LexHANMANTA DAULAPPA NIMBAL SINCE DECEASED BY HIS HEIRS AND LRS. versus BABASAHEB DAJISAHEB LONDHE
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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. 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, 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 D E F 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 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] 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- 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] E F 1.4. 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 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 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 Judg
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