BHAGIRTHIBAI SHANKAR JADHAV Vs. POPAT SHANKAR BHUSAL

JUDGEMENT

(1.) THE petitioner had made an application for obtaining possession of the land S. No. 380/1 held by opponent No. 1, hereinafter referred to as the opponent, under Section 29 read with Section 31 of the Tenancy Act. In that application an order for possession of half of the land was finally made by the Deputy Collector on October 26, 1962. Before then, on March 30, 1962, the petitioner had also made an application for obtaining possession of the land under Section 33B of the Act. In this application the Tenancy Aval Karkun made an order on August 21, 1962, that possession of the whole land should be given to the petitioner. Against this order the opponent appealed to the Deputy Collector. The Deputy Collector held that as an order for possession of half of the land had been made in favour of the petitioner under Section 29 read with Section 31 of the Act, the application made by the petitioner under Section 33B of the Act was not tenable. He, therefore, allowed the appeal and set aside the order of the Tenancy Aval Karkun directing that possession of the whole land should be handed over to the petitioner. The petitioner then applied in revision to the Revenue Tribunal. The Revenue Tribunal took the view that as the petitioner had already resumed half of the land, she could not obtain possession of any more land under Section 33B(5)(a) of the Act. That view is being challenged before us in this application.

(2.) SUB -section (1) of Section 33B provides that notwithstanding - anything contained in Section 31, 31A or 31B a certificated landlord may, after giving notice and after making an application for possession as provided in Sub -section (3), terminate the tenancy of an excluded tenant, if the landlord bona fide requires such land for cultivating it personally. This sub -section, therefore, removes the bar on the right of a certificated landlord to terminate the tenancy, if he requires the land bona fide for personal cultivation. It also lays down the mode in which the tenancy can be terminated. Two things are necessary before a tenancy can be terminated under this Sub -section: (1) a notice must be given to the tenant, and (2) an application for possession must be made as provided in Sub -section (5). Sub -section (2) states that a notice may be given and an application made by a certificated landlord under Sub -section (5), notwithstanding that in respect of the same tenancy an application of the landlord made in accordance with Sub -section (2) of Section 31 is pending before the Mamlatdar or in appeal before the Collector or in revision before the Maharashtra Revenue Tribunal. An application under Section 33B may, therefore, be made during the pendency of an application under Section 31. The application made by the petitioner under Section 33B was, therefore, maintainable, even though the application made by her under Section 31 was then pending in appeal before the Deputy Collector.

(3.) OUR attention has been invited to the judgment of the Full Bench of the Revenue Tribunal in Tenancy Application No. 708 of 1962 and other connected applications, dated July 9, 1963, in which a contrary view has been taken. In para. 9 of the judgment the Revenue Tribunal has observed: - The word 'already' has reference to the commencing words of Clause (5) which relates to the right of a landlord. That right is to terminate a tenancy. The right is not acquired by a landlord until a competent authority terminates the tenancy and directs the delivery of possession under this section i.e. in the proceedings under Section 33B. The said right is not merely the giving of notice or the institution of an application. The observation of the Revenue Tribunal that the commencing words of Sub -section (5) relate to the right of a landlord to terminate a tenancy is correct. But the right in regard to which this sub -section imposes a condition is the right of the landlord to terminate a tenancy under Sub -section (1). This is clear from the last words in Clause (a), 'shall not be liable to be terminated under Sub -section (1)'. Under Sub -section (1) one of the things necessary for terminating a tenancy is the making of an application as provided in Sub -section (3). Sub -section (5)(a) can, therefore, only operate when the application under Section 31 has been disposed of before the application has been made under Section 33B. In other words, the bar imposed by this sub -section is to the making of an application under this section.