RAMBHAU SITARAMJI BHAVE Vs. NATHUJI LAXMANJI BHONDE

JUDGEMENT

(1.) THIS appeal arises out of the judgment and order dated 30-9-1991 in Writ Petition No. 2370/1987 wherein the writ petition under Article 226 of the Constitution filed by the appellant / tenant challenging the order passed by the Maharashtra Revenue Tribunal, reversing the order of the Sub Divisional Officer and restoring that of the Tahsildar, by which the Tahsildar held that the respondent was entitled to possession of the agricultural land, came to be dismissed.

(2.) FOR deciding the question involved, we would first mention a few facts of the case. The appellant took on lease 1 acre and 8 gunthas of land of survey No. 42/2 of Aivajpur from the respondent on 10-5-1972 for a period of 10 years, under a registered Kaul Patta,. The lease was to expire at the end of the year 1981-82 and the respondent made an application on 28-4-1982 for possession of the land under Section 36 (2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as "tenancy Act" ). The Tahslidar held that the respondent was entitled to possession, but the Sub-Divisional Officer by his order dated 10-12-1985 reversed that decision and dismissed the respondent's application. The respondent, therefore, approached the Maharashtra Revenue Tribunal, which in revision reversed the order passed by the Sub-Divisional Officer and restored that of the Tahsildar. The learned Member of the Maharashtra Revenue Tribunal considered the question whether the application filed by the respondent Landlord before the Tahsildar for restoration of the land under Section 36 (2) of the Tenancy Act was within limitation. The learned Member found that the appellant/tenant has executed a Kaul Patta in favour of the respondent-landlord for 10 years and 10 years' period of lease was to be over by 31st March 1982 and the appellant was to handover the possession on 1-4-1982. No doubt as per the Section 50 of the Tenancy Act as the tenant fails to exercise his rights within one year, the limitation would start running under Section 36 from that date, but according to the learned Member as the lease granted in favour of the appellant tenant was for a period of 10 years, there was no cause for the appellant to ask for possession from the respondent. As the appellant failed to hand over the possession on 1-4-1982, the respondent filed application under Section 36 (2) of the Tenancy Act on 28-4-1982 and it is therefore, within the limitation as prescribed under Section 36 (2) of the Tenancy Act. Therefore, the learned Member, Maharashtra Revenue Tribunal found that the application filed by the respondent for restoration of the land under Section 36 (2) of the Tenancy Act was within limitation and that is how the learned Member, Maharashtra Revenue Tribunal set aside the order passed by the Sub Divisional Officer passed in Revenue Appeal No. TNC-2/59 (120-F)2/83-84 Aiwajpur passed on 10th December, 1985 and the order passed by the Tahaildar dated 30-4-1984 in Revenue Case No. 3/59 (10-F) Aiwajpur/81-82 came to be restored and the appellant was directed to hand over the possession of the land to the respondent.

(3.) THE learned Single Judge, while confirming the order passed by the Maharashtra Revenue Tribunal and dismissing the writ petition found that the appellant-tenant could not exercise his right to purchase within one year as provided under Section 50 of the Tenancy Act, as the appellant held the land under a 10 years' lease that was to expire at the end of 1981-82. Appellant could not have come to the court earlier, merely because of the requirement of the Section 50 of the Tenancy Act because under Section 37 save as provided in this Act the rights and privileges of any tenant under any usage or law for the time being in force or arising out any contract grant, decree or order of the court or otherwise howsoever shall not be limited or abridged. The learned Judge observed that the requirement of the Section 36 (2) of the Tenancy Act was that the landlord shall apply for possession within a period of 2 years on which the right to obtain possession of the land is deemed to have accrued to him. This right cannot be confused with the situation referred to in Section 50 of the Tenancy Act. Therefore, the learned Single Judge found that the Maharashtra Revenue Tribunal was right in holding that in view of the subsistence of the 10 years; lease, right to obtain possession could not have accrued to the landlord except for after the expiry of the period of that lease and since the application filed by the respondent was dated 30-4-1984 was within the two years, it was within time. That is how the order passed by the Maharashtra Revenue Tribunal came to be confirmed and the order passed by the Tahsildar was restored and the writ petition came to be dismissed. This dismissal of the writ petition, confirmation of the order passed by the Maharashtra Revenue Tribunal and consequent restoration of the order passed by the Tahsildar is the subject matter of the challenge in this Letter Patent Appeal.