1. This petition raises a neat question of law arising out of an order of the Bombay Revenue Tribunal. The petitioner before us is the landlord and it appears that in 1951 he applied for possession of the land from the tenant, who is respondent No. 1, on the ground of default in payment of rent for three years 1948-49 to 1950-51. At that time the view prevalent in the Tenancy Courts was-that a notice to terminate the tenancy was necessary in such cases and acting on that view the Mamlatdar dismissed the application of the landlord for failure to give such notice. The landlord appealed against that dismissal, but he withdrew the appeal. Thereafter he gave a notice to the tenant terminating the tenancy on August 16, 1951, and again applied to the Mamlatdar for possession on the ground of default in payment of rent for the same three years as on the prior occasion. One of the contentions raised on behalf of the tenant was that the second petition was barred by the principle of res judicata and the Tribunal held that it was so barred. It is against this order of the Tribunal that this petition has been filed; and the question for determination is whether the Tribunal erred in law in holding that the matter was res judicata.
2. Now, it is admitted that the former petition was dismissed on the sole ground that notice terminating the tenancy had not been given. The new petition is presented after such notice was given, in other words the defect from which the former petition suffered no longer is applicable to the new petition at all, and under the circumstances it is clear that if Section 11 of the Civil Procedure Code or principle analogous thereto applied, there could be no question of res-judicata, because what was actually determined in the former proceedings was that there could be no order of possession without notice of termination of tenancy-and nobody is asking for an order of possession in the new proceedings without notice of termination of tenancy.
3. But Mr. Kotwal has argued that under the Tenancy Act the position with regard to res judicata is slightly different from the position under the Civil Procedure Code. He has drawn our attention to Section 72 of the Bombay Tenancy and Agricultural Lands Act, 1948, which is in the following terms:
In all inquiries and proceedings commenced on the presentation of applications under Section 71 the Mamlatdar or the Tribunal shall exercise the same powers as the Mamlatdar's Court under the Mamlatdars' Courts Act, 1906, and shall, save as provided in Section 29, follow the provisions of the said Act, as if the Mamlatdar or the Tribunal were a Mamlatdar's Court under the said Act and the application presented was a plaint presented under Section 7 of the said Act....
Now, the effect of this section undoubtedly is that any application made under the Bombay Tenancy and Agricultural Lands Act shall be deemed to be a plaint presented under Section 7 of the Mamlatdars' Courts Act and in relation to such a plaint the Mamlatdar shall exercise the same powers as he would have exercised if the provisions of the Mamlatdars' Courts Act applied. Then, Mr. Kotwal draws our attention to Section 26(6) of the Mamlatdars' Courts Act, which is in these terms:
No suit shall lie under this Act-....(b) in respect of any removal of any impediment or of any dispossession, recovery of possession or disturbance of possession, that has been the subject of previous proceedings, to which the plaintiff or his predecessors in interest was a party, under this Act, or in a Civil Court, or under Chapter XII of the Code of Criminal Procedure, 1898.
4. Now, in so far as the landlord applied for recovery of possession, his application was to be treated as a plaint filed under the Mamlatdars' Courts Act by virtue of Section 72 of the Bombay Tenancy and Agricultural Lands Act; and to this plaint the provisions of Section 26(6) have undoubtedly to be applied. It remains to be considered whether by applying those provisions the second application is barred.
5. Now, the ingredients laid down by Section 26(6) for a bar of suits are inter alia three (1) that there should have been a suit in respect of recovery of possession, (2) that the plaintiff or his predecessors in interest should have been parties to such a suit or proceeding and (3) that such previous proceedings were under this Act or in a civil Court or under Chapter XII of the Code of Criminal Procedure. Now, no doubt, in respect of recovery of possession for which the second petition was presented there was a previous petition. No doubt the previous petition was between the same parties. The only question is whether the previous petition falls within the words 'under this Act'. What Mr. Kotwal urges is that the true effect of Section 72 of the Bombay Tenancy and Agricultural Lands Act is to incorporate into that Act bodily Section 26, and if he is right in that submission, then obviously the words 'under this Act' would in the context of the Tenancy Act mean 'under the Tenancy Act'; but in our opinion that is not the true effect of Section 72. Section 72 merely provides, as we have pointed out earlier, that a petition presented under the Tenancy Act shall be deemed to be a plaint under the Mamlatdars' Courts Act and the provisions of the Mamlatdars' Courts Act shall apply to such a plaint. That is a far different thing from saying that the provisions of the Mamlatdars' Courts Act shall be bodily incorporated into the Bombay Tenancy and Agricultural Lands Act. Therefore, the words 'under this Act' in Section 26(6) of the Mamlatdars' Courts Act, 1906, can only mean 'under the Mamlatdars' Courts Act, 1906', and obviously the first petition, which was presented for recovery of possession by the landlord was not a petition under the Mamlatdars' Courts Act. But then Mr. Kotwal urges that Section 72 of the Bombay Tenancy and Agricultural Lands Act applied to the first petition as well and, therefore, the first petition must also be treated as a plaint under the Mamlatdars' Courts Act. That, no doubt, is true; but treating it as a plaint under the Mamlatdars' Courts Act is not the same thing as saying that it is a plaint under the Mamlatdars' Courts Act. In other words, what is a petition under the Tenancy Act is by law deemed to be a plaint under the Mamlatdars' Courts Act by reason of Section 72, and Section 26(6) does not provide that the former proceeding should have been or should be deemed to have been under the Mamlatdars' Courts Act. It only provides that the former proceeding should have been under the Mamlatdars' Courts Act and, therefore, a proceeding, which is deemed to be a proceeding under that Act, cannot, in our opinion, fall within the words 'under this Act'. There is, therefore, in our opinion, no question of res judicata in this case and the Tribunal, with respect, came to a wrong conclusion in deciding that the petition was barred by the principle of res judicata.
6. Now, so far as the defaults committed by the tenant are concerned, there are concurrent findings of fact; but since the Tribunal took the view that the claim was barred by res judicata, it had no opportunity to consider whether in the facts and circumstances of the case the tenant should be relieved against forfeiture. Therefore, we set aside the order of the Tribunal and remand the matter back to the Tribunal1 to determine whether on the facts and circum-stances of the case relief against forfeiture should be granted to the tenant and dispose of the matter accordingly. No order as to costs. Order accordingly.