TMI Blog1993 (7) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that a conditional mortgage was executed by the plaintiff in favour of defendant in 1952 after getting the land surrendered from the appellant but since the defendant was not willing to hand over possession despite offer of paying the mortgage amount, a declaration may be granted that he was the owner of the land in dispute on payment of the mortgage amount to the defendant. In the written statement filed by the defendant it was claimed that he was the owner of the land in dispute. Apart from that, one of the pleas raised was that the land in dispute was let out by him to the appellant who was in possession since then. On the pleadings one of the questions that arose was whether the appellant was the tenant of the land in dispute. Since the question of tenancy could be decided by the revenue authorities only, two issues were framed to the following effect: 1. Does defendant 2 prove that he was a tenant over the suit land since prior to mortgage transaction dated June 23, 1952. 2. Does defendant 2 (present applicant) further prove that he is the tenant of defendant I over the suit land since 1952. The issues were referred for decision to the Sub-Divisional Officer. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecuted on June 15, 1949 nor was there any dispute that there was a conditional sale deed in favour of the defendant. Therefore, even though there was no evidence to support the surrender but since, under the provisions of the Act, no transfer of interest was possible without the consent of the tenant, as he alone was entitled to purchase the land, an inference in law arose that when conditional mortgage was executed the tenant must have surrendered the land in dispute in favour of the plaintiff. This finding was supported by the statement of the appellant who, appears to have, admitted in his deposition that there was a surrender and the defendant was put in possession of the land. It was further held that appearance of appellant's name in revenue records did not negative surrender. The appellant was tenant of plaintiff since 1949 till surrender and of defendant from 1952 till he surrendered again in 1956. The High Court found it as a fact that the appellant continued in possession of the land till he surrendered in 1956. The High Court held that surrender was proved by entry in December 1956. When was the actual surrender made could have been proved by the defendant. In absen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of this section and Sections 32-A to 32-R (both inclusive) shall, insofar as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased the land on the date on which the land is restored to him: Provided that, the tenant shall be entitled to restoration of the land under this sub-section only if he undertakes to cultivate the land personally and of so much thereof as together with the other land held by him as owner or tenant shall not exceed the ceiling area. The section entitles a tenant to restoration of possession provided he was in possession on the appointed date, i.e., June 15, 1955 and was dispossessed before April 1, 1957 and his landlord was in possession on July 31, 1969. The section is, thus, in two parts one creating right and other entitling restoration of possession. Proceedings for restoration could take place either at the instance of the tenant or suo motu by the Tahsildar. But the order could be passed only if the primary requirements of tenant being in possession on the appointed date and his dispossession before April 1, 1957 were satisfied. The language of the latter part of the sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he answer should be in the negative as it would result in conferring higher rights on a person who is not in possession than a person who is in possession. In our opinion, Section 32(1- B) should be construed in a manner which must effectuate the legislative objective of making every tenant purchaser of the land if he satisfies the conditions laid down in Section 32(1-B) of the Act whether he was in possession or not. 4. Even then the question is if the appellant on facts found is entitled to the declaration that he became a purchaser of land by operation of law under Section 32(1-B). It has been found by the High Court that the appellant was in possession from 1952 to 1956, thus, he satisfied the first requirement of being in possession on the appointed date. But that alone was not sufficient as a tenant should have been dispossessed before the 1st day of April 1957. It was found by the High Court that the appellant surrendered sometime before August 1956 which was established by an entry in the revenue records made in December 1956. The Tribunal too found that the appellant had surrendered his possession as was clear from the mutation entry supported by absence of entries in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds Act, 1948 does not arise for consideration. On facts with great respect I am unable to agree either on the assessment of facts or on the ultimate conclusion in the judgment. 7. One Ramchandra Balwantrao Dubal, Respondent 1 in this appeal (since dead and is now represented by his legal representatives) filed a suit for redemption of a mortgage by conditional sale dated June 23, 1952 against the second respondent who was shown as first defendant in the suit. The appellant herein was impleaded as a second defendant. The case of the first respondent-plaintiff in the suit was that the said deed dated June 23, 1952 was a mortgage by conditional sale, that the property was to be in possession of the second respondent (first defendant in the suit) till the mortgage is redeemed and that the plaintiff was entitled to redeem the same without payment of any money and get possession of the property from the first defendant. Alternatively, he pleaded that the six years' period of redemption stipulated in the deed having expired he is entitled to get executed a deed of re-conveyance from the second respondent (defendant 1). He further stated in the plaint that with an intention of crea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first defendant (second respondent herein) after the transaction dated June 23, 1952. The Tribunal also held that there was no surrender by the second defendant subsequent to 1952 and the entries in the relevant register showed that since 1950-51 to 1956-57 the appellant cultivated the land without any break or without any interruption. Though from 1957-58 to 1968-69 the entries do not show the name of the second defendant as tenant it reappeared in the register since 1969-70 and that therefore the plaintiff (first respondent) had no right to deny the appellant's status as a tenant of the land and in that view answered the two issues referred to by the civil court in favour of the appellant and held that the appellant was a tenant over the suit property since prior to the transaction dated June 23, 1952 and that he continued to be the tenant and had not ceased to be so. 10. The plaintiff filed a petition before the High Court under Article 227 of the Constitution against this finding of the Tribunal. The High Court accepted that the appellant was a tenant under a registered lease deed executed on June 15, 1949 but in the view that the transaction of conditional sale date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad continued to be in possession right from 1949 and in fact the suit itself is for possession. The plaintiff has not stated that because of any surrender of possession the tenant had lost his right to be in possession. Therefore, the provisions of Section 29(2) (sic) is not applicable to this case. There is no clear finding as to the nature of the document dated June 23, 1952 either. If it is a sale deed as contended by the first defendant then the plaintiff's suit will have to be dismissed. If it is to be held a mortgage by conditional sale it has to be treated as subject to the tenancy right and the plaintiff would be entitled only to whatever right, title or interest that was conveyed under the document dated June 23, 1952. In fact as already stated the plaintiff did not even plead that before he executed the deed dated June 23, 1952 the second defendant surrendered his possession or his tenancy right. In either case, therefore, on the facts the findings of the Revenue Tribunal were correct and could not have been interfered with. The High Court therefore erred in setting aside the order of the Revenue Tribunal. In the result appeal succeeds and the order of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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