RAJNIKANT HARLAL SHAH Vs. MUMTAJKHA ABBASKHA

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. 74/1, area 8 acres 9 gunthas and Survey No. 76/1, 3 acres 21 gunthas of village Kolasa, Taluqa balapur, District Akola. He initiated proceedings by filling an application against the original tenant Abbaskha under section 19 read with sections 30 and 36 (2) of Bombay Tenancy and Agricultural Lands ( Vidarbha Region) Act, 1958 (here in after referred to as the Tenancy Act) and sought termination of tenancy and for possession of these fields. Abbaskha expired and present respondent 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 the Tenancy act read with section 21 of the Mamlatdar's Courts Act, 1906, for executing this order and for putting him in possession. The application was opposed by the present respondent 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 respondent and rejected the application of the petitioner on 13-3-1989. It was a common order passed by the said Tahsildar in proceedings initiated by the petitioner against the present respondent and also other tenants. This order was challenged by the petitioner in appeal before the Sub-Divisional Officer, balapur and the Sub-Divisional Officer, Balapur again took the same view and dismissed the appeal on 30-7-1990. There after, 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 (Ramarao Maroti Bajad v. Dharmal Sansthan)1, reported 1989 (2) Bom. C-R. 33 : 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 respondent.

(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 of 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 afte having secured an order 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 the 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 Tahsildar for execution to give effect thereto by issuing appropriate orders to his subordinates to place this petitioner into possession.