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IN THE HIGH COURT OF BOMBAY
Mrs. Sujata Manohar, J.
Gulab Abdul Fakir.... Petitioner.
Versus
Smt. Satyabhamabai G. Deshpande another ... Respondents.
Writ Petition No. 5842 of 1988, decided on 11/12-9-1989.
Advocates appeared :
G.B. Karandikar with V.D. Raut, for petitioner.
A.V. Bandivdekar, for respondent No. 1.
V.B. Rajure, for respondent No. 2.
Under Section 37 of the said Act when a landlord who has taken possession of the land under Section 33- B fails to use it for personal cultivation within one year or ceases to use it for this purpose within 12 years, he is required to restore possession to the tenant whose tenancy was terminated by him. Section 39 provides for an application being made by the tenant who has so lost possession for recovery of possession. These two sections have no application to the present case. They came into operation only after an application under Section 33-B is granted. In the present case proceedings under Section 33-B are still pending. It is true that the landlord had originally obtained possession by virtue of the Tahsildar order under Section 33o B. But the order has been now set aside and Section 33-B application is still pending. In these circumstances, Section 37 and Section 39 of the Act do not come into play.
It is also contended by the respondents that the petitioner is not entitled to resort to Section 84 of the said Act because he has remedy under Section 29, of the said Act. Under Section 29, sub-section (1), a tenant entitled to possession of any land under any of the provisions of this Act may apply in writing for such possession to the mamlatdar in the manner prescribed in the said section. A tenant entitled to possession from the landlord under the Act can therefore, resort to Section 29. In the present case, however, the possession is sought by the tenant not only from the landlady but also from the 2nd respondent who claims to be a purchaser of the said land from the landlady. Respondent No.2 is today in possession of the said land. He is sought to be evicted by the petitioner on the strength of his own title as a tenant. Such an application for possession is not under any provision of the Act. Section 29 has no application.
2. On 17th October, 1967 the 1st respondent obtained a certificate under section 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948. The certificate was received by her on 7th July, 1968. She made an application on 7th October, 1968 under section 33-B of the said Act for possession on the ground that the bona fide requires the said land for personal cultivation. The Tahsildar by his order dated 11th February, 1972 granted her application. The tenant preferred an appeal from this order before the Sub-Divisional Officer. In the mean while, however, pursuant to the order passed by the Tahsildar the 1st respondent obtained possession of the portion of the said land which was with the petitioner on 25th May, 1973. Soon thereafter the 1st respondent entered into an agreement to sell the said portion of the land to respondent No. 2 under an agreement of sale dated 29-9-1973. Pursuant to this agreement she put the 2nd respondent in possession of the said portion.
3. The appeal of the petitioner was dismissed by the Sub-Divisional Officer by his order dated 29-6-1974. A revision application was preferred by the petitioner before the Maharashtra Revenue Tribunal at Kolhapur. The Tribunal by its judgment and order dated 10th November, 1975 set aside the orders of both the officers and remanded the matter to the Tahsildar to decide two points:
(i) Whether the application of the 1st respondent under section 33-B was barred by limitation, and
(ii) As there were three tenants in occupation of the said land, the requirement of the landlady for personal cultivation should be determined taking into consideration the holding of 3 tenants simultaneously ?
Special Civil Application No. 1728 of 1976 was preferred from this order before this Court. By its judgment and order dated 15-11-1977 this Court held that the application of the landlady under section 33-B was not barred by limitation. It, however, confirmed the order of remand in so far as it related to the determination of the quota of holdings as between the three tenants and the landlady.
4. In view of the agreement of sale between the 1st and the 2nd respondents, on 19th March, 1979 petitioner made an application before the collector, Sangli under section 84-C of the said Act for summary eviction of the 1st and the 2nd respondents from the said portion of the land of which possession had been taken by the 1st respondent on 25th May, 1973. This application was granted on 13th January, 1986. The 1st respondent preferred a revision application to the Maharashtra Revenue Tribunal from this order. The tribunal by its judgment and order dated 21st March, 1988 set aside the order of eviction of 13th January, 1986. The present writ petition is filed by the petitioner challenging the order passed by the Revenue Tribunal on 21st March, 1988. The Maharashtra Revenue Tribunal in the judgment dated 21-3-1988 has mistakenly described the area of this land as 1-H 29 As. Throughout the tenancy proceedings and in the 88-C Certificate the total land is described as having an area of 1 acre 29 gunthas.
5. These proceedings were between the original tenant and the respondents Nos. 1 and 2. After the decision of the Tribunal but before the filing of the present writ petition, the original tenant died on 30th April, 1988. Hence the present writ petition is filed by his heir and legal representative.
6. The first question which requires consideration is whether the tenant is entitled to take recourse to section 84-C of the said Act in order to obtain possession from respondents Nos. 1 and 2. Under section 84 it is provided as follows :
84. Any person unauthorisedly occupying or wrong
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