B.N. Deshmukh, J.
1. The petitioner who was a member of the Armed Forces preferred an application for restoration of land from Survey No. 208/1 and Survey No. 209/1 situated at village Hadalage, taluka Gandhinglaj of Kolapur District under the provisions of sections 43-1A and 43-1B of the Bombay Tenancy and Agricultural Lands Act, 1948. Writ Petition No. 3268 of 1980 relates to the restoration of land from Survey No. 209/1 while Writ Petition No. 208/1. As the parties are the same and the points involved being common, both the writ petitions shall stand disposed of by this judgement.
2. The land was a Patil Vatan land and after the abolition the said Vatan was regranted in favour of the petitioner on 25-6-1969. The petitioner paid the occupancy price on 29-1-1967.
3. The Assistant Collector, Gandhinglaj, allowed the applications of the petitioner partially. The petitioner was allowed to resume land to the extent of his share in the joint family property. He was further directed to get his share declared and demarcated by metes and bounds applying to the Tahsildar, Gandhinglaj and to approach him for final order of possession.
4. The petitioner preferred revision before the Additional Commissioner, Pune, but the revision of the petitioner was dismissed on the ground that the revision was not maintainable as the relationship between the petitioner and the respondents is doubtful. The Additional Commissioner further held that the petitioner is a serviceman and his share in the joint family is not divided by metes and bounds and as such the applications are not maintainable under section 43-1B of the said Act.
5. The decisions of the authorities below are challenged by the petitioner in these writ petitions.
6. Shri Apte, learned Counsel for the petitioner contended that the decision of the Assistant Collector is not in conformity with the provisions of section 43-1B of the Act. His further contention is that in view of the finding recorded by the Additional Commissioner Pune that the relationship of landlord and tenant is doubtful, the respondents have no claim over the suit land.
7. Before going through the merits of the case, it is necessary to source some facts which throw light on the point in controversy. There is no dispute that the land was Patil Vatan land and after abolition of Patil Vatan, it was regrated in favour of the petitioner in the year 1969. The petitioner though now denying the tenancy of the respondents, but on earlier occasion, the petitioner had terminated the tenancy of the respondents. Therefore, the petitioner is now stopped from denying the status of the respondents being tenants. The finding recorded by the Additional Commissioner regarding the relationship being doubtful, is not correct in view of the fact that the tenancy is admitted by the petitioner himself. It is not open for the petitioner now to contend that the respondents are not the tenants.
8. Shri Apte has further contended that the petitioner has become owner of the entire land as the other members of the joint family are not members of the co-parcenery and they have relinquished their share in favour of the petitioner in the year 1982. The question of determination of the shares and getting his share separated by metes and bounds does not arise in the present case.
9. The father of the petitioner admittedly died in the year 1964, leaving behind the petitioner, two daughters and two wives. Though the order of regrant passed after the abolition of the Patil Vatan is in favour of the petitioner, in the nature of things, it cannot be disputed that the Patil Vatan was held by the family since their ancestors. The regrant in favour of the petitioner will have to be deemed to be in favour of the joint family of the petitioner. After the death of the father of the petitioner, the joint family consisted of the petitioner, his two sisters, mother and step-mother. In view of this factual position, at the time of the regrant, the regrant actually will be in favour of the join family of the abovementioned members.
10. The petitioner had preferred an application under section 43-1B of the said Act for the resumption of the land on 20th March, 1972. The joint status of the family since the regrant continued even on the date of the making of the application by the petitioner. Not only that but the joint status was continued even thereafter till the alleged relinquishment in favour of the petitioner by the other members of the joint family. Naturally, therefore the petitioner was one of the members of the joint family when he made the applications on 20th March, 1972.
11. It is worth-while to consider the provisions of sections 43-1A, 43-1B, 43-1D and 43-1E in this connection. Section 43-1A defines the term 'landlord' for the purpose of newly introduced Chapter III-AA which is introduced by way of an amendment for special provisions for termination of tenancy by landlords who are or have been serving members of the Armed Forces and also for purchase of their lands by tenants.
12. Section 43-1B confers right on landlord to terminate the tenancy and also to obtain possession of the land.
13. Section 43-1D confers the right on the tenant to purchase land which would be left over after the resumption of the land by the persons qualifying the definition of landlord under section 43-1A.
14. If we read the scheme of the provisions, it is amply clear that under section 43-1B, the landlord as defined under section 43-1A, is given right to terminate the tenancy of any land and obtain possession thereof, but if the landlord is a member of a joint family, only to the extent of his share in the land not exceeding the ceiling area held by the joint family, provided that the mamlatdar on inquiry is satisfied that such share has (regard being had to the area, assessment, classification and value of land) been separated by metes and bounds in the same proportion as his share in the entire joint family property and not in a larger proportion.
15. Section 43-1B, therefore, confers right on the landlord to terminate the tenancy of a tenant of tenants or to obtain possession. The right to obtain possession is restricted in case the landlord is a member of the joint family on the determination of his share in the property and also on getting his share separated by metes and bounds in the proportion of his share through the mamlatdar. The termination of tenancy precedes the obtaining of possession by the landlord which is also amply clear from the provisions of sub-section (2) of section 43-1B because the making of an application for possession is dependent on the giving notice in writing of termination of tenancy. The provisions of section 43-1D further support this aspect of the matter because section 43-1D confers the right on the tenant to purchase the land from the landlord. Clause (b) of sub-section (1) of section 43-1D deals with the purchase of the land after the termination of the tenancy under section 43-1B of that portion under which the landlord is not entitled for resumption.
16. Considering all these provisions together, the provisions leave no doubt that before making an application for possession of the land the tenancy of the tenant will have to be terminated. The landlord can, therefore, terminate the tenancy of the entire land by giving a notice in writing, but his right to obtain possession, if he is a member of a joint family, is only to the extent of his share in the joint family and not to any larger proportion.
17. The question which came up for consideration before me is that which is the date relevant for determining the share of the landlord whether it is the date on which the tenancy is terminated or is it the date on which the application, for resumption is made under section 43-1B. According to Shri Apte, the relevant date is the date on which the mamlatdar or Tahasildar effect separation of the share of the landlord by metes and bounds.
18. I am unable to appreciate this contention because the provisions of sections 43-1B, 43-1D and 43-1E even with the definition of 'landlord' under section 43-1A, do not leave any scope for such interpretation. The landlord is required to make an application for possession after the termination of tenancy. The provisions of Clause (b) of sub-section (1) of section 43-1B provides that if the landlord is a member of a joint family, then he is entitled to the share only to the extent of his share in the joint family. This provision, therefore, will have to be considered in the light of the provisions of section 43-1A and sub-section (2) of section 43-1B. The question whether the landlord is a member of a joint family will have to be determined on the date on which he makes an application. Naturally, therefore, the share referred to in Clause (b) will be determined on the date on which his status as the member of the joint family is determined and the status has to be determined with reference to the date on which the application is made and cannot be determined with reference to the actual separation of his share by metes and bounds.
19. In the facts of the present case the regrant the was made in favour of the petitioner in the year 1969. Admittedly, the application was made by the petitioner on 20th March, 1972 for possession under section 43-1B. The status of the petitioner being member of the joint family continued after the regrant on the date of the application and also to the subsequent date till the alleged relinquishment. The relinquishment, if any, will not have any bearing on the determination of the share of the petitioner on the date of the application, i.e. on 20th March, 1972. The petitioner will entitled for possession of the land to the extent of his share as on 20th March, 1972 as the status of the joint family consisting of all these members continued till that date. I, therefore, do not see any reason as to why the order passed by the Assistant Collector requires any modification.
20. Shri Hombalkar, learned Counsel for the respondents tried to contend that the applications made by the petitioner under section 43-1B are not maintainable at all, on the ground that the respondents tenants shall be deemed to have purchased the land on earlier date. There is no basis for the contention. The facts which are necessary to consider this aspect of the matter are neither pleaded nor agitated at any time before the argument advanced in this Court. In the present case the argument simpliciter cannot be accepted in view of the fact that there was regrant in favour of the petitioner on 25th June, 1960. The basis or the foundation for considering this argument is not at all laid by way of evidence nor argued before the authorities. It would not be proper to entertain such an argument, which is based on consideration of certain facts in a petition like this. I do not feel it necessary to remand the matter back on that ground also, as no material is produced except the argument advanced in this Court calling for any remand. The petitioner had preferred the applications on the basis of the special provisions made in favour of serving members of the legislature has desired to make special provisions in their favour, the fruits are denied to him since 1972. I, therefore, feel that it would not be proper to remand the matter back for any purpose whatsoever in view of the clear proposition as enunciated above.
21. In the result, the petitions are party allowed. The order passed by the Additional Commissioner, Pune dated 24-5-1979 is set aside. The order dated 31-12-1977 passed by the Assistant Collector is restored. The petitioner shall make an application for getting his share separated. The order regarding resumption must follow to the extent of his share. Rule made absolute accordingly. There shall be no order as to costs.