The court found that the application by the landlord for possession was not maintainable due to jurisdictional issues established under the tenancy law.

1. The facts leading to She present petition are no more in dispute. The petitioner Pandurang is a protected lessee of the fields, survey Nos. 28/2, 24/4 and 15/6 area 22 acres, of village Sawargaon Dukre situate, to District Buldana. The respondent No. 4 Yadaosao is the landholder of the said land. The present proceedings came to be initiated by respondent No. 4 under the provisions of S.36(2) read with S.38 of the Bombay Tenancy and Agricultural Lands Act. 1958. hereinafter called the Act, for possession of the land from his tenant Pandurang.

2. The respondent No. 4 acquired right to these fields by a registered deed of partition which is evidenced by a document of December 17, 1958. The tenancy of Pandurang is protected and dates back to a period prior to the date of partition, i.e. December 17, 1958. These being the facts the respondent No. 4 who is the tenure - holder having acquired by partition this land after 1st day of August 1953 and the protected lease in favour of the petitioner Pandurang being prior to the date of the said partition, had no locus standi to make an application in view of the bar of Sub-Section (7) of S.38 of the Act. No Court therefore under the Act could proceed to grant relief to him.

3. However, the litigation between the parties is pending for it had its own chequered course. Initially by an order dated October 22, 1963, the Naib Tahsildar held that the respondent No. 4 was entitled for possession of the suit land as per provisions of S.38(4)(a), proviso, of the Act. In the appeal, which was disposed of on April 13, 1964, the Deputy Collector with tenancy appellate powers affirmed that finding directing that respondent No. 4 Yadaorao should be placed in possession of half the suit land under S.38 of the Act. The matter was taken by the tenant to Maharashtra Revenue Tribunal and by an order dated February 23, 1965 that Tribunal held that the application itself was not tenable in view of the provisions of S.38(7) of the Act and adjudged that the application was untenable.

4. Respondent No. 4 moved a petition under Art.227 of the Constitution being Special Civil Application No. 407 of 1965 in this Court. It appears that when that case came up for hearing on April 5 1966 a decision interpreting S.38(7) was rendered by this Court in some other petition which is now reported in Salubai v. Chandu (1966 Mah LJ 289) : (AIR 1966 Bom. 194). Following that decision this Court allowed the writ petition and remanded the matter for finding out the other conditions contemplated by the provisions of S.38 of the Act so as to enable a relief to tenure - holder

5. When the matter went back before the Tribunal the Tribunal merely referred to Salubai's decision 1966 Mah LJ 289 : (AIR 1966 Bom. 194) and held that application was tenable and the claim of the applicant will be allowed to the extent indicated by S.38(4)(a), proviso 1 of the Tenancy Act. Though this Court directed that all the questions on merits as required by S.38 should be freshly found, the tribunal disposed of the case by affirming earlier view taken by the appellate authority. Against that order the present petition is directed.

6. This petition was filed some time on December 18. 1967. During the pendency of this petition, a Full Bench of this Court considered the correctness of the Salubai's decision 1966 Mah LJ 289 : (AIR 1966 Bom. 194) and interpreted the provisions of S.38(7) and found that the landlord of the kind as the respondent No. 4. cannot maintain an application in view of the conditions imposed by that