2006(4) ALL MR 666
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
B.P. DHARMADHIKARI, J.
Sayyad Sakhavatali S/O. Abbasali Vs. The Member, Maharashtra Rev. Tribunal & Ors.
Writ Petition Nos.3918 of 1999,Writ Petition Nos. 3071 of 2005
21st November, 2005
Petitioner Counsel: Mr. A. S. KILOR
Respondent Counsel: Mr. R. L. KHAPRE
(A) Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act (1958), S.20 - Bombay Tenancy and Agricultural Lands (Vidarbha Region) Rules (1959), R.11 - Tenancy rights - Surrender of - Validity - Surrender not considered by Tehsildar for verification in prescribed manner - Surrender not valid. AIR 1975 SC 915 - Foll. (Para 7)
(B) Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act (1958), S.36 - Restoration of possession - Protection available to tenant under S.36 - Respondent landlord Trust claiming that petitioner tenant voluntarily gave up tenancy rights on his behalf as well as on behalf of other co-tenants in favour of respondent - However, no document in writing produced evidencing said surrender by tenant - Possession given to another party by respondent trust not creating any right, title or interest in favour of said party - Petitioner entitled to protection under S.36. (Para 9)
(C) Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act (1958), S.2(32) - Tenancy - Right of co-tenants - Suit land given for cultivation to petitioner and four other persons to cultivate jointly - Death of two Co-tenants - Respondent Landlord obtaining deed of surrender from petitioner - Said deed not mentioning that on account of death of two co-tenants, tenancy stood extinguished - On contrary respondent accepting said surrender from petitioner not only on his behalf but also on behalf of other co-tenants - No bar pointed out by respondent against joint cultivation by such tenants - In absence of any law stating that upon death of any co-tenant, entire tenancy or tenancy of other co-tenants would come to end - Surviving co-tenants would remain joint-tenants. (Para 11)
Vallabhabhai Nathabi Vs. Bai Jivi, 1969(1) SCC 392 : AIR 1969 SC 1190 [Para 4,8,A,9,D,9,E]
Bhagwant Pundlik Vs. Kishan Ganpat, AIR 1971 SC 435 4, 9-E [Para 9]
Ramchandra Vs. Govind, 1975(1) SCC 559 : AIR 1975 SC 915 [Para 4]
Madhao Vs. Maharashtra Revenue Tribunal, AIR 1971 Bombay 106 (FB) : 1970 Mh.L.J. 991 [Para 4,8,A,9,E]
Harikati Bode Vs. Rambhau, 1979 Mh.L.J. 705 [Para 4]
Dajisaheb Vs. Laxmanrao, 1965 Mh.L.J. Note 3 [Para 5,11]
Dwarakanath Vs. Narayan, 1989 Mh.L.J. 689 [Para 5,11]
Shriram Mandir Sansthan Vs. Vatsalabai, AIR 1999 SC 520 [Para 5,11]
Sitaram Vs. Hawadya, 1975 Mh.L.J. 521 [Para 5,9,C]
Dhondiram Vs. Ramchandra, 1994 Mh.L.J. 1284 [Para 5,9,C]
Abdul Ajij Shaikh Jumma Vs. Dashrath Indas Nhavi, AIR 1987 SC 1626 [Para 7,A]
Ramchandra Keshav Adke Vs. Govind Joti Chavare, AIR 1975 SC 915 [Para 7,B,7,D,7,E]
Hari Kati Bode Vs. Rambhau Narayan Gadewar, 1979 Mh.L.J. 705 [Para 7,D]
Purushottam Vs. Walambabai, 2005(3) ALL MR 610=2005(2) Mh.L.J. 354 [Para 7,D,8,A]
Digambar Sutar Vs. Jairam Mali, 1997(3) Mh.L.J. 174 [Para 8,B]
Babu Parasu Kaikadi Vs. Babu, 2004(5) ALL MR 117 (S.C.)=AIR 2004 SC 754 [Para 8,C,9,C]
Laxmanrao Anantrao Stardekar Vs. Bapu Satyappa Pawar (deceased by L.Rs.), AIR 1988 Bom. 244 [Para 8,C]
Sheikh Mohammad Vs. Daulat Marathe, 1978 Mh.L.J. 81 [Para 11]
JUDGMENT :- Challenge in this writ petition under Articles 226 and 227 of Constitution of India is to the order dated 30/3/2005 passed by respondent No.1 Divisional Commissioner, Amravati dismissing the revision filed by present petitioner. At the time of hearing on admission, contesting parties have agreed to get the writ petition decided finally at admission stage itself. Accordingly, the parties have filed their respective Written notes of arguments along with xerox copies of relevant citations. I have heard Advocate Shri. A. S. Kilor for petitioner and Advocate Shri. R. L. Khapre for Respondent No.2 and 3. Learned AGP appeared for respondent Nos.1, 4 and 5.
2. The facts involved in the matter can be briefly stated thus. The property in dispute is survey No.53 ad measuring 36 acres and 18 gunthas of village Chithoda Jahagir, Tq. Khamgon, District Buldhana and it is belonging to respondent No.2 -a Public Trust. It is the contention of present petitioner that said property was in his possession along with his four other family members in capacity of tenant and Public Trust used to collect rent from him. The respondent No.2 Public Trust is alleged to have agreed to sell said land to present petitioner and his 4 family members. An application was also moved before Charity Commissioner seeking permission to sale that property but that permission was refused and petitioner with his family members continued to cultivate the field-property as tenant. Petitioner contends that on 17/6/1996, respondent No.2 Public Trust fabricated the document of surrender showing that the petitioner and others have voluntarily given up the tenancy rights in its favour. The Public Trust contended that petitioner also gave possession with receipt therefor and the document of surrender is verified by Special Executive Magistrate, Balapur. The petitioner is stated to have executed that surrender for himself and also as power of attorney holder for others. It is further contended that on same day respondent No.2 Public Trust created tenancy in favour of respondent No.3 who is real brother of managing trustee of respondent No.2 trust.
3. Immediately on next day i.e. 18/6/1996 the petitioner filed Regular Civil Suit 77 of 1996 against present respondents No.2 and No.3 for declaration and injunction and in that suit he also sought temporary injunction to protect his possession. The said temporary injunction was rejected on 4/4/1996 and appeal filed by petitioner vide Misc. Civil appeal 37/1996 against it was also dismissed by Additional District Judge. A Civil Revision 924/1996 filed before this court was later on disposed off as not tenable. In the meanwhile present respondent No.3 filed RCS 94/1996 against Present petitioner in relation to very same land seeking perpetual injunction and declaration. He also sought temporary injunction to protect his possession during pendency of Suit and on 3/12/1996, the trial Court granted that injunction to him. The petitioner filed Misc. Civil Appeal 39/1997 against grant of this injunction but said appeal was dismissed by Additional District Judge on 23/3/1998. Civil Revision filed before this Court against both these orders by petitioner was rejected in motion hearing. Thereafter, on 7/9/1998 petitioner initiated proceedings for restoration of possession under Section 120 of Bombay Tenancy & Agricultural Lands (Vidarbha Region) Act, 1958 [hereinafter referred to as "Tenancy Act" for short]. S.D.O. allowed this application and ordered summary eviction of present respondent No.3 and restoration of possession of petitioner. Respondent No.3 then approached Maharashtra Revenue Tribunal, Nagpur on 30/9/1999 and MRT allowed appeal of respondent No.3 and set aside the order of SDO. Present petitioner challenged this order of M.R.T. in Writ Petition 3918/1999 and said writ petition has been admitted for final hearing and this court has directed parties to maintain status quo as on 25/11/1999 i.e. the day of its admission. The said writ petition is still pending & is being considered with this writ petition as per consent of parties. On 3/9/1997 i.e. prior to initiation of section 120 proceedings mentioned above, the present petitioner filed application before Tahsildar under section 36 of Tenancy Act for restoration of possession and it was dismissed. On 5/7/2002, appeal filed against this rejection was also dismissed by S.D.O. petitioner erroneously challenged this order before Additional Collector and that authority dismissed the challenge on the ground of absence of jurisdiction. On 30/12/2002, petitioner challenged the order of S.D.O. in appeal before present respondent No.1 Divisional Commissioner and said authority granted stay to the impugned order of S.D.O. However, after Divisional Commissioner got knowledge of previous history/orders, he vacated the said stay on 2/1/2003 without hearing petitioner. This vacation of stay order was challenged by present petitioner in writ petition 3035/2003 and that writ petition was allowed on 15/9/2003 whereby respondent No.1 was asked to decide the proceedings before him on merits within period of two months. A contempt petition 62/2005 was required to be filed by present petitioner as respondent No.1 did not decide within stipulated period and ultimately respondent No.1 dismissed said Revision on 30/3/2005. This order is challenged in present writ petition.
4. Advocate A. S. Kilor for petitioner has contended that the authorities below have refused to exercise jurisdiction available to them under section 36 of Tenancy Act by giving importance to orders passed in other litigation between parties. He contends that as the surrender was not verified as required by section 20 of Tenancy Act, the petitioner was entitled to restoration of possession and order passed by any Civil Court or other authority can come in the way of Tahsildar in this respect as, Tahsildar alone has jurisdiction to examine this aspect. He argues that in the absence of order passed by competent authority verifying the alleged surrender in the manner prescribed by rule 11 of The Bombay Tenancy & Agricultural Lands (Vidarbha Region) Rules, 1959 [hereinafter referred to as "1959 Rules" for short], the other authorities could not have held that there is any surrender by petitioner in favour of respondent No.2 Public Trust. He has further argued that as possession was not handed over by petitioner to respondent No.2, there is no question of surrender coming into force. In order to demonstrate the essential requirements of valid surrender and mandatory nature of section 20 and rule 11, he has relied upon judgments of Hon'ble Apex Court reported at (1969(1) SCC 392 = AIR 1969 SC 1190) between Vallabhabhai Nathabi Vs. Bai Jivi and others; A.I.R. 1971 SC 435 between Bhagwant Pundlik Vs. Kishan Ganpat; 1975(1) SCC 559 = AIR 1975 SC 915 between Ramchandra Vs. Govind, judgments of this court reported at A.I.R. 1971 Bombay 106 (FB) between Madhao Vs. Maharashtra Revenue Tribunal and 1979 Mh.L.J. 705 between Harikati Bode Vs. Rambhau. He has further argued that the only remedy available to petitioner is section 36 of Tenancy Act and orders passed by other authorities are without jurisdiction. In support he has relied upon 1969(1) SCC 392 between Vallabhabhai Nathabi Vs. Bai Jivi. He states that the arguments raised in defence by respondent No.2 and 3 are misconceived because tenancy of petitioner is not terminated under section 19 of Tenancy Act.
5. Advocate R.L.Khapre has argued that when possession was voluntarily surrendered to the Public Trust, these arguments and subsequent applications of petitioner are misconceived. It is contended that the undivided portion of land cannot form subject matter of tenancy and, 1/5th share of petitioner in tenancy be recognised in law. 1965 Mh.L.J. Note 3 (Dajisaheb Vs. Laxmanrao) & 1989 Mh.L.J. 689 (Dwarakanath Vs. Narayan) are pointed out in support. It is further contended that respondent No.2 is a Public Trust and its tenancy is not heritable. He has relied upon A.I.R. 1999 SC 520 between Shriram Mandir Sansthan Vs. Vatsalabai in support. Sitaram Vs. Hawadya reported at 1975 Mh.L.J. 521 is pointed out to contend that after 2 co-tenants expired, the relationship of landlord and tenant between parties ceased to exist and hence proceedings under section 36 of Tenancy Act are not maintainable. In view of death of co-tenants, the tenancy stood extinguished & as such possession is handed over to public trust. According to respondent no.2 & 3 this is not surrender at all. In the alternative it is pointed out that petitioner alone cannot maintain such proceedings. It is also pointed out that total area of survey no.53 was 14 Hectors 75R and each co-tenant was cultivating 2.87 Hectors separately. Crop statement of year 1995-1996 is pointed out to demonstrate this situation.It is argued that hence, petitioner cannot maintain proceedings alone for entire land. In is urged that at the most he can claim possession of his 2.87 Hectors portion. It is further argued that as there was no dispossession by respondent No.2, section 36 of Tenancy Act is not attracted and ruling of Hon'ble Apex Court reported at 1994 Mh.L.J. 1284 between Dhondiram Vs. Ramchandra is pointed out in this respect. Learned AGP has also supported the order passed by respondent No.1.
(I) Whether surrender of Tenancy rights by agricultural tenant is valid in the absence of compliance with the provisions of section 20 of Tenancy Act or rule 11 of 1959 Rules framed there under ?
(II) Whether the landlord is entitled to accept possession in the absence of order of Tahsildar for such possession ?
(III) What is the forum under Tenancy Act for tenant complaining of fraud etc. or of non-compliance with the provisions of section 20 of Tenancy Act or rule 11 of 1959 Rules framed there under to seek restoration of possession ?
(A) In AIR 1987 SC 1626 "Abdul Ajij Shaikh Jumma Vs. Dashrath Indas Nhavi", Hon'ble Apex Court has maintained the order of M.R.T in view of failure of landlord to establish that surrender was verified as prescribed. The short judgment reads:-
"The Maharashtra Revenue Tribunal (Tribunal) by its judgment under appeal has taken the view that the respondents are entitled to claim the rights conferred by S.32(IB) of the Bombay Tenancy and Agricultural Lands Act, 1948. The Tribunal has recorded the finding that on the 'appointed day', that is to say, on June 15, 1955, the father of the respondents who was the tenant in respect of the lands in question at the material time was in possession of the lands but that he had been later on dispossessed otherwise than in accordance with law. The contention raised by the appellants before the Tribunal that the tenant had surrendered the lands in accordance with law on February 21, 1955 and that he was not in possession of the lands in question on the appointed day (June 15, 1955) was repelled by the Tribunal. This very contention has been reiterated before us on behalf of the appellants in this appeal. We agree with the reasoning and conclusion of the Tribunal that surrender could have been made lawfully only under S.15 read with S.29(2) of the Bombay Tenancy and Agricultural Lands Act. 1948 (BTAL Act) as it stood at the material time. There was no such order passed by any competent authority under the BTAL Act, evidencing the surrender in accordance with the provisions of the Act. Under the circumstances the submission urged by the appellants that the tenant had surrendered his tenancy in favour of the appellants on February 21, 1955 cannot be acceded to or sustained. Such being the position the appellants cannot succeed. The appeal, therefore, fails and is dismissed with no order as to costs. The interim stay granted by this Court earlier will stand vacated. The Revenue authorities under the BTAL Act are directed to ensure that the respondents are put in possession of the lands in question as early as possible and in any case before the expiry of six months from today subject however to the liberty to the appellants thereto before to remove their standing crops, if any. Appeal dismissed."
(B) Law explained by Hon'ble Apex Court in AIR 1975 SC 915 "Ramchandra Keshav Adke Vs. Govind Joti Chavare" also squarely covers the issue. Here, the tenant did appear before the competent officer for verification of surrender and said officer did verify it. Still, it was not found sufficient by this High Court as also by Hon'ble Apex Court. The facts are apparent from paragraph 2, 4 and 5 which read:-
"2. On September 8. 1953, the predecessor of appellants 1 and 2 (hereinafter called the landlords) made an application to the Mamlatdar of Miraj that the tenant (respondent No.1) was willing to surrender his tenancy in the agricultural land, bearing Survey No.102/2, ad measuring 8 acres and 22 gunthas, situated at village Haripue, Taluka Miraj, District Sangli in the State of Maharashtra. The landlord prayed that the surrender in his favour should be verified under Section 5 (3) of the Bombay Tenancy Act 67 of 1948. To this application the landlord annexed a letter of surrender bearing the thumb-impression of the tenant. The Mamlatder did not verify the surrender, or pass any final order in the matter. The landlord's application however came up before Shri. Bhokare, the then Circle Officer of Miraj who after recording the statements of the tenant and landlord made this order on it.
“The applicant and the tenant are present, the tenant Shri. Chaware states that the suit land viz S. No.102/1 measuring 8-22 and assessed at Rs.44-3-0 of Haripur belongs to the applicant and that he is cultivating the same as a protected tenant. He further adds that he does not want to cultivate the same any longer and so he is surrendering the possession willingly along with crops and also the right as pro-tenant.
I, therefore, order that the possession of the suit land should be handed over to the applicant with the crops and the right as pro-tenant should be deleted under Section 229 (i)(3) of the B.T. and A.L. Act 1948.
4. On 9-11-1959, the tenant made an application against the landlord and his transferee's (Sherikars) to the Additional Tenancy Aval Karkun, Miraj, praying for a declaration that he was the tenant-in-possession of the land in dispute and further that the opponents be injuncted not to disturb his possession over the land. In the alternative, he prayed that if he was found to have lost possession, the same be restored to him. This application was opposed by the landlord and his transferee's on two main grounds: (1) that the tenant had duly surrendered his tenancy in 1953 and he was not in possession thereafter, and (2) that his application was time-barred. Both these grounds found favour with the Tenancy Aval Karkun and he dismissed the tenant's application by an order dated 22-11-1961.
5. Aggrieved, the tenant filed Tenancy Appeal No.292 of 1962 before the Special Deputy Collector, Sangli. The tenant preferred another appeal also, to the Deputy Collector against the order, dated 18-9-1953, of the Circle Officer, Mr. Bhokare, whereby the tenant's name was deleted from the record of rights. The Deputy Collector held that Shri. Bhokare's order was not an order passed by a Mamlatdar as required by the Tenancy Law, and consequently, it was without jurisdiction and void. He further held that there was no verification of the surrender application as required by law. He further found that, in fact, the tenant had never surrendered the tenancy, but had continued to be in possession till he was illegally dispossessed in 1959 and consequently his application was within time. On these findings the Special Deputy Collector allowed both the appeals. And directed that the possession of the suit land be restored to the tenant. He also set aside the order of the Circle Officer regarding the mutation entry."
Against the Deputy Collector's decision, the landlord preferred two revision applications before the Maharashtra Revenue Tribunal. The Tribunal dismissed the revision applications and affirmed the findings of the Deputy Collector. The landlords and their transferee's thereupon moved the High Court of Bombay by two writ petitions under Article 227 of the Constitution for impugning the revisional orders of the Tribunal. The High Court dismissed the petitions. The matter therefore went before Hon'ble Apex Court and the question considered therein was whether in the circumstances of this case, the alleged surrender by the tenant was valid? The provisions of law considered therein are Section 5(3) (b) and rule2-A. Section 5(3)(b) of the Act, at the material time, was as follows:
"A tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of landlord. Provided that such surrender shall be in writing and shall be verified before the Mamlatdar in the manner prescribed." The manner of such verification prescribed by Rule 2-A, was in these terms:-"The Mamlatder when verifying a surrender of a tenancy by a tenant in favour of the landlord under clause (b) of Sub-section (3) of Section 5,shall satisfy himself, after such enquiry as he thinks fit, that the tenant understands the nature and consequences of the surrender and also that it is voluntary, and shall endorse his findings in that behalf upon the document of surrender."
The essentials of a valid surrender, in this background have stated by Hon'ble Apex Court as under :-
"12. It will be seen from a combined reading of these provisions that a surrender of tenancy by a tenant in order to be valid and effective must fulfill these requirements: (1) It must be in writing.(2) It must be verified before the Mamlatdar. (3) While making such verification the Mamlatdar must satisfy himself in regard to two things, namely, (a) that the tenant understands the nature and consequences of the surrender and (b) that it is voluntary. (4)The Mamlatdar must endorse his findings as to such satisfaction upon the document of surrender."
It will be beneficial to mention the scope of these provision, there purpose and nature in the language of Hon'ble Apex Court itself.
"19. The language of Section 5 (3)(b) and Rule 2-A is absolute, explicit and peremptory. The words "Provided that" read with the words "shall be", repeatedly used in Section 5 (3)(b), make the termination of tenancy by surrender entirely subject to the imperative conditions laid down in the Proviso. This Proviso throws a benevolent ring of protection around tenants. It is designed to protect a tenant on two fronts against two types of dangers - one against possible coercion under influence and trickery proceeding from the landlord, and other against the tenant's own ignorance, improvidence and attitude of helpless self-resignation stemming from his weaker position in the tenant-landlord relationship.
20. Thus, the imperative language, the beneficent purpose and importance of these provisions for efficacious implementation of the general scheme of the Act all unerringly lead to the conclusion that they were intended to be mandatory. Neglect of any of these statutory requisites would be fatal. Disobedience of even one of these mandates would render the surrender invalid and ineffectual.
21. Having seen that the requirements of Section 5 (3)(b) and Rule 2-A are obligatory and not directory it remains to be considered whether these imperatives have been substantially complied with in the manner prescribed and if not, what is the consequence of non-compliance ?
22. The question of inherent jurisdiction apart, all that the Circle Officer did in this case was that he recorded the statements of the tenant and landlord and made the order which we have reproduced in full earlier in this judgement. Although in this order he referred to the tenant's statement "that he does not want to cultivate the same any longer and so he is surrendering the possession willingly along with crops and the right as pro-tenant", he did not say a word that he was satisfied that the tenant had voluntarily made the surrender after understanding its nature and consequences, much less did he endorse his satisfaction on the tenant's deed of surrender as required by Rule 2-A. Verification of the surrender implies that the authority was satisfied as to the statutory requisites after due enquiry. Such satisfaction of the authority was the essence of the whole thing. In other words, this requirement as to the recording of its satisfaction by the authority in the manner prescribed by Rule, was the substance of the matter and not an empty formality. In the absence of the requisite endorsement, therefore, it cannot be said that there has been even a substantial compliance with the statutory requirements.
23. Mr. Desai's contention that the Tribunal had found that Circle Officer had complied with all the formalities prescribed by law, does not appear to be correct. The sentence from which it is sought be spelled out should not be torn from its context. Earlier in its judgment, the Tribunal had clearly said in concurrence with the Deputy Collector, that the surrender had not been verified as required by law.
24. Next point to be considered is, what is the consequence of non-compliance with this mandatory procedure ?
25. A century ago, in Taylor Vs. Taylor, (1875)1 Ch D 426 Jessel M. R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed Vs. Emperor, 63 Ind App 372 = (AIR 1936 PC 253 (2)) and later by this Court in several cases, Shiv Bahadur Singh Vs. State of V.P., (1954) SCR 1098 = (AIR 1954 SC 322 = 1954 Cri.L.J. 910); Deep Chand Vs.State of Rajasthan, (1962) SCR 662 = (AIR 1961 SC 1527 = 1961 (2) Cri. L.J. 705) to a Magistrate making a record under Section 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. Maxwell's Interpretation of Statutes, 11th Edn.pp.362-363."The rule will be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surrender in a manner other than the one prescribed is implied in these provisions. Failure to comply with these mandatory provisions, therefore had vitiated the surrender and rendered it non est for the purpose of S.5 (3)(b)." The Hon'ble Apex Court therefore dismissed the appeal of landlord.
C. In this background it will be worthwhile to note the mandate of relevant provision of Tenancy act 1958 i.e. S.20 and 1959 Rules i.e. R.11.
"Section 20. Termination of tenancy by surrender thereof.- A tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of the landlord:
Provided the such surrender shall be in writing and shall be verified before the Tahsildar in the prescribed manner.
Rule 11. Manner of verifying surrender of tenancy :- The Tahsildar when verifying the surrender of a tenancy by tenant in favour of the landlord under section 20, shall in the absence of landlord or his agent examine the tenant on oath after the period of 10 days from the date of receipt of intimation of surrender by putting him questions to ascertain-
(i) The reasons for his surrendering the tenancy;
(ii) whether the surrender is voluntary and has been made in good faith;
(iii) the other source of livelihood the tenant has or wishes to have;
(iv) whether the tenant is aware of the consequences of the surrender; and
(v) any other matter which the Tahsildar deem it necessary so to do:
Provided that where the Tahsildar is satisfied that surrender is not voluntary and has not been made in good faith, he shall not pass any order unless the landlord is given an opportunity to be heard."
D. Hari Kati Bode Vs. Rambhau Narayan Gadewar reported at 1979 Mh.L.J. 705 is the judgment in which Single Judge of this Court has considered these provisions governing the surrender. The following observations in paragraphs 15 and 16 are self-explanatory. After reproducing provision of rule 11 in paragraph 15 at page 715 of the report, this Court has observed :-
"The learned Member of the Maharashtra Revenue Tribunal seems to be of the view that so long as the deed was executed voluntarily and there was no pressure for executing the deed at the time of its execution, the surrender cannot be said to have been vitiated. I am afraid, such a reasoning cannot be based either upon the construction of section 30 (note-should be section 20) of the Tenancy Act on rule 11 of the Tenancy Rules. If both section 20 and rule 11 ibid, are read together, it will appear that the duty is cast on the Tahsildar to ascertain the reasons for tenants surrendering the tenancy; to ascertain whether the surrender is voluntary and has been made in good faith; whether the tenant is aware of consequences of surrender and to ascertain any other matter which the Tahsildar deems it necessary so to do. If the provisions in this Rule are read carefully, it will appear that it will not suffice for the Tahsildar merely to find out that when the surrender deed was executed no pressure was exerted on him. He has to ascertain the reasons for surrendering the tenancy with a view to find out whether surrender is valid. As pointed out above, in this case, the grievance of the petitioner was that he was surrendering the tenancy because the landlord by his notice represented to him that he wanted the land for his personal cultivation. Thereby, the petitioner wanted to suggest that but for his representation he would have agreed to surrender. In other words, the petitioner wanted to say that there was a misrepresentation of the facts. On a careful reading of provisions in Rule 11 of the Tenancy Rules, I am inclined to hold that not only voluntary nature as regards the execution of the surrender deed but all other relevant circumstances including a misrepresentation of facts, fraudulent conduct of the landlord have to be taken into consideration. It is for this purpose that Rule 11(1) of the Tenancy Rules requires the Tahsildar to ascertain the reasons for the tenant surrendering the tenancy and other relevant matter. In the instant case, immediately after the land was sold by landlord the very next day the petitioner makes a complaint in writing to Tahsildar that surrender deed be canceled. All this material supports the contention raised on behalf of the petitioner that he was induced to execute deed of surrender because of particular representation of the landlord, namely, that he wanted the land for self cultivation which was found to be false, long before the surrender was accepted. All these aspects of the matter were not taken into consideration by the learned Member of Maharashtra revenue Tribunal before disturbing the finding of facts recorded by the Sub-Divisional Officer. The material circumstances were thus ignored all other not considered by the learned Member of the Maharashtra Revenue Tribunal. The finding of the Maharashtra Revenue Tribunal therefore in my view is vitiated an error of law.
16. Coming again to the impugned order made by the Naib Tahsildar dated 29/3/1961, it will be seen that he has not applied his mind to all the relevant matters that were required to be considered. For example, he was required to find out the other source of livelihood the tenant had or wished to have. This aspect of the matter has not been dealt with in his order. The Tahsildar who was required to ascertain the reasons for surrendering the land did not consider the reasons given by petitioner tenant to the effect that he (the tenant) had executed the surrender deed because the landlord represented to him that he would cultivate the land personally. The learned Tahsildar allowed himself to be misdirected by the concluding sentence in petitioner's statement which came to be recorded in the following way:-(note - in judgment the statement is quoted in Marathi and I have given its English translation here) "I am now surrendering voluntarily. I understand its consequences. "(rest part of para 16)-"
It is to be noticed that the above referred judgment of Hon'ble Apex Court i.e. AIR 1975 S.C. 915 "Ramchandra Keshav Adke Vs. Govind Joti Chavare" has not been cited before this Court in this and, as such, has not been considered. In Purushottam Vs. Walambabai reported at 2005 (2) Mh.L.J. 354 : [2005(3) ALL MR 610]. I, had an occasion to consider this ruling of Hon'ble Apex Court. However, it was found in the facts of said case that the Tahsildar had validly verified the surrender.
E. Here the alleged surrender deed is executed on 17/6/1996 and it is not the case of either respondent No.2 or respondent No.3 that it has been verified in accordance with provisions of section 20 or rule 11. The civil suit is filed by petitioner on very next day i.e.18/6/1996 in order to protect his possession. The respondent No.2 had delivered possession to respondent No.3 allegedly on 18/6/1996 without waiting for verification of surrender. It appears that intimation of such surrender was also not forwarded to Tahsildar. The Tahsildar while verifying the surrender of a tenancy by tenant in favour of the landlord under section 20 has to examine the tenant on oath after the period of 10 days from the date of receipt of intimation of surrender. Thus there has to be an intimation of surrender to Tahsildar and waiting period of 10 days. After this gap of 10 days, Tahsildar has to examine on oath tenant. Such examination of tenant in required to be conducted in the absence of landlord or his agent. The scope of examination is also illustrated in the Rule itself by pointing out the nature of questions to be put by Tahsildar to tenant. The purpose of examination of tenant is to ascertain (i) The reasons for his surrendering the tenancy;(ii) whether the surrender is voluntary and has been made in good faith;(iii) the other source of livelihood the tenant has or wishes to have;(iv) whether the tenant is aware of the consequences of the surrender; and (v) any other matter which the Tahsildar deem it necessary so to do. Thus, under the scheme for verification of surrender, the process of verification itself starts after 10 days of intimation of such surrender to Tahsildar and obvious intention behind prescribing such period is to dilute or dissolve the effect of any pressure/influence/coercion/fraud etc on tenant, if any, which may have been practiced by landlord upon him . The purpose of inquiry is obviously to enable Tahsildar to judge for himself the correctness or otherwise of the decision taken by tenant to surrender. The Tahsildar in fact considers the situation in which tenant is placed before surrender and after surrender to assess the application of mind by tenant on such occasion. If Tahsildar finds that the tenant has reached said decision freely with open eyes and after deliberations without any influence and after evaluating his position, the Tahsildar has to accept surrender. Till this time, landlord has no role to play. But the moment, Tahsildar discovers that surrender is not voluntarily or is not in good faith or has been obtained without tenant fully understanding the pros & cons of the matter, Tahsildar has to give opportunity of hearing to the landlord before taking any decision or rejecting it. The requirements of rule 11 of 1959 Rules are more comprehensive and elaborate to drive at home the intention of the legislature. It is mandatory for landlord to at once communicate the fact of surrender to Tahsilder. He is not permitted to sit tight and to defeat the provisions of section 20 or rule 11. The above ruling of Hon'ble Apex Court at AIR 1975 SC 915 "Ramchandra Keshav Adke Vs. Govind Joti Chavare" therefore clearly clinches the situation. The result is a finding that surrender dated 17/6/1996 can not be acted upon by respondent no. 2 Trust as it is not considered by Tahsildar for verification in prescribed manner.
8. Coming to the second question, it is apparent that neither section 20 of Tenancy Act nor rule 11 of 1959 Rules prescribe for delivery of possession or restoration of possession to the landlord after surrender. Ancillary question is whether surrender is complete in the absence of order of possession in favour of landlord by Tahsildar.
A. The provisions of section 21 of Tenancy act provide that after termination of tenancy by surrender under section 20, the landlord is entitled to retain only such part thereof as will not cause his total holding to exceed 3 family Holdings. Section 21(2) enables Tahsildar to hold an inquiry and declare whether landlord is to retain whole or part of such surrendered land. Section 21(5) contains important provision in this respect and it provides that where the landlord fails to give intimation as required under Sub-section (3) or where the surrender is found to be invalid as a result of the inquiry held under Sub-section (4), the Tahsildar shall order restoration of possession of land and the tenancy thereof to the tenant. However this is applicable only to surrenders made between 1/8/1957 to the date of commencement of Tenancy Act. but this provision also does not require landlord to obtain any orders before accepting the possession or surrender from tenant. The only inquiry contemplated is about the quantum of land which landlord will be entitled to retain. Such inquiry about capacity to retain or entitlement to hold can be undertaken only after the land is received in possession by landlord from tenant. No inquiry and order is therefore contemplated when landlord receives the possession of surrendered land from tenant. The learned counsel for Petitioner has contended that process of surrender is not complete till the Tahsildar hands over possession to landlord. In support, he has relied upon the judgment of Full Bench of this court reported at A.I.R. 1971 Bombay 106= 1970 Mh.L.J. 991 between Madhao Sonar Vs. The Maharashtra Revenue Tribunal, Nagpur. In Purushottam Vs. Walambabai reported at 2005(2) Mh.L.J. 354 : [2005(3) ALL MR 610] I, had an occasion to consider this ruling and also unreported judgment of Division Bench of this court in L.P.A. 38 of 1985 decided on 12/12/1986. The Division Bench had not agreed with Full Bench in view of the Apex Court judgment reported at 1969(1) SCC 392 = A.I.R. 1969 SC 1190 between Vallabhabhai Nathabi Vs. Bai Jivi and other. It will be beneficial to quote from this earlier judgment at 2005(2) Mh.L.J. 354 from paragraph 10 and 11 (relevant portion) :-
10. The authorities below while passing impugned orders have held that the surrender executed by respondents-tenants was not complete in absence of order of possession. The issue is settled by the unreported judgment of this court in L.P. No 38 of 1984 decided on 12-12-1986. The Full Bench judgment of this court reported in 1970 MH.L.J. 991 held that even after tenancy is terminated on verification of surrender as provided under section 20, a tenant does not cease to be a tenant so long as an order of possession is obtained for the Tahsildar by landlord under section 36 (2) of the Tenancy Act and finding of Full Bench that scheme laid down under section 36 controls the provision of surrender under section 20 have been considered by the Division Bench in this L.P.A. in the light of judgment of the Apex Court in case of Vallabhabhai Nathabi Vs. Bai Jivi 1969 MH.L.J.958 = A.I.R. 1969 SC 1190. In para 5, the Division Bench has observed as under:
"The main question posed before us is whether section 36 (2) of the Vidarbha Act makes it obligatory for a landlord to obtain order from the Tahsildar for taking possession from the tenant even after valid surrender of tenancy rights in his favour or in other words, the tenant continues to be squat on a land despite the surrender of his tenancy rights. The Full Bench of this High Court has answered this issue in affirmative. The Full Bench of this court has delivered the judgment on 11th of September, 1969 whereas the SUPREME COURT tendered the judgment in Vallabhabhai's case either did not appearing on reports or was not placed before the Full Bench for consideration."
In para 6, after holding that the provision of Sub-section (2) of section 36 of Tenancy Act are identical with section 29 (2) of Bombay act and provisions of section 20 of Tenancy Act are identical to those of section 15 (1) of Bombay Act the Division Bench has concluded that the decision of SUPREME COURT in Vallabhabhai's case is squarely applicable for deciding the question before it. At the and of para 7 the Division Bench has found that after valid surrender of Tenancy rights, the land cannot be said to be held by a tenant, as contemplated under section 36 (2) of the Vidarbha Act. The observations of Division Bench in para 8 are important and the same read as under :
"The SUPREME COURT in Vallabhabhai's case has examined the scheme and purport of Sub-section (1) of section 15 of the Bombay Act, which according to us is pari materia to section 20 of Vidarbha act. The SUPREME COURT while considering the effect of surrender of tenancy rights by tenant in favour of a landlord under section 15 (1) of the Bombay Act, has observed that the tenancy on such surrender comes to end, and thereupon the relationship between them as a landlord and a tenant and the rights arising out of that relationship terminate." The legislature, however, was conscious of the possibility of landlord's taking undue advantage and, therefore, to safeguard the interest of tenants from being exploited, provided that surrender by tenant could only be valid and binding on him if it were in writing and duly verified by the Mamlatdar. Before validating such surrender it would be duty of Mamlatdar to ascertain whether the surrender was voluntarily and was not under pressure or undue influence of the landlord. But once the surrender satisfies these two conditions it has the same effect as the termination of tenancy. In view of the issue thus laid down by the SUPREME COURT in Vallabhabhai's case, in our judgment relationship between landlord and tenant does not subsist after valid surrender of tenancy rights couples with voluntarily delivery of possession. In view of this it was not obligatory for the landlord further to take recourse of Sub-section (2) of section 36 of the Vidarbha Act for taking possession of the land, as the same cannot be said to be held by the tenant. Sub-section (2) of section 36 of the Vidarbha Act merely imposes a restriction on the landlord to take possession of land (held by tenant) except under the order of Tahsildar. It does not appear to logic as to how even after a valid surrender of tenancy right that the tenant does continue to be so and a landlord is under obligation to take resort to Sub-section (2) of section 36 of the Vidarbha Act."
11. From above, it is clear that it is not obligatory for the landlord to take recourse to section 36 (2) of tenancy Act for taking possession of land as the same cannot be said to be held by tenant....."
B. In Digambar Sutar Vs. Jairam Mali reported at the 1997(3) Mh.L.J. 174, the above referred Full Bench, unreported Division Bench judgment in L.P.A. and the Apex Court judgment in Vallabhabhai's case are considered and it is held that when tenant did not exercise right of purchase under section 50 of Tenancy Act within prescribed period of one year as provided, he is deemed to have surrendered his tenancy under section 20 and Tahsildar has to hold inquiry under section 21 to determine extent of land to be retained by landlord. It is held that landlord is not required to apply under section 36 (2) for possession.
C. Thus, when the surrender is found to be valid upon verification by Tahsildar, there is no requirement of landlord securing an order of possession by instituting some other proceedings. The language of rule 11 of 1959 rules itself shows that Tahsildar is only to be given intimation of surrender and it is not a previous intimation seeking approval. It is clear that in inquiry under section 20 read with rule 11 Tahsildar examines the validity of surrender which has alleged to have taken place. Landlord is not permitted to defeat or avoid said enquiry. He has to intimate the surrender to the Tahsildar at earliest & said surrender is to be verified as per law. He can not deal with surrendered property in any manner till such verification is over to render such verification an empty formality. Surrender is an event which has already taken place and therefore only, waiting period of minimum 10 days is also prescribed. In normal circumstances where the tenant acts voluntarily, the surrender of tenancy rights and handing over of possession is with consent and may be simultaneous, and hence this mechanism is not going to create any hurdle. Even in rare cases where landlord is required to recover possession after surrender is found to be valid, he can institute proceedings for recovery of possession. The obtaining order of recovery of possession by landlord from tenant, after a surrender has been found to be legal & valid, has got no bearing on such surrender of tenancy by tenant and is not one of its essential ingredient. If the surrender is voluntarily and legal, the acceptance of the possession by landlord gets ratified and no order about possession is required and tenancy stands terminated after such surrender is found to legal upon verification. View of Hon'ble Apex Court in AIR 2004 SC 754 : [2004(5) ALL MR 117 (S.C.)] "Babu Parasu Kaikadi Vs. Babu" can also be pointed out in support. Reference to this verdict is required to be made little later in detail in this judgment. However, a Full Bench judgment of this court may be pointed out here in support. In Laxmanrao Anantrao Stardekar and etc., Vs. Bapu Satyappa Pawar (deceased by L.Rs.) and etc. i.e. AIR 1988 Bom. 244 the Full Bench has noted :-
"8. In view of the provision of Section 15(1) and Rule 9 and in the light of the decision of the SUPREME COURT, the position of law which emerges is that till the surrender is verified by the Mamlatdar in the manner laid down by the provision, there is no surrender in the eye of law. Any act done prior to verification of the surrender does not amount to surrender. The surrender starts taking effect only from the date it is verified and not from any time there before. That being the case, there is no question of surrender of tenancy taking effect from any date prior to the date of its verification by the Mamlatdar.
9. The next question that arises is whether the surrender can be said to have effect only from the date the Mamlatdar endorses his finding that it is voluntary. The language of Section 15(1) and of Rule 9 requires that, ordinarily, the Mamlatdar should endorse his finding that the surrender is voluntary at the time of verification of the surrender itself. Cases may, however, arise where the Mamlatder for one reason or the other, defers his endorsement or is impelled to do so by exigencies of circumstances. When he rejects the surrender as involuntary and the order of rejection is passed at a date later than that of verification, nothing of consequence will follow from whether it is related back to the date of verification or not. However, when he endorses the surrender as voluntary at a date later then the date of verification, the question referred to us, does and will arise, viz., whether the surrender should be effective from the date of his endorsement or from the date of verification. According to us, what is material for the purpose of Section 15 and Rule 9 is the verification by the Mamlatdar of the tenant's willingness to surrender. The findings which he records are pursuant to such verification. The nature of surrender viz. whether it is voluntary or involuntary, does not change with the date of endorsement. When the endorsement of the surrender is deferred for one reason or the other, all that happens is that the ministerial act of recording his findings is put off by the Mamlatdar. The act of the Mamlatdar does not either add to or detract from the character of the surrender. The endorsement merely records the nature of surrender which has already been effected. In the circumstances, there should be no difficulty in holding that although an endorsement of the surrender is of later, it should relate back to date of its verification."
9. The problem arises only when surrender is found to be invalid. Which is the forum available to tenant for recovery/restoration of his lost possession after the surrender is found to be invalid by Tahsilder? Whether Tahsildar himself at the end of such proceedings under section 20 order such restoration or tenant has to initiate proceedings under section 36 (1) or section 120 of Tenancy Act?
A. It'll be useful to note provisions of these sections at the stage. Section 20 is already reproduced above and the remaining sections are as under:-
"36. Procedure of taking possession :- (1) A tenant or agricultural labourers or artisan entitled to possession of any land or dwelling house or site used for any allied pursuit under any of the provisions of this Act or as a result of eviction in contravention of Sub-section (2) may apply in writing for such possession to the Tahsildar. The application shall be made in such form as may be prescribed and within a period of three years from the date on which the right to obtain possession of the land, dewelling house or site is deemed to have accrued to the tenant, agricultural labourers or artisan, as the case may be.
(2) save as otherwise provided in subsection (3 A), no landlord shall obtain possession of any land, dwelling house or site used for any allied pursuit held by tenant except under an order of the Tahsildar. For obtaining such order he shall make an application in the prescribed form and within period of two years from the date on which the right to obtain possession of the land, dwelling house or site, as the case may be, is deemed to have accrued to him;
120. Summary eviction:- any person unauthorisedly occupying or wrongfully in possession of any land-
(a) the transfer of which either by the act of parties or by the operation of law is invalid under the provision of this Act.
(b) the management of which has been assumed under the said provision, or
(c) to the use and occupation of which he is not entitled under the said provisions and said provisions do not provide for the eviction of such person, may be summarily evicted by the Collector after such inquiry as he deems fit."
B. Present petitioner in fact had moved such application under section 120 of Tenancy Act before SDO and it was allowed by him on 6/4/1999 and he ordered summary eviction of present respondent number 2 and 3. That order was challenged by present respondent No.2 and 3 in Revision before M.R.T and on 30/9/1999, M.R.T. has allowed that Revision and set aside the order passed by SDO on the ground that he made the of approaching Tahsildar under section 36 is available to petitioner. The petitioner has challenged this order of M.R.T in writ petition 3918 of 1999 and these facts are already stated above. Question is whether remedy under section 36 is available to petitioner or not. In writ petition 3918 of 1999 petitioner has tried to make distinction between nature of possession of respondent number 3 and respondent number 2. The respondent number 2 has placed respondent number 3 in possession allegedly on 18/6/1996 and according to petitioner respondent number 3 does not get any right title or interest in suit fields. It is to be noted that respondent number 3 does not get any right better than the right respondent No.2. Said right of respondent number 3 is subordinate to and through respondent No.2 only. Respondent No.3 does not & can not have any independent or superior right and petitioner cannot seek to unsettle him by pointing out any such independent right. The distinction between the nature/character of possession of respondent No.2 and respondent number 3 sought to be made by petitioner is non-existent, at least vis-a-vis section 36 and and section 120 as surrender is still not verified. Law does not permit respondent no.2 & 3 to collude together and evolve any theory to jeopardize the protection extended to petitioner by a welfare statute.
C. Respondents number 2 and 3 have relied upon Sitaram Vs. Hawadya reported at 1975 Mh.L.J. 521 to contend that after 2 co-tenants expired, the relationship of landlord and tenant between parties ceased to exist and hence proceedings under section 36 of Tenancy Act are not maintainable. It is further argued that as there was no "dispossession" by respondent No.2, section 36 of Tenancy Act is not attracted and ruling of Hon'ble Apex Court reported at 1994 Mh.L.J. 1284 between Dhondiram Vs. Ramchandra is pointed out in this respect. In Sitaram Vs. Hawadya, Division Bench while deciding the reference made to it found favour with the argument of landlord that the tenant was complaining of dispossession after date on on which he became full owner by operation of Tenancy Act and as such on the date on which he filed application under section 36 (1), there was no landlord-tenant relationship and his the application was therefore misconceived. Obviously the tenant was not recognised by law as tenant on said date as he had already become field's owner. The ruling therefore has no application in present case. In Dhondiram Vs. Ramchandra (supra), the Hon'ble Apex Court was considering the entirely different situation. Appellant before Hon'ble Apex Court sought benefit of section 32 (1-B) of the Bombay Tenancy & Agricultural Lands Act, 1948. Said provision is not analogous to section 36 (1) of Tenancy Act but is analogous with its section 49-B. Section 32 (1-B) provides for restoration of possession of a tenant if he was in possession on appointed day and who on account of his being dispossessed before first day of April, 1957 otherwise than in the manner and by an order of the Tahsildar as provided in section 29, is not in possession of the land on the said date and the land is in possession of the landlord or his successor in interest on 31st day of July, 1969 and is not put to nonagricultural use. The Tahsilder has been authorised to take voluntary action or on application of such tenant and to restore the land to tenant. Thereafter provisions of section 32-A to 32R apply and such tenant is deemed to have purchased the land on the date on which land is restored to him. The Hon'ble Apex Court has held that appellant/tenant had surrendered possession in December, 1956 and as such, even if surrender is presumed to be invalid, as he left the possession over the land of his own accord, such tenant cannot be treated as one dispossessed under section 32 (1-B). It is held that voluntarily giving up of possession does not amount to dispossession. Thus again, the ruling is of no assistance in deciding the present controversy. Here, as yet, there is no finding above the validity of surrender date 17/6/1996 or whether Petitioner tenant has voluntarily handed over the possession to respondent No.2 or not. From AIR 2004 S.C. 754 "Babu Parasu Kaikadi Vs. Babu it appears that there can not be voluntarily handing over of possession independent of surrender under the provisions of Tenancy Act. Otherwise, it would by reading an additional mode for taking possession in favour of landlord in provisions of the Tenancy Act. Moreover this ruling is also held to be not a binding precedent in AIR 2004 S.C. 754 : [2004(5) ALL MR 117 (S.C.)] "Babu Parasu Kaikadi Vs. Babu" (Supra). Hon'ble Apex Court found that voluntary surrender of tenancy was not in terms of Ss.15 and 29 of Bombay Act which are mandatory & hence not valid. It is held that possession obtained by landlord there was invalid & mortgage of land by landlord in absence of registered document executing transfer conferred no lawful title on mortgagee. Restoration of possession to tenant in view of S.32(1B) as inserted by 1969 Act was therefore found to be proper. Hon'ble Court has declared that the Act is beneficent statute and should be construed in favour of tenant and against landlord & expression 'possession' has been interpreted to include within it right of possession. It is observed that the Act, contemplates termination of tenancy by surrender thereof; and consequent taking over of possession by the landlord. How such termination of tenancy could take place is provided for in S.15 of the Act in terms whereof inter alia a surrender of the tenancy becomes a legal one only when such surrender is in writing and verified before the Mamladar in the prescribed manner. For the said purpose the Mamlatdar is also required to hold an enquiry. It was not in dispute before Hon'ble Apex Court that purported surrender made by the predecessor-in-interest of appellant tenant in favour of the landlord respondent was although considered to be voluntary but the same did not satisfy the very legal requirement, contained in S.15 of the Act. S.29 of the Act, postulates taking over of possession by the landlord from the tenant only in accordance with procedure prescribed therefor. In the event, the surrender made by the predecessor-in interest of the tenant in favour of the respondent landlord was found to be invalid; the possession thereof obtained by the later pursuant to or in furtherance thereof would also be invalid. Apex Court held that in such an event, although the landlord takes a physical possession of the land, the right to possess the same remains with the tenant. He could recover possession of the said land in accordance with law. The Hon'ble Apex Court also has relied upon its earlier pronouncements in this respect and from this judgment, I, find the following observations important :-
"7. Section 29 of the Act, as noticed herein before, postulates taking over of possession by the landlord from the tenant only in accordance with procedure prescribed therefor. In the event, the surrender made by the predecessor-in-interest of the appellant in favour of the respondent is found to be invalid; the possession thereof obtained by the later pursuant to or in furtherance thereof shall also be invalid. In such an event, although the landlord takes a physical possession of the land, the right to possess the same remains with the tenant. He could recover possession of the said land in accordance with law. The said Act is a beneficent statute. It should be construed in favour of the tenant and against the landlord . The protection given to the tenant in terms of the said Act must be given full effect. So construed, the expression 'possession' would also include right of possession. The view which we have taken is fortified by the decision of this Court in Ramchandra Keshav Adke (dead) by LRs. and others Vs. Govind Joti Chavare and others ((1975)1 SCC 559), Bhagwant Pundalik and another Vs. Kishan Ganpat Bharaskal and others ((1971)1 SCC 15) and in Abdul Ajij Shaikh Jumma and another Vs. Dashrath Indas Nhavi and others (AIR 1987 SC 1626) and this the consistent view had been that the surrender by the tenant for being legal must be in conformity with the provisions contained in Sections 15 and 29 of the Act.
13. In the case of Dhondiram Tatoba Kadam (supra), however, a somewhat contrary view was taken by this Court while interpreting the said proviso. This decision was rendered by a Bench of three Judges and one of them disagreed with the majority judgment. The majority held that any voluntary surrender would be a valid surrender. It was held that voluntary giving up of possession would not amount to dispossession unless the law provides for it and the provisions should be construed liberally. It may he pointed out that this Court while holding so, only considered the provisions of Section 32(1-B) of the Act and did not refer to Sections 15 and 29(2) of the Act which mandated its compliance for valid surrender.
14. The learned Judge although touched upon the question as regards obtaining legal possession, unfortunately failed to notice the mandatory provisions of Sections 15 and 29 of the Act. Once it is held that the provisions of Sections 15 and 29 are mandatory, it goes without saying that possession obtained by the landlord in violation of such mandatory provisions would be illegal. A Statute, as is well known, must be read in its entirety. The expression "Dispossession" having regard to the text and context of the Act cannot be given its natural meaning. The High Court arrived at a finding of fact that the appellant herein had satisfied all the requirements as contained in Section 32(1B) of the Act. The High Court, however, relying on or on the basis of the decision of this Court in Dhondiram Tatoba Kadam (supra), dismissed the appeal of the appellant. The High Court, as noticed herein before, however, felt that the question raised is of great general importance.
15. Having given our anxious thought, we are of the opinion that for the reasons stated herein before, the decision of this Court in Dhondiram Tatoba Kadam (supra), having not noticed the earlier binding precedent of the co-ordinate Bench and having not considered the mandatory provisions as contained in Sections 15 and 29 of the Act had been rendered per incuriam. It, therefore, does not constitute a binding precedent."
D. Judgments of Hon'ble Apex Court reported at 1969(1) SCC 392 = AIR 1969 SC 1190 between Vallabhabhai Nathabi Vs. Bai Jivi and others assumes importance for this purpose. It is more appropriate to reiterate the facts and findings in the words of Hon'ble Apex Court itself. The relevant portions are quoted below :-
"The facts relevant to this appeal are short and no longer in dispute. Respondent 1 is the owner of Survey Nos.974/2 and 975/4 situate in the villain Delol in district Panchmahals and the appellant at the material time was the tenant thereof. On May 15, 1956 the appellant voluntarily handed over possession of the said lands to respondent 1. It is, however, an admitted fact that the said surrender was not in writing and the procedure of inquiry and verification required by Section 15 of the Bombay Tenancy and Agricultural Lands Act, 57 of 1948 (hereinafter called the Act) was not gone through. The surrender though voluntary thus was not in accordance with Sec.15 and therefore was not valid and binding on the appellant. It is not in dispute that respondent 1 thereafter personally cultivated the said lands. On January 6, 1961 the appellant applied to the Deputy Collector under Sec.84 of the Act for summary eviction of respondent 1. The Deputy Collector dismissed the application holding that the tenant's remedy lay under Section 29(1) of the Act. The Gujarat Revenue Tribunal, however, in a revision by the tenant set aside that order holding that Section 84 and not S.29(1) applied. Respondent 1 thereupon filed a writ petition under Article 227 in the High Court of Gujarat and the High Court held, on interpretation of Ss.29(1) and 84, that Section 84 did not apply in such cases and set aside the Tribunal's order. What is the scope of Section 84 of the Act is the question, therefore, arising in this appeal which is filed by the tenant after obtaining special leave from this Court.
2. On behalf of the appellant Mr. Bhandare raised the following contentions :
1. that a surrender of tenancy contrary to Section 15 is an invalid surrender and does not terminate the tenancy;
2. that on such invalid surrender, if the landlord takes possession such possession is wrongful and unauthorised and therefore the land must be said to be in unauthorised occupation and wrongful possession of the landlord;
3. that when the tenant on such dispossession files an application his right does not arise under any of the provisions of the Act as he has given up possession in breach of his right and title;
4. that in such a situation the tenant does not seek to enforce a right arising under the provisions of the Act but claims possession relying on his title as a tenant:
5. that such an application therefore falls under Section 84 and not under Section 29(1); and
6. that Section 84 is directed against a person who is in unauthorised occupation and wrongful possession and therefore there is no warrant for any distinction between unauthorised occupation or wrongful possession arising under an invalid surrender and that arising under an invalid sale or transfer.
4. Section 29 (1) confers a right on a tenant to apply to the Mamlatdar for possession and Section 29 (2) gives a right to a landlord to apply to the Mamlatdar to obtain possession of land held by a tenant. In both the cases it is the duty of the Mamlatdar to restore possession to the tenant or to the landlord, as the case may be. It will be noticed that whereas Sub-section (2) is confined to an application by a landlord for possession from his tenant, Sub-section (1) is not so confined and therefore a tenant can apply for possession against anyone including the landlord. But for such an application the condition is that he must be one who is "entitled to possession" of the land in question "under any of the provisions of this Act." Thus in all cases where a tenant is entitled to possession of land under any of the provisions of the Act, he has a right under Section 29(1) to apply to the Mamlatdar for restoration of possession against anyone including the landlord and it is the duty of the Mumlatdar, if satisfied that the tenant is entitled to such possession under any of the provisions of the Act, to restore possession to him. Clauses (b) and (n) of Section 70 lay down the duties and functions of the Mamlatdar in the following words:
"(b) to decide whether a person is a tenant or a protected tenant or a permanent tenant."
"(n) to take measures for putting the tenant or landlord -into the of possession of the land - under this Act."
Section 74 provides for an appeal to the Collector against the orders of the Mamlatdar in case therein set out and Cl. (m) provides such an appeal against an order passed by the Mamlatdar under S.29.
5. In the case of a surrender which is not valid and binding on the tenant there is, as aforesaid, no termination of tenancy, and therefore, the landlord a not entitled to retain the land even though possession thereof has been landed over to him or has been voluntarily taken by him. The position in such a case is that the tenant has a right to apply to the Mamlatdar for restoration of possession to him claiming that there has been no termination of tenancy, that his possession continues to be protected by the provisions of the Act and that, therefore, possession should be restored to him. Such an application lies under Sec.29 (1) and, when so made, it becomes the duty of the Mamlatdar under Sec.70, Cl. (n) read with Sec.29 (1) to put the tenant in possession of the land in question "under this Act". In such a case the tenant is claiming possession under the provisions of the Act and not on the strength of his own title, as when he applies for possession against a trespasser. That clearly being the position, propositions 3, 4, and 5 of Mr. Bhandare cannot be sustained.
6. The question then is whether a tenant who has a remedy under S.29 (1) can still apply to the Collector under Section 84. In other words, whether the Legislature has provided alternative remedies under both the sections to such a tenant ? The words "any ------------for the eviction of such person.
7. Mr. Bhandare's argument, however, was ---------------- Section 84. Such a result could not have been intended by the legislature. Therefore, the contention that Ss.29(1) and 84 provide alternative remedies and a choice to the tenant cannot possibly be correct.
10. In our view the High Court was correct in its interpretation of the two Sections and the conclusion which it arrived at in holding on the facts of the present case that the Collector had no jurisdiction under Section 84 to entertain the tenant's application. The result is that the appeal fails and is dismissed with costs."
In the facts of case before Hon'ble Apex Court as also in unreported judgment of Gujarat High Court considered by it in paragraph 9, the surrender was not in writing and as such, it could not be legal in any case as one of the essential ingredients itself is lacking. The surrender was therefore invalid and possession of landlord in pursuance there of was illegal. The tenant was therefore entitled to restoration of possession. Thus an enquiry to find whether surrender by petitioner in favour of respondent No.2 is valid or not which is required to be conducted here in the facts of present case, was not called for in said case. 'The document of surrender here, therefore needs to be verified by Tahsildar in the manner prescribed the under section 20 read with rule 11 and, if such finding is given, the petitioner tenant shall be entitled to possession under Sec.36 (1) of Tenancy Act. Ouster of such tenant on the basis of surrender procured through coercion, undue influence, misrepresentation etc. shall be his eviction in contravention of Sec.36 (2)and such tenant can apply for restoration of possession under Sec 36(1). The respondent No.2 landlord will be entitled to retain possession only if he can demonstrate that the surrender by petitioner was voluntary and valid.
E. AIR 1971 SC 435 "Bhagwant Pundlik Vs. Kishan Ganpat Bharsakal" is the direct judgment on present S.36 and S.20 of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act (99 of 1958). The Hon'ble Apex Court has affirmed the judgment of Nagpur Bench of Bombay High Court in Spl. Civil Applns. Nos.746 and 747 of 1964 D/- 15-11-1965.Following observations are important.
"3. For the agricultural year 1958-59 Kishan and Manik were tenants in respect of the lands in question. Badridas took possession of the lands at the end of that year. Granting that Kishan and Manik delivered the lands voluntarily, there could not under S.20 of the Act be a valid surrender, unless the surrender was in writing and verified before the Tahsildar and in the prescribed manner. Possession obtained by Badridas was not lawful, for Badridas obtained possession of the land from the tenants without complying with the requirements of S.20 and of sub-s. (2) of S.36. Subsection (2) of S.36 prohibits the landlord from obtaining possession of any land held by a tenant except under an order of the Tahsildar. Delivery of possession voluntarily by Kishan and Manik did not render the possession of Badridas valid. Under S.36 (1) a tenant who has been evicted in contravention of Sub-s.(2) may apply in writing to the Tahsildar for such possession.
4. Counsel for the appellant contended that S.36 (2) does not commence with the expression "Notwithstanding, any agreement, usage, decree or order of a court of law" as S.19 of the Act does, and on that account it may reasonably be inferred that the Legislature intended that only these tenants shall be deemed entitled to possession within the meaning of S.36 (1) who were dispossessed by fraud, coercion or misrepresentation, and not tenant who had voluntarily parted with possession of the lands. We are unable to agree with that contention. Section 19 provides that notwithstanding any agreement, usage, decree or order of a court of law tenancy of any land held by a tenant shall not be terminated except in the cases specified therein. Thereby it was intended to make the provisions of S.19 paramount. In S.20 of the Act which deals with surrender it is expressly enacted that surrender shall be in writing and shall be verified in the prescribed manner. Surrender of tenancy which does not comply with the requirements of S.20 is ineffective. Again, Sub-section (2) of S.36 imposes a disability upon the landlord from obtaining possession of any land occupied by a tenant except under an order of the Tahsildar. The terms of Sub-section (2) of S.36 are explicit, they are not subject to any implication that possession obtained with the consent of the tenant, but without an order of the Tahsildar is valid.
5. In a recent judgment Madhao Vs. The Maharashtra Revenue Tribunal, Spl. Civil Appln. No.206 of 1967, D/- 12 9-1969 (Bom) the High Court of Bombay held that S.36 (2) is plenary and controls S.20 of the Act. In the present case there is no surrender of tenancy in writing and no verification of surrender by the Tahsildar. We need express no opinion on the question whether mere verification by the Tahsildar without an order of the Tahsildar authorising the landlord to obtain possession disentitles the tenant to claim possession under S.36(1)."
The Judgment in Madhao Vs. The Maharashtra Revenue Tribunal, Spl. Civil Appln. No.206 of 1967, D/- 12 9-1969 (Bom) is one reported at A.I.R. 1971 Bombay 106 (FB) to which reference is already made about and also to subsequent Division Bench view holding the said a view of Full Bench to be incorrect in view of the judgment of Hon'ble Apex Court reported at A.I.R. 1969 SC 1190 (supra). It is seen that this A.I.R. 1969 S.C. 1190, has not been pointed out to Hon'ble Apex Court while it decided case reported at A.I.R. 1971 SC 435.
F. Section 36(2) permits landlord to obtain possession only under an order of Tahsildar. When surrender is invalid, the landlord has procured possession in contravention of Sec.36(2) and hence aggrieved tenant can invoke Sec.36 (1). When there is no document in writing evidencing such surrender, there is no question of inquiry by Tahsildar as it would be empty formality and tenant can directly move under Sec.36(1) for possession. As this remedy is available to petitioner, there is no question of petitioner moving under section 120 of Tenancy Act. The impugned order of M.R.T. dated 30/9/1999 in writ petition 3918 of 1999 will therefore have to be upheld and said writ petition is therefore liable to be dismissed and is accordingly dismissed.
10. The order of Tahsildar dated 5/6/2002 passed on application under Sec.36(1) read with Sec.20 of Tenancy Act cannot be treated as an order passed under section 20 in proceedings for verification of validity of surrender deed dated 17/6/1999. The Tahsildar has not recorded statement of petitioner as contemplated in inquiry under section 20 read with rule 11 behind the back of landlord. There is no application of mind by Tahsildar to various ingredients of such inquiry as mentioned above in this judgment. Perusal of paragraph 12 of this order of Tahsildar reveals that he has proceeded to decide correctness or otherwise of the stand of petitioner as if it was original dispute between petitioner and respondent No.2 and importance has been given to handing over of possession by respondent No. 2 to respondent No.3. Instead of proceeding to hold primary inquiry into the validity of surrender, this authority has drawn support from other material on record to hold that petitioner has voluntarily handed over possession to respondent No.2. Such finding can not substitute obligation cast upon him by section 20 & rule 11. As there is no verification as contemplated by section 20 and rule 11, this order and application of mind therein is unsustainable. In the operative part it is observed that section 20 has no application to the case of petitioner and as he has handed over the possession voluntarily, Sec.36(1) of Tenancy Act has no application. Appellate order passed by S.D.O. Khamgaon on 5/7/2002 also suffers from same error. The impugned order dated 30/3/2005 again does not consider the controversy in its right perspective. All these authorities have overlooked the purpose of enacting Sec.20 and their approach has in fact defeated its spirit. These orders are therefore unsustainable & are hereby quashed and set aside.
11. Reference to case between Sheikh Mohammad Vs. Daulat Marathe reported at in 1978 Mh.L.J. 81 on the point of necessary parties in the matter of verification of surrender (cited by petitioner) is not found relevant because it considers the effect of acceptance of surrender by one of the joint landlords and its verification at the instance of such joint landlord without other landlords being party to it. There in such verification the surrender was found to be invalid and hence tenant applied for restoration of possession which was granted by Tahsildar. However, Maharashtra Revenue Tribunal set aside that on the ground that other landlords were not parties to such restoration proceedings. The court found that such landlord accepts surrender on behalf of all and represents all. It therefore quashed the order of M.R.T. and restored order of Tahsildar. Here, said surrender is yet not verified and hence this ruling has no application. The issue can be examined by the Tahsildar while verifying surrender. Respondent number 2 and 3 have relied upon A.I.R. 1999 SC 520 - Shriram Sansthan Vs. Vatsalabai to point out that tenancy of Public Trust is not inheritable, Dajisaheb Vs. Laxmanrao reported at 1965 Mh.L.J. Note 3 to contend that undivided share in the land is not "land" within meaning of said phrase as defined in Sec.2(17) and hence, cannot form subject matter either of lease or surrender, 1989 Mh.L.J. 689 between Dwarakanath Vs. Narayan to substantiate the contention that tenancy in respect of undivided share in any particular piece of land is a contradiction in terms. Their contention is that after death of two cotenants, entire tenancy is rendered void and petitioner can no longer be regarded as tenant. It is true that the legal heir of tenant of Public Trust cannot inherit tenancy rights after death of tenant. However, no such question arises here. The facts pointed out by respondent number 2 and 3 in this respect and their written notes of argument itself reveal that they are relying upon death of two co-tenants to further their argument that surviving co-tenants also loose their tenancy rights. Both the above rulings of this court do not support this stand. 1965 Mh.L.J. Note 3 (supra) considers the situation in which widow of one of the 4 brothers who own the land created tenancy and this court held that her undivided share in land is not covered by a phrase "land" and hence cannot form subject matter of lease. 1989 Mh. L.J 689 (supra) follows this ruling to hold that when tenancy is created in favour of more persons than one, it is joint tenancy created in favour of all. However, it clarifies that such persons must get exclusive possession of land. It holds that there cannot be a tenancy in respect of an undivided share in any particular piece of land and such concept is not practically feasible and a tenancy has to be on land which is got to be cultivated fully. There cannot be any debate about this position because the other joint owner will always be in position to cultivate personally his joint and divided share and such tenant will not be in position to demarcate any particular area for fastening his tenancy rights. In the facts of present case, respondents number 2 and 3 have never contended that there were any joint owners having joint and and divided shares in suit land. On the contrary entire land is given for cultivation to more than one person and such persons have been cultivating it jointly. More over, respondent No.2 has obtained a deed of surrender from petitioner and it does not mention that on account of death of two co-tenants, tenancy stood extinguished. On the contrary, respondent No.2 has accepted said surrender from petitioner not only on his behalf but also on behalf of other co-tenants. No bar has been pointed out by the respondents against joint cultivation by such tenants. Similarly no law has been pointed out to show that upon death of any co-tenant, entire tenancy or tenancy of other co-tenants shall also come to an end. The other surviving co-tenants remain joint tenants as before and argument of respond number 2 and 3 in this respect is liable to be rejected. Similarly, the question whether petitioner alone can maintain proceedings under Sec.36 (1) or can contest proceedings for verification of surrender as also extent of his interest/entitlement in the land in dispute are being raised for the first time here and having accepted the surrender only from petitioner, respondent No.2 or 3 cannot be permitted to raise such grounds. These respondents are indirectly taking the plea which destroys their earlier stand about joint tenancy as effort is to point out separate and independent tenancy of distinct portion of suit land in favour of each such co-tenant. If this argument is accepted, it will have to be held that the petitioner and other persons were not co-tenants but separate tenants. Such a plea can also not be gone into for the first time in writ petition.
12. Writ petition 3071/2005 is accordingly allowed. The proceedings i.e. Tenancy case no.1/59[36-1] of 1997-98/ Chitoda Jahagir filed by petitioner under Sec.36 (1) read with Sec.20 of Tenancy Act before Tahsildar, Khamgaon Distr. Buldhana are hereby restored back to the file of said Tahsilder. He's directed to first conduct inquiry into the validity of surrender deed date 17/6/1999 in accordance with the law on the subject and if the said surrender is found to be invalid, to proceed further under Sec.36 (1) for restoration of possession in favour of petitioner after considering the rival arguments. As the matter is very old, the Tahsildar shall complete proceedings of verification of validity of surrender as early as possible & in any case within period of six months from the date of communication of this order to him. The orders under Sec.36 (1) of Tenancy Act, if required to be passed, shall then be passed within further period of three months.