JUDGMENT - Jamdar J.-This Letters Patent Appeal arises out of the order dated 17th October 1979 in Writ Petition No. 1496 of 1973. 2. The appellant is the son of Ganpat Dasaru, who admittedly was a protected tenant under the Berar Regulation of Agricultural Leases Act, 1951 (hereinafter referred to as the Leases Act) of survey No. 10 and ?rd portion of survey No. 3/2 of mouza Pahapal, a village in Want taluq of Yavatmal district. Ganpat was inducted on the lands by respondent's grand-father Shamrao Deshpande some time in the year 1951. 3. Respondent's grand-father Shamrao served Ganpat with notice contemplated by section 9(1) of the Leases Act and filed an application under section 8(1) (g) of the said enactment for terminating his tenancy. By his order dated 16-10-1956, the Sub-Divisional Officer, Wani allowed the application and ordered that the lease of the lands mentioned in the notice shall stand terminated. Being aggrieved by this order, Ganpat preferred Appeal No. 125/59/1957-58 of Pahapal to the Additional Deputy Commis sioner, Yavatmal, who stayed the proceedings vide his order dated 29-10-1957 in view of the provisions contained in section 4 of Ordinance No IV of 1957 dated 21st September 1957. Meanwhile, the Bombay Tenancy and Agricul tural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as 'the Vidarbha Tenancy Act') came into force with effect from 30th December 1958. Thereafter Shamrao filed an application under section 38(1) read with section 36(2) of the Vidarbha Tenancy Act for terminating Ganpat's tenancy, for bona fide personal cultivation of the lands. This application was decided on 19-12-1961 and in view of the provisions contained in sub-section (4) of section 38, only half portion of the tenanted lands was allowed to be resumed. Thereafter suo motu proceedings were started in the year 1962-63 for conferral of statutory ownership on the tenant Ganpat in respect of half portion retain ed with him. These proceedings resulted in the order dated 30-4-1961 by which Ganpat was declared to be a statutory owner of the lands retained with him. Price of the said lands was also fixed, was duly deposited by Ganpat and withdrawn by Shamrao. These proceedings resulted in the order dated 30-4-1961 by which Ganpat was declared to be a statutory owner of the lands retained with him. Price of the said lands was also fixed, was duly deposited by Ganpat and withdrawn by Shamrao. It is also an admitted position that in pursuance of the order dated 19-12-1961 passed in the proceedings under section 38(1) read with section 36(2) of the Vidarbha Tenancy Act, Shamrao was placed in possession of half the portion which he was allowed to resume. 4. Shamrao died in 1967 and long thereafter the earlier appeal, viz., Appeal No. 125/59/57-58 of Pahapal, which was stayed vide order dated 29-10-1957 passed by the then Deputy Commissioner, Yavatmal, was taken up for consideration by the Collector on 17-2-1969. The Collector forward ed it to the Sub-Divisional Officer, Wani, who was invested with appellate powers of the Collector under the Vidarbha Tenancy Act, on 30-6-1971. As Garipat was also dead, the appellant and his mother Ambibai were brought on record as Ganpat's legal representatives, while the respondent was brought on record as the legal representative of his grand-father Shamrao. 5. The learned Sub-Divisional Officer held that in view of sec tion 132(2) of the Vidarbha Tenancy Act the right acquired by Shamrao and his heir before the commencement of the Vidarbha Tenancy Act was not affected by the subsequent proceeding and that the appeal had not become infructuous in view of the said proceeding under the provisions of the Vidarbha Tenancy Act. On merits, the Sub-Divisional Officer held that the Sub-Divisional Officer, who passed the original order, was right in holding that the burden was on the tenant to prove that the landlord had more than 50 acres of land and that it was not established that the landlord held more than 50 acres of land or that the restoration would make his holding in excess of 50 acres. Being aggrieved by this order, the appellant and his mother preferred Revi sion Application No. Ten. A. 892 of 1972 to the Maharashtra Revenue Tri bunal The learned Member of the Maharashtra Revenue Tribunal relying on the decision of the Supreme Court in (Ramchandia v. Tukaram)1, held that in view of section 132 (2) of the Vidarbha Tenancy Act the rights accrued in favour of the landlord were not affected by the subsequent proceeding under the Vidarbha Tenancy Act. The appellant and his mother, therefore, filed Special Civil Application No. 1496 of 1973 under Article 227 of the Consti tution of India for quashing the original order passed by the Sub-Divisional Officer on 16-10-1956, the order passed in appeal on 31-8-1972 and the order passed by the Maharashtra Revenue Tribunal on 31-7-1973. 6. The above-mentioned petition was filed on 26-9-1973 and was pending when during emergency Article 227 of the Constitution was amended, taking away power of superintendence over Tribunals by the High Court. The petitioner, therefore, filed an application for amendment for converting the petition into one under Article 226 of the Constitution. No order, however, was passed on this application in view of the general order passed in Writ Petition No. 66 of 1975 on 29-4-1977 for treating such petitions as writ petitions under Article 226 of the Constitution. Even though in the title of the petition it is mentioned that the petition was filed under Article 227 of the Constitution and even though the learned Single Judge has mentioned in his judgment that the petition was one under Article 227 of the Constitution, in fact it was converted into a petition under Article 226 of the Constitution, and hence the objection raised on behalf of the respondent to the maintainability of this appeal relying on the Full Bench decision in (State of Maharashtra v. Kusum Wd /o Charudatta and others)2 cannot be sustained. 7. The main questions that arise for consideration in this appeal are whether by virtue of the order dated 16-10-1956 passed by the Sub-Divisional Officer under section 8(1)(g) read with section 9(1) of the Leases Act, any vested right was acquired by the landlord before the Vidarbha Tenancy Act came into force and whether the landlord was entitled to resume possession of the entire land, or whether by virtue of section 132 (3) of the Vidarbha Tenancy Act, the right of the landlord to resume possession of the land came to be governed by the provisions contained in section 38 of the Vidarbha Tenancy Act, and whether in view of the proceedings under the said section and the orders passed in those proceedings, the order dated 16-10-1956 became infructuous. 8. 8. As mentioned above, the appeal preferred by Ganpat against the order dated 16-10-1956 passed by the Sub-Divisional Officer, Wani.in the proceedings under section” 8(1)(g) read with section 9(1) of the Leases Act was pending, when the Vidarbha Tenancy Act came into force on 30th December 1958. By the order dated 16-10-1956, Ganpat's tenancy was terminated. On the basis of this position, it is sought to be urged on behalf of the respondent that a vested right was created in favour of the landlord as contemplated by sub-section (2) of section 132 of the Vidarbha Tenancy Act and hence neither the “termination proceedings were governed by the Vidarbha Tenancy Act nor the right of the landlord to resume possession of the land was subject to the conditions laid down in sub-sections (3) and (4) of section 38 of the Vidarbha Tenancy Act. The learned Single Judge has accepted the position that as a result of the order dated 16-10-1956 passed under section 8(1)(g) of the Leases Act, a vested right was created in favour of the original landlord Shamrao and hence the subsequent proceedings under the provisions of the Vidarbha Tenancy Act would be of little mean ing so far as working out of the vested right was concerned. It is on this assumption that the learned Single Judge distinguished the decision in (Shriram v. Ramrao)3. Shri Udhoji, learned advocate for the respondent, tried to support this conclusion relying on the Full Bench decision of this Court in (Smt. Joharabi v. Member, Maharashtra Revenue Tribunal, Nagpur)4. He contended that the order passed under section 8(1)(g) of the Leases Act created a vested right in favour of the landlord. 9. In Joharabi's case, the main question that fell for consideration of the learned Judges was whether the notice simpliciter under section 9 (1) of the Leases Act by itself terminates the lease of the tenant, or whether for effective termination of the lease, a further order under section 8(1) (g) is necessary. In answering the question in the affirmative, the learned Judges analysed the ratio decidendi of the Full Bench decision in (Jayantraj Kanak-mal v. Hari Dagdu)5 and the decision of the Supreme Court in Ramchandra v. Tukaram. 10. In answering the question in the affirmative, the learned Judges analysed the ratio decidendi of the Full Bench decision in (Jayantraj Kanak-mal v. Hari Dagdu)5 and the decision of the Supreme Court in Ramchandra v. Tukaram. 10. In Jayantraj's case, it was held that the proceeding started on an application under section 19(1) of the Leases Act is a part or continuation of the proceeding under section 8 or under sub-section (3) of section 9, for, the lessee's rights could not be said to have been effectively determined unless an order for ejectment is made under section 19. It was further held that the proceeding under section 8 or section 9 remains pending so long as an application is made in it under sub-section (1) of section 19 and until an order has been made under sub-section (3) of section 19, and, therefore, an application made under section 19 of the Act after the commencement of the Vidarbha Tenancy Act is, therefore, an application in a pending proceeding of the kind referred to in clause (a) of sub-section (3) of section 132 of the Vidarbha Tenancy Act, and it will be deemed to have been instituted under the Vidarbha Tenancy Act and shall be disposed of in accordance with the provisions of the said Act. 11. In Ramchandra Harischandra v. Tukaram Kant, this Court further held that an application under section 19(1) should be deemed to have been made under the corresponding provision,”viz., section 36(2) of the Vidarbha Tenancy Act, and though section 38(1) and proviso to sec tion 36 (2) of the Vidarbha Tenancy Act are not applicable to such applica tions, sub-sections (3) and (4) of section 38 of the said Act would, however, apply to all applications for obtaining possession of the land for personal cultivation under section 19 of the Leases Act, which were pending or which were deemed to have been pending on the date of the commencement of the Tenancy Act. This decision was reversed by the Supreme Court in the case Ramchandra v. Tukaram to the extent it laid down that if an application under section 19(1) is pending when the Vidarbha Tenancy Act came into force, landlord's right to resume possession was subject to the conditions stated in sub-sections (3) and (4) of section 38 of the Vidarbha Tenancy Act. The decision in Jayantraj's case was neither challenged nor was expressly or impliedly overruled. Their Lordships held that where the determination of the tenancy is not under sub-section (I) of section 38 of the Vidarbha Tenancy Act, sub-sections (3) and (4) would not apply, and by the use of the expres sion “shall be disposed of in accordance with the provisions of this Act” in section 132(3) of the Tenancy Act, the Legislature intended to attract the procedural provisions of the Tenancy Act and not the conditions precedent (to the institution of fresh proceedings. Their Lordships further held that once an order was passed under section 8(1)(g) of the Leases Act by the Revenue Officer, the only enquiry contemplated to be made on an application under section 19 of the said Act was a summary enquiry before the order for possession was made and at that stage there was no scope for the applica tion of the conditions and restrictions prescribed by sub-sections (3) and (4) of section 38 of the Vidarbha Tenancy Act, because those provisions do not apply to the proceedings to enforce rights acquired when the Leases Act was in operation. 12. It is, however, pertinent to note that Their Lordships considered the effect of final and conclusive order passed under section 8(1)(g) of the Leases Act and they nowhere laid down that a vested right is created in favour of the landlord by virtue of an order under section 8(1)(g) even when appeal against the said order is pending. The Full Bench decision in Joharabi's case (citation supra) also did not lay down the proposition that a vested right is created in favour of the landlord even when an appeal against the order under section 8(1)(g) is pending. Pendency of an application under section 19(1) of the Leases Act and pendency of an appeal against the order under section 8(1)(g) cannot give rise to the same effect because an application under section 19(1) can be filed only after an order under section 8(1)(g) becomes final which result would follow if no appeal is filed or if the appeal is finally decided. As mentioned above, in Joharabi's •case (citation supra), what the Full Bench considered was as to when the lease stands terminated. As mentioned above, in Joharabi's •case (citation supra), what the Full Bench considered was as to when the lease stands terminated. The learned Judges did not lay down the dicta that the tenancy is effectively terminated and the vested right to get possession is created in favour of the landlord even when an order made under section 8(1)(g) is subject to an appeal which is pending. On the contrary, they specifically held that during the pendency of the appeal there was no right whatsoever which was accrued or arisen in favour of the landlord. It is true that in that case the application of the landlord under section 8(1)(g) was rejected by the Sub-Divisional Officer and that the appeal was preferred by the landlord, but that would not make any difference. The effect of pendency of an appeal would be the same whether the appeal arises out of an order rejecting the application, or arises out of an order granting the same. During the pendency of the appeal, there is no final determination of the question and hence there can be no effective and final termination of the tenancy. This position becomes clear from the observations made by the learned Judges in Joharabi's case while applying the ratio laid down by them to the facts of the case before them. The relevant observations appear •in para 29. They are as follows : “If then the correct view is that a notice simpliciter under section 9(1) of the Leases Act does not terminate a tenancy and that an order under section 8(1)(g) in every case is necessary, then having regard to the facts in this case we do not see how a right could arise in favour of the 'landlord' on 30-12-1958, the date on which the new Tenancy Act came into force. On that date the position was that the 'landlord' had given a notice on 4-12-1954 and had made an application under section 8 (I) (g) on 1-5-1955, but that application to obtain an order terminating the tenancy had been rejected by the Sub-Divisional Officer on the ground that the notice was not bona fide. Against that decision an appeal was pending. Against that decision an appeal was pending. That appeal no doubt could be continued and heard as an appeal under the New Tenancy Act by virtue of section 132(3), but pend ing that appeal there was no right whatsoever which had accrued or arisen in favour of the landlord. Therefore, the provisions of sections 36 and 38 of the New Tenancy Act would become applicable to the 'landlord'. Of course the 'landlord' need not give a fresh notice as was held in the Full Bench case as also in the Supreme Court decision, but that she bad to fulfil the additional conditions {aid down in sub-sections (3) and (4) of section 38, there can be no doubt.'' This aspect of the matter was ignored by the learned Single Judge while distinguishing the decision in Shriram v. Ramrao. 13. As the appeal against the order under section 8(1)(g) of the Leases Act in this case was pending when the Vidarbha Tenancy Act came into force, no vested right had accrued in favour of the lardlord before the Vidarbha Tenancy Act came into force. The right of the landlord to resume possession, therefore, became subject to the provisions contained in sub sections (3) and (4) of section 38 of the Vidarbha Tenancy Act. Hence, even if the appeal preferred by the tenant would have been dismissed, the landlord under no circumstances could have claimed possession of the entire land and could have resumed possession of only half the portion of the land in ques-tion in view of sub-section (4) of section 38 of the Vidarbha Tenancy Act, which specifically lays down that in no case a tenancy shall be terminated in such a manner as will result in leaving with a tenant, after termination, less than half the area of the land leased to him, except under the circum stances mentioned in clauses (i) and (ii) of the proviso to sub-section (4). Such an order was in fact passed in favour of the landlord under the proceed ings commenced by the original landlord Shamrao under section 38 of the Vidarbha Tenancy Act during the pendency of the appeal. As mentioned above, by the order dated 19-9-1961 passed in Revenue Case No. 53/59(8)/ 60-61 under section 38 of the Vidarbha Tenancy Act Shamrao was held entitled to resume half portion of the lands as contemplated by sub-sec tion (4). As mentioned above, by the order dated 19-9-1961 passed in Revenue Case No. 53/59(8)/ 60-61 under section 38 of the Vidarbha Tenancy Act Shamrao was held entitled to resume half portion of the lands as contemplated by sub-sec tion (4). Not only that but in the suo motu proceedings started for conferral of ownership on the deceased tenant Ganpat, the latter was declared to be the statutory owner of the lands retained with him, the purchase price of the said lands was also fixed and was duly deposited by the tenant. Not only Shamrao did not challenge this order but unconditionally withdrew that amount. The result of the suo motu proceedings under sections 46 and 49-A of the Vidarbha Tenancy Act, therefore, was that not only the appeal pend ing before the Collector against the order under section 8(1)(g) of the Leases Act but also the order under section 8(1)(g) became infructuous. 14. In the result, the appeal is allowed. The order appealed against and the orders challenged in Writ Petition No. 1496 of 1973 are quashed and the application for terminating the tenancy of the appellant in respect of the whole of the lands is rejected. No costs. Appeal allowed. -----