A landlord cannot obtain possession of surrendered land without an order from the Tahsildar, despite a verified surrender; tenant's rights are upheld until such an order is made.

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 S.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 S.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 S.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 S.20. The Naib Tahsildar also held an inquiry necessary under S.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 ord