenders to the landlord or any person acting on his behalf before May 15, 1940, rent due in respect of the land for the year ending with June 30, 1940, and is willing to hold the land thereafter as a tenant on the same terms and conditions on which he was holding the same at the date when the cause of action arose to the landlord for the purpose of evicting him. There were two tenants, who were joint holders of the tenancy, one of whom did not appear. The Mamlatdar found as a fact that the rent had been paid before May 15, 1940, for the year ending June 30, 1940, but that rent due for previous years had not been paid. This he held to be irrelevant for the purpose of Section 9(1), and I agree with him.
Mr. Desai contends that the legislature cannot have intended to protect a tenant who was in arrears with his rent for past years, although not for the current year, I can only judge of the intention of the legislature from the language of the text. All that has to be paid before May 15, 1940, is the rent due, not down to June 30, 1940, but for the year ending June 30, 1940. Therefore, I agree with the Mamlatdar that the omission to pay rent in previous years does not defeat the tenant''s claim to protection under the Act
Then it is said that the tenant who did not appear in the proceedings has not expressed his willingness to hold the land on the same terms and conditions as formerly. But, again, I think that the wording of the Act is too strong for Mr. Desai''s contention to prevail. It provides that no tenant shall be evicted, if he pays rent for the year, and is willing to hold the land as formerly. One of these two tenants has expressed his willingness to hold the land, and, therefore, he cannot be evicted.
Mr. Desai''s argument would involve redrafting the section, first, by providing that rent must be paid not for the current year, but up to the end of the current year, and, secondly, by providing that the tenant must express his willingness that he and his co-tenants will continue on the same terms as before. That is not what the Act says. A tenant who has expressed his willingness is entitled to continue, and as it is useless to evict one of two joint tenants, leaving the other in occupation, I think the order of the Mamlatdar and the Collector was right.
The application is dismissed with costs.