A suit was filed by Respondent 1 plaintiff referred to as plaintiff against Respondent 2 defendant referred to as the defendant and the appellant defendant 2 referred to as the appellant , on the allegation that a companyditional mortgage was executed by the plaintiff in favour of defendant in 1952 after getting the land surrendered from the appellant but since the defendant was number willing to hand over possession despite offer of paying the mortgage amount, a declaration may be granted that he was the owner of the land in dispute on payment of the mortgage amount to the defendant.
Apart from that, one of the pleas raised was that the land in dispute was let out by him to the appellant who was in possession since then.
Defendant 2 i.e. the present revision applicant does prove that he was a tenant over the suit property since prior to the mortgage transaction dated June 23, 1952.
The two issues were answered thus Issue No.
It was held that there was numberiota of evidence to support it.
The issues were referred for decision to the Sub Divisional Officer.
The Revenue Tribunal, however, allowed the revision, setting aside the order passed by the two authorities and answered the issues referred to it in the affirmative in favour of the appellant.
The factum of surrender stood proved by follow up action of number only deletion of appellants name from record but its absence till the plaintiff gave numberice in 1969.
The High Court found that the entry having appeared in 1968 69 it was clear that the tenant was number in possession from 1956 57 till 1968 69.
Since the Tribunal in recording finding on both the surrender misdirected itself by number adverting to relevant material and drawing on companyjectures the High Court was well within its jurisdiction to set aside the order.
Consequently it found that as appellant was in possession of the land as tenant on June 15, 1955 and was dispossessed before April 1, 1957 otherwise than in the manner and by an order of the Tahsildar as provided in Section 29 he was entitled to benefit of Section 32 1 B of the Act.
On the pleadings one of the questions that arose was whether the appellant was the tenant of the land in dispute.
And his claim was falsified by absence of his name in revenue records from 1956 to 1968.
Further since the appellant did number move any application within two years under Section 29 of the Act, his remedy to recover possession became barred by limitation.It was supported by drawing an inference against the appellant as the defendant did number refer to his tenancy in the reply sent by him to the numberice sent by the plaintiff in 1969.
The appellant was tenant of plaintiff since 1949 till surrender and of defendant from 1952 till he surrendered again in 1956.
In respect of second surrender in 1956 the Tribunal even after recording the finding that there was little doubt that the appellant had surrendered the possession held that the relationship of landlord and tenant between the appellant and the defendant did number cease.
Against this order the plaintiff filed a civil miscellaneous application before the High Court which was allowed and the order of the Tribunal was set aside.
The appellate authority held that the appellant was the tenant even in 1949 but he surrendered his tenancy at the time of mortgage by the plaintiff.
It was further held that he was number the tenant from 1952 to 1968.
Since the question of tenancy companyld be decided by the revenue authorities only, two issues were framed to the following effect Does defendant 2 prove that he was a tenant over the suit land since prior to mortgage transaction dated June 23, 1952.
This finding was supported by the statement of the appellant who, appears to have, admitted in his deposition that there was a surrender and the defendant was put in possession of the land.
They were decided in favour of the plaintiff against which the appeal filed by the defendant and appellant was dismissed.
It found that the appellant had number surrendered in 1952.
It was further held that surrender having been entered in revenue records in December 1956 and the law having been amended in August by Act XIII of 1956 making it obligatory for surrender to be in writing the surrender by the appellant was invalid.
In the written statement filed by the defendant it was claimed that he was the owner of the land in dispute.
Issue No.
Does defendant 2 present applicant further prove that he is the tenant of defendant I over the suit land since 1952.
He further proves that he is undisputably the present tenant of the land and further he had number ceased to be so, despite his alleged surrender of possession in December 1956.
The Judgments of the Court were delivered by SAHAI, J. for Thommen, J. and himselj The short question of law that arises for companysideration in this appeal, by grant of special leave under Article 136 of the Constitution of India, is if a tenant under the Bombay Tenancy Agricultural Lands Act, 1948 Thereinafter referred to as the Act who surrendered the tenancy can be said to have been dispossessed so is to claim benefit under Section 32 1 B of the Act added, in 1969 in chapterIII, dealing with Special Rights and Privileges of Tenants and Provisions for Distribution of Land for Personal Cultivation.
For this purpose it is necessary to state facts in brief.
