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Devidas Sitaram Gole and Others Vs. Purushottam Balkisanji Mantri and Others - Court Judgment

LegalCrystal Citation
CourtMumbai Nagpur High Court
Decided On
Case NumberLetters Patent Appeal No. 64 of 2005 In Writ Petition No. 1719 of 1992
Judge
AppellantDevidas Sitaram Gole and Others
RespondentPurushottam Balkisanji Mantri and Others
Excerpt:
bombay tenancy and agricultural lands (vidarbha region) act, 1958 - section 19, section 21, section 36 or section 38, section 36(2), section 20, section 46 – surrender of tenancy - resumption of land - entitlement to possession - agricultural field is owned by respondents/landlords no.1 to 4 and their father - after coming into effect of the act, 1958, landlords filed an application for resumption of land for personal cultivation, in view of the provisions of section 38 of the act, 1958 - during pendency of those proceedings, appellants/tenants executed a document thereby surrendering half of the suit land in favor of landlords - tahsildar declared said surrender as valid and voluntary - petitioners thereafter filed an application for possession of half of suit land which was.....oral judgment: (b.r. gavai, j. ) 1. being aggrieved by the judgment and order passed by the learned single judge of this court in writ petition no.1719/1992 thereby allowing the writ petition filed by the respondents no.1 to 4 herein, the appellants have approached this court. 2. the facts in brief giving rise to the present appeal are as under:- the suit field i.e. agricultural field survey no.26 area 30.34 acres is owned by the writ petitioners no.1 to 4 and their father balkisanji. one sitaram gole was tenant of the said field. after coming into effect of the bombay tenancy and agricultural lands (vidarbha region) act, 1958 ( hereinafter referred to as the “tenancy act), the writ petitioners/landlords filed an application for resumption of land for personal cultivation, being.....
Judgment:

Oral Judgment: (B.R. Gavai, J. )

1. Being aggrieved by the judgment and order passed by the learned Single Judge of this Court in Writ Petition No.1719/1992 thereby allowing the writ petition filed by the respondents No.1 to 4 herein, the appellants have approached this Court.

2. The facts in brief giving rise to the present appeal are as under:-

The suit field i.e. agricultural field Survey No.26 area 30.34 acres is owned by the writ petitioners no.1 to 4 and their father Balkisanji. One Sitaram Gole was tenant of the said field. After coming into effect of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 ( hereinafter referred to as the “Tenancy Act), the writ petitioners/landlords filed an application for resumption of land for personal cultivation, being Revenue Case No. 49/59(10-F)/61-62 in view of the provisions of Section 38 of the Tenancy Act on 24.03.1961. During the pendency of those proceedings, the tenants executed a document thereby surrendering half of the suit field in favour of landlords on 03.12.1970. On 29.04.1971 the tenants filed an application under Section 20 of the Tenancy Act for verification of surrender. The Naib Tahsildar after examining the tenants and the father of the writ petitioners, declared the surrender to be valid and voluntary. The said order is passed on 23.05.1972 in Revenue Case No.3/5914-AJ/70-71 of Wapti. On such surrender being accepted, the writ petitioners did not prosecute their application under Section 38 of the Tenancy Act for resumption of land and the same came to be disposed of. The writ petitioners thereafter filed an application on 16.02.1974 for possession of half of the suit land which was surrendered by tenants in their favour. The said case was registered as Revenue Case No. TNC-31/Kapti/7/73-74. However, the Tahsildar held that the tenants continued as tenants till possession was not handed over and as such held that the writ petitioners were not entitled to possession. The said order came to be challenged before the Sub Divisional Officer, Murtizapur. However, the appeal was also dismissed on 31.10.1988. The writ petitioners thereafter approached the learned Maharashtra Revenue Tribunal in revision and the learned Member of the Maharashtra Revenue Tribunal also dismissed the revision. Being aggrieved thereby, the writ petitioners have filed a writ petition being Writ Petition No.1719/2012. The learned Single Judge vide the judgment and order impugned herein, quashed and set aside the orders which were challenged before him and held that the petitioners are found entitled to possession of 15 acres, 34 gunthas of land i.e. eastern half portion of Survey No.26 of mouza Wapti and directed the respondents/tenants to deliver possession to the petitioners within a period of four months from the said date. Being aggrieved thereby, the present letters patent appeal.

3. Heard Mr. S.R. Deshpande, learned counsel for the appellants/tenants and Mr. A.M. Deshmukh, learned counsel for the respondents no.1 to 4/landlords.

4. Mr. Deshpande, learned counsel submits that in view of the provisions of Section 46 of the Tenancy Act, no application for termination of tenancy or possession of land on any ground after 1st April, 1961 was permissible by the landlord. The learned counsel further submits that in any case in view of provisions of Section 49-A of the Tenancy Act, the ownership of all land vested in favour of the tenant and an application on any count including surrender of tenancy was not permissible after 1st April, 1963. The learned counsel relying on the judgment of the Apex Court in the case of WamanDhulaji Rajput .vs. Umabai reported in 1970 Mh.L.J. 211 submits that no proceedings for termination of tenancy after 1.4.1963 are permissible in law. The learned counsel also relies on the judgment of Full Bench of this Court in the case of Ramchandraand others .vs. Janardan reported in 1962 N.L.J. 700. The learned counsel also relies on the judgments of the learned Single Judge in the case of Special Civil Application No. 1006/72 decided on 17.02.1976 in the case of Shamraovs. Ratilal and in the case of Special Civil Application No.886/71 decided on 12.01.1977 in the case of Vikram.vs. Hanumant, reported in 1977 Mh.L.J. (Notes of Cases).

5. The learned counsel relying on the judgment of the Full Bench of this Court in the case of Madhao.vs. Mah. Revenue Tribunal, Nagpur and others reported in 1970 Mh.L.J.991, submits that without an order of Tahsildar for possession under Section 20, the tenant does not cease to be tenant even though he has handed over the possession of the land. The learned counsel in this respect also relies on the judgment of the Division Bench of this Court in the case of JairamKrishnas Mali .vs. Digambar Gopinath Sutar reported in 2008(2) Mh.L.J. 523. The learned counsel submits that the learned Single Judge has grossly erred in upsetting the concurrent orders of the Tahsildar, Sub Divisional Officer and the Maharashtra Revenue Tribunal. The learned counsel, therefore, submits that the appeal deserves to be allowed by quashing and setting aside the order passed by the learned Single Judge and maintaining the orders passed by the lower authorities.

6. As against this, Mr. Deshmukh, learned counsel appearing on behalf of respondents no.1 to 4/landlords submits that the learned Single Judge has rightly allowed the petition. He submits that the surrender was executed during the pendency of the application which was filed by the respondents/landlords under Section 38 of the Tenancy Act for resumption of the lands. He submits that the application under Section 36(2) was only for taking over of the possession after the surrender was executed by the tenants and verified by the Tahsildar. He submits that the authorities below have erred in construing an application under sub-section (2) of Section 36 of the Tenancy Act to be a distinct proceeding. He, therefore, submits that the learned Single Judge has rightly allowed the petition and reversed the orders of the lower authorities.

7. With the assistance of the learned counsel appearing for the parties, we have scrutinised the entire record.

8. The facts in the present case are not much disputed. Undisputedly the landlords have filed an application for resumption of tenancy on the ground of bona fide personal cultivation on 24.03.1961 i.e. prior to 01.04.1961 and in any case much prior to 01.04.1963. Undisputedly surrender deed was executed by the appellants/tenants in respect of half of the suit land on 03.12.1970. Undisputedly an application came to be filed by the respondents/tenants for verification of surrender on 29.04.1971 and the Tahsildar had examined the tenants and found the surrender to be voluntary and valid vide order dated 23.05.1972. Undisputedly an application for possession of half portion of the suit land came to be filed by the respondents/landlords on 16.02.1974. The said application is rejected on 27.07.1987 by the learned Tahsildar , which order was upheld by the Sub Divisional Officer as well as the Maharashtra Revenue Tribunal. It could further be seen that the application for resumption of the lands was thereafter not pressed by the respondents/landlords and as such came to be disposed of. In this factual background, we have to consider the contentions as raised by the parties.

9. It will be necessary to refer to Section 46 and 49-A of the Tenancy Act.

“46. Transfer of ownership of land to tenants from specified date ---

(1) Notwithstanding anything in this Chapter or any law for the time being in force or any custom, usage, decree, contract or grant to the contrary, with effect on and from the first day of April, 1961, the ownership of all lands held by tenants which they are entitled to purchase from their landlords under any of the provisions of this Chapter shall stand transferred to and vest in, such tenants and from such date such tenants shall be deemed to be the full owners of such land:

Provided that if on such date any such tenant is of the following category, namely:-

(a) a minor,

(b) a widow,

(c) a serving member of the armed forces, or

(d) a person subject to any physical or mental disability, the ownership of the land shall stand transferred ---

(i) to the tenant on the expiry of one year from the date on which the tenant of category (a) attains majority, the tenant of category (c) ceases to serve on such force, the tenant of category (d) ceases to be subject to such disability; and

(ii) in the case of a widow to her successor-in-title on the expiry of one year from the date on which the widows interest in the land ceases to exist:

Provided further that where in respect of any such land, any proceeding under Sections 19, 20, 21, 36 or 38 is pending on the date specified in sub-section (1) the transfer of ownership of such land shall take effect on the date on which such proceeding is finally decided and the tenant retains possession of the land in accordance with the decision in such proceeding.”

“49-A. Ownership of certain lands to stand transferred to tenants on 1st day of April, 1963 -

(1) Notwithstanding anything contained in Section 41 or 46, or any custom, usage, decree, contract or grant to the contrary but subject to the provisions of this section, on and from the 1st day of April, 1963 the ownership of all land held by a tenant (being land which is not transferred to the tenant under Section 46 or which is not purchased by him under Section 41 or 50 shall stand transferred to and vest in such tenant who shall, from the date aforesaid, be deemed to be the full owner of such land, if such land is cultivated by him personally, and

(i) the landlord has not given notice of the termination of tenancy in accordance with the provisions of sub-section (1) of Section 38 or Section 39 or sub-section (2) of Section 49-A; or

(ii) the landlord has given such notice but has not made an application thereafter under Section 36 for possession as required by those sections; or

(iii) the landlord [being a landlord not belonging to any of the categories specified in sub-section (2) of Section 38] has not terminated the tenancy on any of the grounds specified in Section 19; or has so terminated the tenancy but has not applied to the Tahsildar on or before the 31st day of March, 1963 under Section 36 for possession of the land:

Provided that, where the landlord has made such application for possession then the tenant shall, on the date on which the application is finally decided be deemed to be the full owner of the land which he is entitled to retain in possession after such decision.”

10. The perusal of scheme of Section 46 (1) would reveal that with effect from the first day of April, 1961, the ownership of all lands held by tenants which they are entitled to purchase from their landlords under any of the provisions of the said Chapter shall stand transferred to and vest in, such tenants and from such date such tenants shall be deemed to be the full owners of said land. We would not be concerned with the first proviso to sub-section (1) of Section 46 insofar as present proceedings are concerned. However, second proviso clearly shows that where in respect of any such land, any proceeding under Sections 19, 20, 21,36 or 38 is pending on the date specified in sub-section (1), the transfer of ownership of such land shall take effect on the date on which such proceeding is finally decided and the tenant retains possession of the land in accordance with the decision in such proceeding.

11. Section 49-A applies to the lands which are not transferred to the tenant under Section 46 or which was not purchased by him under Section 41 or 50. It provides that from 1.4.1963 the ownership of all land held by a tenant shall stand transferred to and vest in such tenant, who shall, from the date aforesaid, will deemed to be the full owner of such land, if such land is cultivated by him personally. However, it shall not apply to the landlord who has given notice of the termination of tenancy in accordance with the provisions of sub-section (1) of Section 38 or Section 39 or sub-section (2) of Section 49-A, or to the landlord who has given such notice and also made an application under Section 36 for possession of the land or to the landlord who has terminated the tenancy on any of the grounds specified in Section 19 and who has applied to the Tahsildar on or before the 31st day of March, 1963 under Section 36 for possession of the land. The proviso thereto provides that where the landlord has made such application for possession, then the tenant shall be deemed to be the full owner of the land on the date on which the application is finally decided in respect of the land which he is entitled to retain in possession after such decision. It could thus be seen that the vesting of ownership in favour of a tenant in cases of any of the eventualities covered by (i), (ii) and (iii) of sub-section (1) of Section 49-A, gets postponed till decision on an application filed by the landlord.

12. It will also be relevant to refer to Section 20 of the Tenancy Act, which reads thus:-

“20. Termination of tenancy by surrender thereof:- A tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of the landlord.

Provided that, such surrender shall be in writing and shall be verified before the Tahsildar in the prescribed manner.

13. The perusal of Section 20 would reveal that a tenant is entitled to terminate the tenancy at any time by surrendering his interest as a tenant in favour of the landlord. However, it is required that such surrender has to be in writing and is required to be verified before the Tahsildar in the prescribed manner. It is thus clear that no cut-off date is given insofar as surrender of tenancy is concerned. Section 21 of the said Act deals with the land or portion thereof which landlord is not entitled to retain on surrender to be declared as surplus. However, the said provision would not be relevant in the facts of the present case.

14. The procedure for obtaining possession by the landlord is provided in sub-section 2 of Section 36 which reads thus:-

“36. Procedure of taking possession.----

(1)......

(2) [Save as otherwise provided in sub-section (3a), no landlord shall obtain possession of any land, dwelling house or site used for any allied pursuit held by a tenant except under an order of the Tahsildar. For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land, dwelling house or site, as the case may be, is deemed to have accrued to him.”

Perusal of sub-section (2) of Section 36 would reveal that for obtaining an order of possession, the application has to be made by the landlord within a period of two years from the date on which the right to obtain possession of the land, is deemed to have accrued to him.

15. In the present case, undisputedly the proceedings for resumption of lands under Section 38 were filed prior to 1.4.1961 and in any case prior to 1.4.1963. As such the vesting of ownership of the tenanted land in the tenant stood postponed till the decision of the application under Section 38. Undisputedly during the pendency of the proceedings under Section 38, a surrender deed was executed by the tenants on 03.12.1970 and the said surrender was verified and accepted by the Tahsildar on 23.05.1972. Undisputedly thereafter the application came to be filed by the landlord for possession of half of the suit land on 16.02.1974 i.e. within a period of two years from the date on which the Tahsildar declared the surrender to be valid and voluntary. As discussed hereinabove the application under sub-section (2) of Section 36 is required to be made by the landlord within a period of two years from the date on which the right to obtain possession of the land accrued to him. The right to apply for possession accrued to the landlord on 23.05.1972 on which date the Tahsildar passed an order holding the surrender to be valid and voluntary. The application is required to be filed within a period of two years thereafter, which undisputedly has been filed.

16. Insofar as the judgment of the Full Bench of this Court in the case of Ramchandraand others (supra) is concerned, in the said case the following issues were referred to the Full Bench by the Division Bench:-

“Whether the landlords application for possession under Section 29 read with section 14 was not tenable on the ground that the landlords, having once terminated the tenancy under Section 31 of the Act, were not entitled to terminate the tenancy again on any of the grounds mentioned in Section 14 of the Act; and Whether the landlords application under Section 29 read with Section 14 was not tenable on the ground that it was filed after the 31st of March 1957.”

17. It would be relevant to refer to para 8 of the said judgment:

“8. The question, which arises for determination now, is whether a landlord can make an application for possession on the grounds mentioned in section 14, while an application for possession made by him before April 1, 1957 is pending, or whether this right is impliedly taken away by section 32, under which the tenant shall be deemed to have purchased the land, if the first application is ultimately rejected. The application for possession referred to in the proviso to sub-section (1) of Section 32 is the application referred to in clauses (ii) and (iii) of this sub-section, that is, the application made before April 1, 1957. The right of purchase conferred on the tenant is postponed only till the date on which such application is finally rejected. There is no similar provision in regard to applications made after April 1, 1957. It is, therefore, obvious that the postponed date cannot be further postponed. If, therefore, the application made by the landlord under Section 29 read with Section 14 after April 1, 1957, is not disposed of before the earlier application for possession made prior to April 1, 1957, is decided, it will become infructuous, for after the tenant has become the owner on the postponed date, the relationship of landlord and tenant will cease and no application for possession by the landlord can be entertained thereafter. If, however, the application made by the landlord after April 1, 1957, is decided before the previous application made prior to April 1, 1957, is disposed of, it might, if this application is decided in favour of the landlord, affect the right conferred on the tenant to become the purchaser of the land on the date on which the first application is rejected. The question to be considered, therefore, is whether such an application can be entertained. It has been contended that as there is no provision in the Act that an application on the grounds mentioned in section 14 cannot be made after April 1, 1957, such an application is maintainable, for since the Legislature has preserved the right to make such an application, it could not have intended that it should not be availed of in any case. There is undoubtedly force in this argument, but it seems to us that the intention of the Legislature in enacting section 32 clearly was to transfer the ownership of the lands to the tenants on April 1, 1957, except in cases where applications for possession had been made by the landlords before April 1, 1957. Where such an application had been made, the right of purchase given to the tenant is postponed until that application is rejected. It is clear from this section that the Legislature did not intend that the right given to a tenant by this section should be destroyed or affected by any application made after April 1, 1957. If an application for possession made under section 29 read with section 14 after April 1, 1957, is decided in favour of the landlord before the application made by him prior to April 1, 1957, is disposed of, it will affect the right of the tenant to become the owner of the land on the postponed date. It seems to us that this was not intended by the Legislature. The fact that the Legislature has provided that only an application made prior to April 1, 1957, should affect the right of the tenant to become the purchaser of the land on April 1, 1957, clearly indicates that the Legislature contemplated that no such application should be made after April 1, 1957.”

The question, therefore, which arose before the Full Bench was as to whether landlord can make an application for possession on the grounds mentioned in Section 14, while an application for possession made by him before 1.4.1957 is pending or as to whether this right was impliedly taken away by Section 32 under which the tenant shall be deemed to have purchased the land if the first application is ultimately rejected. The Full Bench has observed thus in para 9:-

“9. In our opinion, therefore, where the landlord does not belong to one of the categories specified in sub-section (3) of Section 31 or is not a certificated landlord, he cannot make an application under section 29 read with section 14 after April 1, 1957. This view is not in accordance with that taken in Janardan Damodar Dindore v. Rupchand Revchand Gujar(1). The question does not then appear to have been fully argued. If full arguments had been advanced in that case, it is quite likely that a different view would have been taken.”

However, it could clearly be seen that in the said case the issue of surrender of tenancy as permissible under Section 20 did not arise. In the present case it is not as if that the landlords have filed any further application on any other ground after 1.4.1961 or 1.4.1963 except the ground on which an application under Section 38 for resumption of land was already filed on 24.03.1961 On the contrary, during the pendency of the earlier application, the tenants have surrendered the tenancy which has been accepted to be valid and voluntary by the Tahsildar. As already discussed hereinabove, the issue of vesting of ownership in the tenants got postponed till the application which was filed by the landlords prior to 1.4.1961 was finally decided. However, during the pendency of the said application itself, half of the suit lands have been surrendered by the tenants which surrender has been accepted to be valid and voluntary by the Tahsildar. The requirements for treating a surrender of tenancy to be valid and effective have been laid down by the Apex Court in the case of RamchandraKeshav Adke .vs. Govind Joti Chavare reported in AIR 1975 Supreme Court 915:

“12. It will be seen from a combined reading of these provisions that a surrender of tenancy by a tenant in order to be valid and effective must fulfil these requirements:- (1) It must be in writing. (2) It must be verified before the Mamlatdar. (3) While making such verification the Mamlatdar must satisfy himself in regard to two things, namely, (a) that the tenant understands the nature and consequences of the surrender, and (b) that it is voluntary. (4) The Mamlatdar must endorse his findings as to such satisfaction upon the document of surrender.”

Undisputedly while passing an order on 23.05.1972 by the Tahsildar, all the aforesaid requirements have been complied with. 18. Insofar as the judgment in the case of Madhav.vs. M.R.T. (supra) is concerned, the question that arose for consideration before the Full Bench, was as to whether in spite of surrender being held valid and in spite of an order under Section 20 being obtained holding the surrender valid, can the landlord get possession of the field without obtaining an order under Section 36 (2) of the new Tenancy Act. It would be relevant to refer to para 18 of the judgment of the Full Bench:-

“18. The provisions of section 20 read with the provisions of section 36(1) and (2) therefore show that although the tenancy of a tenant may be terminated by a valid surrender by the tenant surrendering his interest as a tenant in favour of the landlord, and although the surrender may be verified as required by the proviso to section 20 by the Tahsildar and possession may be with the landlord, still the person who was in enjoyment of the land continues as a tenant until an order for possession is made in favour of the landlord. Although possession may have been given pursuant to a surrender by a tenant, the Act still regards the delivery of possession and the surrender as the acts of a tenant, though there may be a considerable time-lag between the execution of the surrender deed and the delivery of possession. The tenant, despite the time-lag, surrenders possession as a tenant, and therefore the provisions of sub-section (2) would apply. The landlord must therefore obtain an order for possession in his favour even though a valid and verified surrender may have been made in his favour and he may be in possession thereof.”

It has been held that the landlord must obtain an order for possession in his favour even though a valid and verified surrender may have been made in his favour and he may be in possession thereof. After discussing the various decisions rendered earlier, the Full Bench has answered the reference as under:-

“28. Thus, a consideration of the provisions of section 20 and section 36(1) and (2) and of the several authorities to which we have referred above leads to the following conclusions:-

(I) That section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, is plenary and controls section 20. Thus, without an order of possession of the Tahsildar, a tenant does not cease to be a tenant even though he has handed over possession of the land he held as a tenant and even though the surrender is verified under the proviso to section 20 read with rule 11.

(II) That the consent or willingness of the tenant to surrender is irrelevant and does not affect the operation of the above rule.

(III) That an order for possession need not necessarily be passed upon a separate application under Section 36. It is sufficient if such an order is passed at the time when the surrender comes up for verification under section 20.”

It could thus be clearly seen that what has been held by the Full Bench is that even after a surrender of tenancy is verified by the Tahsildar, an order of possession is required to be passed under Section 36. The perusal of sub-section (2) of Section 36 would show that such an application is to be filed within a period of two years from the date on which the right accrues. In the present case, the right to possession accrued to the landlords on 23.05.1972 when the Tahsildar examined the tenants and held the surrender to be valid and voluntary. The application under Section 36(2) is undisputedly filed on 16.02.1974 i.e. within the period of two years from the date on which the right accrued in favour of the landlords.

19. Insofar as the judgment of the Division Bench of this Court in the case of JairamKrishnas Mali (supra) is concerned, in the said case the issue before the Court was as to whether the tenant ceased to be a tenant in the absence of any order of Tahsildar under Section 36(2) for possession. In the said case, the application for possession under sub-section (2) of Section 36 was filed much after of the prescribed period of two years. As such the said judgment would not be applicable to the facts of the present case.

20. Insofar as the judgments delivered by the learned Single Judge of this Court in the case of Special Civil Application No. 1006/72 and in the case of Special Civil Application No.886/71 are concerned, in the said cases it could be seen that the applications for terminating the tenancy were itself filed after the prescribed date. In any case, the issue regarding voluntary surrender did not arise for consideration in the said cases. As such the said judgments would also not be applicable to the facts of the present case.

21. In the conclusion, we hold that in view of Section 46 if the landlord makes an application under Sections 19, 20,21,36 or 38 prior to 1.4.1961, the transfer of ownership of such land in the tenant shall stand postponed till the proceeding is finally decided. In view of Section 49-A, no application for termination of tenancy would be permissible on any ground, other than the one for which application is pending from 1.4.1963 and if no such application for termination of tenancy is pending on the said date, ownership of the land shall vest in the tenant. However, if such an application is pending, the vesting of ownership shall stand postponed till the date on which the application is finally decided. The conjoint reading of Sections 46 and 49-A would reveal that what is prohibited is another subsequent application on any other ground, other than the one for which the application for termination of tenancy is already pending prior to 1.4.1961. In the present case, undisputedly prior to 1.4.1961 an application was already filed by the landlord under the provisions of Section 38 of the said Act. As such the vesting of the ownership stood postponed and the land did not vest in the tenant. Since the land did not vest in the tenant, it was permissible for the tenant to surrender part of the tenancy. On surrender being verified by the Tahsildar and upon holding it to be valid and voluntary, a right accrued in the landlord to apply for possession of the land within a period of two years from the date on which such right is accrued. Undisputedly an application for possession under sub-section (2) of Section 36 has been filed within a period of two years as aforesaid. We find that the Tahsildar, Sub Divisional Officer and the Maharashtra Revenue Tribunal misconstrued an application for possession under sub-section (2) of Section 36 to be another application for termination of tenancy on the ground except the one for which an application was already pending on 1.4.1961. However, factually that is not the position. During the pendency of the application, the tenant has surrendered half of the tenancy. The said surrender has been verified and found to be valid and voluntary by the Tahsildar and as such right accrued in the landlord to apply for possession of the land within two years from the date on which such a right accrued.

22. In that view of the matter, we find that the learned Single Judge has rightly allowed the petition and set aside the orders passed by the lower authorities. The appeal is, therefore, without merit and as such dismissed.

23. Since the proceedings are pending for a period of more than 40 years, the Tahsildar, Karanja, district Washim is directed to ensure that the possession of the land which is surrendered by the appellants/tenants is handed over to the respondents/landlords within a period of eight weeks from today.


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