SITARAM DEOBA MARATHA Vs. HAWADVA PIRAJI NAOBUDHA

JUDGEMENT

(1.) This writ petition arising out of the proceedings under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) act, 1958 (hereinafter referred to as the Vidarbha Tenancy Act) had been referred by a (Masodkar. J.) to a Division Bench as the learned Judge found that there was a conflict of decisions between his own earlier judgment in Special Civil Application No. 14 of 1971 (Bom). Madhukar v. Gajanan, decided on August 2 , 1973 and a judgment delivered by another learned Single Judge of this court (Padhve.J) in special civil Application No. 452 of 1971 (Bom). Dattatrava v. Rama decided on September 11. 1974.

(2.) Having heard the learned counsel on both sides and after going through the provisions of the Vidarbha Tenancy Act and the judgments of the Supreme court as also the Division Bench of this Court, directly and indirectly dealing with these provisions or similar provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Bombay Tenancy Act). We are satisfied that the reference need not have been made. This is litigation which has commenced with an application under S. 36 (1) of the Vidarbha Tenancy Act by the respondent need not have been made. This is a litigation which has commenced with an application under S. 36(1) of the Vidarbha Tenancy Act by the respondent No. 1 Hawdya, who called himself a tenant of the land in question. The facts alleged and which are found by the Naib Tehsildar are that Howdva, respondent No.1 was the tenant of survey No. 4/3 measuring 5 acres 10 gunthas of mouza Dapori, Tahsil Washim, district Akola and was in physical possession as such till December of 1963. Even while respondent No.1 was the tenant in possession the respondents Nos. 2 and 3, the original owners of the land and the landlords of respondent No.1, made an agreement of sale in respect of this land dated June 26, 1962. The sale was actually effected in favour of the present petitioner Sitaram on January 16, 1963. The present petitioner before us in this writ petitions the purchaser from the original landlords who are respondents 2 and 3 and who is contesting the litigation against the respondent No.1, the former tenant of this land.

(3.) The respondent No.1 alleged before the Naib Tahsildar that he was in possession till December , 1963 when he was forcibly dispossessed. He, therefore, filed an application under Section 12(c) of the Vidarbha Tenancy Act for possession by summary eviction of the persons in possession. This was, Revenue Case No. 11/59 of 1965-66. This case was decided and the application of the respondent No. 1 was dismissed on the short ground that the respondent No. 1's status as a tenant was in dispute and it was not possible for the Collector under that section to decide that dispute. The remedy for a tenant was one under Section 36 and not under Section 120(c). The application then came to be rejected. The respondent No.1 was perhaps conscious of the opposition he was going to meet and filed the proceedings leading to the present petition on September 7.1956 for possession under Section 26(1) by joining the present petitioner and respondents Nos. 2 and 3 as party opponents. The defence taken up was that the respondent No. 1 was never a tenant but was partner in cultivation in the year 1959-60. The further defence was that the application was barred by the time as the respondent No. 1 was not in possession at all since after 1959-60. The Naib Tahsildar by his order dated 21st July 1970 held that the respondent No. 1 was a tenant of the land and was in possession in the year 1963-64 and that the application filed on 7-9-1966 was within three years which was the limitation provided by Section 36(1) of the Vidarbha Tenancy Act. The Naib Tahsildar somehow assumed that the sale has taken place May 4. 1964, through as a matter of fact, it had taken place on January 16, 1963.