BHARGAVA, J. :- This matter is before us in the following circumstances : The non-petitioner filed an application under S.38 of the Madhya Bharat Zamindari Abolition Act before the Additional Naib-Tehsildar of Shujalpur for conferring of pucca-tenancy rights on him. The petitioner resisted the claim on various grounds, namely, that the non-petitioner was not a sub-tenant, that he was in possession of the land only as a trespasser and, therefore, was not entitled to become a pucca-tenant; that the applicant was a weak and infirm person incapable of cultivating the land personally within the meaning of the Section 74 of the Madhya Bharat Land Revenue and Tenancy Act, 1950, and therefore, even if the non-petitioner were held to be a sub-tenant of the land he could only continue in his capacity of a sub-tenant and could not be recognised or declared as a pucca-tenant and that the amount deposited by him was insufficient. The Additional Naib-Tehsildar recorded evidence adduced by the parties in respect of the aforesaid objections and by his order dated 28-2-1958 conferred the rights of pucca-tenant on the non-petitioner over the land in question excepting two Khasra numbers.

2. The applicant succeeded in his appeal before the Sub-Divisional Officer. The non-petitioner's further appeal before the Commissioner, Bhopal Division, was allowed and the decision of the Additional Naib-Tehsildar was restored. The revision filed by the applicant before the Board of Revenue remained unsuccessful.

3. The applicant then filed a petition under Article 227 of the Constitution of India in this Court. When the matter was argued before a Division Bench of this Court it considered it fit to refer the question to a larger Bench. It appeared to the referring Bench that there was nothing in Section 38(2) of the Madhya Bharat Zamindari Abolition Act (hereinafter called "the Act") which gave powers to the Tehsildar to determine the disputed status of a person as a sub-tenant or as a tenant of a sub-tenant and that reference to the Tehsildar in that sub-section was merely to nominate the authority with whom the requisite deposit was to be made. The question raised before the referring Bench was whether the Additional Naib-Tehsildar had no jurisdiction to determine the status of the tenant as a pucca-tenant under Section 38 of the Act. It was in that context that this reference has been made. The referring Bench formulated a question by reference to the contention raised before it in these words :

"That the Additional Naib-Tehsildar had no jurisdiction to determine the status of the opponent as a Pucca Krishak under Section 38 of the Madhya Bharat Zamindari Abolition Act."

4. When the matter was placed before the Full Bench for consideration of the question stated above it referred the said question to a larger Bench.

5. Section 38 provides, in the first place, that all tenants of the proprietor shall become pucca-tenants from the date of vesting (2-10-1951); that the tenants or sub-tenants shall on deposit being made by them of the amount prescribed by Sub-Section (2) of this section before the Tehsildar be deemed to have become the pucca-tenants of the land actually in their possession provided the persons sub-leasing do not suffer from any physical infirmity to cultivate their lands personally as laid down in Section 74 of the Madhya Bharat Land Revenue and Tenancy Act (Act No. 66 of 1950); that the deposit is made within the time prescribed in the Section and lastly the Section contemplates a scheme of priority in the conferment of the said rights. In Sub-Section (3) it is provided that if a tenant of a sub-tenant fails to make the deposit within the time specified his right would lapse, and then the sub-tenant would have the right to make the deposit within the time prescribed in Sub-Section (4).

6. Section 38 of the Act or any other section in the Act does not contain any express provision which requires a Tehsildar to make any enquiry after a depo