Jairam S/O Krishnas Mali (Sonune) vs Digambar Gopinath Sutat (Dead) ...
2007 Latest Caselaw 1021 Bom

JUDGMENT

R.V. More, J.

1. The present Letters Patent Appeal takes exception to the judgment and order dated 18-6-1997, passed by the learned Single Judge of this Court in Writ Petition No. 1834/1990, whereby the Writ Petition came to be allowed; quashing and setting aside the order of Tahsildar, Buldhana dated 16-9-1986 as confirmed by Sub Divisional Officer, Buldhana and Maharashtra Revenue Tribunal, Nagpur, and the matter was remanded back to the Tahsildar, Buldhana to decide the same afresh. The brief facts relevant for the disposal of the present Letters Patent Appeal are as under.

2. The dispute relates to the land bearing Survey No. 12/1 admeasuring about 5 Acres 37 G at village Chikhli, Mouza: Bhadola, Tq. Chikhali, dist. Buldhana (hereinafter referred to as 'said land' for the sake of brevity). The appellant started cultivating the said land as its tenant with effect from 7-5-1967. The respondent, the owner of the land, claimed that the appellant cultivated the said land on batai terms, on partnership basis and, therefore, in the year 1973 instituted Regular Civil Suit No. 34/1973 for possession before the Civil Judge Senior Division, Buldhana. This suit was subsequently transferred to Chikhali Court and it was renumbered as Regular Civil Suit No. 14/1983.

3. Since the appellant, claimed to be a tenant of the said land, reference under Section 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, (hereinafter referred to as 'the Act' for the sake of brevity) was made to the revenue authorities. By order dated 22-7-1974, the Agricultural Land Tribunal, Chikhali held the appellant as tenant of the said land. The respondent preferred an appeal before the Sub Divisional Officer, Buldhana. However, the said appeal came to be dismissed by order dated 25-7-1975. The respondent's revision preferred before the Maharashtra Revenue Tribunal also came to be dismissed by order dated 3-3-1979. The respondent, thereafter, challenged the order of the Maharashtra Revenue Tribunal by filing Writ Petition No. 3141/1980, which was also dismissed by the learned Single Judge by order dated 8-12-1983.

4. The respondent, thereafter on 5-11-1985, filed pursis in Regular Civil Suit No. 14/1983 for non-prosecution and, therefore, the suit was dismissed.

5. In the meantime, the appellant made an application under Sections 41-46 and 49 of the Act for fixation of price and for conferral of the ownership of the said land. This proceeding was filed on 1-3-1980. The respondent also filed application for possession of the said land under Section 43 read with Sections 20 and 21 of the Act on 13-5-1980.

6. The learned Agricultural Land Tribunal disposed of both these applications filed by the appellant and respondent by common order dated 25-9- 1980. By this order, he dismissed the application of the respondent and allowed the application of the appellant and fixed the purchase price. This order, at the instance of respondent, came to be challenged before the Sub Divisional Officer, Buldhana by filing appeal, however, the same was dismissed by order dated 19- 4-1982. After dismissal of the respondent's appeal by the Sub Divisional Officer, the Agricultural Land Tribunal issued certificate of purchase under Section 43 of the Act in favour of the appellant.

7. The respondent made another application on 6-12-1985 under Section 36(2) read with Section 21 of the Act for possession of said land on the point of deemed surrender of tenancy. The Agricultural Land Tribunal, Chikhali rejected the respondent's application by order dated 16-9-1986, which order came to be confirmed by the learned Sub Divisional Officer, Buldhana and Maharashtra Revenue Tribunal, Nagpur by order dated 31-3-1987 and 29-12-1989 respectively. The respondent, thereafter, filed Writ Petition No. 1834/1990, challenging the above said order of the Maharashtra Revenue Tribunal and the learned Single Judge allowed the Writ Petition by order dated 18-6-1997 and remanded the matter back to Tahsildar, which order is impugned in the present Letters Patent Appeal.

8. Mr. Badhe, learned Counsel appearing for the appellant, submitted that the issue; whether the appellant is tenant of the said land is already concluded by this Court and the appellant is held to be tenant of the said land. He further submitted that his initial application under Sections 41-46 and 49 of the Act is allowed and purchase price came to be fixed. He further submitted that the respondent's application for possession under Section 43 read with Sections 20 and 21 of the said Act, filed in the year 1980 came to be dismissed. The order fixing the purchase price and dismissing the respondent's application for possession was challenged in the appeal. The appeal was also dismissed and subsequently the Agricultural Land Tribunal issued certificate under Section 43 in his favour. Mr. Badhe further submitted that in view of the above facts the second application preferred by respondent on 6-12-1985 under Section 36(2) read with Section 21 of the Act is not maintainable as the same was barred by the principles of res judicata. He submitted that apart from the fact that the respondent's second application is not maintainable the same is also not filed within the period of limitation as prescribed under Section 36(2) of the said Act.

9. Mr. Badhe, learned Counsel for the appellant relied upon the Full Bench judgment of this Court in Madhao v. Maharashtra Revenue Tribunal Nagpur and Ors. 1970 Mh.L.J. 991 and Vikram Yeshwanta and Ors. v. Eknath Trimhak Gadekar and Ors. 1977 Mh. L.J. 520.

10. Per contra, Mr. Deshpande, learned Counsel for the respondents, supported the impugned judgment and order. He submitted that the second application filed by respondent on 6-12-1984 under Section 36(2) read with Section 21 of the said Act cannot be said to be barred by the principles of res judicata inasmuch as the initial order by the Agricultural Land Tribunal fixing the purchase price and dismissing the respondent's application for possession was challenged before the Sub Divisional Officer and the Sub Divisional Officer by his order dated 19-4-1982 refused to interfere in the appeal by making observation that the issue about tenancy was not decided by competent Court finally, as the said issue was pending in the High Court and, therefore, the question of transfer of ownership will not arise. Mr. Deshpande further submitted that the earlier proceeding for fixation of purchase price and for possession of the said land by the appellant and respondent respectively cannot be said to have become final and, therefore, the second application is perfectly maintainable.

11. So far as the limitation under Section 36(2) of the Act is concerned, Mr. Deshpande, learned Counsel for the respondents, submitted that the landlord is not required to apply under Section 36(2) of the Act. He further submitted that the Full Bench decision in Madhao v. Maharashtra Revenue Tribunal Nagpur and Ors. (supra) is inconsistent with the decision delivered by the Hon'ble Apex Court in Vallabbhai Nathabhai v. Bai Jivi and Ors. 1969 Mh. L.J. (SC) 958 : . He also relied upon unreported judgment of the Division Bench in Krishnabai Wasankar and Ors. v. The State of Maharashtra L.P.A. No. 38/1984 decided on 12-12-1986. Mr. Deshpande, in order to support the impugned judgment and order also relied on the judgment in V. Dhanpal Chettiar v. Yesodai Ammal , Patel Vallabhbhai Desaibliai v. Patel Manubhai Chhotalal and Anr. and Sitaram Deoba Marathe v. Hawadya Piraji and Ors. 1975 Mh. L.J. 521.

12. Firstly, we propose to deal with the contention of the appellant that the second application filed by the respondent under Section 36(2) read with Section 21 of the Act is barred by the principles of res judicata. There is no dispute that the issue of tenancy was concluded in favour of the appellant up the High Court on 8-12-1983. Before conclusion of the issue of tenancy, the appellant had already filed an application under Sections 41-46 and 49 of the said Act for fixation of purchase price and for conferral of ownership of the said land. This application came to be filed on 1-3-1980. The respondent also filed application on 13-5-1980 for possession of the said land under Section 43 read with Sections 20 and 21 of the Act. It is true that both the applications as filed by the appellant and respondent are decided by the Agricultural Land Tribunal by common order which came to be passed on 25-9-1980, whereby the appellant's application for fixation of purchase price and conferral of ownership was allowed and the respondent's application for restoration of possession came to be dismissed.

13. Against the abovesaid order of the Agricultural Land Tribunal, the respondent preferred an appeal before the Sub Divisional Officer. By this appeal, the respondent challenged the common order passed by the Agricultural Land Tribunal on 25-9-1980. The appeal came to be disposed of on 19-4-1982. The learned Sub Divisional Officer observed that the issue of tenancy between the parties is not finally decided by the competent Court, since this issue is pending before the High Court. He further observed that since the issue of tenancy is not finally decided the question of transfer of ownership will not arise. It is also observed that it is necessary to decide the issue of tenancy finally and then only the question of transfer of ownership in favour of tenant will arise. With these observations, the appeal came to be dismissed. The plain reading of the observations by the learned Sub Divisional Officer shows that though he rejected the respondent's appeal, he expressly kept open the issue of transfer of ownership on the ground that the issue regarding tenancy is pending before the High Court. This observation was made by the learned Sub Divisional Officer as at that time the respondent's Writ Petition being Writ Petition No. 3141/1980 was pending before the High Court. The same was later on dismissed on 8-12-1983.

14. The learned Sub Divisional Officer did not enter into the merits of the matter and on the contrary, the issue about fixation of purchase price as well as conferral of ownership and respondent's entitlement for possession of the said land was expressly kept open. This was done, as stated above, in view of the pendency of the tenancy issue before the High Court in Writ Petition No. 3141/1980. The respondent did not assail this order further in the appeal or revision. In these facts and circumstances, we are of the opinion that the issue about fixation of purchase price and conferral of ownership as well as entitlement of the respondent for possession under Section 36(2) read with Section 21 of the Act was not finally decided. In view of the observations made by the Sub Divisional Officer, the order passed by the Agricultural Land Tribunal on 25-9-1980 also stood modified and, therefore, the appellant cannot claim that the second application filed by the respondent under Section 36(2) read with Section 21 of the Act is barred by the principles of res judicata. We, therefore, hold that the second application of respondent under Section 36(2) read with Section 21 of the Act is not barred by the principles of res judicata and accordingly, reject the appellant's contention in this regard.

15. This takes us to consider the second submission of Mr. Badhe, learned Counsel for the appellant, that the respondent's second application under Section 36(2) read with Section 21 of the Act was not maintainable as the same was not filed within the period of two years from the date on which the right to obtain possession of the said land is deemed to have been accrued on him. Mr. Badhe contended that admittedly the respondent's application under Section 36(2) read with Section 21 is not within the period of two years from the date on which the right to obtain possession is deemed to have been accrued to him. He further submitted that Section 36(2) controls Sections 20 and 21 and, therefore, without an order of the Tahsildar for possession, a tenant does not cease to be a tenant. He also submitted that this issue is covered by the Full Bench judgment in Madhao v. Maharashtra Revenue Tribunal, Nagpur and Ors. (supra) and the learned Single Judge wrongly relied upon the decision of the Hon'ble Apex Court in Vallabbhai Nathabhai v. Bai Jivi and Ors. (supra). He further contended that the unreported judgment of Division Bench of this Court in Letters Patent Appeal No. 38/1984 also does not consider in correct perspective the purport of judgment of the Full Bench.

16. Per contra, Mr. Deshpande, learned Counsel for the respondents, relied upon the provisions of Sub-section (14-A) of Section 43 of the Act and contended that since the purchase has become ineffective under Section 41, the said land is deemed to have been surrendered to the respondent by the appellant. He further relied upon the decision of the Hon'ble Apex Court in Vallabbhai Nathabhai v. Bai Jivi and Ors. (supra) to contend that the tenancy on surrender comes to an end thereupon the relationship between the landlord and tenant terminates. On the basis of this decision, he submits that the relationship of tenant and landlord is terminated in view of deemed surrender under Sub-section (14-A) of Section 43 of the said Act and, therefore, the respondent was not required to apply under Section 36(2) of the said Act and his application under Sections 20 and 21 is sufficient to grant him possession of the said land.

17. We have given anxious thought to the issue; whether the landlord is required to take recourse to the procedure contemplated under Section 36(2) of the said Act for taking possession even in the case of deemed surrender under Sub-section (14-A) of Section 43 of the said Act. The issue before the Full Bench in Madhao v. Maharashtra Revenue Tribunal, Nagpur and Ors. (supra) was exactly the same namely; whether it is essential for the landlord to obtain an order for possession of a field in regard to which the tenant has terminated his tenancy by surrendering his interest in favour of landlord and the surrender has been verified under Section 20 of the said Act. The Full Bench considered the provisions of Sections 20 and 36 along with provisions of Sub-section (31) and (32) of Section 2 the Act. The Full Bench after examining the scheme of the Act concluded in para 28 as follows:

28. Thus, a consideration of the provisions of Section 20 and Section 36(1) and (2) and of the several authorities to which we have referred above leads to the following conclusions:

(I) That Section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, is plenary and controls Section 20. Thus, without an order of possession of the Tahsildar, a tenant does not cease to be a tenant even though he has handed over possession of the land he held as a tenant and even though the surrender is verified under the proviso to Section 20 read with Rule 11.

(II) That the consent or willingness of the tenant to surrender is irrelevant and does not affect the operation of the above rule.

(III) That an order for possession need not necessarily be passed upon a separate application under Section 36. It is sufficient if such an order is passed at the time when the surrender comes up for verification under Section 20.

In our considered opinion, the decision of the Full Bench is squarely applicable to the facts and circumstances of the present case. In terms of this decision, the appellant/tenant does not cease to be tenant even in case of 'deemed surrender' under Sub-section (14-A) of Section 43 in the absence of any order of Tahsildar under Section 36(2) of the Act for possession. Once it is held that Section 36(2) of the Act is plenary in nature and controls Section 20 in that case, the respondent/landlord cannot get possession of the said land, unless he apply under Section 36(2) and succeeds. It is not in dispute before us that in order to obtain possession under Section 36(2) application must be made within a period of two years from the date on which the right to obtain possession of the land deemed to have been accrued to the landlord. There is no dispute that the respondent's second application under Section 36(2) was filed in the year 1985 i.e. much later after deemed surrender and, therefore, the same is not within limitation.

18. Mr. Deshpande, learned Counsel for the respondents, submitted that decision of the Hon'ble Apex Court in Vallabbhai Nathabhai v. Bai Jivi and Ors. (supra) was not brought to the notice of the Full Bench while dealing with Madhao v. Maharashtra Revenue Tribunal Nagpur and Ors. (supra). He further submitted that the Full Bench decision in the aforesaid case is contrary to the decision of the Hon'ble Apex Court in Vallabbhai's case. He further submitted that the Hon'ble Supreme Court in the above decision held that the tenancy on surrender comes to an end and thereupon relationship between the landlord and tenant stands terminated. He also relied upon the unreported decision of the Division Bench in L.P.A. No. 3/1984 in this regard.

19. We have gone through the decision of the Hon'ble Apex Court in Vallabbhai Nathabhai v. Bai Jivi and Ors. (supra) and with due respect, we are of the considered opinion that this ratio has no application in the facts and circumstances of the present case. The Hon'ble Apex Court in the above decision was considering the scope of Sections 29(1) and 84 of the Bombay Tenancy And Agricultural Lands Act, 1948. In the case, before the Hon'ble Apex Court, respondent No. 1 was the owner of the land and the appellant was tenant. On 15-5-1956, the appellant voluntarily handed over the possession of the land to respondent without there being any surrender in writing. Thus, the surrender though voluntary was not in accordance with Section 15 and hence the same was not valid. On 16-1-1961, the appellant therein applied to the Deputy Collector under Section 84 of the Act for summary eviction of respondent No. 1. The Deputy Collector dismissed the application holding that the tenant's remedy lies under Section 29(1) of the Bombay Tenancy and Agricultural Lands Act, 1948. The Gujarat Revenue Tribunal, however, in revision set aside the order holding that Section 84 applies and Section 29(1) has no application. Respondent No. 1 filed Writ Petition under Article 227 of the Constitution of India in the High Court of Gujarat and the High Court reversed the order of Tribunal and conferred that of Deputy Collector. The appellant filed Special Leave Petition against the order of Gujarat High Court. The Hon'ble Supreme Court concluded that the Collector has no jurisdiction under Section 84 to entertain the tenant's application. Consequently, the Special Leave Petition was dismissed confirming the order of the High Court.

20. The Hon'ble Supreme Court distinguished the provisions of Section 29(1) and Section 84 to the effect that the tenant entitled to possession under any of the provisions of the Act is entitled to apply under Section 29(1) and Section 84 came into play in case of any person unauthorisedly occupying or wrongly in possession of any land, covered by Clauses (a), (b) and (c) of the said section.

21. The issue before the Hon'ble Apex Court was about applicability of provisions of Section 29(1) or Section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948. The Hon'ble Apex Court was considering purport of provisions of Section 29(1) of the Bombay Tenancy and Agricultural Lands Act, 1948 and the Hon'ble Apex Court was not considering purport of Section 29(2), which is pari materia with Section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. As stated above, the issue before the Hon'ble Apex Court was about exercise of jurisdiction under Section 29(1) or 84. In the present case, the actual possession of the said land was never handed over to the respondent and the respondent's case is of deemed surrender under Sub-section 14-A of Section 43 the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. In the case before the Hon'ble Apex Court, the possession was voluntarily surrendered. However, there was no surrender in writing. The observation of the Hon'ble Apex Court, which is being relied upon by Mr. Deshpande, learned Counsel for the respondent was made in the facts and circumstances of that case. However, the facts and circumstances of the present case are totally different. Therefore, in. our considered opinion, the decision cannot be made applicable to the facts of the present case.

22. So far as the judgment of the Division Bench in L.P.A. 38/1984 is concerned, the Letters Patent Appeal was filed by the purchaser, landlady and tenant together. In this case, the appellant No. 3-tenant surrendered the tenancy on 23-5-1977 in favour of appellant No. 2-landlady and also delivered possession of the land to the landlady. The surrender was duly verified. The Landlady later on sold this land to the appellant No. 1 on 25-5-1977. There was no grievance by the tenant or landlord. However, one third person, who had no interest in the lands made complaint to the Additional Tahsildar that transfer by appellant No. 2-landlady in favour of appellant No. 1 is violative of Section 91(8) of the Act and requested an action under Section 120(2) of the Act. The Additional Tahsildar held that in the absence of an order under Section 36(2), appellant No. 2-Landlady, could not have transferred the land to appellant No. 1. This order was confirmed by Collector and, thereafter, by the learned Single Judge in the Writ Petition. In the Letters Patent Appeal, however, the Division Bench relied upon the observations of the Hon'ble Apex Court in Vallabbhai Nathabhai v. Bai Jivi and Ors. and held that on surrender, tenancy comes to an end and the relationship as tenant and landlord stands terminated. We have already dealt with the decision of the Hon'ble Apex Court and held that the issue before the Apex Court was about applicability of Section 29(1) or 84 of the Bombay Tenancy and Agricultural Lands Act, 1948. The Hon'ble Apex Court was not considering the provisions of Section 29(2) of Bombay Tenancy and Agricultural Lands Act, 1948 which is pari materia with Section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The observations in that decision cannot be relied upon in order to contend that the landlord is not required to obtain an order under Section 36(2) to enable him to apply under Section 21 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. We have already come to the conclusion that the decision of the Full Bench in Madhav's case still holds the field. In view of this, we are also not in agreement with the unreported decision of the Division Bench in L.P.A. No. 38/1984.

23. The another Division Bench of this Court in Vikram Yeshwanta and Ors. v. Eknath Trimbak Gadekar and Ors. (supra) considered the above Full Bench decision and observed in paras 11 and 12 as under:

11. Section 36 of the Tenancy Act deals with the procedure of taking possession. Sub-section (2) of Section 36 lays down a prohibition on the landlord in the matter of resumption of possession of any land held by a tenant. Sub-sections (1) and (2) of Section 36 of the Tenancy Act are as under:

36. (1) A tenant or an agricultural labour or artisan entitled to possession of any land or dwelling house or site used for any allied pursuit under any of the provisions of this Act or as a result of eviction in contravention of Sub-section (2) may apply in writing for such possession to the Tahsildar. The application shall be made in such form as may be prescribed and within a period of three years from the date on which the right to obtain possession of the land, dwelling house or site is deemed to have accrued to the tenant, agricultural labourer or artisan, as the case may be.

(2) Save as otherwise provided in Sub-section (3A), no landlord shall obtain possession of any land, dwelling house or site used for any allied pursuit held by a tenant except under an order of the Tahsildar. For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land, dwelling house or site, as the case may be, is deemed to have accrued to him." From a bare reading of Sub-section (2) it is clear that the landlord cannot obtain possession of any land held by a tenant except under an order of the Tahsildar. For obtaining such an order he must file an application in the prescribed form within a period of two years from the date on which the right to obtain possession of the land is deemed to have accrued to him. Sub-section (1) deals with the procedure of taking possession so far as the tenant is concerned. In case the tenant is dispossessed of any land as a result of eviction which is in contravention of Sub-section (2), then he has a right to obtain possession of the land under Sub-section (1). The jurisdiction of the Civil Court to settle, decide or deal with the matters which the Tahsildar is required to settle, decide or deal with under the Act is barred by Sections 124 and 125 of the Act. Section 120 deals with the summary eviction but it has no application to the cases which are governed by Section 36. The question as to whether a landlord is entitled to take possession of the land as a result of surrender under Section 20 without taking recourse to the provisions of Sub-section (2) of Section 36 fell for consideration of this Court in Madhao v. Maharashtra Revenue Tribunal 1970 Mh. L.J. 991. After reviewing the whole case law the Full Bench came to the conclusion that Section 36(2) is plenary and controls Section 20. Thus without an order of the Tahsildar for possession a tenant does not cease to be a tenant even though he has handed over possession of the land he held as a tenant and even though the surrender is verified under the proviso to Section 20 read with rule 11. In this context a reference could usefully be made to the observations of the Full Bench in paragraphs 11, 12 and 18 of the said decision:

11. All that Section 20 says is that the tenancy is terminated upon the tenant surrendering his interest as a tenant in favour of the landlord. We have already shown that the definition includes in the word "tenant" a person who is in lawful possession or cultivation. Such a person would by the mere fact of possession be a tenant but he would thereby enter into a statutory relationship with the landlord, and all that Section 20 says is that by any act of surrender on his part it is that statutory relationship which is put to an end to. But the section does not say that he will cease to be a tenant. Indeed, he cannot cease to be a tenant so long as he continues in possession because being in lawful possession he is deemed to be a tenant. Section 20 does not speak of possession at all. Therefore, in the case of deemed tenant, Section 20 cannot possibly have the result of making the tenant cease to be a tenant unless an order taking away his possession is also passed. Without making any provision, as regards the essential ingredient in the definition of tenant, viz., possession, we cannot accept that Section 20 alters the position of a tenant qua tenant. We will show a little later that the same is the position in regard to various other provisions of the Act which regulate the relationship of landlord and tenant, but none of these provisions, while regulating the relationship, make any provision for possession. The subject of possession is relegated to a separate section and dealt with as an exclusive subject, and that is in Section 36 and so we turn to consider its provisions.

12. Reading Section 36 it is clear from the language of Sub-Section (1) that it is subject to Sub-section (2). The scheme of the section shows that really it is Sub-section (2) which lays down the general rule which governs the provisions of Sub-section (1). Sub-section (1) gives the rule to a tenant entitled to the possession of any land 'as a result of eviction in contravention of Sub-section (2) categorically lays down the general rule that no landlord shall obtain possession of any land held by a tenant except under an order of the Tahsildar. In the light of what we have said above, we may note that in the entire context of possession the word 'tenancy' not used in Section 36 but throughout the reference is only to 'tenant' because it includes 'deemed tenants'. Thus, reading Sub-sections (1) and (2) together it is clear that no landlord can ever obtain possession of tenant's land without an order granting him possession passed by the Tahsildar and the tenant is given the right where his possession is thus taken away to apply in writing for such possession to the Tahsildar. We can see no reason why, if possession is thus taken away because a tenant has surrendered his tenancy, the provisions of Section 36 would not be attracted.

18. The provisions of Section 20 read with the provisions of Section 36(1) and (2) therefore show that although the tenancy of a tenant may be terminated by a valid surrender by the tenant surrendering his interest as a tenant in favour of the landlord, and although the surrender may be verified as required by the proviso to Section 20 by the Tahsildar and possession may be with the landlord, still the person who was in enjoyment of the land continues as a tenant until an order for possession is made in favour of the landlord. Although possession may have been given pursuant to a surrender by the tenant, the Act still regards the delivery of possession and the surrender as the acts of a tenant, though there may be considerable time-lag between the execution of the surrender deed and the delivery of possession. The tenant, despite the time lag, surrenders possession as tenant, and therefore, the provisions of Sub-section (2) would apply. The landlord must therefore obtain an order of possession in his favour even though a valid and verified surrender may have been made in his favour and he may be in possession thereof.

From these observations of the Full Bench it is quite obvious that the landlord cannot obtain possession of land without taking recourse to Sub-section (2) of Section 36. If that is the position in case of a surrender duly executed in writing, then in our opinion, in view of the provisions of subsection (14-A) of Section 43 which deal with the deemed surrenders, the same principle should apply. Even a surrender contemplated by Sub-section (14-A) of Section 43 is a surrender by a tenant under Section 20. This is the result of the fiction created by the Legislature by using the words "as if". This fiction created by the Legislature will have to be given its normal effect and, therefore, the said surrender is also a surrender as if executed under Section 20 of the Tenancy Act.

12. Precisely this is the view taken by the learned Single Judge of this Court in Govinda v. Udhao. As we are in agreement with the view taken by the learned single Judge in the said decision, in our opinion, it is not necessary to restate all the reasons in support of the said view.

We are in respectful agreement with the view taken by the Division Bench in this case.

24. Considering the purport of the decision of the Full Bench, the Hon'ble Apex Court and the unreported judgment of the Division Bench in L.P.A. No. 38/1984, we are of the opinion that the landlord cannot apply under Section 21 of the Act without taking recourse to Section 36(2) of the Act. Though respondent filed application under Section 36(2) read with Section 21, the same was beyond the limitation and, therefore, the same cannot be entertained. The learned Single Judge, in our opinion erred in relying upon the judgment of the Apex Court in Vallabbhai Nathabhai v. Bai Jivi and Ors. (supra). The impugned order, therefore, in our considered opinion, requires interference.

25. This takes us to consider the reliance placed by the respondent on V. Dhanpal Chettiar v. Yesodai Ammal (supra) and Sitaram Deoba Marathe v. Hawadya Piraji and Ors. (supra).

By placing reliance on decision in V. Dhanpal Chettiar's case, Mr. Deshpande, learned Counsel for the respondents contended that in order to get the decree or order for eviction of tenant, it is not necessary to give notice under Section 106 of the Transfer of Property Act. This preposition laid down by the Hon'ble Apex Court is not at all disputed. However, in this case, the Hon'ble Supreme Court was dealing with the case of tenancy under the State Rent Control Act. There was no occasion to consider the provisions of Section 29(2) of the Bombay Tenancy and Agricultural Lands Act, 1948 and 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. Therefore, we are of the opinion that this decision has no application in the present case.

26. So far as decision in Sitaram Deoba Marathe's case (supra) is concerned, the Division Bench was considering the provisions of Section 36(1) and not s provisions of Section 36(2) of the Act. In this decision, the Division Bench concluded that the tenant losing possession after the date of vesting, cannot apply under Section 36(1) for possession. Hence, from this decision also Mr. Deshpande learned Counsel for the respondents, cannot derive any support.

27. In the light of discussion above, we find merit in the present Letters Patent Appeal. The learned Single Judge, in our opinion committed error in holding that Section 36(2) has no application in the present case. The Letters Patent Appeal is accordingly allowed. The impugned judgment and order dated 18-6-1997 passed by the learned Single Judge is quashed and set aside and order dated 29-12-1989 of the Maharashtra Revenue Tribunal in Revision Application No. Ten-A-97/1987, is restored in the facts and circumstances of the appeal, there shall be no order as to costs.