A landlord cannot obtain possession of a field from his tenant, even if the tenant is willing to hand over possession to him. He has to approach the Tahsildar for the purpose.

Headnote:
TENANCY - Surrender - Verification - Possession - Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 - Ss. 20, 36(1), (2) - Whether it is essential for a landlord to obtain an order for possession of a field in regard to which a tenant has terminated his tenancy by surrendering his interest in favour of the landlord and the surrender has been verified under Section 20 of the Act.
Fact of the Case:

The petitioner is the landlord, Sampat, the respondent No. 3 was his tenant, and the respondent No. 4 is a transferee from the petitioner after he took the alleged surrender. The field involved is survey No. 15/1 of Waki Khurd in Chikhali taluq of Buldana district. Sampat the respondent No. 3 became the tenant of the petitioner sometime in the year 1951-52. On 4-8-60, however, Sampat executed a surrender deed in respect of this field under Section 20 of the new Tenancy Act. In the document, it is recited that the tenant was surrendering all his rights without consideration and that he had handed over possession of the field with the standing crops on the date of the document. The tenant himself also made an application under Section 20 of the new Tenancy Act for verification of the surrender. That is Revenue Case No. 5/59(4)/60-61. An order was passed verifying the surrender and holding that it was voluntary and in accordance with the provisions of Section 20. The Naib Tahsildar also held an inquiry necessary under Section 21(2) of the Act and came to the conclusion that the landlord did not possess land exceeding three family holdings. Accordingly, he ordered that necessary entries should be made.
Finding of the Court:

The Court held that Section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, is plenary and controls Section 20. Thus, without an order of possession of the Tahsildar, a tenant does not cease to be a tenant even though he has handed over possession of the land he held as a tenant and even though the surrender is verified under the proviso to Section 20 read with Rule 11. The Court further held that the consent or willingness of the tenant to surrender is irrelevant and does not affect the operation of the above rule. Lastly, the Court held that an order for possession need not necessarily be passed upon a separate application under Section 36. It is sufficient if such an order is passed at the time when the surrender comes up for verification under Section 20.
Issues: Whether it is essential for a landlord to obtain an order for possession of a field in regard to which a tenant has terminated his tenancy by surrendering his interest in favour of the landlord and the surrender has been verified under Section 20 of the Act.
Ratio Decidendi: The Court held that Section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, is plenary and controls Section 20. Thus, without an order of possession of the Tahsildar, a tenant does not cease to be a tenant even though he has handed over possession of the land he held as a tenant and even though the surrender is verified under the proviso to Section 20 read with Rule 11. The Court further held that the consent or willingness of the tenant to surrender is irrelevant and does not affect the operation of the above rule. Lastly, the Court held that an order for possession need not necessarily be passed upon a separate application under Section 36. It is sufficient if such an order is passed at the time when the surrender comes up for verification under Section 20.
Final Decision: Petition dismissed.

JUDGMENT - Kotval, C.J.

1. The short question that arises in this reference is whether it is essential for a landlord to obtain an order for possession of a field in regard to which a tenant has terminated his tenancy by surrendering his interest in favour of the landlord and the surrender has been verified under Section 20 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The petitioner is the landlord, Sampat, the respondent No. 3 was his tenant, and the respondent No. 4 is a transferee from the petitioner after he took the alleged surrender. The field involved is survey No. 15/1 of Waki Khurd in Chikhali taluq of Buldana district. Sampat the respondent No. 3 became the tenant of the petitioner sometime in the year 1951-52. On 4-8-60, however, Sampat executed a surrender deed in respect of this field under Section 20 of the new Tenancy Act. In the document, it is recited that the tenant was surrendering all his rights without consideration and that he had handed over possession of the field with the standing crops on the date of the document. The tenant himself also made an application under Section 20 of the new Tenancy Act for verification of the surrender. That is Revenue Case No. 5/59(4)/60-61. An order was passed verifying the surrender and holding that it was voluntary and in accordance with the provisions of Section 20. The Naib Tahsildar also held an inquiry necessary under Section 21(2) of the Act and came to the conclusion that the landlord did not possess land exceeding three family holdings. Accordingly, he ordered that necessary entries should be made. It must be noted at this stage that no separate order granting possession to the landlord was passed.

2. On 24-5-1961 the tenant applied for restoration of possession. That is Revenue Case No. 28/59(6) of 1960-61. In those proceedings the tenant admitted that he was examined at the time of the verification of the surrender before the Naib Tahsildar and that he had then stated that the surrender deed was voluntarily executed by him. It appears also that on 30-4-1962 the tenant made a statement before the Naib Tahsildar that he did not wish to proceed with the case, and therefore the Naib Tahsildar ordered that the proceedings should be filed.

3. Only four days after this order was passed, on 3-5-1962 the tenant again applied for possession of his field to the Naib Tahsildar. That was Revenue Case No. 1/59(10-G) of 1962-63. The tenant simply alleged that the surrender deed had been obtained by fraud and that the petitioner-landlord had sold half his suit land to the respondent No. 4 only, but that the tenant had been dispossessed in contravention of the provisions of the new Tenancy Act and he was therefore entitled to be restored to possession. In reply, the landlord naturally relied upon the previous proceedings verifying the surrender and holding that it was voluntary, as also the second proceedings wherein the tenant having asked for possession, had stated that he did not desire to proceed with the case. This proceeding had a chequered history and ultimately came to be remanded by an order of the Special Deputy Collector dated 15-9-1964 setting aside the previous orders of the Naib Tahsildar.

4. After remand, the Tenancy Naib Tahsildar held that the previous application which the tenant had made and the orders which were passed thereon bound the tenant. He had also admitted that he had executed the surrender deed willingly and therefore the order passed in Revenue Case No. 28/59 (6) of 1960-61 operated as resjudicata and the tenants rights had thus been extinguished from the date of the execution of the surrender deed. The tenant appealed to the Special Deputy Collector and by his order dated 28-8-1965 the Special Deputy Collector held that the Naib Tahsildar was in error in applying the principles of res judicata to revenue proceedings. He pointed out that the landlord had not obtained an order for possession as required by Sub-section (2) o

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Judicial Analysis