ORDER
1. The petitioner is the landlord of four fields with an area of 38.18 acres situated at village Randala, Tahsil and District Nagpur. The contesting respondent No. 4 who claimed to be a tenant cultivating these fields, filed an application on 26-2-1964 alleging that he was dispossessed of these fields otherwise than in accordance with law and that he was, therefore, entitled to be restored to possession. The application, however, does not state the exact date of dispossession but it is not now disputed that he was dispossessed on 10-6-1959. In respect of these fields proceedings under Section 145, Criminal Procedure Code, were taken by the Sub-Divisional Magistrate, Nagpur, in which according to the tenant, the Tahsildar, Kamptee, was appointed a receiver and he was placed in possession of these fields on 28-11-1959. These proceedings under Section. 145, Criminal Procedure Code, terminated in favour of the petitioner landlord and in accordance with the decision of the Civil Court under Section 146, Criminal Procedure Code, the petitioner was put in possession of these fields on 23-5-1963 by the S. D. M. The tenant was conscious or the fact that his application filed on 26-2-1964 was delayed and he tried to explain this delay bystating in the application that the fields were in possession or the receiver and that 'with a bona fide object of getting back the possession of the fields as early as possible, the applicant sued out proceedings under Section 145 of the Criminal Procedure Code and also as advised by his lawyer.' He, therefore, stated that if there was any delay in making the application, then that should be excused taking into consideration those circumstances. This is the only ground on which the delay in making the application for possession under Section 36 (1) of the Bombay Tenancy and Agricultural Lands Act, 1958 (hereinafter referred to as the Act) was explained. The landlord contested the application made by the tenant. According to him, the tenant had executed a surrender deed on 4-4-1959 in his favour and that it was submitted for verification and he was, therefore, entitled to be in possession. One or the main grounds on which the maintainability of the application filed by the tenant was contested was that the application was made beyond the period of three years from the date of dispossession and that the tenant was not entitled to exclude the time during which proceedings under Section 145, Criminal Procedure Code, were pending.
2. It appears that on 29-11-1959, the tenant had also filed an application in the Court of the Collector, Nagpur District, Nagpur, under Section 120 of the Tenancy Act and in that application the tenant prayed that the landlord should be evicted from the fields in question as he had no right to disturb the possession of the tenant. It was alleged in this application under Section 120 of the Act that the dispossession had taken place on 4-11-1959. This application came to be registered as revenue case No. 128-A/ 52-59-60 in the Court of the Sub-Divisional Magistrate, Nagpur. The Sub-Divisional Magistrate on this application passed an order on 23-1-1959 forwarding it to the Naib-Tahsildar for enquiry and report. This application was then tagged on to the application filed by the landlord for verification of the surrender-deed. The case regarding verification of the surrender-deed was registered as revenue case No. 25/59-4-59-60 in the Court of the Naib Tahsildar, Nagpur.
3. The tenant's application under Section 36 of the Act was dealt with by the Additional Tahsildar, Nagpur. He framed a preliminary issue on the question of limitation. That issue was as follows:
'Whether the application of Shri Govindrao son of Ramji Thakre, dated 24-2-1964, asking for possession of the suit land, is within limitation and whether it is tenable?' The Tahsildar took the view that the application was made beyond three years from the date on which the right to obtain possession had accrued to the tenant. He further held that the tenant was not entitled to the benefit of Section 14 of the Limitation Act, 1908 and that the pendency of proceedings under Section 145, Criminal Procedure Codewas not a bar to making an application under Section 36 (1) of the Act. He also gave a finding that the tenant had chosen a wrong forum and could not claim benefit of pendency of those proceedings and he had not acted with due diligence to safeguard his own interest. The application was thus rejected as barred by limitation.
4. Against this order, the tenant appealed. The Deputy Collector took the view that the time during which proceedings under Section 145, Criminal Procedure Code were pending, was liable to be excluded for the purpose of ascertaining whether the application under Section 36 (1) of the Act was filed by the tenant within the prescribed period or limitation. The Deputy Collector also held that 'Section 129 (d) of the Bombay Tenancy Act excluded operation of Section 36 on lands under Criminal Court's management' and therefore the period from 28-1-1961 i. e. the date when Act No. V of 1961 came into force, till 23-5-1963, when the fields were released, from the management of the Criminal Court, will have to be included. It appears that before that Deputy Collector an argument was advanced that the time involved in proceedings under Section 120 of the Tenancy Act should also be excluded under Section 14 of the Limitation Act, 1908. The contention was advanced before him on the basis of an application made to amend the memo of appeal before him in which it was stated that the case under Section 120 of the Act was still pending and that an additional ground of appeal should be allowed to be urged that the tenant was pursuing his remedy for possession in the Court of the Sub-Divisional Officer, Nagpur and that therefore the application under Section 38 was within time. Even this contention was accepted and the learned Deputy Collector held that the principle underlying Section 14 of the Limitation Act, should be applied in the case of an application under Section 36. He therefore, set aside the order of the Tahsildar and sent back the case to the Tahsildar for disposal according to law.
5. This order of the Deputy Collector was challenged by the landlord petitioner by a revision application filed before the Maharashtra Revenue Tribunal, Nagpur. The Revenue Tribunal made no reference to the case of the tenant that the time taken in the proceedings under Section 145, Criminal Procedure Code, should be excluded but the learned member of the Tribunal took the view that the tenant had chosen a wrong forum through ignorance or wrong advice by making an application to the Sub-Divisional Officer and that condonation of delay was justified. The revision application was, therefore, rejected. The landlord has now challenged the orders of the Revenue Tribunal and the Deputy Collector by this petition.
6. The learned counsel for the petitioner contends that the tenant was not entitled to the exclusion of the period between 23-9-1959 i. e., the date of the preliminary orderto 23-5-1963 on which date the proceedings under Section 145, Criminal Procedure Code ended in favour of the petitioner. According to him, the tenant should have made an application for restoration of possession within three years from 10-6-1959 which was the date of dispossession and the application was patently barred by time and was rightly rejected by the Tahsildar. The learned counsel for the respondent tenant, however, contends that the landlord was not in possession of the fields from 28-11-1959, when the receiver appointed by the Sub-Divisional Magistrate was placed in possession of the fields in dispute and that really the tenant had no cause of action on the basis of which a claim for possession could be validly made under Section 36 (1). According to him, cause of action for the application under Section 36 (1) of the Act really arose on 23-5-1963 when the possession of the fields was handed over to the landlord by the Sub-Divisional Magistrate. He, therefore, contends that the application is well within limitation from that date. His alternative submission is that the tenant is entitled to have the period of pendency of the proceedings under Section 145, Criminal Procedure Code excluded while computing the period of limitation by virtue of the provisions of Section 14 read with Section 29 (2) of the Limitation Act.
7. Having heard counsel for parties at some length I am inclined to hold that the tenant's application was rightly rejected by the Tahsildar. Section 36 (1) of the Tenancy Act prescribes a limitation of three years for an application by a tenant where ho claims that he is entitled to possession as a result of eviction in contravention of Sub-section (2) and this period of three years is to be reckoned from the date on which the right to obtain possession of the land had accrued to the tenant. The starting point of limitation, therefore, under Section 38 (1) is the date on which the right to obtain possession of land accrued. This right to obtain possession so far as present respondent-tenant is concerned, obviously accrued to him on the date on which he was dispossessed viz., on 10-6-1959. It is not possible to substitute in Section 36 (1) any other cause of action in place of the one which is referred to therein for the purposes o deciding whether an application under Section 36 (1) was made within the prescribed period of three years. Accepting the contention of the tenant that the cause of action in his favour really arose on 23-5-1963, under Section 36 (1) would be reading something in the section which the legislature never intended, If the tenant was dispossessed, then it is that dispossession which gives him a right to obtain restoration of possession and the period of three years must be reckoned from that date alone and not from any other date. Therefore, the application filed by the tenant on 24-2-1964 was barred by limitation.
8. The next question that requires to be decided is whether the pendency of the proceedings under Section 145. Criminal Procedure Code, should be taken into account for deciding whether the application by the tenant is within limitation or not. It was argued that Section 14 of the Limitation Act, 1908 became applicable to these proceedings by virtue of Section 29 (2) of that Act. The learned counsel for the landlord, however, contended that the Limitation Act does not provide for a period of limitation for an application made under Section 36 (1) of the Tenancy Act and in the absence of such prescription the condition required to be satisfied for the applicability of Sub-section (2) of Section 29 is not satisfied and, therefore, the provisions enumerated therein viz. Section 4, Sections 9 to 18, and Section 22 of the Limitation Act cannot be said to be applicable to the proceedings under Section 38 (1) of the Tenancy Act in respect of which the limitation is provided by the Special law viz., the Tenancy Act.
9. Section 29 (2) of the Limitation Act, 1908 is as follows:
'Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor, in that schedule, and for the purpose of determining any period of limitation prescribed for any suit-appeal or application by any special or local law-
(a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall apply.'
10. It is clear from the words of Section 29 (2) that there are the two conditions which are required to be satisfied if the provisions enumerated in Clause (a) thereof including Section 14 are to apply to a proceeding under the special law. These conditions are that (1) the Special law prescribes a period of limitation different from the period prescribed by the First Schedule and (2) the application of those sections is not expressly excluded by the Special law. Learned counsel for the petitioner contends that the first condition is not satisfied in the instant case because the First Schedule does not prescribe any period of limitation for an application under Section 36 (1) of the Tenancy Act and therefore the provisions of Section 14 of the Limitation Act, 1908 are hot applicable to a proceeding under Section 36 of the Tenancy Act. The argument must, however, be rejected having regard to the construction placed by this Court on the opening words in Section 29 (2) of the Limitation Act in Full Bench decision of this Court in Anjanabai v. Yeshwantrao, : AIR1961Bom154 (FB). The question in that case was whether the provisions of Section 5 of the Limitation Act are applicable in the case ofan application made under Section 417(3) of the Criminal Procedure Code for the grant of leave to appeal against an order of acquittal. Section 29 (2) fell for consideration in that case and it was contended that Sub-section (2) of Section 29 can apply only where the special law prescribes a period of limitation different from the period prescribed therefor by the First Schedule and that since the First Schedule to the Limitation Act does not prescribe any period of limitation for an application for leave to appeal against an order of acquittal, the period prescribed under Section 417(3) of the Criminal Procedure Code cannot be said to be different from that laid down in First Schedule to the Limitation Act. This contention was negatived by the Full Bench relying on an earlier decision of Division Bench in Canara Bank Ltd. v. Warden Insurance Co. Ltd., : AIR1953Bom35 which was later followed in State v. C. N. Raman, : AIR1956Bom447 . In Anjanabai's case the following observations of the Division Bench in the decision in the Canara Bank case were quoted with approval :
'The contention of Mr. Adarkar is that Sub-section (2) only applies when you find a period of limitation laid down in the first schedule and a special law alters or modifies that period, and inasmuch as the Limitation Act does not provide for a period of limitation in respect of an appeal from a special officer to the High Court Section 29 (2) has no application to this particular special law. In our opinion that is not the correct interpretation to put upon the language used by the Legislature, viz., a period of limitation different from the period prescribed therefor by the first schedule. The period of limitation may be different under two different circumstances. It may be different if it modifies or alters a period of limitation fixed by the first schedule to the Limitation Act. It may also be different in the sense that it departs from the period of limitation fixed for various appeals under the Limitation Act. If the first schedule to the Limitation Act omits laying down any period of limitation for a particular appeal and the special law provides a period of limitation, then to that extent the special law is different from the Limitation Act. We are conscious of the fact that the language used by tie Legislature is perhaps not very happy, but we must put upon it a construction which will reconcile the various difficulties caused by the other sections of the Limitation Act and which will give effect to the object which obviously the Legislature had in mind, because if we were to give to Section 29 (2) the meaning which Mr. Adarkar contends for, then the result would be that even Section 3 of the Limitation Act would not apply to this special law. The result would be that although an appeal may be barred by limitation, it would not be liable to be dismissed under Section 3. Therefore, in our opinion, it is clear that we have before us a special law which doesprescribe a period of limitation different from the period prescribed therefor by the first schedule to the Limitation Act.' The Full Bench observed that the view taken by the Court in the two earlier cases was correct. Thus, prescription of period of limitation of three years by the special law viz. Tenancy Act for an application under Section 36 (1) of the Tenancy Act, for which no period of limitation is prescribed by the First Schedule, must be taken to be prescription of a period of limitation different from the period prescribed by the First Schedule, for the purpose of Section 29 (2) of the Limitation Act, 1908. The first condition laid down in Sub-section (2) of Section 29 having been satisfied, the provisions contained in Section 4, Sections 9 to 18 and Section 22 must be held to apply to an application under Section 30 (1) of the Tenancy Act, 1958 in so far as and to the extent to which they are not expressly excluded by such special or local law viz., the Tenancy Act. There is no express provision in the Tenancy Act which excludes the applicability of the Sections enumerated in clause (a) of Section 29 (2) of the Limitation Act, 1908 in the case or an application under Section 36 (1) of the Tenancy Act. It must, therefore, be held that the provisions of Section 14 of the Limitation Act 1908 are applicable to a proceeding under Section 36 (1) of the Tenancy Act. It will however depend on the facts or each case whether the party claiming the benefit of that provision satisfies the requirements thereof. In view of the fact that the provisions of the several sections enumerated in clause (A) of Section 29 (2) of the Limitation Act, 1908 has now been held to apply to a proceeding under Section 36 (1) of the Tenancy Act, Section 9 of the Limitation Act, 1908 will also become applicable to these proceedings. Section 9 of the Limitation Act, 1908 provides-
'Where once time has begun to run no subsequent disability or inability to sue stops it: Provided that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover continues.'
In this case the proviso is not material. The effect of Section 9 of the Limitation Act, however, is that if the limitation for an application under Section 86 (1) had begun to run from the date of dispossession viz., 10-6-1959 that limitation is not arrested. Thus for the purposes of Section 36 (1) of the Tenancy Act, the limitation must be held to have commenced from 10-6-1959.
11. The next question then is whether under Section 14 of the Limitation Act the time taken during the pendency of the proceedings under Section 145, Criminal Procedure Code was liable to be excluded. The proceeding under Section 36 (1) is initiated by an application and the manner of computation of the period of limitation prescribed for an application is dealt with by Sec-tion 14 (2) of the Limitation Act Section 14 (2) is as follows :
'It computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.'
Before a party can claim the benefit of Section 14 (2) of the Limitation Act he must show that he was prosecuting another civil proceeding in good faith with due diligence in a Court which from defect of jurisdiction or other cause of like nature was unable to entertain it. He has also to show that he was prosecuting the proceeding for the same relief which he claims in the subsequent proceeding. In my view a proceeding under Section 145, Criminal Procedure Code by its very nature is a quasi-criminal proceeding and cannot be classified as civil proceeding as contemplated by Section 14 (2) of the Limitation Act. The proceedings under Section 145, Criminal Procedure Code, were pursued to their conclusion and there was no question of any want of jurisdiction in the Magistrate who passed the final order in those proceedings. Thus even assuming that the proceedings in the Magistrates Court were for the same relief and were prosecuted with the due diligence, the most important conditions necessary for the applicability of Section 14 (2) of the Limitation Act, 1908 are not satisfied in the instant case. The pendency of these proceedings cannot, therefore, be taken into account for computation of the period of limitation of three years prescribed by Section 36 (1) of the Tenancy Act. In my view the pendency of those proceedings did not also prevent the tenant from making an application under Section 36 (1) of the Tenancy Act. The application made by the tenant on 24-2-1964 must therefore be held to have been made Beyond the period prescribed by Section 36 (1) of the Tenancy Act. It was, therefore, rightly rejected by the Tahsildar.
12. The learned counsel for the tenant then contended that his client was prevented from making the application under Section 36 of the Act because the management of the field was taken over by the receiver appointed by the Criminal Court, He was obviously referring to the fact that a receiver appointed by the Sub-Divisional Magistrate was in possession of the field and this amounted to taking over management by the Criminal Court within the meaning or Section 129 (d) of the Bombay Tenancy Act. For the proposition that the applicability of Section 36 of the Tenancy Act was excluded in the case of such property, the management of which was taken over by the Criminal Court, the learned counsel for the tenant relied onthe opening words of Section 129 of the Bombay Tenancy Act. This section is as follows:--
'129. Nothing in the foregoing provisions except Section 2, the provisions of Chapter II (excluding Sections 21, 22, 23, 24 and 37) and Section 91 and the provisions of Chapters X and XII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in sections mentioned above, shall apply-
a) X X X X
b) X X X X
(c) X X X X X
d) to any land taken under management by a Civil, Revenue or Criminal Court;' The learned counsel contends that the opening words of Section 129 must be so construed as to mean that the provisions of Chapter II are made inapplicable in the case of lands under the management of civil, revenue and criminal Court. Section 129 of the Act deals with the applicability and the inapplicability of certain provisions to the different kinds of lands enumerated therein. It is true that the section provides that 'none of the foregoing provisions of the Act shall apply' but to this an exception is made by enumerating certain provisions which means that the provisions which are stated by way of an exception have been made applicable to the lands specified in the section. These provisions which are stated by way of exception to the general provision of inapplicability of anything that is provided in Sections 1 to 128-A are: Section 2, the provisions of Chapter II excepting Sections 21, 22, 23, 24 and 37 from that Chapter and Section 91 and the provisions of Chapters X and XII. Section 36 is in Chapter II. Section 36 is not one of the provisions which are omitted from the Chapter II as being inapplicable because from Chapter II some of the provisions are made inapplicable and they are Sections 21, 22, 23, 24 and 37. Thus, Section 129 cannot be construed as to mean that an application under Section 36 is prohibited in the case of lands which are enumerated therein. If the tenant was entitled to take recourse to Section 36, even in the case of a land, the management of which was taken by the criminal Court, it is not possible to accept the submission that the tenant in the instant case could not have made an application for restoration of possession before the date on which the petitioner was placed in possession by the Magistrate because Section 36 of the Act was made inapplicable to the case of lands which were taken over by the receiver in the proceedings under Section 145, Criminal Procedure Code. It may also be stated that this ground was not even stated in the application made before the Tahsildar.
13. It is finally contended by the learned counsel for the tenant that the pendency of proceedings under Section 120 before the Sub-Divisional Officer, Nagpur, must be taken into consideration and that the learned member of the Revenue Tribunal and theDeputy Collector were justified in condoning the delay having regard to the pendency of those proceedings. I am unable to accept this contention also. There is no other provision other than Section 14 (2) of the Limitation Act under which such an indulgence could be claimed by the tenant. It is not necessary to decide for the purpose of this case whether the proceedings pending under Section 120 before the S. D. O. Nagpur, were in the nature of civil proceedings within the meaning of Section 14 (2) of the Limitation Act. But the record of those proceedings is before me and the record speaks eloquently of want of diligence on the part of the tenant. Whether a particular proceeding was being prosecuted with due diligence or not is a question of fact which must be decided on the facts of each case. I have already stated that before the Tahsildar the benefit of Section 14 (2) of the Limitation Act on the ground of pendency of proceedings before the Sub-Divisional Officer was never claimed by the tenant. If such a question was raised, the Tahsildar would have inquired into the question whether the tenant was prosecuting the proceedings with due diligence or not. Apart from that, patently the Sub-Divisional Officer does not have jurisdiction in respect of a matter which is covered by Section 36 (1) of the Act and the tenant has chosen a forum which had no jurisdiction to deal with his application at all. The learned member of the Tribunal has observed that the tenant must have done so on account of some mistake or wrong advice. That again would be a question of fact and there is no evidence in this case on the basis of which the reason why the tenant was prompted to approach an authority without jurisdiction could be ascertained. The record shows that after the proceeding under Section 120 of the Tenancy Act was instituted on 23-11-1959, it got tagged on to the proceedings started by the landlord for the purpose or the verification of the surrender deed which the tenant is alleged to have executed. It is surprising to see that for almost 3 1/2 years these proceedings have remained unattended to. The order sheet dated 3-7-1961 in this case states that-
'Both (Radhesham and Govindrao) present Radhesham filed an application for extension of period for allowing him to produce stay order, along with one affidavit that his application for stay will be heard in the first week of July by S. D. O. Await. Case for 18-7-1961.'
and the next order-sheet after this is of 21-1-1965. This order-sheet mentions that-
'This case is put up to me by my Reader Shri Kamble on asking when in an application made by Shri Kamble pleader in case No. 15/59-32 of 63-64 of M. Ranara, he made a reference to this case pending decision. Reader orally tells me he found this ease lying unattended to in the box containing papers received from the Court of N.T. Nagpur, Shri Gokhale. It appears the records of the case must have been received back by the former Court with revisional orders passed on 31-1-1963 by the Court of Spl. Dy. Collector, L.R. Nagpur; the order is on record of this case,
2. My reader will please report as to how and when he detected this case.' It is not disputed before me by the parties that the proceedings in this case were never stayed and when the proceedings were never stayed, the tenant obviously did not appear to be interested in getting his application under Section 120 of the Tenancy Act decided early. The conduct of the tenant in not taking any steps to see that these proceedings are disposed of can hardly be said to be diligent. Apart from the fact that these proceedings have not even been disposed of and mere is no finding that the Court had no jurisdiction to entertain this application, the manner in which the tenant has prosecuted this proceeding under Section 120 is a clear proof of want of diligence on his part. I am, therefore, of the view that the learned member of the Tribunal and the Special Deputy Collector were not justified in accepting the vague allegation made at the appellate stage and condoning the delay in making the application by the tenant under Section 36(1) of the Tenancy Act
14. These were the only contentions advanced before me. Since I have held that the application under Section 36(1) of the Tenancy Act was patently barred by time and that the tenant was not entitled to have the time taken in the two proceedings referred to above excluded, I must hold that the Tahsildar was justified in rejecting the application of the tenant as barred by limitation. The petition is therefore allowed. The orders of the Revenue Tribunal in Revenue Revision Application No. 1305 of 1965 decided on 7-8-1965 and the order of the Special Deputy Collector, Land Reforms. Nagpur, in Revenue Appeal No. 10/59-10(A)/64-65 decided on 30-4-1965 are, therefore, quashed. The petitioner shall be entitled to costs from the tenant-respondent No. 4,
15. Petition allowed.