N.H. Bhatt, J.
1. This is a petition by the original tenant seeking the fixation of the purchase price under the provisions of Section 32-G of the Bombay Tenancy & Agricultural Lands Act, 1948. He had filed proceedings before the Agricultural Lands Tribunal of Mmdvi, District Surat seeking the fixation of the purchase price. The Tribunal by its order dated 5-10-74 proceeded to fix the purchase price as per the order Annexure-A to the petition. In the landlord's appeal No. 27/72 before the Assistant Collector of Choryasi Taluka, Surat, the order of the Agricultural Lands Tribunal came to be set aside as per the order Annexure-B and the Gujarat Revenue Tribunal confirmed the order of the Assistant Collector as per its judgment Annexure-C. The original tenant is, therefore, before this High Court challenging the said order of the Assistant Collector confirmed by the Revenue Tribunal.
2. The short ground on which the Assistant Collector and the Revenue Tribunal negatived the request of the petitioner is that on the earlier occasion a similar request made by the tenant had come to be turned down by the competent authority, namely, the Agricultural Lands Tribunal and the question was concluded for ever under the principles analogous to those of res-judicata. It is this decision that is seriously challenged by the petitioner-tenant by filing the present petition. The earlier order that made the concerned authorities pass the orders Annexures B and C is to be found at Annexure-D. Firstly in the year 1962 the proceedings, obviously suo-motu, seem to have been initiated and the then Agricultural Lands Tribunal by its order dated 27-4-62 held that as the landlord was suffering from physical disability the sale stood postponed. The tenant had again revived his request in the year 1972 and the Tribunal again passed the order on 27-7-1971 after hearing both the parties-it is so assumed because they are noted to have been present-that the sale was postponed and consequently no price could be fixed.
3. Mr. Zaveri, the learned Advocate for the petitioner reiterate that the tenant's grievance that was essential was not the physical disability of the landlord at any time, but the pointed question that should have been raised and answered by the authorities on the earlier occasions was whether such a disability was there on the tiller's day, Tamely, 1-4-57. Mr. Zaveri has taken me through the two earlier orders at Annexure-D and showed that on neither of the occasions the concerned A.L.T. had addressed itself to this pointed question, which was the moot question for the purpose of decision. He, therefore, urged that both the authorities below, namely, the Assistant Collector and the Revenue Tribunal had committed a gross error of law in invoking the principles of res-judicata, or principles analogous to these of res-judicata which admittedly apply though statutorily not applicable.
4. In support of his submission Mr. Zaveri has cited before me the judgment of the Bombay High Court in the case of Bhau Martand Shelar v. Hajabai Bala Nadafll B.L.R. 141. The facts of the case under report are very peculiar and though not identical bear some; close parallel to the facts on hand, la that case the price fixation proceedings under Section 32-G had been initiated on the earlier occasion but under the erroneous interpretation of Section 32F(1)(b), the Agricultural Lands Tribunal, the appellate authority and the Revenue Tribunal held that the sale stood postponed. It was then the view of the Revenue Tribunal that if the tjnant on 1-4-57 was a widow, she could not get the statutory sale in her favour. Thereafter the view was declared to be erroneous. The widow-tenant, therefore, applied again and the matter came to be accepted by the Maharashtra Revenue Tribunal, not entertaining the bar of res-judicata. The landlord had then carried the matter to the Bombay High Court by filing a Special Civil Application under Article 227 of the Constitution. The very question of the bar of res-judicata was invoked the High Court negatived the same on the ground that there was no decision as a matter of fact given and on the earlier occasion the Tribunal had refused to exercise jurisdiction over the subject matter on the misconception of law and, therefore, the said order could not operate as a res-judicata.
5. On the principles, Mr. Zaveri urged before me that on the earlier occasion the Agricultural Lands Tribunal had refused to exercise the jurisdiction and the said refusal emanated from the misconception on the part of the Tribunal that the physical disability at the time of the inquiry was the sole factor to be considered. The argument though attractive at first sight is too difficult to be accepted for the simple reason that it proceeds on the assumption that the Tribunal had refused to exercise its jurisdiction on the assumption that what was the necessary to be decided was the existence or otherwise of the physical disability at the time of the inquiry. There is nothing in the second order Annexure-D to show that the Tribunal had proceeded on that assumption. Mr. Zaveri no doubt i right when he submitted that equally there was nothing to show that the Tribunal had addressed itself to the questions about landlord's physical disability on 1-4-57. However, when the question arises before the Tribunal in respect of proceedings under Section 32-G, it is reasonable to infer that the Tribunal is conscious of the requirement of the provisions of Section 32F(1)(b). The said section very clearly mentions that where the landlord is a person subject to any mental or physical disability, the tenant's right to purchase such land under Section 32 would arise within one year from the expiry of the period during which the landlord was entitled to terminate the tenancy under Section 32(1). In other words, the statutory sale under Section 32 in the case of a landlord who is physically handicapped stands statutorily postponed, and as the statutory sale ordinarily takes effect from 1-4-57 which is a patent fact it must be assumed that when the Tribunal proceeded to drop the proceedings it did so on the necessarily implied finding that the landlord was handicapped on the Tiller's day. In this view of the matter, it cannot be said that the Tribunal had proceeded on the gross misconception of law, as was evident and unchallengable in the Bombay Case. Ordinarily, it is to be assumed that legal factual position was all patent to the parties when the second order came to be passed in the year 1971, and that both the tenants and the landlord on one hand and the Tribunal on the other were conscious about the physical disability of the landlord on the tiller's day. Out of the two possible presumptions, one posed by Mr. Zaveri and the one which I have just now dealt with, the latter one appears to be more reasonable and probable. Mr. Zaveri's argument would have stood if there had been a positive finding that the landlord though handicapped after the Tiller's day, could have the sale postponed. This is a clear distinction of the case on hand from the one before the Bombay High Court. The ratio of the judgment of the Bombay High Court, therefore, would not be attracted to the case on hand.
6. One more argument advanced by Mr. Zaveri deserves to be noted He urged that out of the two orders at Annexure-D one of 1962 and the other of 1971, the former was a nullity. This argument deserves to be accepted because there is nothing in that first order to show that it was passed after hearing both the sides. Mr. Zaveri's argument on that basis was that the second order was in its turn based only on that earlier order of 1962. No doubt the Tribunal while passing the second order has referred to that earlier order, but it has also referred to the presence of the parties before it. I, therefore, assume that the matter must have been threshed out atleast at the second round of this litigation.
It is in this view I hold that the point of fact, namely, whether the landlord was suffering from physical disability on 1-4-57 or not was a question concluded by the necessary implication on the second occasion of 1971 is essentially a mire finding of fact and the said order operates as res-judicata.
7. Mr. Zaveri's last contention was that I should set aside the order Annexure-D myself. The said order was subject to an appeal and revision also. But that recourse had not been taken. It is too much to ask the High Court to exercise the extra ordinary jurisdiction under Article 227 of the Constitution, ignoring those intervening stages. The result is that the petition fails. Rule is accordingly discharged with no order as to costs.