AIR 1985 SUPREME COURT 836 ::1985 UJ (SC) 715 ::1985 (2) SCC 477 ::1985 87 Bom LR 249 ::(1985) 1 CurCC 1100

Supreme Court Of India

(From : Karnataka)

Hon'ble Judge(s): O. Chinnappa Reddy, R. B. Misra , JJ

Bombay Tenancy Act (29 of 1939) , S.2A— Bombay Tenancy and Agricultural Lands Act (67 of 1948) , S.4, S.39(2)(b)— Mortgagee in possession - Does not become a deemed tenant under S. 2A of Act of 1939 on the strength of saving provision in S. 89(2)(b) of the Act of 1948. Decision of Karnataka H. C. Reversed.Tenancy - Deemed tenant Civil P.C. (5 of 1908) , S.9— It cannot be said that a mortgagee in possession become deemed tenant under S. 2A of the Act of 1939 on the strength of the saving provision in S. 89(2)(b) of the Act of 1948. Even if that be so the mortgagor, holding the decree for redemption cannot get actual possession of the lands from the mortgagee as the mortgagor did not file an application for declaration before the Mamlatdar that the mortgagees were not tenants, within one year of the coming into force of the Amendment Act of 1946 as provided in Ss. 2A and 3A of the Act of 1939 and thus he lost whatever right he had. Furthermore a relief for actual possession from the mortgagees who claimed to be protected tenants could be granted only by the revenue court and not by the civil court. The mortgagor, therefore, on the basis of the decree for redemption can get only a symbolic possession and not actual physical possession for the land in dispute.(Para 17 18) .....