JUDGMENT
B.P. Dharmadhikari, J.
1. The petitioners in this writ petition are the heirs of original landlord while the respondents are the heirs of original tenant of agricultural field Survey No. 26, Area 30.34 acres. The petitioners have challenged the Order dated 27-7-1987 passed by the Tahsildar, Karanja holding that they are not entitled to possession of half of above referred agricultural field and further that the Surrender Deed executed by the original tenant is in Valid. This order has been upheld in appeal Under Section 107 of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, (hereinafter referred to as Tenancy Act), by Sub-Divisional Officer, Murtizapur, on 31-10-1988, and a Revision Under Section 111 of the above Act filed by petitioners has been dismissed by the Maharashtra Revenue Tribunal on 20-12-1991.
2. The case of the petitioners in brief is that the field is owned by the petitioners and their father Balkisanji. One Sitaram Gole was tenant on said field. The petitioners filed application which came to be registered as Revenue Case No. 49/59 (10-F1/61-62 for resumption of land for personal cultivation under section 36 read with section 38 of the Tenancy Act, on 24-3-1961. During the pendency of these proceedings respondents on 3-12-1970 executed a surrender Of half of the field of the above referred Survey No. and on 29-4-1971 they filed an application under section 20 of Tenancy Act before the Naib Tahsildar for its verification. The Naib Tahsildar after examining the respondents and the father of the petitioners declared that the surrender is valid and voluntary. This order is dated 23-5-1972 and is passed in Revenue Case No. 3/59)4-A)/70-71 of Wapti. On the said date, Agricultural Lands Tribunal dropped the proceedings mentioned above filed by the petitioners for resumption of lands. The suo motu proceedings were started vide Revenue Case No. 552/12/64-65 for transfer of ownership but those proceedings were also dropped as the proceedings for personal cultivation were pending. The petitioners thereafter filed an application on 16-2-1974 for possession of half of the land of Survey No. 26 which was surrendered in their favour and this case was registered as Revenue Case No. TNC-31/Kapti/7/73-74. In these proceedings the Tahsildar placed reliance upon a decision of this Court reported at 7970 Mh. L. J, 991 and held that the Order accepting the surrender passed by the Tahsildar on 23-5-1972 was not final and the respondents continue as tenant till the possession is not handed over. The Tahsiidar, therefore, held that there was no surrender in favour of the petitioners and they were not entitled to possession. He further held that the respondents also did not became statutory owner on 1-4-1963 as proceedings for resumption were very much pending, However, he found that after termination of those proceedings, the respondents are entitled for transfer of compulsory ownership and there is no question of any surrender after tillers day. The petitioners challenged this order before the Sub-Divisional Officer, Murtizapur, in appeal but said authority dismissed the appeal on 31-10-1988. The petitioners then approached the Maharashtra Revenue Tribunal in revision and the Maharashtra Revenue Tribunal held that there is no question of surrender of tenancy after 1-4-1963 as tenants become owner and thus the surrender dated 3-12-1970 is invalid. The petitioners, therefore, approached this Court. The grievance of the petitioners is that the authorities have taken wrong view of the matter and the proceedings for resumption were dropped in view of surrender which was verified on 23-5-1972. The Maharashtra Revenue Tribunal should have seen that surrender was during the pendency of these proceedings and were not fresh proceedings initiated after 1-4-1963. It is their contention that the documents on record clearly reveal that even after resumption of half of the suit field, the total land with petitioners was much less than three family holdings. The petitioners have stated that the finding given that surrender was not voluntary or complete is without jurisdiction.
3. Heard Shri Deshmukh, Advocate for the petitioners, Shri Deshpande, Advocate for respondents No. 1 to 5 and Assistant Government Pleader for respondent No. 6.
4. Advocate for the petitioners argued that the surrender executed on 3-12-1970 was verified on 23-5-1972 and it was found to be voluntary and valid. Thus, the surrender came into force and nothing more was to be done by the respondents in the matter. The Tahsildar and the other authorities have acted without jurisdiction in reopening said surrender. He further contended that the proceedings for resumption of land filed by the petitioners were pending since before 1-4-1963 and therefore there was no question of statutory transfer of ownership in favour of respondents. He contended that surrender could not have been viewed as fresh proceedings instituted after 1-4-1963. He has contended that all proceedings initiated before 1-4-1963 are liable to continue and the fate of tenant depends on final decision of those pending matters. He relies upon proviso to Section 49-A for that purpose. He also contends that on 16-2-1974, application was required to be filed claiming possession Under Section 36(2) of Tenancy Act, in accordance with the position of law then prevailing. The said application was moved within two years of verification of surrender and therefore, the said application could not have been dismissed. He contends that the Tahsildar committed error in reopening the matter of personal resumption filed earlier because of this application. He points out that as per provisions of section 4 of Tenancy Act, family holding determined for Washim area is 32 acres and therefore, the petitioners are entitled to retain land up to 3 family holdings i.e. 96 acres. He points out that at the time of verification by Tahsildar, the petitioners have filed affidavit and they have total land at that juncture was 37 acres only i.e. they were 59 acres short for reaching the ceiling of three family holdings. He, therefore, contends that the authorities below could not have refused restoration of possession to them. He further relies upon the judgment of Division Bench of this Court dated 12-12-1986 in Letters Patent Appeal No. 38 of 1984 in Writ Petition No. 1872 of 1980 to contend that after verification of surrender, it is not necessary to pass any order of possession in favour of the landlord and after surrender tenant loses all his interest in the land.
5. As against this, Advocate Shri Deshpande, appearing for respondents No. 1 to 5 has placed reliance upon Full Bench ruling in the case of Ramchandra v. Janardan, reported at 1962 N. L. J. 700 and in Madhao v. Maharashtra Revenue Tribunal, Nagpur, 1970 Mh. L. J. 991, to contend that the Order of possession is must to hold that tenancy is determined and section 36 of Tenancy Act controls provisions of Section 20 which deal with surrender. He further contends that surrender is an independent mode of termination of tenancy and here the deed of surrender is executed on 3-12-1970 i.e. after 1-4-1963. He further contends that it is verified on 23-5-1972 and as such the surrender is void. He points out that in view of the provisions of section 49-A, there cannot be any second proceedings or new proceedings at instance of landlord for determination of tenancy and the tenant becomes owner after 1-4-1963. He relies upon the judgment of Apex Court in the case of Wamam v. Umabai, reported at 7970 Mh. L. J. 211, in Shamrao v. Ratilal, reported at 1977 Mh. L. J. (Notes of Cases) 31 and Vikram v. Hanumant, reported at 1977 Mh. L. J. (Notes of Cases) 49, in support of this contention. He further contends that surrender is required to be verified as per provisions of Rule 11 of the Rules framed under the Tenancy Act and non-compliance of said rule renders the surrender void. He relies upon the judgment in the case of Ramchandra v. Govind reported at , in support of said proposition. He further contends that such a plea can be taken by the tenant at any time and for that purpose he places reliance upon the judgment reported at 7977 Mh .L. .J. N.O.C. 49. He points out the order dated 23-5-1972 from-record by which surrender has been declared to be voluntary and valid and contends that said order does not meet requirement of section 21 of the Tenancy Act and that Rule 11 of the Rules framed thereunder. He further contends that on same date, i.e. on 23-5-1972 the proceedings for resumption of possession filed by the petitioners were dropped and said Order has become final. It was, therefore, not open to the petitioners to file fresh proceedings Under Section 36 for restoration of possession. By placing reliance upon the judgment reported at 7970 Mh. L. J. 991, he contends that person lawfully in possession remains tenant in spite of surrender till the order of possession is passed.
6. Thus, after hearing the parties, the first question which arises for consideration is what is the effect of order 23-5-1972 by which the Tahsildar has declared surrender to be valid and voluntary. Perusal of judgment of the Apex Court reported at (supra) reveals that the surrender of tenancy in order to be valid and effective must fulfil four conditions. Those conditions are laid down in para 12 by the Apex Court and said para reads as Under:
“It will be seen from a combined reading of these provisions that a surrender of tenancy by a tenant in order to be valid and effective must fulfil these requirements: (1) It must be in writing. (2) It must be verified before the Mamlatdar. (3) While making such verification the Mamlatdar must satisfy himself in regard to two things, namely, (a) that the tenant understands the nature and consequences of the surrender, and (b) that it is voluntary. (4) The Mamlatdar must endorse his findings as to such satisfaction upon the document of surrender.”
In para 25 of this ruling, the Apex Court has held that when power is given to do certain things in certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. The intention of Legislature to prohibit verification of surrender in any other manner than the one prescribed, is implicit in the provisions. Failure to comply with these mandatory provisions, therefore, vitiated it and renders it non est. The order of surrender dated 23-5-1972 reads as under:
“L. L. and N. A. by Shri Mantri, files an affidavit for holding land less than one family holding. Tenants Walambabai and Devidas and others had already filed the surrender deed on 3-12-1970 for having relinquished eastern half portion of S. No. 26 of 30-34 of Wapti i.e. 15 acres 34 gunthas acres from said S. No. They have been also asked in the absence of the L. L. Now L. L. has filed the affidavit also. As such the surrender is declared to be valid and voluntary.
Implicitly the L. L. is entitled to retain the said eastern portion of 15 acres 34 gunthas of the suit field.
Case be filed.
7. Thus, the Tahsildar has found that the respondents have filed a surrender deed on 3-12-1970 relinquishing eastern half portion and Tahsildar has examined them in absence of landlord. The deed of surrender, application for its verification by tenant and said examination is not produced on record. Thereafter the Tahsildar has considered the affidavit filed by the landlord about his holding land less than family holding. Thereafter he has declared surrender to be valid and voluntary and has observed that landlord is entitled to retain said half portion i.e. 15 acres and 34 gunthas from the suit field. Thus, it is clear that the Tahsildar after verifying the surrender has found that it is in writing, he has examined respondents behind the back of landlord and has thus verified the said surrender and has thereafter recorded that the surrender is voluntary and valid. It is thus clear that the respondents executed the surrender deed after understanding the nature and consequences thereof and it has been verified by the Tahsildar in the manner as required by the above referred judgment of the Apex Court.
8. It is important to note that after said verification and on 2-5-1974, the respondents had made a grievance that surrender was with the signature of one of the non-applicants and it is not binding on all the non-applicants. However, the said objection has been overruled by the Additional Tahsildar, Murtizapur on 31-8-1974 arid he finds that the application for verification of surrender deed itself is signed by all the non-applicants. Such a ground is not raised by the respondents at any stage thereafter and even before this Court. Under the circumstances, when application for verification of surrender and surrender deed itself is signed by ail the non-applicants and they are verified by Tahsildar, it cannot be said that the surrender deed is void or non est. It is no doubt true that the respondents-tenants can raise the plea even before this Court under Article 227 of the Constitution of India, but such a plea will have to be a question of law and not a mixed question of law and fact. The reliance has been placed upon the judgment reported at 7977 Mh .L. .J. (N.O.C.) 49 for this purpose is misconceived because there the landlord had applied for possession on 17-9-1964 i.e. after 1-44963 and the tenant did not raise plea of acquired statutory ownership in view of section 49-A of the Tenancy Act. This Court has held that want of such plea does not affect the jurisdiction of this Court Under Article 227 of the Constitution of India to find out whether the proceedings Under Section 36 were untenable. Thus, the question raised there was only a question of law.
9. The next argument of Advocate Deshpande is that the surrender is fresh proceeding initiated and therefore, after 1-4-1963 and hence in view of section 49-A, such proceedings could not have been initiated by the landlords. The provisions of section 49-A of Tenancy Act show that from 1-4-1963 the ownership of all lands held by the tenant has been transferred to him and he is deemed to be full owner thereof. However, if landlord has made any application to Tahsildar on or before 31-3-1963 under section 36 for possession of land, the tenant becomes full owner of the land which he is found entitled to retain in his possession after such decision. Therefore, if landlord has initiated proceedings on or before 31-3-1963, those proceedings are saved and landlord can resume possession of land to the extent to which he is found entitled at the end thereof. The facts of the present case show that the proceedings for resumption were filed by the petitioners on 24-3-1961 itself and these proceedings were pending upto 23-5-1972. The respondents, therefore, could not become owner of any land till decision of said proceedings and were not owners on 3-12-1970 when they executed a surrender deed in respect of half of suit field. The application for verification of this surrender was also moved by the respondents and the surrender has been found valid and voluntary on 23-5-1972. This application is filed on 29-4-1971 by all the non-applicants and they requested Tahsildar under section 20 of the Tenancy Act to declare surrender dated 3-12-1970 to be voluntary and bona fide. These details are discussed by the Maharashtra Revenue Tribunal in para 4 of its order. It will thus be seen that the respondents surrendered half of the suit field and petitioners accepted that surrender. The proceedings filed by the petitioners were for resumption of 30.34 acres of land and out of it only 15.34 acres of land has been surrendered by the respondents. It will thus be seen that after that date the respondents became full owners of remaining 15 acres of land from Field Survey No. 26. It is thus clear that, a compromise was reached between the parties and the respondents – tenants surrendered half portion of suit field and the petitioners also withdrew their demand of resumption of entire suit field. The proceedings for resumption filed by the petitioners were dropped on same date i.e. on 23-54972 by same authority by observing that in view of the orders passed in other case i.e. surrender case, these proceedings are not tenable and as such, they are filed. It is thus clear that the surrender is not a separate or fresh proceeding initiated by the landlords after 1-4-1963 and the respondents tenants were not the owners of said land surrendered by them as proceedings for its resumption were pending till 23-5-1972. The proviso to Section 49-A clearly states that the respondents can become owner of such land which they are found entitled to retain at the end of such proceedings. Therefore, it is apparent that the parties can very well compromise the matter and the surrender by respondents which is found to be valid and voluntary by the competent authority cannot be treated as fresh or new proceeding as contended by Advocate Shri Deshpande. The reliance placed by him on rulings reported at 1970 MH .L. .J. 211 and 7977 Mh. L. J. (N.O.C.) 31 to show that no new proceedings can be commenced after 1-4-1963, is therefore not required to be looked into.
10. The authorities below while passing impugned orders have held that the surrender executed by the respondents – tenants was not complete in the absence of order of possession. The issue is settled by the unreported judgment of this Court in L. P. A. No. 38 of 1984 decided on 12-12-1986. The Full Bench judgment of this Court reported at 1970 Mh. L. J. 991 held that even after tenancy is terminated on verification of surrender as provided Under Section 20, a tenant does not cease to be a tenant so long as an Order of possession is obtained from the Tahsildar by landlord Under Section 36(2) of the Tenancy Act and finding of Full Bench that scheme laid down Under Section 36 controls the provisions of surrender Under Section 20 have been considered by the Division Bench in this L. P. A. in the light of judgment of the Apex Court in the case of Vallabbhai v. Bai Jivi, reported at . In para 5, the Division Bench as observed as Under:
“The main question posed before us is whether Section 36(2) of the Vidarbha Act makes it obligatory for a landlord to obtain Order from the Tahsildar for taking possession from the tenant, even after valid surrender of tenancy right in his favour or in other words, the tenant continues to be squat on a land despite the surrender of his tenancy rights. The Full Bench of this High Court has answered this issue in affirmative. The Full Bench of this Court has delivered the judgment on 11th of September, 1969 whereas the Supreme Court tendered the judgment in Vallabbhai’s case either did not appear in law reports or was not placed before the Full Bench for consideration.”
In para 6, after holding that the provisions of Sub-section (2) of Section 36 of Tenancy Act are identical with Section 29(2) of Bombay Act and provisions of Section 20 of Tenancy Act are identical to those of Section 15(1) of Bombay Act, the Division Bench has concluded that the decision of Supreme Court in Vallabbhai’s case is squarely applicable for deciding the question before it. At the end of para 7 the Division Bench has found that after valid surrender of Tenancy rights, the land cannot be said to be held by a tenant, as contemplated Under Section 36(2) of the Vidarbha Act. The observations of Division Bench in para 8 are important and the same read as Under:
“The Supreme Court in Vallabbhai’s case has examined the scheme and purport of Sub-section (1) of Section 15 of the Bombay Act, which according’ to us is pari materia to section 20 of the Vidarbha Act. The Supreme Court while considering the effect of surrender of a tenancy right by the tenant in favour of a landlord Under Section 15(1) of the Bombay Act, has observed that the tenancy on such surrender comes to end, and thereupon the relationship between them as a landlord and a tenant and the rights arising out of that relationship terminate.” The legislature, however, was conscience of the possibility of landlords taking undue advantage and, therefore, to safeguard the interests of tenants from being exploited, provided that a surrender by a tenant could only be valid and binding on him if it were in writing and duly verified by the Mamlatdar. Before validating such surrender it would be the duty of a Mamlatdar to ascertain whether the surrender was voluntary and was not under pressure or undue influence of the landlord. But once the surrender satisfies these two conditions it has the same effect as the termination of tenancy. In view of ratio thus laid down by the Supreme Court in Vallabbhai’s case, in our judgment relationship between landlord and tenant does not subsist after valid surrender of tenancy right couples with voluntary delivery of possession. In view of this it was not obligatory for the landlord further to take recourse of Sub-section (2) of Section 36 of the Vidarbha Act for taking possession of the land, as the same cannot said to be held by the tenant. Sub-section (2) of Section 36 of the Vidarbha Act merely imposes a restriction on the landlord to take possession of land (held by tenant) except under the order of Tahsildar. It does not appear to logic as to how even after a valid surrender of a tenancy right that the tenant does continue to be so and a landlord is under obligation to take resort to Sub-section (2) of Section 36 of the Vidarbha Act.”
11. From above, it is clear that it is not obligatory for the landlord to take recourse to Section 36(2). of Tenancy Act for taking possession of the land, as the same cannot be said to be held by tenant. Thus, the logic given by the authorities below to hold that as petitioners did not obtain order of possession on 23-5-1972 and permitted their proceedings to be dropped, the respondents remained tenants despite verification of surrender and later on because of Section 49-A became owners of suit land is misconceived and unsustainable. The moment this conclusion is reached, it is clear that surrender dated 23-5-1972 is valid, voluntary and final insofar as respondents are concerned. They are not entitled to continue in possession of portion surrendered by them thereafter and the proceedings instituted by the landlords were only for execution of that Order. While verifying surrender, the Tahsildar has found that landlord is entitled to retain the said portion of 15 acres 34 gunthas of the suit field. Thus, the landlords were only seeking consequential relief of recovery of possession at the most under a wrong provision. The Tahsildar could have passed order for eviction of respondents and for restoration of provision of 15.34 acres of land to the petitioners. However, it cannot be said that respondents became owners after 23-5-1972. The reasoning given by the Maharashtra Revenue Tribunal, is therefore, misconceived and unsustainable.
12. The Maharashtra Revenue Tribunal has also found that the petitioners held substantial lands and the Tahsildar has not conducted any enquiry as contemplated under Section 21 to find out whether landlord was holding land less than three family holdings. The perusal of the Order dated 23-5-1972 clearly reveals that the landlord has filed affidavit pointing out that the landlord held land less than one family holding and after considering said affidavit the Tahsildar has found that the landlord is entitled to retain said portion of 15 acres and 34 gunthas of suit field which was surrendered by the respondents. It cannot, therefore, be said that the Tahsildar has not conducted any enquiry as contemplated by Section 21 of the Tenancy Act.
13. The Order of Tahsildar dated 27-7-1987 impugned in this petition reveals that the said authority has found that without order of Tahsildar in favour of petitioners, the respondents do not cease to be the tenants even though they hand over possession of land to the landlords. The reliance is placed upon the judgment of Full Bench reported at 1970 Mh .L. .J. 991 for that purpose. However, in view of judgment of the Apex Court in the case of Vallabbhai and the Division Bench judgment of this Court in Letters Patent Appeal, said finding of Tahsildar is unsustainable. The Tahsildar has thereafter found that the petitioners are not entitled to resume lands Under Section 36 read with Section 38 of the Tenancy Act as their holding exceeds three family units. However, no reasons are assigned for said purposes and as to why the finding recorded by the Tahsildar on 23-5-1972 is incorrect. The said order does not show that the petitioners were holding land in excess of 96 acres (three family holdings). Even otherwise, once it is held that the respondent cease to be tenants after 23-5-1972, this issue becomes redundant insofar as the respondents are concerned.
14. The Maharashtra Revenue Tribunal has considered the surrender in para 7 of its order and has found it to be not voluntary because, according to it, while executing surrender deed, the tenants were in fear of loosing entire land in proceedings Under Section 38 read with Section 36(2) of Tenancy Act initiated by landlords and therefore, to save some land they executed the surrender deed. This is not the ground given by respondents while assailing the said surrender. The Tahsildar has on 23-5-1972 expressly recorded a finding that surrender is valid and voluntary and in spite of that Maharashtra Revenue Tribunal has proceeded to observe that Tahsildar has not recorded any such satisfaction. It is thus clear that the order of Maharashtra Revenue Tribunal shows non-application of mind.
15. The discussion above, therefore, reveals that after 23-5-1972, the respondents are not tenants of petitioners in relation to eastern half portion of Survey No. 26 admeasuring 15 acres 34 gunthas. This surrender or its verification is not challenged by the respondents before any authority thereafter. Because of this Order, the proceedings for resumption filed against them by the petitioners were dropped and they became owner of remaining 15 acres of land. In such circumstances, the question is whether respondents can in proceedings filed by landlords for execution of this Order, question the legality and validity of surrender. It is clear that the respondents have permitted the petitioners to act upon the surrender and also got the proceedings for resumption of land filed by the petitioners disposed of on 23-5-1972. It is thus clear that decision to surrender half of the land was taken by the respondents after deliberations and it is a compromise which was reached between the parties. Under the circumstances, the respondents cannot be permitted to challenge the validity of such surrender in proceedings which the landlords were required to file to recover possession. Respondents have no concern with land surrenderd by them on 23-5-1975 and have no locus to challenge it in proceedings for recovery of possession filed by landlord.
16. Under the circumstances, all the impugned orders are quashed and set aside. The petitioners are found entitled to 15 acres, 34 gunthas of land i.e. eastern half portion of Survey No. 26 of Mouza Wapti and respondents are directed to deliver the said possession to the petitioners within a period of four months from today.
17. Writ Petition is disposed of accordingly. Rule is made absolute in above terms. There shall be no Order as to costs.