RAJNIKANT HARLAL SHAH Vs. RAFIULLABEG ISMAILBEG

JUDGEMENT

(1.) THE petitioner-landlord challenges the orders dated 13-3-1989, 30-7-1990 and 23-1-1991 passed by the lower authorities rejecting his application for executing the oral order passed in his favour for restoration of possession. The necessary facts in this respect can be briefly stated as under : the petitioner is the owner of field survey No. 60, area 10 acres 39 gunthas of village Kolasa, Taluqa Balapur, District Akola. He initiated proceedings by filing an application against the original tenant Ismailbeg under section 19 read with sections 30 and 36 (2) of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as the Tenancy Act) and sought termination of tenancy and for possession of these fields. Ismailbeg expired and present respondents is his legal heir. The proceedings were ultimately decided in favour of the petitioner by this Court on 28-1 -1976 in Writ Petition No 1802 of 1973. The petitioner thereafter moved application under section 106 (2) of Tenancy Act read with section 21 of the Mamlatdars' courts Act, 1906, for executing this order and for putting him in possession. The application was opposed by the present respondents on the ground that the petitioner has to first take recourse to application under section 36 (2) of the Tenancy Act and merely on the basis of order dated 28-1-1976, he could not have sought restoration of possession. The Tahsildar, Balapur, upheld this objection of respondents and rejected the application of petitioner on 13-3-1989. It was a common order passed by the said Tahsildar in proceedings initiated by the petitioner against the present respondents and also other tenants. This order was challenged by the petitioner in appeal before Sub-Divisional Officer, Balapur and the Sub-Divisional Officer, Balapur again took the same view and dismissed the appeal on 30-7-1990. Thereafter, the petitioner challenged both these orders by filing revision under section 111 of the tenancy Act before the Maharashtra Revenue Tribunal, but the Maharashtra revenue Tribunal held that the revision was not tenable and rejected it summarily on 23-1-1990 by placing reliance upon the judgment of this Court in the case of (Ramrao Maroti Bajad v. Dharmal Sansthan), reported in 1988 (4)Born. C. R. 180 : 1988 Mh. L. J. 1015. All these three orders are challenged by the landlord in the present petition.

(2.) I have heard Shri Deshpande learned Counsel for the petitioner and smt. Sirpurkar, learned Counsel for the respondents.

(3.) SHRI Deshpande, learned Counsel for the petitioner argued that the application for execution moved by him has been rejected by the lower authorities on wrong and erroneous ground that he is first required to approach tahsildar as contemplated under section 36 (2) of the Tenancy Act. He contends that the other reason given by the said authorities is that section 36 (2)provides for a limitation two years and the authorities have held that a right to file proceedings accrued to the petitioner on 28-1-1976 but he filed the proceedings before the Tahsildar in the year 1988 and hence it was beyond two years. and hence misconceived. He contends that the entire reasoning given by the authorities is contrary to the facts available on record. He points out that the original application filed by him was not an application filed under section 19 read with section 30 of the Tenancy Act but it was application moved under section 36 (2) of the Tenancy Act in view of the breaches falling under section 19 read with section 30 of the Tenancy Act. He, therefore, says that after having secured an under section 36 (2) of the Tenancy Act on 21-8-1976, he moved the authorities for executing that order and for recovering the possession from respondents. He points out that section 106 (2)of the Tenancy Act provides for the machinery for executing those orders and as per that section, the recourse to section 21 of the Mamlatdar's Courts Act is required to be taken. He points out that once an application is filed before the Taltsildar for execution to give effect thereto by issuing appropriate order to his subordinates to place this petitioner into possession.