LexA.A. SHIRDONE ETC. versus SAHEB H. TAJBHOKHARI
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A.A. SHIRJ),6NE fl'f(;.
IA
v.
SAHEB H. TAJBHOKHARl
March 20, 1985
[0. CHINNAPPA REDDY AND R.B. MISRA, JJ.J
Bombay Tenancy Act, 1939, ss.2A and 3A
Bombay Te~ancy and .Agricultural Lands Act 1948, ss.4 and 8~(2) (h}
:D.
Mortgagee in possession of /and-Whether becomes •deemed tenant'
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Landowirer-Mortgagor-Failure to file declaration · before. Marn/atdar that
mortgagee not a tenant-Whether ownership right lost-Symbolic or actual
physical possession-Entitlement of.
Civil Procedure Code 19p8, Section 9
Civil.Court whether possesses jurisdiction to grant possession in suit
governed by. Te~{lncy Laws.
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The respondent mortgaged different portions of a plot of· land·' fo diffe-
,_rent~ per~?ns. ~ive suits for redemption and actual possessi?n of the mortgaged
land against the mortgagees were filed, who contested the-suits on the grounds
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tbit they were tenants of the suit land prior to the rriortgclge and .were· in
·possess.ion-thereof as such, that during the period of mortgage their tenancy
fights-remairied in abeyance and after redemption their tt!nanc:Y rights would
revive again in view of the pr~visions of section 25A of the_ Bombay .Tenancy
and Agricultural Lands Act, 1948, and consequently the respondent could not
get actual possession.
It was further contended that the respondent c9uld not
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get actual possession over the disputed land fro1_11 the civil ·court as the· proper
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forum was 3.frevenue court.
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The Civil Judge decreed the suits for possession holding that the defen-
dants were not tenants of the suit land prior to the mortgage,' and as such
thCre was no question of revival Of tenancy rights under sectioil 25A of Act
1948.
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l198Sl ~ s.c.ft.
In appeals the District Judge held that in only one suit the defendant was in
possession of the suit· 1and ·as a tenant on the date of the mortgage and 80 his
tenancy would revive after redemption of the mortgage.
However, relying on
sections 2A and 3A of the Bombay Tenancy Act 1939 it was held that the
defendents in the other four suits also became deemed tenants under section 2A
and consequently a protected tenant under section 3A of the said Act as it
stood amended in 1946 and could not, therefore, be evicted from the suit land.
All the appeals were, therefore, allowed, the defendants permitted to remain
in actual possession of the suit land and the plaintiff-respondent. getting only
symbolic possession.
The plaintiff filed appeals and the High Court reversed the judgment of
the District Judge holding that the mortgagees in possession did not become.-\-.
'deemed tenants' under the provisions of section 2A of the Act of 1939 as
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amended in 1946.
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The respondent-defendants appealed to this Court.
Allowing the appeals,
HELD : 1.
A mortgagee in possession cannot become a deeme_d tenant
.under section 2A of the Boip.bay Tenancy Act of 1939 on the strength of the
saving provision in section 89(2)(b) of the Bombay Tenancy and Agricultu~.il
Lands Act of 1948.
l413Fl
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Sid.ram Narsappa Kamb/e v. Sholapur Borough Municipality & Anr.,
[1966] l SCR 618, followed.
Salman Raje v.
Madhavsang Banesang & OJ's., 4 Guj. L.R. 817 and
Jshwara Bhau Satt-'Qnt v. Pandurang Vasudeo Karmarkar, 67 Bom.L.R. 558,
overruled.
Dinkar Bhagwant Sa/ekar v. Babaji Mahamu/kar, 59 Born. L. R .. IOI~
and Jaswantrai Tricumlal v. Bai Jiwi, 59 Born. L. R. 168, Shankar Kaly°dp
Kulkarni & Ors. v. Basappa Sidramappa Kolar & Ors. [1969]2 Mys.L.J.77 and
Patel Ambalal Manila/ & Ors. v. Desai Jagdishchandra Naginlal & Ors. 1:1
Guj. L.R. 578, approved.
2.
Two conditions were necessary in order to attract the prov1s1ons Of
section 2A(1) of the Bombay Tenancy Act, 1939.
But in the correSponding
section 4 of the Bombay Tenancy and Agricultural Lands Act" of 1948 one
more condition was added in addition to the old two conditions as provided
in section 2A(l) of the Bombay Tenancy Act, 1939 and that additional con-
dition excludes the mortgagee in possession from acquiriiig the stii.tus of a
'deemed tenant' within the meaning of section 4.
If the case's in hand ·were to
be governed by the Bombay Tenancy and Agricultural Lands Act ·1948, 'the
mortgagees in possession would be out of the purview of section 4 of that' · ACt
A. A. SHIRDONB v. s. H. fA1SHOKHARI (Misra, i.)
4os
as mortgagee~ in possession have been excluded frorn being 'deemed ·tenants';
As the Act of 1948 has no retrospecExcerpt shown. Read the full judgment & AI analysis in Lexace.