BABU PARASU KAIKADI (DEAD) BY LRS. versus BABU (DEAD) THROUGH LRS.

Citation: [2003] SUPP. 4 S.C.R. 1153 · Decided: 29-10-2003 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed
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Judgment (excerpt)

) 
BABU PARASU KAIKADI (DEAD) BY LRS. 
v. 
BABU (DEAD) THROUGH LRS. 
OCTOBER 29, 2003 
[V.N. KHARE, CJ., S.B. SINHA AND 
DR. AR. LAKSHMANAN, JJ.] 
Bombay Tenancy and Agricultural Lands Act, 1948 : 
A 
B 
Ss. 15, 29 and 32(1 BJ-Restoration of posses~ion of land to tenant- C 
Tenant in possession of land on 15.6.1955-Possession surrendered to 
landlord dehors the procedure prescribed under the Act-Tehsildar starting 
suo motu proceedings for restoration of possession of land to tenant-High 
Court relying on the decision in Dhondiram Totaba Kadam * rejected 
claim of tenant but, noticing earlier decision, granted certificate to file D 
appeal-Held, surrender by tenant for being legal must be in conformity 
with the provisions contained in ss. 15 and 29 of the Act-Provisions of 
ss. 15 and 29 are mandatory and possession obtained by landlord in 
violation of such mandatory provisions would be illegal-Termination of 
tenancy could take place as provided for in s. 15 in terms whereof, inter 
alia, surrender of tenancy becomes legal one only when such surrender E 
is in writing and verified before the Mamlatdar in prescribed manner-
s. 29 postulates taking over of possession by landlord from tenant only in 
accordance with procedure prescribed therefor-The purported surrender 
made by the tenant in favour of landlord was although considered to be 
valuntary, did not satisfy the very legal requirement contained in s. 15 and F 
consequently the possession of the land obtained by the landlord is also 
invalid-In such an event although the landlord takes physical possession 
of the land, the right to possess the same remains with the tenant, who could 
recover possession in accordance with law-Protection given to tenant in 
terms of the Act must be given full effect-So construed, the expression G 
'possession.' would also include right of possession-The land was 
mortgaged with the right ofreconveyance-Mortgagee was in possession 
of the land on behalf of the landlord and as such, the land could have been 
restored in favour of the tenant-Decision in Dbondhiram Totaba 
Kadam * having not noticed the earlier binding precedent of the co- H 
1153 
1154 
SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R. 
A ordinate Bench and having not considered the mandatory provisions as 
contained in ss. 15 and 29 had been rendered per incuriam, and, therefore, 
does not constitute a binding precedent-Judgment of High Court having 
been rested soleiy thereon cannot be sustained and is accordingly set aside. 
B 
S.32(1 BJ-Salient features-Discussed 
c 
Precedent-Decision in Dhondiram Totaba Kadam * having been 
rendered per incuriam, does not constitute a binding precedent. 
*Dhondiram Tatoba Kadam v. Ramchandra Balwantrao Quabal 
(since deceased) by his Lrs. & Anr., [1994) 3 SCC 366, held per incuriam. 
Ramchandra Kesha Adke (dead) by Lrs. & Ors. v. Govind Joti 
Chayare & Ors., [1975] l SCC 559; Bhagwant Pundalik & Anr. v. Kishan 
Ganpat Bharaskal & Ors., [1971] 1SCC15 and Abdul Ajij ShaikhJumma 
D & Anr. v. Dashrath Jndas Nhavi & Ors., AIR (1987) SC 1626, relied on. 
State of U.P. and Anr. v. Synthetics and Chemicals Ltd & Anr., 
[1991] 4 SCC 139 and Govt. of Andhra Pradesh and Anr. v. B. 
Satyanarayana Rao (dead) by Lrs., [2000) 4 S~C 262, referred to. 
E 
Halsbury Laws of England, 4th Edition Volume 26, referred to. 
Words and phrases : 
Expression "possession "-Connotation of in the context of Bombay 
F Tenancy and Agricultural Lands Act, 1948. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7149 of 
1997. 
From the Judgment and Order dated 17/23.7.97 of the Bombay High 
G Court in W.P. No. 3186 of 1988. 
Makrand D. Adkar and Vishwajit Singh, S.D. Singh, Vijay Kumar, 
Anurag Kishore for the Appellants. 
H 
M.S. Nargolkar, D.M. Nargolkar for the Respondents. 
B.P. K.AIKADI v. BABU 
1155 
The Order of the Court was delivered : 
Short question that arises for consideration in this appeal requires 
interpretation of Section 32(iB) which was inserted by amending Act 491 
A 
69 in Bombay Tenancy and Agricultural Lands Act, 1948 (for short 'the 
Act'). The aforesaid question arise:s"in the context of dispossession of the B 
appellant who was a tenant of land in dispute. It is not disputed that the 
appellant was a tenant in respect of suit land since 1948-49. In the year 
1956, the appellant lost possession of the disputed land otherwise than the 
procedure prescribed under the Act. It is alleged that on 6.1.1967, the 
respondent-landlord mortgaged the
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