MOHANSING UMEDSING Vs. DULLABHBHAI JERAMBHAI

JUDGEMENT

(1.) The petitioner in both these matters is the same individual and the first respondent in each of the matters was formerly his tenant in respect of some agricultural lands belonging to the petitioner. The lands are situated at Delad village in Olpad Taluka of Surat District. The petitioner is the owner of four fields bearing S. Nos. 190/1 160 177 and 187 admeasuring 4 acres and 5 gunthas 1 acre 30 gunthas 0 acre 25 gunthas and 2 acres and 7 gunthas respectively. All these S. Nos. are situated in Delad village. He is also the owner of various other S. Nos. situated in Sayan and Delad villages of Olpad Taluka. The first respondent in Spl.C.A. No. 289 of 1963 was the tenant of the lands situated in Delad village and the first respondent in Spl.C.A. No. 290 of 1963 was the tenant in respect of other lands situated in that village. The petitioner had served notices on the two tenants under sec. 34 of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as the Act) being notices dated March 30 1949 Therefore the petitioner filed two suits for recovery of possession from the two tenants and these proceedings were adopted under sec. 29 read with sec. 31 of the Act. On April 25 1950 both the suits were compromised and under the terms of the compromise by an order of the Mamlatdar possession was delivered by the two tenants of the lands in question to the petitioner. This was done on May 30 1950 The petitioner in each of the two matters contends that after he got possession from his tenants he had been cultivating the lands by himself and had continued personally cultivating the lands. Thereafter the two tenants filed suits under sec. 37 read with sec. 39 of the Act as it stood after the amendment of 1956 for restoration of possession of those lands. The suits were filed on January 17 1957 The Mamlatdar who heard those two suits followed the decision of the Bombay High Court in Special Civil Application No. 2517 of 1958 decided on October 25 1958 by a Division Bench of the Bombay High Court consisting of Chainani Ag. C. J. (as he then was) and Shelat J. (as he then was) and dismissed both the suits on the preliminary ground that as the tenancy of the tenants had been terminated under the old sec. 34 which had been repealed and not under sec. 31 the provisions of sec. 37 did not apply to the tenants cases. In that particular matter the Division Bench of the Bombay High Court had held that sec. 37 as it then stood contemplated possession being taken after termination of the tenancy under sec. 31 and the Division Bench was unable to find any authority under which references to sec. 31 could be read as references to sec. 34 of the Act as it stood prior to its amendment in 1956. As the tenancy had not been terminated under sec. 31 no relief could be granted under sec. 37 of the Act.

(2.) The tenants filed appeals which were disposed of by the Prant Officer by his Order dated July 31 1961 and he dismissed both the appeals. The Revision Petitions filed by the tenants to the Revenue Tribunal were however allowed by the Revenue Tribunal and thereafter the landlord has filed these two petitions before this High Court challenging the decision of the Revenue Tribunal.

(3.) The two petitions came up for hearing before our learned brother J. B. Mehta J. in the first instance and by his judgment dated January 19 1968 our learned brother indicated that the two matters should be dismissed. However after the judgment was pronounced on January 19 1968 but before it was signed our learned brothers attention was drawn to two decisions of two different Single Judges of this High Court. Our learned brother felt some difficulty about following those decisions particularly in the light of the decision of the Supreme Court in Shah Bhojraj Kuverji Oil Mills v. Subhash Chandra A.I.R. 1961 S.C. 1596 and he was unable to agree with the view taken by these two Single Judges in their respective judgments. Hence he did not pass any final order in these two matters and has referred the petitions for disposal by a Division Bench in view of the difference between him and the two Single Judges of this High Court. It is under these circumstances that these two matters have now been placed before us.