PIYARE Vs. SUKHLAL

JUDGEMENT

(1.) THE grievance of the Petitioner Piyare before us is that according to Section 38 of the M.B. Zamindari Abolition Act, he filed an application before the Tahsildar for the conferment of Pakka tenancy rights and also for the mutation of his name. This application was resisted by the non -Petitioner before the Tahsildar on the ground that the opposite party was entitled to the benefit of Section 74 of the M.B. Land Revenue and Tenancy Act. The Tahsildar rejected the application. On appeal the Collector confirmed the order and dismissed the appeal. In second appeal before the Revenue Commissioner it was held that no appeal or revision lay against the order passed under Section 38 of the M. B. Zamindari Abolition Act. In revision, the Revenue Board also held that no appeal or revision lay against the order passed under Section 38, and dismissed the revision. Against the order of the Board of Revenue, the Petitioner has preferred a petition under Article 227 of the Constitution of India to this Court.

(2.) 1959 MPLJ 738. in which it was held that where an application before the Tahsildar was both under Section 38 and Section 86 of the M.B. Tenancy Act (for mutation of names), then the order of the Tahsildar, either ordering mutation or refusing mutation should be treated under Section 86 of the Tenancy Act and as such not only would an appeal lie, but in proper cases a revision would also be competent. The Board has treated the order as one under Section 38 of the Zamindari Abolition Act only. This is not the correct approach and the matter is already explained in the case referred to above. For reasons stated above the application is allowed and the case is sent back to the Revenue Commissioner with the direction to consider the Tahsildar's order under Section 86 of the Tenancy Act and decide the appeal on merits. Parties to bear their own costs. Shiv Dayal, J.

(3.) IN my opinion, it is not correct to argue that Section 86 is not applicable to such a case, as that section must be restricted to cases of succession and transfer. The section is comprehensive enough to include every possibility where mutation of names is to be effected consequent upon legal right vesting or devolving upon a person whose name is not entered and the cessation of interest of another person whose name appears in the revenue papers. Clause (1) of Section 88 runs thus: