V.A. Mohta, J.@mdashThe principal question that falls for consideration in this letters Patent Appeal is whether sub-section (3) of section 106 of the Bombay Tenancy and Agricultural Lands (V.R.) Act, 1958 (''the Act'') confers a right of appeal to a party aggrieved by the order or decision of a Tahsildar in execution proceedings conducted under sub-section (2) of section 106.
2. The factual background against which the point arise can be stated thus : Dharmal Sansthan, Gaiwadi, tahsil Darypur, district Amravati the respondent) was the owner of an agricultural land of which Ramrao Maroti Bajad (the appellant) was a tenant. The land owner after terminating the tenancy on the ground of non-payment of lease money applied for possession of the land u/s 19 read with section 36 of the Act. Conditional order granting possession on failure of payment of lease money within a specified period was passed by the Additional Tahsildar. Daryapur on 17-3-1981. On expiry of the said time the land owner applied on 7-7-1981 for possession of the property and for issuing possession warrant By order dated 11-6-1982 the said application was granted and on 19-6-1982 possession was actually taken by the land-owner. On 30-8-1982 the tenant filed and appeal against main order dated 17-3-1981 alongwith an application for condonation of delay on the ground that he was not aware of the order when passed and learnt about it only when the warrant for possession was executed by the land-owner. He also filed an appeal against the order dated 11-6-1982. The appeal against the order dated 17-3-1981 was dismissed as barred by time taking the view that the tenant was aware of the order dated 17-3-1981 as the order-sheet of that date making endorsement of communication was signed by him. The appeal against the order dated 11-6-1982, however, was allowed and the matter was remanded on the ground that the warrant of possession was issued before the expiry of the time of appeal contrary to the proviso to section 106(2). Both the parties challenged the respective orders in two revisions before the Maharashtra Revenue Tribunal. The revision filed by the tenant dismissing his appeal on the ground of limitation was allowed on the ground that the tenant had satisfactorily explained the delay and appeal was directed to be heard on merits. The revision filed by the landowner came to be dismissed as not maintainable on the basis of a Single Bench Judgment of this Court rendered in Sitva Diwaji v. M.R.T., 1970 Mh.L. J. N 13 Civil Application No. 488/69 decided on 16-1-1970 in which it is held that section 106(2) in execution proceedings is capable of interference by an appeal to the Collector and the said appellate order is final and no revision u/s 111 of the Act lies. The land owner challenged these two orders of the Tribunal in (Writ Petition No. 2783 of 1983 )2 which came to be decided by another learned Single Judge on 16-7-1983. The learned Single Judge arrived at the following conclusions :
1. The dismissal of appeal on the ground of limitation by the appellate Court was perfectly justified inasmuch as the order sheet dated 17-3-1981 bears the signature of the tenant and the revisional jurisdiction in interfering with the said order was improperly exercised.
2. The appeal against the order passed in execution u/s 106(2) is not maintainable.
The present Letters Patent Appeal is directed against the said judgment of the learned Single Judge.
3. With the assistance of the learned Counsel for the parties, we have through the various orders passed and also perused the original order-sheets. Ex facie it appears that the order-sheet dated 17-3-1981 bears the signature of tenant Ramrao. At no stage before the appellate authority the tenant denied the signature. On affidavit or otherwise. Even in the Letters Appeal, reference to signature is tactfully avoided. If in this background, the learned Single Judge has taken the view that the revisional jurisdiction was improperly exercised and there was wrongful interference with the discretion of the appellate Court, we do not see any reason to interfere with the said view of the learned Single Judge in Letters Patent jurisdiction. Our attention is invited to the case of
4. This takes us to the point about maintainability of appeal against order dated 11-6-1982. Three-fold submissions are made in this connection by the learned Counsel for the appellant. They are :
(1) Section 106(3) confers a right of appeal against order passed in execution u/s 106(2).
(2) The order dated 11-6-1982 was combined order under sections 36(2) and 106(2) of the Act and was, appealable even u/s 107.
(3) The learned Single Judge was bound by the view taken by the earlier Single Bench in Sitva Dewaji v. M.R.T. (supra) and in case of disagreement, proper course to follow was to make an order of reference to a Larger Bench.
5. First point first. Section 106 deals only with the subject of execution of order for payment of money or for restoring possession. It is worded as follows :
"106(1) Any sum the payment of which has been directed by an order of the Tahsildar or the Tribunal including an order awarding costs shall be recoverable from the person ordered to pay the same as an arrear of land revenue.
(2) An order of the Tahsildar or the Tribunal awarding possession or restoring the possession or use of any land shall be executed in the manner provided in section 21 of the Mamlatdars'' Courts Act, 1906 as if it was the decision of the Tahsildar under the said Act :
Provided that such order shall not be executed till the expiry of the period of appeal as provided in section 114.
(3) Any order or decision of the Tahsildar in execution proceedings conducted under sub-section (2) shall, subject to appeal (if any) to the Collector, be final."
The above section appears to be a self-contained Code for execution of orders for payment of money or for possession under the Act. It may be mentioned that sub-section (3) has been newly added on the Statue Book by Maharashtra Act No. 5 of 1961. Section 107 of the Act is a provision of appeal specifying list of sections orders passed under which are made appealable. All those sections deal with the merits of controversy about substantive rights and order passed in execution under sub-section (2) of section 106 is not included in the said list. Crucial point is whether section 107 is the sole repository of right of appeal under the Act. In our view such a conclusion is not possible in the face of clear language employed in section 106(3). The order passed in execution u/s 106(2) was not appealable under the Act as it originally stood. What then was the purpose behind adding sub-section (3). The object appears to be to provide at least one remedy of my against the orders passed in execution. We are unable to visualise any other reason. To hold otherwise would render the provision otiose-a result which is to be avoided in construction of a Statute. In our view, therefore, section 106(3) has created a new right of appeal against orders in execution passed u/s 106(2), which hitherto did not exists, and section 107 is not the only source of right of appeal under the Act.
6. The learned Single Judge has, in the impugned judgment relied on his own earlier judgment in Laxman Govindrao v. Baburao Punjyaji. 1984 Mh.L.J. 435 in coming to the conclusion that appeal against the order dated 11-6-1982 was not maintainable. It appears that attention of the learned Judge was not then drawn to the case of Sitva Dewaji. But Sitva Dewaji is specifically referred to in the order of the Tribunal impugned in the present writ petition. Yet there is neither any reference to the same in the impugned judgment nor to the reasoning adopted therein in coming to the conclusion that section 106(3) confers a right of appeal. The reasoning adopted in Laxman v. Bapurao (supra) reads thus : "The provisions of section 106(3) relied upon to show that there is an appeal provided against the order of Tenancy Tahsildar u/s 106(2). It is not in dispute that under the scheme of the Tenancy Act all the appeals are provided u/s 107 of the said Act. In section 107 or anywhere-else in the Tenancy Act no appeal is expressly provided against the order u/s 106(2) of the said Act. A reading of section 106(30 without doing any harm to the language used therein shows that the order u/s 106(3) is final subject to appeal (if any). In the first place section 106(3) is dealing with the question to finality to the order. It is not a provision made to provide for any appeal. This is clear from the use of expression ''if any" after the word "appeal'' which itself shows that the appeal has to be provided elsewhere then under sub-section (3) of section 106. The learned Counsel for the petitioner urged that ''if any'' means ''if filed'' . The expression ''if any'' can only mean ''if any provided under the Act'' and not ''if any filed''. Even assuming that ''if any'' means, ''if any filed,'' it still cannot mean that section 106(3) itself is providing for an appeal against the order u/s 106(2). The expression if any filed'' presupposes the existence of the provision for an appeal but a provision for an appeal cannot be read by mere implication but must be specifically provided for in the absence of an express provision in the Tenancy Act, providing for an appeal the order u/s 106(2) of the said Act. I am of the view that no appeal is provided against the order u/s 106(2) of the Tenancy Act."
With respect it seems to us that the above approach is not correct, Firstly, it proceeds upon the assumption that "it is not in dispute that under the scheme of the Tenancy Act all the appeals are provided u/s 107 of the said Act. This assumption, in our judgment is erroneous and indeed begs the question. It was the contention of the parties in Laxman''s case that section 106(3) provided a right of appeal independent of section 107. Secondly it is held that the expression "if any" used in sub-section (3) itself shows that appeal has to be provided outside the said provision. The expression "if any" the reasoning proceeds can only mean "if any provided under the Act". In other words, it refers to an appeal provided otherwise under the Act i.e., section 107. We find it difficult to read section 106(3) that way. Sub-section (3) in terms refers to finality attached to the orders passed in execution conducted u/s 106(2) and does not refer to any order covered by section 107. Indeed there is no question of attaching finality to the appellate orders covered by section 107, because if the order is appealable u/s 107, it is also revisable u/s 111 in the scheme of the Act and therefore, what is final in those orders is the revisional order and not the appellate order.
7. Under the circumstances, in our judgment, the expression "if any" only means, "if any filed" and not" if any otherwise provided for under the Act. " We also find it difficult to endorse the reasoning that even if the expression "if any" means" if any filed", it does mean that section 106(3) itself provides a right of appeal . Equally unacceptable to us is the reasoning that section 106(3) does not contain a provision of appeal specifically and further that in no case provision of appeal can be read even by necessary implication. Moreover it will have to be borne in mind that providing independent appeal in execution matters and using such language in a provision of appeal is not that unusual.
8. We, therefore, respectfully concur with the view taken in Sitva Dewaji''s case and hold that sub section (3) of section 106 provides a right of appeal and the Maharashtra Revenue Tribunal was right in not interfering with the appellate order on the ground that the said order had become final in over view decision in Laxman Govindrao and the impugned judgment are erroneous on this aspect of the matter.
9. In view of our decision on the first point upholding the contention of the appellant-tenant, we consider it unnecessary to burden this judgment with the decision on the other two points which, under the circumstances, will have only academic value.
10. Conclusion : This Letters Patent Appeal is partly allowed. The learned Single Judge was right in concluding that the appeal u/s 107 of the Act filed by the tenant was barred by time; and was wrong in concluding that the appeal against the order dated 11-6-1982 is not maintainable.
We directed the Tahsildar, Daryapur to dispose of the execution proceedings in accordance with the directions issued in the remand order passed by the Sub-Divisional Officer in appeal.
No order as to costs.
