JUDGMENT - Jamdar M.S. J.-The petitioners, who purchased the land Survey No. 57/2 situated at Bhiwapur, a village in Umrer taluqa of Nagpur district, seek to challenge the orders passed by the Sub-Divisional Officer, Umrer, in an application filed by respondent No. 1 against the petitioners and respondent No. 2 under section 120 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as the 'Vidarbha Tenancy Act') and the Maharashtra Revenue Tribunal on 16–12–1977 in the appeal preferred by the petitioners against the aforesaid decision of the Sub-Divisional Officer, Umrer. 2. Admittedly, the, land originally belonged to respondent No. 2 Madhav Ramchandra Pimplapure, resident of Armori, a village in Gadchiroli taluqa of Chandrapur district. Respondent No. 2 sold his land to the petitioners under a registered sale deed dated 18–6-1974. 3. On 13–6-1975, respondent No. 1 filed an application under section 120 of the Vidarbha Tenancy Act against the petitioners, alleging inter alias that he was cultivating the land in question since 1969–70 on Theka basis, the lease acquired the tenancy rights over the said land, but the petitioners who had no concern with the land, forcibly dispossessed him on the strength of their purchase of the land from respondent No. 2. Respondent No. 1 further averred in the petition that he has acquired a statutory right of purchase of the land, as contemplated by section 50 of the Vidarbha Tenancy Act, and that he had already served the landlords with a notice under the said provision. He contended that his dispossession is illegal and that he is entitled to be placed in possession of the land immediately. He, therefore, prayed for restoration of the land to him. By subsequent amendment of the application, respondent No. 2, original owner of the land, was impleaded as non-applicant No. 3 to the application. 4. Respondent No. 2 denied that respondent No. 1 was cultivating the land on Tneka basis from 1969–70 and contended that respondent No. 1 was a partner in cultivation only for two years, viz., 1972–73 and 1973–74. According to him, both of them were to supervise cultivation of the land, were to share the expenses half and half and to take the income in that pro- portion. According to him, both of them were to supervise cultivation of the land, were to share the expenses half and half and to take the income in that pro- portion. He averred that he had not entered into any such agreement in the year 1974–75 and that he sold the land to the petitioners because, being a resident of a different village, it became expensive and difficult for him to personally cultivate the land. 5. The petitioners contended that they purchased the land by registered sale deed dated 18–6-1974 and have taken possession thereof in pursuance of the sale deed and hence their possession is neither unauthorized nor wrongful. They denied that respondent No. 1 ever cultivated the land in question as a tenant. Without prejudice to these contentions, the petitioners further contended that on his own showing respondent No. 1, who failed to exercise his right to purchase the land within one year from the commencement of his tenancy, would be deemed to have surrendered the land and is, therefore, no more a tenant of the land in question. They also contended that as respondent No. 1 has not obtained any declaration of his being a tenant of the land from any competent authority, as contemplated by section 100(2) of the Vidarbha Tenancy Act, the application under section 120 of the Vidarbha Tenancy Act is not maintainable. 6. The Sub-Divisional Officer, on consideration of the oral and documentary evidence led by the parties, held that respondent No. 1 Motilal was the tenant of the land from 1969–70 till 1973–74 and was cultivating the same on lease of Rs. 500 per year. He further held that even though because of respondent No. 1's failure to offer to purchase the land within one year from the commencement of his tenancy, the land would be deemed to have been surrendered by respondent No. 1 he could not have been dispossessed by the landlords without following the proper procedure. He also held that as respondent No. 1 was tenant of the land, the sale in favour of the petitioners was hit by section 91 also. He consequently held that possession of the petitioners was wrongful and unauthorized. He further held that section 36(1) of the Vidarbha Tenancy Act was applicable only between the tenant and the landlord and that the remedy was not available against the petitioners, who were trespassers. He consequently held that possession of the petitioners was wrongful and unauthorized. He further held that section 36(1) of the Vidarbha Tenancy Act was applicable only between the tenant and the landlord and that the remedy was not available against the petitioners, who were trespassers. He, therefore, held that the remedy under section 120 of the Vidarbha Tenancy Act was not barred. He also held that while dealing with application under section 120, the Collector was competent to decide the question about tenancy, and that it was not necessary to refer the issue to the Tahsildar. On the basis of these findings, the Sub-Divisional Officer directed eviction of the petitioners from the land and restoration of possession thereof to respondent No. 1. Being aggrieved by this decision, the petitioners preferred revision application to the Maharashtra Revenue Tribunal. 7. The learned Member of the Tribunal affirmed the finding of the Sub-Divisional Officer in respect of respondent No. l's tenancy. He further held that respondent No. 1 had given a notice to respondent No. 2 under section 50 of the Vidarbha Tenancy Act within one year from the commencement of the tenancy and hence respondents' tenancy was not surrendered and, therefore, the decision reported in (Vallabbhai v. BaiJivi)1 was not applicable to the facts of the case. He further held that as there was no relationship of landlords and tenant between the petitioners and respondent No. 1, the latter could not have applied under section 36(1) of the Vidarbha Tenancy Act and the action under section 120(c) was correct. He also held that the sale-deed executed by respondent No. 2 in favour of the petitioners was hit by section 91 of the Vidarbha Tenancy Act and hence the petitioners had no right to dispossess respondent No. 1. He further held that simple reading of section 120 makes it clear that the Sub-Divisional Officer is competent to decide the question of tenancy. In this view of the matter, the learned Member of the Tribunal confirmed the order of the Sub-Divisional Officer and rejected the revision. 8. Mainly two contentions are raised on behalf of the petitioners Firstly, it is contended that respondent No. 1 had the remedy given by section 36(1) of the Vidarbha Tenancy Act and hence the summary remedy provided by section 120 was not available to him. 8. Mainly two contentions are raised on behalf of the petitioners Firstly, it is contended that respondent No. 1 had the remedy given by section 36(1) of the Vidarbha Tenancy Act and hence the summary remedy provided by section 120 was not available to him. It was further contended that as respondent No. 1 failed to give notice contemplated by section 50 of the Vidarbha Tenancy Act within one year from the commencement of the tenancy, he would be deemed to have surrendered the land and hence he could not have applied for possession of the land on the basis of his tenancy rights. It was also contended that as the main dispute was about respondent No. 1's tenancy, the Sub-Divisional Officer was not competent to decide that question and hence he should have referred the matter to the Tahsildar for decision. 9. Shri Kotwal, learned advocate for respondent No. 1, urged that as there was no relationship of landlord and tenant between the petitioners and respondent No. 1, the latter could not have availed of the remedy pr vided by section 36(i) against the petitioners and as possession of the petitioners was unauthorized and wrongful, their sale-deed being hit by section 91 of the Vidarbha Tenancy Act, the only remedy respondent No 1 had was by way of application under section 120 of the Vidarbha Tenancy Act' He further contended that even assuming that respondent No. 1 failed to give notice within one year from the commencement of the tenancy, as contemplated by section 50 of the Vidarbha Tenancy Act, neither the original landlord nor the petitioners could have taken possession of the land without following the procedure prescribed by the Tenancy Act. He further contended that the Collector dealing with applications under section 120 of the Vidarbha Tenancy Act is competent to decide the question about tenancy. 10. He further contended that the Collector dealing with applications under section 120 of the Vidarbha Tenancy Act is competent to decide the question about tenancy. 10. Section 120 of the Vidarbha Tenancy Act, which provides for summary eviction, reads as follows: “Any person unauthorized occupying or wrongfully in possession of any land - (a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act (b) the management of which has been assumed under the said provisions, or (c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such person, may be summarily evicted by the Collector after such inquiry as he deems fit.” This provision is completely analogous with section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948, which provides for the same relief. This section provides for a summary remedy for eviction of an un-authorized occupant and does not contemplate of a judicial inquiry in respect of the questions agitated in the proceedings, though as held by the Full Bench of this Court in (Kashiram Shriram Dobale v. Mah. Revenue Tribunal, Nagpur)2 the Collector is expected to make such enquiry as he deems fit and to make a proper order giving reasons for his conclusions. 11. Shri Kotwal tried to place reliance on the decision in Kashiram's case (citation supra) in support of the proposition that the Collector exercising jurisdiction under Section 120 of the Vidarbha Tenancy Act, has jurisdiction to go into the question of tenancy. The relevant observations, on which reliance is placed, appear in para 18 of the judgment. They are as follows : “We have already said that section 124 does not apply in the instant case and there is no express exclusion of jurisdiction by the provision of section 100 so far as the Collector's powers under section 120 are concerned. Thus here we have two provisions in the Act of equal force, one giving jurisdiction to the Tahasildar to decide whether a person is a tenant and the other giving jurisdiction to the Collector to decide whether any person is unauthorized occupying or wrongfully in possession of any land. Thus here we have two provisions in the Act of equal force, one giving jurisdiction to the Tahasildar to decide whether a person is a tenant and the other giving jurisdiction to the Collector to decide whether any person is unauthorized occupying or wrongfully in possession of any land. It seems to us that where such a conflict arises in an application under section 120, the Collector will have to see whether in substance the application before him is an application complaining of unauthorized occupation or wrongful possession of any person in the first place and if he comes to the conclusion that such a person is unauthorized occupying or wrongfully in possession he would have jurisdiction under section 120 even if that person raises the plea that he is a tenant. The mere raising of the plea would not as in the case of the Civil Court, oust the jurisdiction of the Collector. The Collector will have to look to the substance of the matter and decide whether it is a dispute regarding unauthorized occupation or wrongful possession or it is in substance a dispute regarding tenancy. If the latter, he must refer the matter to the Tahsildar. If the former, he will have jurisdiction to decide it. It will not be sufficient to oust the jurisdiction of the Collector for a person to say that he is a tenant if on the face of the material before the Collector it appears to him that the plea of tenancy is one which cannot reasonably be raised or is not bona fide or the Collector comes to the express conclusion that it is raised mala fide.” (emphasis supplied) 12. This decision does not help respondent No. 1, because, in substance, the dispute involved in the present proceeding is regarding tenancy. Respondent No. 1 himself filed the application on the footing that he is a tenant of the land in question and that he was illegally dispossessed by the persons who had no right to be in possession of the land. It is also the case of respondent No. 1 that the petitioners had no right to be in possession under any provisions of the Act, because, their sale-deed is hit by section 91 of the Vidarbha Tenancy Act. Section 91 is attracted only if the land is tenanted. It is also the case of respondent No. 1 that the petitioners had no right to be in possession under any provisions of the Act, because, their sale-deed is hit by section 91 of the Vidarbha Tenancy Act. Section 91 is attracted only if the land is tenanted. It, therefore, means that unless it is held that respondent No. 1is a tenant, the sale-deed in favour of the petitioners cannot be struck down being hit by section 91. It is true that the petitioners and respondent No. 2 do not accept the position that respondent No. 1 is a tenant, but that does not change the scope of the enquiry, which is mainly restricted to the question as to whether respondent No. 1 is a tenant of the land, or whether he was only a partner in cultivation for a limited period as contended by respondent No. 2. This dispute has to be decided judicially and cannot be the subject-matter of a summary inquiry contemplated by section 120. The Sub-Divisional Officer exercising powers of the Collector was, therefore, not competent to adjudicate upon the dispute regarding respondent No. 1's tenancy and he should have referred the matter to the concerned Tahsildar for decision of the issue of tenancy. 13. This brings us to the question about deemed surrender of the land by respondent No. 1. Respondent No. 1 claimed that he is in cultivating possession of the land on Theka basis since 1969–70. Hence, in view of the provisions contained in section 50 (1) read with section 49-A (1) of the Vidarbha Tenancy Act, he was entitled to purchase within one year from the commencement of the tenancy so much of the land as he was entitled to purchase under section 41 and the provisions of sections 41 to 44, both inclusive, applied mutatis mutandis to such a purchase. Section 43 (1) (a) contemplates that a tenant who desires to exercise the right conferred by section 41 is expected to make an offer to the landlord and if he fails to make an offer and thus fails to exercise his right, then, as provided in section 43(14-A), the purchase of the land becomes ineffective and the land is deemed to have been surrendered to the landlord. Respondent No. 1 alleged in the application that he gave a notice to respondent No. 2 and offered to purchase the land within the stipulated period, but he could not substantiate this contention. There is nothing on record to show that such an offer was made within the prescribed time. The result, therefore, is that the land was deemed to have been surrendered by respondent No. 1 to respondent No. 2, who was the landlord at the material time. But it is well-settled that this deemed surrender does not empower the landlord to dispossess the tenant without following the procedure contemplated by section 36 of the Vidarbha Tenancy Act. A landlord seeking possession of the land on account of the failure of the tenant governed by section 50 to make offer to purchase the land within one ear from the commencement of the tenancy, must file an application under section 36 (2) within the period stipulated in that provision. If the landlord failed to do so within two years from the date on which the right to obtain possession of the land is deemed to have accrued to him, he would not be entitled to take possession of the land on the ground that the land is deemed to have been surrendered in his favour. The tenancy would not come to an end and the tenant, though not entitled to purchase the land, would continue to be bound to pay rent to the landlord. Therefore, a tenant who is evicted by the landlord or any person claiming through him de hors section 36(2) is entitled to recover back the possession. The question then arises is whether such a tenant can file an application under section 120 or must have recourse only to section 36 (1) of the Vidarbha Tenancy Act. 14. Therefore, a tenant who is evicted by the landlord or any person claiming through him de hors section 36(2) is entitled to recover back the possession. The question then arises is whether such a tenant can file an application under section 120 or must have recourse only to section 36 (1) of the Vidarbha Tenancy Act. 14. Before exercising jurisdiction under section 120 of the Vidarbha Tenancy Act, three conditions must be satisfied, viz, (1) the person proceeded against is in unauthorized occupation or wrongfully in possession of the land in question; (2) the transfer on the basis of which the person proceeded against claimed to be in possession is invalid under the provisions of the Vidarbha Tenancy Act, or the management of the land has been assumed under the provisions of the Act, or the person in possession is not entitled to use and occupation under the provisions of the Act; and (3) the provisions of the Act do not provide for eviction of such person. If the Act provides any other remedy for evicting a person, who is unauthorized occupying or is wrongfully in possession of any land, then summary remedy provided by section 120 cannot be invoked. In short, if a person claiming possession of the land has a remedy under section 36 (1) or 36(2), he cannot have recourse to the remedy provided by section 120. This position is specifically stated by Their Lordships of the Supreme Court in the case Vallabbliai Natha-bhai v. Bai Jivi and others. In that case, one of the questions that was posed for consideration of Their Lordships was whether section 29(1) and section 84 of the Bombay Tenancy and Agricultural Lands Act (which are completely analogous to section 36 (1) and 120 respectively of the Vidarbha Tenancy Act) provide alternative remedy. Negative this contention, Their Lordships observed as follows in para 6 of the judgment. “The question then is whether a tenant who has a remedy under Section 29(1) can still apply to the Collector under section 84. In other words, whether the Legislature has provided alternative remedies under both the sections to such a tenant? The words “any person unauthorized occupying or wrongfully in possession of any land” in section 34, no doubt, are words of wide import and would include a landlord who is in un-authorized occupation or is wrongfully in possession. In other words, whether the Legislature has provided alternative remedies under both the sections to such a tenant? The words “any person unauthorized occupying or wrongfully in possession of any land” in section 34, no doubt, are words of wide import and would include a landlord who is in un-authorized occupation or is wrongfully in possession. A landlord who under an invalid surrender is in possession of the land is, no doubt, a person in unauthorized occupation or is wrongfully in possession. But then section 84 in express terms limits its application to three types of cases only, namely of a person unauthorized occupying or wrongfully in possession of the land (a) the transfer or acquisition of which etc. is invalid under the Act, or (b) the management of which has been assumed under the Act, or (c) to the use and occupation of which he is not entitled under the provisions of the Act and the said provisions do not provide for the eviction of such.” Elaborating further the effect of the condition “the said provisions do not provide for the eviction of such person”. Their Lordships observed as follows in para 7 : “This condition shows that while giving drastic powers of summary eviction to an administrative officer the Legislature was careful to restrict this power firstly because the result otherwise would be to deprive the person evicted under section 84 of his remedy of appeal before the Collector which he would have if the order were to be passed under section 29(1) and secondly, because it would enable a tenant to by-pass a judicial inquiry by the Mamlatdar under section 29(1) by directly applying to the Collector under section 84. Such a result could not have been intended by the Legislature. Therefore, the contention that sections 29(1) and 84 provide alternative remedies and a choice to the tenant cannot possibly be correct.” 15. Such a result could not have been intended by the Legislature. Therefore, the contention that sections 29(1) and 84 provide alternative remedies and a choice to the tenant cannot possibly be correct.” 15. It is true that in that case the application was made under section 84(c) of Bombay Tenancy and Agricultural Lands Act, 1948, which is analogous to section !20(c) of the Vidarbha Tenancy Act, in which the phrase “the said provisions do not provide for the eviction of such persons” appears, and, therefore, Their Lordships were not required to answer the question whether the condition of there being no other provision in the Act providing for eviction of a person in unauthorized occupation or wrongful possession, contained in section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948, applies to clause (c) only or to all the three clauses (a)(b)(c) of section 84. The question which was left unanswered by the Supreme Court was answered by the Full Bench of this Court in Kashiram's case (citation supra), which was decided some months after the decision in Vallabbhai Nathabhai's case was handed down by the Supreme Court. In Kashiram's case, it was urged that the expression “the provisions of this Act” must be read in relation to the context in which it occurs and that as it is used in the context of transfer by the act of parties or by operation of law, it was intend-ed to refer only to such provisions of the Act. Negative this contention, Kotval C. J., who spoke for the Court, observed as follows: “We are unable to accept this contention because the subject or context in which they are used is really not transfers but in the context of any “person unauthorisedly occupying or wrongfully in possession of any land”. Clauses (a) and (b) merely enumerate the different categories of unauthorized occupation or wrongful possession of any land under the Act and clause (c) is general residuary clause. To limit the words “provisions of this Act” only to transfers would result in making clause (c) totally inapplicable, for the subject of transfer is already dealt with specifically in clause (a). When the Act says “under the provisions of this Act” it means any of the provisions of the Act, unless there is an express exclusion or exclusion by necessary implication in any particular section. When the Act says “under the provisions of this Act” it means any of the provisions of the Act, unless there is an express exclusion or exclusion by necessary implication in any particular section. The use of the words “the said provisions 'in clauses (b) and (c) and in the clause 'and the said provisions do not provide for the eviction of such person” therefore refer to the provisions of the entire Act. This clause moreover qualifies not merely clause (c) of the section, but all the three clauses (a), (b) and (c). This has been held in (Durgaben v. Moria Bavla)3.” 16. This brings me to the last limb of Shri Kotwal's argument that section 36(1) is available only against the landlord and hence respondent No. 1 could not have invoked this provision against the petitioners, who claimed title to the land in pursuance of all invalid sale-deed. There is no substance in this contention, because there is nothing in section 36(1) from which it can be inferred that the said provision is available only against the landlord. Section 36(1) enables a tenant to apply to the Tahsildar for possession of any land or dwelling house or site used for any allied pursuit in two cases: (1) if the tenant is entitled to possession under any of the provisions of the Act; and (2) if the tenant is evicted in contravention of sub- section (2). No doubt, eviction contemplated by sub-section (2) can only be by the landlord and hence in second type of cases, the tenant has a remedy only against the landlord, but in the first type of cases, remedy is available against any person disturbing possession of the tenant. 17. In Vallabbhai's case (citation supra) the Supreme Court has point- ed out the distinction between section 29(1) of the Bombay Tenancy and Agricultural Lands Act, which is analogous to section 36(1) of the Vidarbha Tenancy Act, and section 29(2) of the Bombay Tenancy and Agricultural Lands Act, which is analogous to section 36(2) of the Vidarbha Tenancy Act, and has emphasised that the remedy under section 29(1) is available against any person including the landlord. This is what Their Lordships have observed in para 4 of the judgment: “Section 29(1) confers a right-on a tenant to apply to the Mamlatdar for possession and section 29(2) gives a right to a landlord to apply to the Mamlatdar to obtain possession of land held by a tenant. In both the cases it is the duty of the Mamlatdar to restore possession to the tenant or to the landlord, as the case may be. It will be noticed that whereas sub-section (2) is confined to an application by a landlord for possession from his tenant, sub-section (1) is not so confined and there-fore a tenant can apply for possession against anyone including the land-lord. But for such an application the condition is that he must be one who is “entitled to possession” of the land in question “under any of the provisions of this Act”. Thus in all cases where a tenant is entitled to possession of land under any of the provisions of the Act, he has a right under section 29(i) to apply to the Mamlatdar for restoration of possession against anyone including the landlord and it is the duty of the Mamlatdar, if satisfied that the tenant is entitled to such possession under any of the provisions of the Act, to restore possession to him.” It is, therefore, clear that respondent No. 1, who claimed to be the tenant of the land and thus entitled to be in possession under the provisions of the Act, should have filed an application under section 36(1) and his application under section 120 was, therefore, clearly misconceived. 18. Shri Kotwal then tried to urge that the matter may be remanded to the Sub-Divisional Officer with a direction to refer the question about tenancy to the Tahsildar. This, obviously, cannot be done, because the application under section 120 itself was not maintainable. 19. Shri Kotwal then urged that the application under section 120 should be converted into under section 36(1) and be remitted to the appropriate authority for decision. This request also deserves to be rejected for three reasons. Firstly, the authority competent to decide the application under section 36(1) is different from the authority to whom application under section 120 was filed. Shri Kotwal then urged that the application under section 120 should be converted into under section 36(1) and be remitted to the appropriate authority for decision. This request also deserves to be rejected for three reasons. Firstly, the authority competent to decide the application under section 36(1) is different from the authority to whom application under section 120 was filed. Secondly, if the application under section 120 is allowed to be converted into under section 36(1) at this stage, it would deprive the petitioners of their plea of bar of limitation, because the period within which application under section 36(1) is filed is already over. Thirdly, writ petition under Article 227 of the Constitution is not the continuation of original proceedings. 20. In the result, therefore, the petition deserves to be allowed and the impugned orders deserve to be quashed. I, therefore, allow the petition with costs, quash the impugned orders and dismiss the application filed by respondent No. 1 under section 120 of the Vidarbha Tenancy Act. Petition allowed. -----