1. This is a petition under Article 226 of the Constitution directed against an order of the Board of Revenue, dated 3rd September, 1969, declaring that the non-petitioner No. 1 held the suit land as a sub-tenant on 2nd October, 1951 and was, therefore, eligible to be declared as a pucca tenant under Section 38 of the Madhya Bharat Zamindari Abolition Act, 1951.
2. Placing reliance on the majority view in Ayyubkhan v. Fundilal, 3967 Rev. Nirnaya 516 (FB) Shri R. K. Dixit, learned counsel for the petitioner contends that the Revenue Courts had no jurisdiction to decide any question relating to the rights or title of the parties to the land as under Section 38 of the Madhya Bharat Zamindari Abolition Act, 1951, they were only concerned in accepting the deposits of the amounts and, therefore, the findings reached by them are of no legal consequence. He further contends that the jurisdiction of the Civil Court to adjudicate upon title to the land is not barred and, therefore, the matter would be at large to be decided in the suit which the claimant must file for the establishment of his rights. Lastly, he contends that in view of the majority decision, the non-petitioner No. 1 being the claimant must bring a suit under Section 42 of the Specific Relief Act for a declaration of his rights, if any, with a view to a conferral of pucca tenancy rights under Section 38 of the Act.
3. Having heard the parties, we have formed the opinion that these contentions cannot be accepted. The contentions of the learned counsel proceed on the following passage in the judgment of Newaskar, J.:--
'The relationship between the tenant of a Zamindar and his sub-tenant or that between a sub-tenant and his tenant can be determined incidentally in a proceeding under Qanoon Mal either for possession or for ejectment within a specified period. But no provision has been brought to our notice whereby the disputed status of either a subtenant or a tenant of a sub-tenant can be declared as in a case under Section 42 of the Specific Relief Act, so as to bind the parties. For securing that kind of relief therefore it is the Civil Court which has to be approached. Another dispute which can be conceived is where the sub-tenant or the tenant of a sub-tenant was in actual possession of the land on the date of vesting. If the determination of this dispute is needed for deciding the right of a person to make the deposit then the relief as to who was in possession on such a date can also be determined by the Civil Court.'
4. The Full Bench, according to the Opinion recorded by the majority, accordingly held that the acquisition of the status of a pucca tenant by a tenant or a subtenant of a tenant under Section 38 of the M. B. Zamindari Abolition Act, 1951, is automatic on the fulfilment by the tenant 01 a sub-tenant of a tenant, as the case may be, of the conditions as to deposit in the manner and to the extent provided in Section 38. That was a decision in proceedings under Section 38 of the M. B. Zamindari Abolition Act simpliciter. That is not the case here. In the present case, the application made by the non-petitioner No. 1 was a composite application under Section 38 of the Madhya Bharat Zamindari Abolition Act, 1951, read with Section 86 of the M. B. Land Revenue and Tenancy Act, 1950. In the application, the non-petitioner No. 1 not only contended that he was entitled to have the conferral of a pucca tenancy rights but also prayed For mutation of his name as a pucca tenant in respect of the land. That being so, the revenue authorities were certainly competent to enquire whether by depositing money under Section 38, he had acquired the rights of a pucca tenant or not. The enquiry, of course, was not under Section 38 of the former Act but under Section 86 of the latter Act. In deciding the question of mutation they had to bear in mind the provisions of Section 38 of the former Act and then had to see whether under Section 38, the non-petitioner No. 1 who is deemed to have become a pucca tenant had or had not acquired the rights of a pucca tenant. The present case directly falls within the dictum of Krishnan, J., in Sujan Singh v. Dwarka-prasad, 1959 Rev. Nirnaya 268.
5. In the result, the petition fails and is dismissed with costs. Counsel's fee Rs. 50/-, if certified.