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TMI Blog2003 (10) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... aged the land to one Bajrang Maruti Kanse. In the year 1969, Maharashtra State Legislature amended that Act by amending Act 49 of 69 whereby Section 32 (IB) was inserted in the Act. Thereafter, in view of the insertion of section 32(1B) in the Act, the Tahsildar in the year 1971 started suo motu proceedings for restoration of possession of land to the appellant. However, on 1.3.1972 the Tahsildar dropped the proceedings holding that the landlord was not in possession of land on 31.7.1969. Although, the Tahsildar held that appellant was in possession of the land on 15,6.1955. The appellant preferred an apeal before the Sub- Divisional Officer which was allowed and the case was remanded back to the Tahsildar. On remand, the Tahsildar again dropped the proceedings. Aggrieved the appellant preferred an appeal befoe the Sub Divisional Officer who by order dated 16.11.1987 allowed the appeal and directed restoration of possession to the appellant. The respondent-landlord thereafter preferred a revision petition before the Maharashtra Revenue Tribunal, Pune (for short 'the Tribunal'). The Tribunal by its order dated 15.6.1988 allowed the revision application and the order of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as the conditions are applicable subject to the like conditions as are provided in sections 31 and 31A for the termination of tenancies. (2A)The Mamlatdar shall in respect of the surrender verified under sub- section(1), hold an inquiry and decide whether the landlord is entitled under sub-section (2) to retain the whole or any portion of the land.so surrendered, and specify-the extent and particulars in that behalf. (3) The land or any portion thereof, which the landlord is not entitled to retain under sub-section (2), shall be liable to be disposed of in the manner provided under clause (c) of sub-section (2) of secion 32 p. Section 29 provides for procedure of taking possession which is as under :- 29 (1) A tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply in writing for such possession to the Mamlatdar. The application shall be made in such form as may be prescribed and within a period of two years from the date on which the right to obtain possession of the land or dwelling house is deemed to have accrued to the tenant agricultural labourer or artisan, as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, as noticed hereinbefore, postulates taking over of possession by the landlord from the tenant only in accordance with procedure prescribed therefor. In the event, the surrender made by the predecessor-in-interest of the appellant in favour of the respondent is found to be invalid; the possession thereof obtained by the later pursuant to or in furtherance thereof shall also be invalid. In such an event, although the landlord takes a physical possession of the land, the right to possess them same remains with the tenant. He could recover possession of the said land in accordance with law. The said Act is a beneficent statute. It should be construed in favour of the tenant and against the landlord. The protection given to the tenant in terms of the said Act must be given full effect. So construed, the expression possession' would also include right of possession. The view which we have taken is fortified by the decisions of this Court in Ramchandra Keshav Adke (dead) by Lrs Ors. v, Govind Joti Chavare Ors., [1975] 1 SCC 559; Bhagwant Pundalik Anr. v. Kishan Ganpat Bharaskal Ors., [1971] 1 SCC 15 and in Abdul Ajij Shaikh Jumma Anr. v. Dashrath Indas Nhavi Ors., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the landlord or his successor-in-interest on the 31st day of July, 1969 and the land is not put to a non-agricultural use on or before the last mentioned date, then, the Tahsildar shall, notwithstanding anything contained in the said section 29, either suo motu or on the application of the tenant; hold an inquiry and direct that such land shall be taken from the possession of the landlord or, as the case may be, his successor-in interest, and shall be restored to the tenant; and thereafter, the provisions of this section and sections 32A to 32R (both inclusive) shall, insofar as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased the land on the date on which the land is restored to him. , Provided that the tenant shall be entitled to restoration of the land tinder this sub-section only if he undertakes to cultivate the land personally and of so much; thereof as together with the other land held by him as owner or tenant shall not exceed the Ceiling area The salient features of Section 32 (IB) of the act are (1) that the tenant must be in possession of land on 15.6.1955 and (2) the tenant was evicted otherw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , does not constitute a binding precedent. In Halsbury 'Laws of England, 4th Edition Volume 26 it is stated ; ' A decision is given per in curiam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow or when if has acted in ignorance of a Horse of Lords decisions, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. In State of U.P. And Anr. v. Synthetics And Chemicals Ltd Anr., reported in [1991] 4 SCC 139, this Court observed : Incuria literally means 'carelessness'. In practice per in curiam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young versus Bristol Aeroplane Co. Ltd.) Same has been accepted approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his own right, the land could have been restored in favour of the appellant. The Appellate Authority correctly analysed the legal position. It is true that the Tribunal while reversing the judgment and order of the Appellate Authority came to a finding that a third party was in possession but such purported finding of fact has been arrived at on applying wrong legal tests and without taking into consideration the effect of the provisions of the Transfer of Property Act and also the Indian Registration Act. In that view of the matter, the finding of the Tribunal was not sustainable. It is only in that premise the High Court arrived at a finding that the appellant has satisfied all conditions laid down under Section 32 (IB) of the Act. In view of our findings that the decision in Dhondiram Totoba Kadam (supra) had been rendered Per in curiam and did not create a binding precedent, the judgment of the High Court having been rested solely thereon cannot be sustained. It is set aside accordingly. For the aforementioned reasons, the appeal deserves to be allowed. The appeal is allowed accordingly, judgment under challenge is set aside. There shall be no order as to costs. - - Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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