H.K. Chainani, C.J.
1. The petitioner had made an application for obtaining possession of the land S. No. 380/1 held by opponent No. 1, hereinafter referred to as the opponent, under Section 29 read with Section 31 of the Tenancy Act. In that application an order for possession of half of the land was finally made by the Deputy Collector on October 26, 1962. Before then, on March 30, 1962, the petitioner had also made an application for obtaining possession of the land under Section 33B of the Act. In this application the Tenancy Aval Karkun made an order on August 21, 1962, that possession of the whole land should be given to the petitioner. Against this order the opponent appealed to the Deputy Collector. The Deputy Collector held that as an order for possession of half of the land had been made in favour of the petitioner under Section 29 read with Section 31 of the Act, the application made by the petitioner under Section 33B of the Act was not tenable. He, therefore, allowed the appeal and set aside the order of the Tenancy Aval Karkun directing that possession of the whole land should be handed over to the petitioner. The petitioner then applied in revision to the Revenue Tribunal. The Revenue Tribunal took the view that as the petitioner had already resumed half of the land, she could not obtain possession of any more land under Section 33B(5)(a) of the Act. That view is being challenged before us in this application.
2. Sub-section (1) of Section 33B provides that notwithstanding- anything contained in Section 31, 31A or 31B a certificated landlord may, after giving notice and after making an application for possession as provided in Sub-section (3), terminate the tenancy of an excluded tenant, if the landlord bona fide requires such land for cultivating it personally. This sub-section, therefore, removes the bar on the right of a certificated landlord to terminate the tenancy, if he requires the land bona fide for personal cultivation. It also lays down the mode in which the tenancy can be terminated. Two things are necessary before a tenancy can be terminated under this Sub-section: (1) a notice must be given to the tenant, and (2) an application for possession must be made as provided in Sub-section (5). Sub-section (2) states that a notice may be given and an application made by a certificated landlord under Sub-section (5), notwithstanding that in respect of the same tenancy an application of the landlord made in accordance with Sub-section (2) of Section 31 is pending before the Mamlatdar or in appeal before the Collector or in revision before the Maharashtra Revenue Tribunal. An application under Section 33B may, therefore, be made during the pendency of an application under Section 31. The application made by the petitioner under Section 33B was, therefore, maintainable, even though the application made by her under Section 31 was then pending in appeal before the Deputy Collector.
3. Sub-section (5)(a) states that the right of a certificated landlord to terminate a tenancy shall be subject to the condition that if any land is left over from a tenancy in respect of which other land has already been resumed by the landlord for cultivating it personally under Section 31, the tenancy in respect of any land so left over shall not be liable to be terminated under Sub-section (1). This sub-section, therefore, imposes a limitation on the right conferred by Sub-section (1) and that is that if the landlord has already resumed some land covered by the same tenancy, he will not be entitled to terminate the tenancy in respect of the remaining land. The termination of the tenancy under Sub-section (1) however requires the making of an application for possession as provided in Sub-section (3). Consequently Sub-section (5)(a) can only apply if the other land is resumed before the application is made under this section. It will have no application if, as in the present case, the order under Section 31 is made after the application under Section 33B was filed. It will, of course, be desirable to hear both the applications together if the application under Section 33B is made during the pendency of the application under Section 31. But since under Sub-section (2) the application under Section 33B can be made even when the application under Section 31 is pending in revision before the Revenue Tribunal, the fact that an order under Section 31 has been made subsequently will not deprive the landlord of his right to have his application under Section 33B disposed of in accordance with the provisions of the Act. In any case, Sub-section (5)(a) will not come in his way.
4. Our attention has been invited to the judgment of the Full Bench of the Revenue Tribunal in Tenancy Application No. 708 of 1962 and other connected applications, dated July 9, 1963, in which a contrary view has been taken. In para. 9 of the judgment the Revenue Tribunal has observed:-
The word 'already' has reference to the commencing words of Clause (5) which relates to the right of a landlord. That right is to terminate a tenancy. The right is not acquired by a landlord until a competent authority terminates the tenancy and directs the delivery of possession under this section i.e. in the proceedings under Section 33B. The said right is not merely the giving of notice or the institution of an application.
The observation of the Revenue Tribunal that the commencing words of Sub-section (5) relate to the right of a landlord to terminate a tenancy is correct. But the right in regard to which this sub-section imposes a condition is the right of the landlord to terminate a tenancy under Sub-section (1). This is clear from the last words in Clause (a), 'shall not be liable to be terminated under Sub-section (1)'. Under Sub-section (1) one of the things necessary for terminating a tenancy is the making of an application as provided in Sub-section (3). Sub-section (5)(a) can, therefore, only operate when the application under Section 31 has been disposed of before the application has been made under Section 33B. In other words, the bar imposed by this sub-section is to the making of an application under this section.
5. In the present case the application made by the petitioner under Section 29 read with Section 31 was pending when the petitioner terminated the tenancy of the opponent and made the application as provided by Sub-section (3) of Section 33B. No final order for possession had been made in that application. Consequently Clause (a) of Sub-section (5) of Section 33B has no application in the present case. The view taken by the Revenue Tribunal is consequently not correct.
6. We set aside the orders made by the Revenue Tribunal and by the Deputy Collector and restore the order made by the Tenancy Aval Karkun on August 21, 1962, by which he directed that possession of the entire land should be handed over to the petitioner. The petitioner should get her costs from opponent No. 1.