The tenant's right to apply for restoration of possession under section 39 of the Bombay Tenancy Act, 1948, is not barred by limitation after 12 years from the date on which possession was taken by the landlord, and section 39 allows the tenant to make an application against a transferee from the landlord.

JUDGMENT - R.A. JAHAGIRDAR, J.:---This petition raises a short question about the interpretation of sections 37 and 39 of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as "the Bombay Tenancy Act". The facts are very few and may straightaway be mentioned. The land involved in this litigation is Survey No. 385/4-B measuring 5 Gunthas 2 Annas and situated at village Awas in Alibag Taluka of Raigad District. The said land originally belonged to respondent No. 2, but was tenanted by the first respondent The possession of the land had been obtained by the second respondent pursuant to an order passed under section 33-B of the Bombay Tenancy Act on 25th October, 1962. It may be mentioned that the possession itself had been actually obtained on 20th of March, 1963.

2. Thereafter the second respondent apparently cultivated the land personally for some time, but on 6th of August, 1965 the second respondent executed a registered sale deed in favour of the petitioner of the said land and gave possession of the same to the petitioner. Thereafter on 15th of April, 1976 the first respondent made an application under section 39 r/w section 37 of the Bombay Tenancy Act for possession of the land on the ground that the landlord had contravened the provisions of section 37 and has also failed to comply within reasonable time with the provisions of the said section. The application was resisted on behalf of the petitioner on the ground that it is not made within the period of limitation and secondly that the application could not lie against the petitioner who was not the landlord of the first respondent. The Tahsildar of Alibag heard the said applications as Tenancy Case No. 18 of 1976 and by his judgment and order dated 30th of August, 1976 allowed the said application. This order has been confirmed by the Sub-Divisional Officer of Alibag by his order dated 31st May 1977 in Tenancy Appeal No. 20 of 1976. It may be mentioned that the first respondent, namely the tenant, also preferred an appeal, being Tenancy Appeal No. 22 of 1976, for compensation which had not been awarded by the Tahildar. The Sub-Divisional Officer allowing Tenancy Appeal No. 22 of 1976 remitted the case to the Court of first instance for determining the amount of compensation. The petitioner preferred a revision application, being Tenancy Application No. 232 of 1977, which was heard and dismissed by the Maharashtra Revenue Tribunal at Bombay by its judgment and order dated 22nd September, 1977, which is the subject matter of challenges in this petition under Article 226 of the Constitution.

3. The facts have already been enumerated above and do not require any repetition for appreciating the points of law raised by Mr. Karandikar, the learned Advocate appearing in support of this petition. In the first place Mr. Karandikar contended that after the expiry of a period of 12 years from the date on which possession has been obtained by the landlord, the relationship between the erstwhile landlord and tenant comes to an end and an application under section 39 of the Bombay Tenancy Act does not lie by the erstwhile tenant either against the erstwhile landlord or against the transferee from the said landlord. Mr. Karandikar has so contended by relying upon the provisions of section 37(1) of the Bombay Tenancy Act wherein it is provided that if the landlord after taking possession of the land under among other section, section 31 fails to use it for the purpose for which the possession is taken within one year from the date on which he took possession or ceases to use it for the aforesaid purpose within 12 years form the date on which he took possession, the landlord is required to forthwith restore possession of the land to the tenant. From this Mr. Karandikar wants me to infer that after the expiry of the period of 12 years from the date on which the possession was taken by the landlord, the landlord is free to do anything with the land, possession o

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