VITHAL YESHWANT NALAVADE Vs. MARUTI JOTI NALAVDE

JUDGEMENT

(1.) THIS petition by the tenant takes exception to the order passed by the Maharashtra Revenue Tribunal, Pune dated November 19,1988 in Revision Application No. MRT-NS-VI-8/87 (TEN-B-122/87 ). The short question that arises in the present case is : whether the landlord, who has already resorted to an action for possession of the land under section 31 read with section 29 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the said Act) and which application has been decided in his favour, is competent to institute posterior action under section 33-B of the Act on the basis of certificate issued under section 88-C in his favour?

(2.) THE relevant facts for deciding the above question in this case are that, section 88-C certificate was issued in favour of the respondent No. 1 landlord on 12-1-1959. The respondent No. 1 had already instituted proceedings under section 31 read with section 29 of the Act for possession of the suit land which were decided in his favour on 23-6-1960. Later on sections 33-A to 33-C were inserted by Amendment Act of 1961 with effect from 9-2-1961. After the insertion of these provisions, respondent No. 1 once again instituted another application for the relief of possession of the suit land against the tenant, albeit under section 33-B of the Act. This application was resisted by the tenant on the ground that once the landlord has taken recourse to proceedings under section 31 read with 29 of the Act and which proceedings have been decided in his favour, section 33-B of the Act would not permit posterior application for the relief of possession of the same land by the landlord. It is contended that it is only when the earlier application under section 29 read with 31 was rejected and decided against the landlord or was pending at the relevant time only then the landlord was competent to institute application under section 33-B taking advantage of the said amendment. This question has been decided by the Division Bench of this Court in A. I. R. 1978 Bombay 248 (Chintaman Anant Khasnis v. Keshav Dnyanu More and others) The question, therefore, is no more res integra. In view of this position the application as filed by the respondent No. 1 under section 33-B was not competent and ought to be rejected at the threshold.

(3.) THE learned Counsel for the respondent No. 1 however, contends that this contention is being raised for the first time in the present writ petition and ought not to be entertained. However, to my mind, as this question goes to the root of the matter, therefore, it will be the bounden duty of the Court to examine the same. As rightly contended by the learned Counsel for the petitioners, even in the case of Chintaman A. Khasnis (supra) the Division Bench of this Court entertained that question for the first time raised during the argument. Accordingly, in my view, if it is held that the respondent No. 1 landlord was incompetent to file the subject application under section 33-B, any such posterior application was not perceived by the Act, then merely because the objection was not raised before the lower authority will not preclude the petitioners from raising the same before this Court as that question is purely a question of law and goes to the root of the matter.