SUBHADRABAI Vs. RAMBHAU NARAYAN DHOK

JUDGEMENT

(1.) This is a letter patent appeal arising out of the proceedings under the provisions of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, The Tenancy Act). Briefly the facts are that the field survey No. 98 admeasuring 20.00 acres of village Donak belongs Bk. to the appellant. The respondent was admittedly the tenant of the suit field. It appears that the lease of the suit field was since the time of his father and was created in 1958. The appellant gave a notice dated 10-1-73 to the respondent for resumption of the suit field for personal cultivation. A second notice dated 26-12-74 for resumption of land for personal cultivation was served by her regd. Post upon the respondent. The appellant thereafter filed an application under section 36(2) read with a section 38 of the Tenancy Act claiming possession of the suit filed. The said application was filed on 29-1-75. The respondent resisted the said application by filing the written statement, According to him, he did not receive the first notice dated 10-9-73 and as regards the second notice dated 26-12-74, his case was that it was not a notice of six months as required by section 106 of the Transfer of Property Act and was, therefore, invalid.

(2.) The Additional Tahsildar by his order dated 9-12-77 allowed the application of the appellant for resumption of the suit filed for personal cultivation thus rejecting the objections raised by the respondent. In appeal preferred by the respondent, the learned Sub-Divisional Officer (for short S.D.O) by order dated 13-11-78, set aside the order of the learned Additional Tahsildar thus upholding the objections raised on behalf of the respondent to the notice given by the appellant. The appellant preferred a revision before the Maharashtra Revenue Tribunal (for short M.R.T) and the learned M.R.T. by its order dated 23-7-80 allowed the revision setting aside the order of the learned S.D.O. and thus resorting the order passed by the learned Additional Tahsildar. The respondent challenged the order of the learned M.R.T. by preferring a writ petition in this Court. The learned Single Judge of this Court by his judgment rendered on 24-8-84 set aside the order of the learned M.R.T. and maintained the order passed by the learned S.D.O. Being aggrieved, the appellant-landlord has preferred the instant I.P.A. in this Court.

(3.) The learned Counsel appearing for the appellant landlord did not canvass before us the correctness or otherwise of the finding of the learned Single Judge relating to the non-service of the first notice dated 10-9-73. He has, however, strenuously urged before us the view taken by the learned Single Judge that the notice under section 38(2) of the Tenancy Act should be of 6 months duration as required by section 106 of the Transfer of Property Act is erroneous and is liable to be set aside. It may be seen that the second notice dated 26-12-74 was served by registered Post upon the respondent tenant and the application thereafter under section 36(2) read with section 38 of the Tenancy Act was filed on 29-1-75. The notice dated 26-12-74 served upon the respondent-tenant was thus clearly not of 6 months duration. The learned Counsel for the respondent-tenant apart from the controverting the above contention raised on behalf of the appellant, has urged that there is no right to the widow-landlord to give any notice under section 38(2)(B) of the Tenancy Act, which right is conferred thereunder upon her successor in title only.