RADHESHAYM MOHANLAL KAITAN Vs. MAHARASHTRA REVENUE TRIBUNAL NAGPUR

JUDGEMENT

(1.) THE petitioner is the landlord of four fields with an area of 38. 18 acres situated at village Randala, Tahsil and District Nagpur. The contesting respondent No. 4 who claimed to be a tenant cultivating these fields, filed an application on 26-2-1964 alleging that he was dispossessed of these fields otherwise than in accordance with law and that he was, therefore, entitled to be restored to possession. The application, however, does not state the exact date of dispossession but it is not now disputed that he was dispossessed on 10-6-1959. In respect of these fields proceedings under Section 145, Criminal Procedure Code, were taken by the Sub-Divisional Magistrate, Nagpur, in which according to the tenant, the Tahsildar, Kamptee, was appointed a receiver and he was placed in possession of these fields on 28-11-1959. These proceedings under Section. 145, Criminal Procedure Code, terminated in favour of the petitioner landlord and in accordance with the decision of the Civil Court under Section 146, Criminal Procedure Code, the petitioner was put in possession of these fields on 23-5-1963 by the S. D. M. The tenant was conscious or the fact that his application filed on 26-2-1964 was delayed and he tried to explain this delay by stating in the application that the fields were in possession or the receiver and that "with a bona fide object of getting back the possession of the fields as early as possible, the applicant sued out proceedings under Section 145 of the Criminal Procedure Code and also as advised by his lawyer. " He, therefore, stated that if there was any delay in making the application, then that should be excused taking into consideration those circumstances. This is the only ground on which the delay in making the application for possession under Section 36 (1) of the Bombay Tenancy and Agricultural Lands Act, 1958 (hereinafter referred to as the Act) was explained. The landlord contested the application made by the tenant. According to him, the tenant had executed a surrender deed on 4-4-1959 in his favour and that it was submitted for verification and he was, therefore, entitled to be in possession. One or the main grounds on which the maintainability of the application filed by the tenant was contested was that the application was made beyond the period of three years from the date of dispossession and that the tenant was not entitled to exclude the time during which proceedings under Section 145, Criminal Procedure Code, were pending.

(2.) IT appears that on 29-11-1959, the tenant had also filed an application in the Court of the Collector, Nagpur District, Nagpur, under Section 120 of the Tenancy Act and in that application the tenant prayed that the landlord should be evicted from the fields in question as he had no right to disturb the possession of the tenant. It was alleged in this application under Section 120 of the Act that the dispossession had taken place on 4-11-1959. This application came to be registered as revenue case No. 128-A/ 52-59-60 in the Court of the Sub-Divisional Magistrate, Nagpur. The Sub-Divisional Magistrate on this application passed an order on 23-1-1959 forwarding it to the Naib-Tahsildar for enquiry and report. This application was then tagged on to the application filed by the landlord for verification of the surrender-deed. The case regarding verification of the surrender-deed was registered as revenue case No. 25/59-4-59-60 in the Court of the Naib Tahsildar, Nagpur.

(3.) THE tenant's application under Section 36 of the Act was dealt with by the Additional Tahsildar, Nagpur. He framed a preliminary issue on the question of limitation. That issue was as follows: "whether the application of Shri Govindrao son of Ramji Thakre, dated 24-2-1964, asking for possession of the suit land, is within limitation and whether it is tenable?" The Tahsildar took the view that the application was made beyond three years from the date on which the right to obtain possession had accrued to the tenant. He further held that the tenant was not entitled to the benefit of Section 14 of the Limitation Act, 1908 and that the pendency of proceedings under Section 145, Criminal Procedure Code was not a bar to making an application under Section 36 (1) of the Act. He also gave a finding that the tenant had chosen a wrong forum and could not claim benefit of pendency of those proceedings and he had not acted with due diligence to safeguard his own interest. The application was thus rejected as barred by limitation.