A certificated landlord who had previously applied under section 31 and obtained a final order in his favor is not entitled to apply for possession of the entire tenanted land under section 33B of the Tenancy Act.

DESHMUKH J.- The petitioner is a certificated landlord under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Tenancy Act"). He had filed an application for obtaining possession of the entire tenanted land under the provisions of section 33B of the Tenancy Act. The application was rejected by the Mamlatdar principally on the ground that he had previously applied under section 31 of the Tenancy Act and had obtained a final order in his favour. In the circumstances, Section 33B (5) (a) would come in his way and he was not entitled to any relief. The appeal filed by the landlord succeeded as the Special Deputy Collector held that resumption under section 33B (5) (a) meant actual recovery of possession and not a mere order to obtain possession passed by the Tribunal under section 31. The tenant was dissatisfied and filed a revision application before the Revenue Tribunal. The Revenue Tribunal allowed the revision application by accepting a view already taken by a Full Bench of that Tribunal. The learned President found that there were two conflicting judgments of single Judges of this Court one of which took the view similar to the one taken by the Full Bench of the Tribunal. He preferred to follow that view and allowed the revision application. Being aggrieved, the landlord has filed this petition.

2. When the matter was called out before the learned single Judge, it was brought to his notice and he also felt that the petition itself should be referred for disposal to a larger Bench. The' ground on which reference is made in this manner is that there is a conflict of views between the judgments of two learned single Judges as to the correct meaning and interpretation of the phrase "land has already been resumed by the landlord". One of those judgments by Deshpande J. has been reported in Antaji Ramchandra v. Pandurang.1 The other judgment of Bhasme J. has not been reported in any authorised series. However, we have, seen the original judgment in Special Civil Application No. 2035 of 1966 decided on the 22nd of January 1971. It is also reported in 1972 Tenancy Law Reporter at page 36. This judgment follows another learned single Judge's decision in Special Civil Application No. 1255 of 1966 decided on 7-11-1968. In view of this conflict, the learned single Judge felt that the better course would be to refer the matter to a larger Bench. In this manner the petition itself has been referred to us for hearing and final disposal.

3. We heard the parties exhaustively. In order to understand how the referred question of law arises for decision in the petition, we requested the Counsel to investigate into the facts and give us a detailed statement of facts. Initially, the record was insufficient, but they managed to bring all the record and gave us the requisite details. Our futher discussion will show that we are able to dispose of the case on an entirely different point not specifically raised in the proceedings but being a matter or approach to the maintainability of the petition itself, it could be raised and heard by us. In the circumstances, it has not been found necessary to decide the real meaning and interpretation of the above-referred phrase in this litigation.

4. The few undisputed facts which should be known are these: The petitioner is admittedly a certified landlord He had filed an application under the amended Tenancy Act (Born. 13 of 1956) under section 31. This application had to be made on or before the 31st of March 1957. Under the provisions of the Tenancy Act as then existed any landlord who wanted to resume land for personal cultivation had to terminate the tenancy and file an application as contemplated by section 31. Subject to the conditions laid down by the succeeding sections being fulfilled, the landlord was entitled to resumption of half the land for personal cultivation. The present petitioner thus applied sometime before the 31st of March 1957 a