HANMANTA DAULAPPA NIMBAL SINCE DECEASED BY HIS HEIRS AND LRS.versusBABASAHEB DAJISAHEB LONDHE

          HANMANTA DAULAPPA NIMBAL SINCE DECEASED                                  A
                    BY HIS HEIRS AND LRS.
                                         v.
                     BABASAHEB DAJISAHEB LONDHE

                                AUGUST 29, 1995
                                                                                   B
                [K. RAMASWAMY AND B.L. HANSARIA, JJ.)

          Bombay Tenancy and Agiicultural Lands Act, 1948 :

          S.4-Agiicultural land-Landlord a minor-Civil suit on behalf of           C
    landlord for injunction-Defendant pleading oral tenancy-No written lease
    in favour of defendant-No evidence of payment of premium or rent-Held,
    possession by defendant as a trespasse1; not protected by the Act-Entries in
    revenue record -and payment of land revenue to govemment, without notice
    to landlord cannot establish lawful possession.
                                                                                   D
         The respondent-landlord filed a civil suit for injunction against the
  appellant in January 1969. The appellant raised a plea of oral tenancy for
  the year 1968-69. The Civil Court referred the issue of tenancy to the
I Tehsildar of held that the land belonged to the respondent and the appel-

  lant could not prove oral tenancy. In appeal, the Special Deputy Collector, E
  Appeals, held that oral tenancy was established and, even otherwise, the
  appellant was a deemed tenant under section 4 of Bombay Tenancy and
1 Agricultural Lands Act, 1948. The Revenue Tribunal confirmed the find-
  ings of the appellate authority. The Respondent filed a writ petition before
  the High Court, which held that oral tenancy had not been proved in as
  much as the entries in the revenue records for the year 1968-69 were made F
  without notice to the landlord; and since the reference to the revenue
  authorities was only with regard to the contractual tenancy for the year
  1968-69, they could not have gone into the question of deemed tenancy
  under section 4. The High Court remitted the matter to the civil court for
  decision according to the findings of the Tehsildar. Aggrieved, the appel- G
  lant filed the appeal by special leave.

          Dismissing the appeal, this Court

          HELD : 1.1. The possession of the appellant can not be said to be
    lawful possession ~nd is that of a trespasser, which is not protected by the H
                                        147
    148                   SUPREME COURT REPORTS [1995).SUPP. 3 S.C.R.

A   Bombay Tenancy and Agricultural Lands Act, 1948. [151-B]

          1.2. Since the claim of the appellant that he came into possession in
    the year 1968-69 under oral lease was not conclusively accepted and there
    is no proof that the landlord had accepted any rent, the suit was filed for
    injunction against the appellant. The burden is on the appellant ro estab-
B   lish his lawful possession. Except the oral tenancy, no other evidence was
    brought on record. Entries in the revenue records cannot establish lawful
    possession, when admittedly, no notice was given to the respondent before
    making those entries. The other circumstance is payment of land revenue
    to the Government through Talatti (Village servant). For the payment
C   thereof also, there is no notice or acquiescence by the landlord.
                                                              [150-G-H; 151-A]
           1.3. The appellant had raised his claim for the first time, after the
    landlord had filed the suit. The appellant could have got lawful possession    ·-
    over the lands, if there would have been an agreement with the landlord
D   and pursuant thereto the landlord inducted the tenant in possession for
    beneficial enjoyment of the demised land on payment of premium or rent
    etc., or there would have been acquiescence of the landlord, for the tenant
    continuing to possess, by accepting the rent. [150-F-G]

          1.4. There is no written lease granted in favour of the appellant. He
E   claimed that the landlord had agreed for an oral lease for the year 1968-69.
    The landlord was a minor and was prosecuting his studies and his mater-
    nal uncle was looking after the properties. In view of the admitted position
    that the respondent is the owner and, being minor, his maternal uncle
    must be deemed in law to be in possession. The question of acquisition of
F   benefit of s.4 does not arise. [149-F-G; 150 A-8; 151-B]

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 73 of
    1979.

         From the Judgment and Order dated 8.9.77 of the Bombay High
G   Court in S.C.A. No. 277 of 1972.

            V.N. Ganpule and S.K. Agnihotri for the Appellants.

            A.S. Bhasme for the Respondents.

H           The following Order of the Court was delivered :
                          H.D. NIMBAL v. B.D. LONDHE                         149

            This appeal by special leave arises from the judgment of the High A
     Court at Bombay in Speical Civil Application No. 277 of 1972 dated 8th
     September, 1977. The respondent-landlord filed Civil Suit No. 10/68 in the
     Court of Civil Judge, J.D. at Akkalkot. Since the appellant raised plea of
     oral tenancy for the year 1968-69, the Civil Court referred the issue : "Does
     the defendant prove tenancy over the suit land thereon?" to the Tehsildar
                                                                                   B
     who in his proceedings held that in respect of Survey No. 3 to the extent
     of 16 acres 26 Gunthas situated in Mirajgi village belongs to the respondent
     and the appellant had not proved oral tenancy. Thereon, the appellant
     carries the matter in appeal to the Special Deputy Collector, Tenancy
     Appeals, Sholapur, who held that oral tenancy was established. Even
     otherwise, the appellant is a deemed tenant under s.4 of the Bombay C
     Tenancy and Agricultural Land Act, 1948 (for short, 'Tenancy Act"). On
     revision, Maharashtra Revenue Tribunal, Pune confirmed the findings. A
     writ Petition was filed under Article 227 of the Constitution.

             The learned Single Judge of the High Court, while holding that since   D
     the issue referred to the Tribunal under the Tenancy Act is only the
     contractual tenancy for the year 1968-69, the Tribunals could not have gone
     into the question of deemed tenancy under S.4. On the question of tenancy,
     the High Court came to the conclusion that the oral tenancy has not been
     proved on the grounds that the entries in the revenue records for the year

-    1968-69 were made without notice to the landlord. When the parties were
     litigating their rights, it cannot be said that the landlord had agreed for
     creating oral tenancy in favour of the appellant. Thus on that premise,
                                                                                    E


..   reversed the orders of the Tribunals below accepted the finding of the
     Tehsildar and referred the matter to the Civil Court for decision according
     to the finding of the Tehsildar. Thus, this appeal.                            F

            The only question that arises for consideration is whether the appel-
     lant is in lawful possession of the property. Admittedly, there is no written
     lease granted in favour of the appellant. He claimed that the landlord had
     agreed for an oral lease for the year 1968-69. The admitted facts are that
     the landlord was a minor and was prosecuting his studies and his maternal G
     uncle was looking after the properties. The suit property was subject of
     hypothecation and the mortgagee had inducted one Somanna who
     remained in possession and cultivated the land till 1964-65. Thereafter, the
     maternal uncle of the respondent claimed to have been in possession and
     cultivated the land. The question whether who cultivated the land upto year H
    150                  SUPREME COURT REPORiS [1995) SUPP. 3 S.C.R.

A   1967-68 is not material for the reason that the appellant is not laying any
    claim for that period. In view of the admitted position that the respondent
    is the owner and, being minor, his maternal uncle must be deemed in law
    to be in possession.

           The only material question is whether the appellant had any tenancy
B   rights in respect of the land in question? His claim is that he came into
    possession under the oral tenancy for 1968-69. That was denied by the
    maternal uncle who was examined on behalf of the respondent-landlord. It
    is true that one witness was examined on behalf of the appellant and that
    evidence was believed by the Appellate Authority, and the Revisional
c   Authority did not disturb that finding. But the Revisional Authority
    primarily proceeded on the finding that the appellant is a deemed tenant.
    The question, therefore, is whether the ingredients of s.4 of the Tenancy
    Act are satisfied. Section 4 reads thus:

            "A person lawfully cultivating any land belonging to another person
D           shall be deemed to be a tenant if such land is not cultivated
            personally by the owner and if such person is not"

         The other criteria as enumerated in clauses (a), (b) and (c) and the
    Explanation are not relevant for the purpose of this case.
E         The question springing for consideration is whether the appellant has
    lawfully cultivated the land for the year 1968-69? The admitted position is
    that the respondent filed the suit for injunction on January 20, 1969 and
                                                                                      -
    ad-interim injunction was issued on January 21, 1969. The appellant issued ...
    notice on January 22, 1969 claiming oral tenancy. In other words, the
F   appellant had raised his claim for the first time, after the landlord had filed
    the suit. The appellant could have got lawful possession over the lands, if
    there would have been an agreement with the landlord, and pursuant
    thereto the landlord inducted the tenant in possession for beneficial enjoy-
    ment of the .demised land on payment of premium or rent etc., or there
    would have been acquiescence of the landlord, for the tenant continuing
G   to possess by accepting the rent. Since the claim of the appellant that he
    came into possession in the year 1968-69 under oral lease was not con-
    clusively accepted and there is no proof that the landlord had accepted any
    rent, the appellant is a trespasser on the land. The suit was filed for
    injunction against the appellant. The burden is on the appellant to establish
H   his lawful possession. Except the oral tenancy, no other evidence was
                      H.D. NIMBAL v. B.D. LONDHE                        151

brought on record. Entries in the revenue records cannot establish lawful      A
possession, when admittedly, no notice was given to the respondent before
making those entries. The other circumstance is payment of land revenue
to the Government through Talatti (village servant). For the payment
thereof also, there is no notice or acquiescence by the landlord.

      If these two circumstances are excluded, then the only fact is on the    B
land, but the possession cannot be said to be lawful possession. In other
words, his possession is of a trespasser, which is not protected by the Act.
The question of benefit of s.4 does not arise. Though the Tribunals below
or the High Court has not adverted to this aspect of the matter, we feel
that the order passed by the High Court needs no interference.                 C
       The appeal is, therefore, dismissed with costs through out.

R.P.                                                     Appeal dismissed.