DEVU RAU CHAVAN Vs. JASINGRAO NARAYANRAO GHORPADE

JUDGEMENT

(1.) The dispute in this application is about survey Nos. 193 and 194. These lands belong to opponent No. 1. When he was a minor, his estate was under the management of the Court of Wards. In 1948 the Court of Wards leased the lands for a period of ten years to petitioner No. 1. Opponent No. 2 stood as a surety for petitioner No. 1. In 1949 opponent No. 1 attained majority. Subsequently petitioner No. 1 took the assistance of opponent No. 2 in cultivating the lands. There arose a dispute between petitioner No. 1 and opponent No. 2 as to whether they were in joint possession of the entire lands. According to petitioner No. 1, he had taken opponent No. 2 as a partner for cultivating the lands. Opponent No. 2's case, on the other hand, was that half of the lands had been sub -let to him by petitioner No. 1 and that he was in exclusive vahivat of half of these lands. Since 1950 -51 opponent No. 2 was shown along with petitioner No. 1 as a tenant in the record of rights. On account of the disputes between petitioner No. 1 and opponent No. 2 proceedings were instituted under Section 145 of the Code of Criminal Procedure. On February 4, 1957, the Sub -Divisional Magistrate passed an order for attachment of the lands. On February 10, 1957, the police patil of the village was appointed a receiver. The Sub -Divisional Magistrate then held an inquiry and came to the conclusion that the lands were being jointly cultivated by petitioner No. 1 and opponent No. 2. On April 80, 1957, he passed an order, by which he awarded joint possession of the lands to petitioner No. 1 and opponent No. 2. On May 20, 1957, opponent No. 2 filed a suit (No. 62 of 1957) for a declaration that he was entitled to the exclusive possession of half of the lands and for an injunction restraining petitioner No. 1 from interfering with his possession thereof. In that suit also the civil Court appointed the police patil as receiver. The previous appointment made by the Sub -Divisional Magistrate was, therefore, continued. On September 7, 1957, the receiver held an auction for the purpose of leasing the lands. Petitioner No. 1 and opponent No. 2 were present at the time of this auction. The lands were, however, leased to some other person. Another auction was held by the receiver on May 11, 1958, for the year 1958 -59. The third auction was held by the receiver on May 16, 1959. On August 22, 1959, the suit filed by opponent No. 2 was dismissed. Opponent No. 2 then filed an appeal (No. 413 of 1959). This appeal was also dismissed. On April 15, 1958, opponent No. 1 gave notices to both the petitioners and opponent No. 2 terminating the tenancy on the ground that they had failed to cultivate the lands personally. I may here mention that petitioner No. 2 is the brother of petitioner No. 1. Subsequently, opponent No. 1 made an application for obtaining possession of the lands under Section 29 read with Section 14 of the Bombay Tenancy and Agricultural Lands Act. Under Section 14 the tenancy may be terminated, if the tenant has failed to cultivate the land personally. The Mamlatdar made an order for possession of the lands being given to opponent No. 1. This order was set aside in appeal by the Deputy Collector on the ground that the Tenancy Act did not apply to lands tinder management of receivers appointed by Courts. The order made by the Deputy Collector was set aside in revision by the Revenue Tribunal, which restored the order made by the Mamlatdar. Thereafter the present Special Civil Application has been filed. The principal point, which has been argued before us, is whether the application made by opponent No. 1 was maintainable, in view of the provisions of of (c) of Section 88 of the Tenancy Act. The relevant portion of Section 88, as it stood at the material time, was in the following terms:

(2.) IN the present case opponent No. 2 had filed the suit against petitioner No. 1. The landlord opponent No. 1 was not a party to the suit. The appointment of the receiver in the suit could not prejudicially affect the rights of opponent No. 1. Section 88 (c) did not, therefore, apply in this case. Consequently, we are unable to accept the argument of Mr. Abhyankar that the application made by opponent No. 1 for possession of the lands was not maintainable.

(3.) THE application must, therefore, fail. The rule is discharged. No order as to costs.