A subsequent application for resumption of land is barred if the earlier application was withdrawn without the permission of the Court and the principles of Order 23, Rule 1 of the Civil Procedure Code apply.

1. The respondent is the tenure-holder of fields survey Nos. 8/6, 69/1A and 69/1B, total area 16 acres 29 gunthas of mouza Isapur, taluq Akot, district Akola. She gave a notice to the petitioner under Section 38 (1) of the Bombay Tenancy and Agricultural Lands Act, (hereinafter called the Tenancy Act), on 10-2-1961 alleging that the petitioner Is her tenant and she wants the aforesaid lands bona fide for her personal cultivation. This notice was followed by an application on 23-3-1961 under Section 36 (2) read with Section 38 (1) of the Tenancy Act.

2. Evidence was led in the case and the application was rejected by the Naib Tahsildar on merits holding that her need is not bona fide. In appeal, the order of the Naib Tahsildar was set aside by the Special Deputy Collector by his order dated 22-9-1962 and the case was remanded for fresh trial. During the pendency of the proceedings before the Naib Tahsildar on remand, the respondent withdrew her application for resumption on 6-11-1962 without seeking permission of the Court to withdraw the same. She had made an application for that purpose to the Naib Tahsildar alleging certain facts why she was withdrawing the resumption proceedings. On her application the Tenancy Naib Tahsildar dropped the proceedings without reserving any opportunity to the respondent to file a fresh application for resumption of the said fields from the petitioner.

3. The respondent then served the petitioner with a fresh notice dated 16-10-1966 under Section 38 (1) of the Tenancy Act. This notice was again followed by another application under Section 36 (2) read with Section 38 (1) of the Tenancy Act on 7-1-1967 for resumption of the same fields again from the same tenant. This application was also contested by the tenant who contested the application on merits as well as on the ground that the previous proceedings or the decision of the Naib Tahsildar operated as res judicata. The Naib Tahsildar held that the respondent having withdrawn the earlier proceedings was not entitled to claim very same lands on the same grounds. In a subsequent proceedings, according to him, she was estopped from claiming the same. The Naib Tahsildar also held that the respondent did not require the land for bona fide personal cultivation. The application of the respondent was thus rejected.

4. The order was challenged again in appeal and the Special Deputy Collector dismissed the appeal agreeing with the Tenancy Naib Tashildar that a fresh application in respect of the same cause of action and same subject-matter was not tenable. It appears that he did not go into the question of the merits of the case. The respondent then filed a revision application before the Revenue Tribunal. The Revenue Tribunal also did not go into the question whether the need of the landlady was genuine and she bona fide needed the land for her personal cultivation, but on the question of bar of the second proceedings, the Tribunal took the view that the second applications for resumption is spite of the withdrawal of the first application without the permission to institute a fresh application was not barred. The Revenue Tribunal has taken the view that though before 31st of March, 1961 a notice was given and application was filed, the application had not finally come to an end and, therefore she could withdraw her application any time without assigning any reasons and her right of resumption was not lost to her and, therefore, she could resume the lands for personal cultivation at any time during her life time. The Tribunal also took the view that it was not at all necessary for her to give notice to the tenant before she could make an application for resumption and it was not necessary to give any notice on 15-10-1966. The Tribunal having held that the second application was maintainable, did not go into the question of fact as to whether her need was genuine and she bona fide required the fields for her personal cultivation and if so, how much