(1) Facts in brief are: One Ganpat, the predecessor-in-title of the petitioners before us was a tenant of S. Nos. 61/80, 81, 95/2, and 95/3 situated in Mouja Parsodi, Taluka Arvi, District Wardha. The landlord of these fields at the material time was the first opponent Shankerlal. Shankerlal gave a notice of date 16-11-19598 to Ganpat under Section 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, as it then stood for termination of his tenancy. He also instituted proceedings under sub-section (2) of Section 36 of the said Act for obtaining possession of the fields from Ganpat. While the proceedings were pending, the Act was amended and certain amendments were effected in Section 38. On 7th February 1961, Shankerlal gave another notice under Section 38 determining the tenancy of Ganpat, and he also filed another application under sub-section (2) of Section 36 of obtaining possession of the fields from Ganpat. This application was filed before 31st March 1961. The Nayab Tehsildar allowed the applications of Shankerlal, against which Ganpat preferred an appeal before the Sub-Division Officer allowed the appeal and remanded the case for a fresh decision by the Nayab Tehsildar. By his order dated 20th September 1962, the Nayab Tahsildar rejected the applications of Shankerlal, preferred an appeal before the Sub-Divisional Officer. Now during the pendency of the appeal before the Sub-Divisional Officer, Shankerlal had also instituted a Civil Suit against Ganpat, being Civil Suit No. 24 of 1963 in the Civil Court for recovery of arrears of rent for the years 1959-60, 1960-61 and 1961-62. ON 11th April 1963, Ganpat paid all the arrears of rent. Placing reliance on this fact of institution of the suit and payment of arrears, Ganpat had in support of the order in his favour, contended that the effect of the institution of the suit was that the earlier notices of dates 16-11-1959 and 7-2-1961 given by Shankerlal under Section 38 terminating the tenancy of Ganpat, stood waived, and therefore the applications for possession must be dismissed. The Sub-Divisional Officer allowed the appeal and made an order that Shankerlal be put in possession. Against this order of the sub-Divisional Officer Ganpat filed revisional application before the Revenue Tribunal, and before the Tribunal also Ganpat had raised the aforesaid contention of waiver. Before the tribunal, reliance had been placed on behalf of the applicant-tenant on a decision of the Division Bench of this Court in Bapurao v. Waman : AIR1963Bom179 . The Tribunal, however, following the ratio of the Full Bench of this Court in Ramchandra v. Janardanm, : AIR1963Bom79 (FB), and Division Bench decision of this Court in Keshav v. Laxmanapppa, Spl. Civil Appln. No. 289 of 1962 D/-19-6-1963 (Bom), dismissed the revision application. Ganpat then filed a writ application under Article 226 of the Constitution, challenging the aforesaid order of he revenue tribunal. The learned single Judge, noticing the differing view taken by two Division Benches of this Court in : AIR1963Bom179 and Spl. Civil Appln. NO. 289 of 1962 D/-19-6-1963 (Bom), referred the case to a Division Bench, and the Division Bench has referred this case to us.
(2) The question thus that arises for consideration is whether the institution of the civil suit by Shankerlal against Ganpat for recovery of arrears of rent for the years 1959-60, 1960-61 and 1961-62, and the payment of all arrears by Ganpat on 11th April 1963, has resulted in waiver of notices of dated 16-11-1959 and 7-2-1961 given by Shankerlal to Ganpat under Section 38 of the Act determining the tenancy of Ganpat? Subsequent to the aforesaid order of reference, there has been a recent decision of the Supreme Court in Venkatesh v. Hajisaheb, : 2SCR215 . There, their Lordships were considering the position under the Bombay Tenancy and Agricultural Lands Act. The material provisions of the present Act are similar to those of the Bombay Act. Facts in that case were that on account of default in payment of rent for the years 1951-52, 1952-53 and 1954-55 by the tenant, the landholder served three months' notice under Section 41(1)(b) of the Tenancy Act on 8-12-56 terminating his tenancy and applied for possession on 24-6-1957 under Section 29(2) read with Section 14(1) of the Tenancy Act. The application for possession was resisted on the ground that it was barred by limitation as it was not filed within two years after 20-5-1955, the date on which the last default took place. The decision turned on the true construction of the clause 'within the period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be, is deemed to have accrued to him'. In considering the arguments advanced before them, their Lordships stated the true position in para 6 of the report in following words:-
'In spite of the termination of the tenancy, the landlord has no right to obtain possession of the land without an order of the Mamlatdar under Section 29(2), Between the date of the termination of the tenancy and the date of the order for possession under Section 29(2) the order the tenant continues to be in lawful possession of the land and is liable to pay rent and not mesne profits . . . . Thus, on the termination of the tenancy, the right to obtain possession of the land, though in reality not accrued to the landlord, is, by a legal fiction deemed to have accrued to him so that he may immediately apply under Section 29(2) for an order for possession'.
It is thus clear that in a case of a protected tenancy though the notice for termination of the tenancy has been given by a landlord to a tenant, still, the tenant continues to pay rent till an order of delivery of possession is made by the appropriate revenue authority. That being the position, the act of institution of a suit by a landholder for recovery of rent from the tenant for a period prior to the date of the order of delivery of possession made by an appropriate revenue authority cannot be taken to be an act on the part of the landholder showing an intention to treat the tenancy as a subsisting tenancy. In view of he decision of their Lordships of the Supreme Court, learned counsel for the petitioners has conceded, and in our opinion rightly, that the answer to the question which we have to consider has to be against the tenants. We may also state that the ratio of the Full Bench decision of this Court in : AIR1963Bom79 (FB), is also to the same effect. This decision of the Lordships in the aforesaid case. The decision of this Court in : AIR1963Bom179 , does not sate the law correctly on this aspect of the case. We affirm the decision in Spl. Civil Appln. No. 289 of 1962 D/19-6-1963 (Bom).
(3) In the result, we answer the question in the negative. Costs costs in the cause. The case will now go back before the appropriate Bench for disposal on merits.
(4) Reference answered.