AKHATARUNNISA BEGUM AND OTHERS Vs. AHMADKHAN QADARKHAN

JUDGEMENT

(1.) The question involved in this petition by the landholder's legal representatives is what is the limitation for making an application for substitution of the legal representatives of a party to an appeal filed under section 107 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereafter referred to as the Tenancy Act, if one of the parties dies during the pendency of the appeal. The question arises in the following way:

(2.) One Mir Razak had started a proceeding under section 38 of the Tenancy Act against respondent Ahmadkhan in the Court of the Tenancy Naib-Tahsildar, Malkapur. That application came to be rejected and the landholder then filed an appeal against the order of the Naib-Tahsildar before the Sub-Divisional Officer, Malkapur. During the pendency of this appeal the landholder died on 30-11-1965 and the petitioners who were legal representatives of the deceased landholder filed an application on 22-2-1966 for their names being brought on record in place of the name of deceased Mir Razak. The Sub-Divisional Officer took the view that the appeal had abated in view of the provisions of section 18(3)(ii) of the Mamlatdars' Courts Act, 1906. The petitioners then filed a revision application against this order before the Maharashtra Revenue Tribunal and the Tribunal took the view that in the absence of an application filed within the period of limitation by a party the Court cannot be in a position to enquire as to who are the legal representatives and since the application for bringing on record the legal representatives was not made within the period of limitation the appeal was correctly held to have abated under section 18(3)(ii) of the Mamlatdars' Courts Act, 1906. These orders are now challenged by the petitioners in this petition.

(3.) The learned counsel appearing on behalf of the petitioners contends that the provisions of section 18(3) of the Mamlatdars' Courts Act do not apply to an appeal filed before the Collector and the applicability of these provisions is restricted only to the proceedings before the Tahsildar. He has placed reliance on a decision of this Court in Mafasji Ibrahim Vs. Mangalgirji, AIR 1946 Bom. 201 in which Chagla J. (as he then was) held that section 18(3) of the Mamlatdars' Courts Act which prescribed limitation for bringing on record the legal representatives of a party did not apply to a revision application filed under section 23 of the Mamlatdars' Courts Act. In order to appreciate this contention it is necessary to make a reference first to section 102 of the Tenancy Act. Sec. 102 is as follows: