Holding

A tenant inducted by a mortgagee in possession is a deemed tenant under s.4 of the Bombay Tenancy and Agricultural Lands Act, 1948, and the final s.88C certificate conclusively evidences his tenancy, which survives redemption.

Summary

The appellant, daughter of the original landowner, sought redemption of a mortgage executed in 1941. The mortgagee had inducted a tenant, who was entered in revenue records and later received a certificate under s.88C of the Bombay Tenancy and Agricultural Lands Act, 1948. After redemption, the appellant attempted to evict the tenant, but the High Court held that the tenant was a "deemed tenant" under s.4 of the Act, and that the final s.88C certificate proved his tenancy, giving him a statutory right that survived redemption. The appellant argued that without an express clause in the mortgage deed, the tenant could not be deemed lawful. The Supreme Court upheld the High Court, ruling that a person lawfully cultivating land under a mortgagee in possession qualifies as a deemed tenant under s.4, and that the s.88C certificate is conclusive evidence of tenancy, thus the tenant could not be evicted. The appeals were dismissed.

Issues considered

Whether a person inducted as tenant by a mortgagee in possession becomes a "deemed tenant" under s.4 of the Bombay Tenancy and Agricultural Lands Act, 1948.
Whether the absence of an express provision in the mortgage deed authorising the mortgagee to induct a tenant defeats the status of deemed tenant.
Whether a certificate issued under s.88C, once final, constitutes conclusive evidence of tenancy.

Legislation cited

Bombay Tenancy and Agricultural Lands Act, 1948s. 32, s. 32-R, s. 4, s. 88C
Rajasthan Tenancy Act, 1955
Transfer of Property Act, 1882

Subjects

mortgage redemptiondeemed tenantBombay Tenancy and Agricultural Lands Acts.88C certificateagricultural tenancystatutory rightsland law

Judgment

-.L,
PAPILA BAI A
V.

CHAVDAS T. BHORTAKKE (DEAD) BY LRS. AND ORS.

JANUARY IO, 2005

B
[SHIVARAJ V. PATIL AND B.N. SRIKRISHNA, JJ.]

Bombay Tenancy and Agricultural Lands Act, 1948:

ss. 4 and 88C- 'Deemed tenant '-Mortgagee in possession inducting a
person as tenant to cultivate the land-Said person got his name entered in
c
the revenue records as tenant-Certificate u/s 88C granted showing daughter
of mortgagor as landlady and the person inducted by mortgagee as tenant-
Redemption of mortgage-Plea that there being no express provision in
mortgage deed empowering mortgagee to induct a tenant, any person so
inducted would be a trespasser and would not become a deemed tenant- D
Held, in the instant case, land-owner had obtained a certificate u!s 88C showing
the person inducted by mortgagee as tenant-s.88C certificate having become
.I '
final, evidences the fact of tenancy-Person inducted by mortgagee was in
.,, lawful possession and lawfully cultivating the land, and thus was a deemed
tenant within the meaning of s.4.
E
Father of appellant-plaintiff, mortgaged the suit land in the year
1941, by a conditional sale in favour of the mortgagee. The mortgagee
inducted respondent No. I as tenant, into the suit land and the latter got
his name entered in the revenue records as tenant of the suit land. The
appellant filed a redemption suit which was compromised in her favour. F
Later, a certificate under s.88C of the Bombay Tenancy and Agricultural

" Lands Act, 1948 was issued showing the appellant as landlady and the
respondent No. I as tenant. The said certificate under s.88C became final.
However, the appellant filed a revision application before the High Court
challenging the order under s.88C. She also filed an application for
execution of the compromise decree and for eviction of respondent No.I. G
Respondent No. I challenged the execution proceedings and ultimately filed
a writ petition before the High Court, which clubbed the appellant's
• revision with respondent's writ petition and disposed of all the proceedings
holding that s.88C certificate having become final was evidence of the fact
215 H
216 SUPREME COURT REPORTS [2005] 1 S.C.R.

A that respondent No. I was a tenant of the appellant in respect of the suit ,..
land; and that right of respondent No. I which was originally derived from
the mortgagee in possession fructified into a full-fledged statutory right
because of his fulfilling the description of 'deemed tenant' within the
meaning of s.4 of the Act, and, therefore, he could not have been evicted
from the land. Aggrieved, the plaintiff filed the present appeals.
B
It was contended for the appellant that unless there was an express
provision in the mortgage deed empowering the mortgageee to induct a
tenant, any person inducted on the land would be a trespasser and could
not be said to be a deemed tenant.
c Dismissing the appeals, the Court

HELD: The High Court has rightly held that respondent was
"lawfully" ir. possession of the land and "lawfully' cultivating the land and,
therefore, was a deemed tenant within the meanini: of s.4 of the Bombay
Tenancy and Agricultural Lands Act, 1948. Consequently, respondent No.
D
I continued to have the right as a tenant even af1ter redemption of the
mortgage and extinguishment of the interest of the mortgagee-in-
possession. The right of respondent No. 1, which was originally derived
from the mortgagee in possession, fructified into a full-fledged statutory
right by reason of provision of the Act, because of his fulfilling the
..
E description of 'deemed tenant' within the meaning of s.4 of the Act; and,
therefore, respondent No. 1 could not have been evicted from the land.
1219-E-HI

Dahya Lal and Ors. v. Ras1ll Mohammed Abdul Rahim, 119631 3 SCR
I and Prabhu v. Ramdev and Ors., !1966) 3 SCR 676, relied on.
F
Hamman/a Daulappa Nimbal v. Babasaheb Da/isaheb londhe, 119951
6 sec 58, held per incurium.
)\

Mahabir Gope and Ors. v. Harbans Narain Singh and Ors., 119521 SCR
775 and Harihar Prasad Singh and Anr. v. Must. of Munshi Nath Prasad and
G Ors.. 11956) SCR I, distinguished.

Jadavji Purshottam v. Dhami Navnitbhai Amaratlal and Ors., 11987) 4
SCC 223; The All India Film Corporation ltd. and Ors. v. Sri Raja Gyan
Nath and Ors. 11969) 3 SCC 79; Carona Shoe Co. ltd. and Anr. v. K.C.
H Bhaskaran Nair, 119891 2 SCC 395; Naravansa Dharmchandsa v. la~man
PAPI LA BAI v. T. BHORTAKKE [SRIKRISHNA, J.] 217

\ .;., Motiram and Anr., AIR (1976) Born. 61, held inapplicable. A
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 800-804 of
2000.

From the Judgment and Order dated 15.6.1998 and 12.1.1999 of the
Bombay High at Aurangabad Bench in W.P. No. 184/92 with C.R.A. No. B
329/95 and C.A. No. 339 of 1998 and in R.P. Nos. 5091 and 5094 of 1998.

V.A. Mohta, Makarand D. Adkar, S.D. Singh, Vijay Kumar, Anurag
Kishore, Nilakanta Nayak for Vishwajit Singh for the Appellant.

S.V. Deshpande for the Respondents. c
The Judgment of the Court was delivered by

SRIKRISHNA, J. These five appeals by special leave impugn the
judgment of the High Court of Judicature of Bombay, Aurangabad Bench in
a common judgment rendered in Writ Petition No. 184 of 1992 along with D
Civil Revision Application No. 329 of 1995 and Civil Application No. 339
of 1998 and Review Application No. 5091 of 1998 along with Review
I \ Application No. 5094 of 1998.

Facts :
E
One Hari Vithoba was the owner of land bearing Survey No. 42,
admeasuring about 8 acres and 21 gunthas in village Mehun, Taluka Edlabad,
Distt. Jalgaon, Maharashtra. Hari Vithoba mortgaged the said land by a
conditional sale deed executed in favour of one Dattatray Kulkarni, sometime
in the year 1941. Although the stipulated period of redemption was seven F
years, upon expiry of which the owner of the land was to get back the
)- possession of the land on repayment of the stipulated amount, the said period
expired sometime in April, 194 7. The mortgagee in possession, Dattatray
Kulkarni, had, in the meantime, inducted one Chavdas Totaram Bhortakke as
his tenant and the said Chavdas Totaram get his name entered in the revenue
record as the tenant of the land. The mortgagee in possession, Dattatray G
Kulkarni, died on 25.2.1957 and his wife Durgabai succeeded him. In 1977
the present appellant, who is daughter of the original owner, Hari Vithoba,
"" filed a suit for redemption of the mortgage before the competent court,
Bhusawal, being suit RCS No. 127 of 1977. The appellant and Durgabai
entered into a compromise in terms of which a decree for redemption came
H
218 SUPREME COURT REPORTS [2005] I S.C.R.

A to be passed by the court. On 22.2.1978 the appellant filed an application
before the Tehsildar and prayed that it be declared that the First Respondent
herein was not a tenant of the suit land and, alternativi~ly prayed that, if it was
held that the present respondent was a tenant, then a certificate under Section
88C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter
B referred to as 'the Act') be issued to her. The Tehsildar held that the First
Respondent herein was a tenant of the land and granted a certificate under
Section 88C in favour of the appellant. This order of the Tehsildar came to
be challenged by the heirs of Late Chavdas Totaram in tenancy Appeal No.
19 of 1980 against the grant of 88C certificate. The appellant also filed an
appeal No. 26 of 1980, being aggrieved by the declaration of tenancy in
·C favour of the First Respondent. The Sub Divisional Officer confirmed !he
order of the Tehsildar and dismissed both the appeals.

The heirs of Late Chavdas Totaram filed Writ Petition No. 3045 of
1985 before the High Court of Judicature of Bombay challenging the grant
of 88C certificate in favour of the appellant. This writ petition was dismissed
D by the High Court against which no proceedings were taken. Consequently,
the certificate issued under Section 88C became final.

The appellant herein filed Revision Application No. 166 of 1985 before ' .
the Maharashtra Revenue Tribunal challenging the decision of the Sub
Divisional Officer dated 26.2.1985. Simultaneously., the appellant also filed
E Darkhast Proceedings before the Executing Court for execution of the
compromise decree passed in the redemption suit. Tile heirs of Late Chavdas
Totaram, the present respondents, sought stay of the execution proceedings.
However, the Executing Court dismissed the said prayer. Revision Application
No. 166 of 1985 filed by the present appellant came to be allowed by the
p Maharashtra Revenue Tribunal. The decision of the Maharashtra Revenue
Tribunal was challenged by the present First Respondent before the High
Court in Writ Petition No. 184 of 1992. Although the First Respondent
challenged the decision of the Executing Court by an appeal before the District
Court, there being no stay order at one point of timf:, a warrant of possession
was issued and pursuant thereto the appellant took the possession of the land.
G The warrant of possession was also challenged before the High Court by a
civil revision application which was clubbed to be heard with Writ Petition
No. 184of1992. The respondents moved the High Court by Civil Application
No. 2475 of 1995 seeking restoration of the possession. A number of legal
proceedings between the parties ensued, which were all clubbed together by
H the High Court and disposed of by the common judgment, which is under
PAPILA BAI v. T. BHORTAKKE [SRIKRISHNA. J.] 219

) .... appeal. A
The High Court allowed the writ petition and set aside the order of the
Maharashtra Revenue Tribunal and sustained the objections to the execution
of the decree by holding that the decree passed in civil suit RCS No. 127 of
1977 was not binding against the present respondents (heirs of deceased
Chavdas Totaram). The High Court has arrived at the categorical finding that B
the document executed in 1941, though styled in the nature of a sale deed,
was really a deed of mortgage by conditional sale and, in any event, the said
issue was not very material as the heirs of the mortgagee had consented to
the decree of redemption being passed and thus had accepted that the
transaction was one of mortgage and not sale. The High Court emphasized C
the fact that the present appellant had sought for and obtained a certificate
under Section SSC of the Act, which had become final and binding on the
parties. A certificate issued under Section SSC necessarily evidences that the
land of the landlord has been leased to another person, that the total annual
income of the landlord does not exceed Rs. 1500, and further that the land
is exempted from the provisions of Sections 32 to 32-R of the Act. It is only D
after ascertaining these facts, that the Mamlatdar is required to issue a certificate
in the prescribed form. In the instant case, such a certificate under Section
SSC had been issued in favour of the appellant as landlord as against the First
Respondent as a tenant. The High Court took the view that this certificate,
therefore, was evidence of the fact that deceased Chavdas Totaram was a E
tenant of the appellant.

Placing reliance on the decision of this Court in Dahya Lal and Ors.
v. Rasul Mohammed Abdul Rahim', the High Court was of the view that the
First Respondent was "lawfully" in possession of the land and "lawfully"
cultivating the land and, therefore, was a deemed tenant within the meaning F
of Section 4 of the Act. Consequently, the First Respondent continued to
have the right as a tenant even after the redemption of the mortgage and
extinguishment of the interest of the mortgagee in possession. The right of
the First Respondent, which was originally derived from the mortgagee in
possession, fructified into a full-fledged statutory right by reason of the
provisions of the Act, because of his fulfilling the description of 'deemed G
tenant' within the meaning of Section 4 of the Act. On this reasoning, the
High Court held that the First Respondent could not have been evicted from
the land.

I. [1963] 3 SCR I.
H
220 SUPREME COURT REPORTS [2005] I S.C.R.

A Contentions :
Learned counsel for the appellant strenuously contended that the view
taken by the High Court was legally unsustainable. He strongly relied on the
judgment of this Court in Hanmanta Daulappa Nimbal v. Babasaheb
Dajisaheb londhe 2 and urged that unless there was an express provision in
B the mortgage deed empowering the mortgagee in possession to induct a tenant,
any person inducted on the land would be a trespasser and, therefore, not in
"lawful" cultivation of the land. Consequently, such a person did not fulfil
the requirements of Section 4 and did not become a deemed tenant of the
land. The observations in Hanmanla case (supra) appear to support the
C contention. i-lowever, the attention of their Lordships does not appear to have
been drawn to the earlier judgment of this Court in Dahya Lal (supra) rendered
by a Bench of five learned Judges. Under somewhat similar circumstances,
a mortgagee in possession had inducted the respondent as the tenant of the
land. The question arose as to whether the respondent could be deemed to be
a tenant within the meaning of Section 4 as "a person lawfully cultivating the
D land belonging to another person" and not falling within the excepted
categories. This court rejected a similar argument by the following observation:

"It would therefore be difficult to assume in construing s.4 that the
..
person who claims the status of a deemed tenant must be cultivating
land with the consent or authority of the owner. The relevant condition
E imposed by the statute is only that the person claiming the status of
a deemed tenant must be cultivating land "lawfully": it is not the
condition that he must cultivate land with the consent of or under
authority derived directly from the owner. To import such a condition
it is to rewrite the section, and destroy its practical utility. A person
F who derives his right to cultivate land from the owners would normally
be a contractual tenant and he will obviously not be a "deemed tenant".
Persons such as licencees from the owner may certainly be regarded
as falling within the class of persons lawfully cultivating land
belonging to others, but is cannot be assumed therefrom that they are
the only persons who are covered by the section. The Act affords
G protection to all persons who hold agricultural land as contractual
tenants and subject to the exceptions specified all persons lawfully
cultivating lands belonging to others, and it would be unduly restricting
the intention of the Legislature to limit the benefit of its provisions
to persons.who derive their authority from the owner, either under a

H 2. [I995J 6 sec 58.
PAPILA BAI v. T. BHORTAKKE [SRIKRISHNA, J.] 221

contract of tenancy, or otherwise. In our view. all persons other than A
those mentioned in els. (a), (b) and (c) of s. 4 who lawfully cultivate
land belonging to other persons whether or not their authority is
derived directly from the owner of the land must be deemed tenants
of the lands." (emphasis ours)

The Court also rejected the argument by saying that the principle applicable B
under the Transfer of Property Act, 1882, namely, that the right of a tenant
inducted by a mortgagee in possession ordinarily came to an end with the
.)>.- extinction of the mortgage by redemption, had no application in the
interpretation of a statute which has been enacted with the object of granting
protection to persons lawfully cultivating agricultural lands. It also emphasized C
that "a tenant of a mortgagee in possession is inducted on the land in the
ordinary course of management under authority derived from the mortgagor
and so long as the mortgage subsists even under the ordinary law he is not
liable to be evicted by the mortgagor." Then the Court added "it appears that
the Legislature by restricting the exclusion to mortgagees in possession from
the class of deemed tenants intended that the tenant lawfully inducted by the D
mortgagee shall on redemption of the mortgage be deemed to be tenant of the
mortgagor." This judgment, in our view, really clinches the issue, but does
not seem to have been noticed in the decision of the Bench of two learned
Judges in Hanmanta case (supra). To the extent it suggests a view contrary
to the judgment of the Constitutional Bench of this Court in Dahya Lal E
(supra), it is not good law.
Learned counsel also referred to Mahabir Gape and Ors. v. Harbans
Narain Singh and Ors3. and Harihar Prasad Singh and Anr. v. Must. of
Munshi Nath Prasad and Ors'. Both these judgments have been considered
by a later judgment in Prabhu v. Ramdev and Ors', rendered by a Bench of
five learned Judges. Prabhu distinguishes and explains Mahabir Gape (supra) F
and Harihar Prasad (supra). We may also noticed that Prabhu was a case
arising squarely under the Transfer of Property Act, 1882, and considered the
impact of Section 15 of the Rajasthan Tenancy Act, 1955, but was not
concerned with the application of the Bombay Tenancy and Agricultural
Lands Act, 1948 or any other equivalent Legislation. Even in Prabhu (supra), G
the view taken by the Revenue Board that the respondents, who had been
inducted by the mortgagee in possession, were not trespassers, was upheld by
this Court, by reason of the application of provisions of Section 15 of the
3. [1952] SCR 775.
4. [1956] SCR I.
5. [1966] 3 SCR 676. H
-;'

222 SUPREME COURT REPORTS [2005) I S.C.R.

A Rajasthan Tenancy Act, 1955. Explaining away of the observations in Mahabir ;
Gape (supra), the Court said:
"It must be remembered that these observations were made by
reference to the normal relationship between the mortgagor and the
mortgagee and their respective rights and obligations as determined
B by relevant provisions of the Transfer of Property Act. Having made
these observations, however, this Court has taken the precaution to
point out that even in regard to tenants inducted into the land by a
mortgagee cases may arise where the said tenants may acquire rights
of special character by virtue of statutory provisions which may, in
the meanwhile, come into operation. A permissible settlement by a
c mortgagee in possession with a tenant in the course of prudent
management and the springing up of rights. in the tenant conferred or
created by statute based on the nature of the land and possession for
the requisite period, it was observed, was a different matter altogether.
Such a case is clearly an exception to the general rule prescribed by
D the Transfer of Property Act,"
The judgments in Jadavji Purshottam v. Dhami Navnitbhai Amaral/a/
and Ors., The All India Film Corporation Ltd. and Ors. v. Sri Raja Gyan
Nath and Ors., and Carona Shoe Co. Ltd. and Anr. v. K.C. Bhaskaran Nair,
" .
and reliance on the judgment of learned Single Judge in Naravansa
E Dharamchandsa v. Laxman Motiram and Anr. are of no avail, in our judgment.
The proposition of law laid down in Dahya Lal (supra) and reiterated by the
other Constitutional Bench judgment in Prabhu (supra) still hold the field,
notwithstanding the cited judgment of the Bench of two learned Judges which
appears to make slight distinction on the basis of factual parameters.
Conclusion:
F
In the circumstances, considering the law laid down by the two
judgments of the Constitutional Benches, we are of the view that the impugned
judgment of the High Court can hardly be faulted.
In the result, we see no merit in the appeals and hereby dismiss the
G appeals. However, there shall be no order as to costs.
R.P. Appeals dismissed.

6. [198714 sec 723.
7. (19691 3 sec 79.
8. (1989]2 SCR 395.
H 9. AIR (1976) Bombay 61.