P. M. CHAUHAN, J. ( 1 ) PETITIONER Thakkar Bhanuprasad Kripashanker is occupant of Survey No. 371/14 admeasuring 3 acres 25 gunthas situated at village Nisraya Taluka Borsad District Kaira. Admittedly Mahijibhai Desaibhai was the tenant of that land till surrender on 4/03/1955 Tenant Mahijibhai filed Tenancy Case No. 225 of 1973 before the Mamlatdar Borsad mainly contending that he continued to be in possession of that land even after 1955 and he continued to be the tenant of the said land. He also contended that even if the petitioner landlord had taken away the possession on termination of the tenancy rights he is entitled to purchase the land under the provisions of the Bombay Tenancy 8r Agricultural Lands Act (to be referred as `btandal Act) as he continued to be in possession of that laud. He submitted an application for interim injunction under Sec. 70 (nb) BTandal Act which was granted but subsequently vacated. In the appeal against that order the Deputy Collector set aside the order vacating the interim injunction and reinstated the order of interim injunction. In Revision Application No. GRT. TEN B. A. 598 of 1973 the Gujarat Revenue Tribunal observed that the surrender was legal and valid and set aside the order by the Deputy Collector and directed for fresh hearing of the interim application along with the main application. The evidence was then recorded by the Mamlatdar who on appreciation of evidence held that the respondent tenant continued to be in possession of the land as the tenant even after the date of the surrender and he occupies certain residential premises situated on that land. The Mamlatdar therefore declared the respondent-Mahijibhai as tenant of the land and of the farm houses situated on that land. That order of the Mamlatdar was challenged in the Tenancy Appeal No. 410 of 1976-1977. Appellate authority the Deputy Collector on appreciation of the evidence held that respondent-tenant Mahijibhai was not in possession of the land from the date of the surrender i. e. 4/03/1955 and the petitioner landlord was in actual possession. He accordingly allowed the appeal and dismissed the application by the respondent-tenant Mahijibhai. A Revision Application No. TEN. B. A. 725 of 1979 was preferred against the judgment and order by the Deputy Collector. He accordingly allowed the appeal and dismissed the application by the respondent-tenant Mahijibhai. A Revision Application No. TEN. B. A. 725 of 1979 was preferred against the judgment and order by the Deputy Collector. Learned Member of the Gujarat Revenue Tribunal on appreciation of the evidence agreed with the findings of the Deputy Collector and held that the respondent tenant was not in possession of the land from the date of the surrender i. e. 4/03/1955 On facts therefore the Deputy Collector and the Gujarat Revenue Tribunal held finally that the respondent-tenant was not in actual possession of the land from the date of the surrender i. e. 4/03/1955 Learned Member of the Gujarat Revenue Tribunal however held that surrender by the respondent-tenant was not validly endorsed on the instrument of surrender and therefore the provisions of Sec. 5 BTandal Act and Rule 2a of BTandal Rules were not complied with and therefore even though the respondent-tenant was not in actual possession of the land relationship of the tenant and the landlord continued. Learned Member therefore set aside the order by the Deputy Collector and declared that the respondent-tenant Mahijibhai to be the deemed purchaser of the land under Sec. 32g of the Act. So far as the farm houses were concerned the learned Member observed that the said houses belong to the landlord and not to the tenant. That order of the learned Member of the Gujarat Revenue Tribunal is challenged in this Special Civil Application under Art. 227 of the Constitution. ( 2 ) DURING the pendency of this petition the respondent-tenant Mahijibhai expired on 23/11/1987 and therefore his legal representatives are joined as respondents. ( 3 ) SO far as the finding of the fact that the petitioner got the possession of the land on 4/03/1955 is concerned that factual aspect is concluded by the order of the Deputy Collector and the Gujarat Revenue Tribunal. It is therefore not necessary for me to consider that aspect. The Mamlatdar has on appreciation of the evidence of the witnesses and the relevant circumstances held that the respondent-tenant Mahijibhai continued to be in possession since the date of surrender and after that he had given the share and therefore he was the tenant of the said land. It is therefore not necessary for me to consider that aspect. The Mamlatdar has on appreciation of the evidence of the witnesses and the relevant circumstances held that the respondent-tenant Mahijibhai continued to be in possession since the date of surrender and after that he had given the share and therefore he was the tenant of the said land. That finding of the Mamlatdar is not approved by the Deputy Collector who on appreciation of the oral and documentary evidence came to the contrary conclusion and held that the petitioner landlord was put in actual possession of the land on the date of the surrender. Same is the finding by the Gujarat Revenue Tribunal which also appreciated the evidence and concurred with the finding by the Deputy Collector. ( 4 ) SHRI M. C. Shah learned Advocate for the respondent could not point out that the finding by the Deputy Collector approved by the Gujarat Revenue Tribunal is perverse and therefore should not be accepted. Shri Shah has conceded that dispute about physical and actual possession is concluded by the finding by the Deputy Collector which is approved by the Gujarat Revenue Tribunal. I have therefore to proceed on the premises that on the day of the surrender i. e. 4/03/1955 the present petitioner was put in possession on the strength of the surrender order by the Mamlatdar and since then he continued to be in possession of the land and the respondent-tenant Mahijibhai failed to establish that a new tenancy right was created by his continuing in possession of the land. ( 5 ) THE petitioner has not produced the copy of the application filed by the respondent-tenant Mahijibhai; but it transpires from the order of the Mamlatdar that the contention was raised before him that the surrender of interest of tenant in land was not legal and valid and relationship of the tenant and the landlord continued. That contention was asserted before the Mamlatdar but he did not consider it observing that he had no jurisdiction to examine the legality or otherwise of the surrender and if at all the respondent-tenant wanted to challenge it he could have done it only in appeal against the said order. With that short observation the Mamlatdar disposed of that contention Before the Deputy Collector also the same contention was raised. With that short observation the Mamlatdar disposed of that contention Before the Deputy Collector also the same contention was raised. But the Deputy Collector observed that on going through the order of the Mamlatdar passed in the surrender proceedings it transpires that the respondent-tenant Mahijibhai had voluntarily surrendered the land and after that many years have elapsed and therefore there was no reason as such for him to doubt the validity of such surrender. He also observed that the Revenue Tribunal in revision No. Rev. App. TEN. B. A. 5980 of 1973 preferred against the order of the Deputy Collector against the interim order also held surrender to be voluntary and true. In view of the Deputy Collector surrender being voluntary and true the relationship of the tenant and the landlord did not continue. It also appears that the Deputy Collector considered the right of the respondent-tenant Mahijibhai to purchase the land under Sec. 32ff BTandal Act and held that the respondent was not a tenant as defined in clause (d) of sub-sec. (18) of Sec. 2 BTandal Act and therefore had no right to purchase the land. The same contention was agitated before the Gujarat Revenue Tribunal. The learned Member of the Gujarat Revenue Tribunal examined the validity of the surrender order with reference to the provisions of sub-sec. (3) of Sec. 5 BTandal Act and Rule 2a BTandal Rules and relying on the judgment of the Supreme Court in Ramchandra Keshav Adke v. Govind Joti Advocate Ors. AIR 1975 SC 915 held that the Mamlatdar while considering the voluntary nature of the surrender neglected to comply with the statutory requisite that he had to endorse his finding about the satisfaction that the tenant had understood the nature and consequence of the surrender and that it was voluntary below the document of surrender and therefore the order dated 4/03/1955 by the Mamlatdar sanctioning the surrender is invalid and illegal non est and consequently the possession of the landlord is illegal even though he had proved that he was in actual possession of the land since the date of the surrender. ( 6 ) THE main thrust of argument by the learned Advocates for the parties is about the validity of the surrender order. ( 6 ) THE main thrust of argument by the learned Advocates for the parties is about the validity of the surrender order. In submission of Shri A. J. Patel learned Advocate for the petitioner the surrender order passed by the learned Mamlatdar is valid legal and proper and in due compliance of the provisions of Sec 5 BTandal Act and Rule 2a BTandal Rules. The submission of Shri M C. Shah learned Advocate for the respondents is that the Mamlatdar had not complied with the provisions of Sec. 5 BTandal Act and Rule 2a BTandal Rules inasmuch as no instrument of surrender was taken by the Mamlatdar and no endorsement about his satisfaction was recorded on any instrument. In view of rival contentions it is necessary to consider the validity and legality of the surrender of interest of tenant in the land and the surrender order dated 4/03/1955 ( 7 ) FROM the order passed by the Mamlatdar on 4/03/1955 it transpires that in Tenancy Case No. 607 of 1954 field by the petitioner landlord Kripashanker Dahyabhai against tenant Jadav Mahijibhai Desaibhai in the Court of Mamlatdar Borsad the landlord stated that Mahijibhai a tenant of the land bearing Survey No. 371/14 of Nisraya was willing to give up possession of land and therefore the suit was filed for the permission for possession of the said land. The statement of the tenant was then recorded by the Mamlatdar at Exh. I in which he stated that he was voluntarily willing to surrender the possession of the land and for that the receipt Exh. I was executed by him. The tenant also stated that he was explained that by surrendering the land he his rights as tenant would be extinguished. He has also stated that he was not compelled or coerced to surrender the land. After recording the contents of that statement of the respondent-Mahijibhai the Mamlatdar in para 3 of the order proceeded to observe that the opponent tenant had shown readiness to leave the possession of the land voluntarily. He also stated that the tenant was explained in the Court that by surrounding the possession of the land all his rights as tenant would be extinguished and he would not be in a position to raise any dispute subsequently and even than the tenant was willing to hand over the possession. He also stated that the tenant was explained in the Court that by surrounding the possession of the land all his rights as tenant would be extinguished and he would not be in a position to raise any dispute subsequently and even than the tenant was willing to hand over the possession. The tenant was given sufficient opportunity to ponder over the matter. The Mamlatdar then recorded that as observed above the request was for leaving the possession voluntarily the tenancy right of the respondent tenant of the land Survey No 371/14 of Nisraya village is extinguished and the applicant (landlord) is permitted to take possession of the land. Ho also observed that direction should be given to the village officers for execution of the order. ( 8 ) IN view of Shri A. J. Patel for the petitioner the close scrutiny of the said order satisfies the statutory requirements under the Act and the Rules; while in submission of Shri M. C. Shah for the respondents there was no instrument of surrender and the Mamlatdar has not recorded his satisfaction on the instrument of surrender and therefore the provisions of the Act and the Rules ale not complied with. For the purpose of appreciating rival contention it is necessary to consider the relevant provisions of the Act and the Rules as applicable at the relevant time. ( 9 ) SECTION 5 BTandal Act was substituted by Bombay Art 33 of 1953 which came into force in 12/01/1953 Prior to that Sec. 5 of the Act provided that the tenancy should be for a period not less than 10 Nears and the tenant could terminate the tenancy before expiry of the period of 10 years by surrendering his interest as tenant in favour of the landlord. There was no provision that the surrender could be in writing and the Mamlatdar had to verify such surrender in the prescribed manner. It appears that with a view to protect the tenants the provision was made by Act 33 of 1903 for surrender being in writing and be verified by the Mamlatdar in the prescribed manner. Sub-sec. (1) of Sec 5 provided that the tenancy should be for a period of 10 years. Sub-sec. (2) of Sec. 5 provided for the termination of the tenancy after 10 years. ( 10 ) SUB-SEC. Sub-sec. (1) of Sec 5 provided that the tenancy should be for a period of 10 years. Sub-sec. (2) of Sec. 5 provided for the termination of the tenancy after 10 years. ( 10 ) SUB-SEC. (3) of Sec. 5 relating to the surrender of the tenancy right was as follows:"notwithstanding anything contained in sub-sec. (1) (A) every tenancy shall. subject to the provisions of Secs. 24 and 25 be liable to be terminated at any time on any of the grounds mentioned in Sec 14; and (B)A tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of landlord:. Provided that such surrender shall be in writing and shall be verified before the Mamlatdar in the prescribed manner. ( 11 ) THE manner of verification was prescribed in Rule 2a of the BTandal Rules. which was as follows:"the Mamlatdar when verifying a surrender of a tenancy by a tenant in favour of the landlord under clause (b) of sub-sec. (3) of Sec. 5. shall satisfy himself. after such enquiry as be thinks fit that the tenant understands the nature and consequences of the surrender and also that it is voluntary and shall endorse his findings in that behalf upon the document of surrender. "that Rule was analogous to the Rule 9 of the Bombay Tenancy and Agricultural Lands Rules 1956 except the reference to the Section a by Act No. 13 of 1956 provision of surrender was made in Sec. 15 of the BTandal Act. Sub-sec. (1) of Sec. 15 of the Act is practically analogous to the provisions of clause (b) of sub-sec. (3) of Sec. 5 of the Act Sub-sec. (2) of Sec. 15 provides that the landlord shall be entitled to retain whole land so surrendered for the like purposes and to the like extents and in so for as the conditions are applicable subject to the like conditions as are provided in Secs. 31 and 31a for the termination of tenancies. Sub-sec. (3) of Sec. 15 provides that if the landlord is not entitled to retain possession of the land same shall be liable to be disposed of as provided in Sec. 32p Subsequently by Act No. 38 of 1957 sub-sec. 31 and 31a for the termination of tenancies. Sub-sec. (3) of Sec. 15 provides that if the landlord is not entitled to retain possession of the land same shall be liable to be disposed of as provided in Sec. 32p Subsequently by Act No. 38 of 1957 sub-sec. (2a) is added in Sec. 15 providing for the inquiry by the Mamlatdar to decide as to whether the landlord is entitled to retain whole or any portion of the land surrendered by the tenant. As the surrender was prior to the amendment by Bombay Act 13 of 1956 which came into force on 1/08/1956 the relevant provision is clause (b) of sub-sec. (3) of Sec. 5 of the BTandal Act. ( 12 ) IN view of the provisions of clause (h) of sub-sec. (3) of Sec. 5 of the BTandal Act and the Rule 2a of the BTandal Rules it is clear that the tenant may terminate the tenancy at any time by surrendering his interest as tenant in favour of the landlord but such surrender should be in writing (2) shall be verified by the Mamlatdar in the prescribed manner (3) the Mamlatdar when verifying the surrender in favour of the landlord shall satisfy himself that the tenant understands the nature and the consequences of the surrender (4) such surrender is voluntary and (5) that the Mamlatdar should endorse his finding that the tenant understands the nature and consequence of the surrender and that it is voluntary upon the document of the surrender. The surrender order or the evidence relating to the surrender by a tenant in favour of the landlord should satisfy the above requirements. If the above requirements are satisfied the surrender is valid and legal and if not the surrender is illegal invalid without jurisdiction and non est. ( 13 ) IN view of this the evidence and the order Annexure-D passed by the Mamlatdar on 4/03/1955 be scrutinised. It transpires from the order that the statement of the tenant was recorded by the Mamlatdar and therefore it should be held that the surrender was in writing. It is also clear that the tenant Mahijibhai was explained that by such surrender his rights as tenant would be extinguished and he will not be in a position to raise any dispute about it subsequently. It is therefore evident that the surrender was voluntary. It is also clear that the tenant Mahijibhai was explained that by such surrender his rights as tenant would be extinguished and he will not be in a position to raise any dispute about it subsequently. It is therefore evident that the surrender was voluntary. The Mamlatdar had verified the surrender of the tenancy. It also transpires that the Mamlatdar had explained the consequences and satisfied himself that the tenant had understood the nature and consequence of the surrender. The Mamlatdar therefore observed that the respondent-tenant had shown readiness to hand over the possession willingly. The Mamlatdar had observed:what is however necessary is that the Mamlatdar had to endorse his finding upon the document of the surrender that he has satisfied himself that the tenant has understood the nature and the consequence of the surrender and that it is voluntary. As such there is no such endorsement. The application was submitted by the landlord and statement of the tenant was recorded and it also transpires that the tenant produced the writing for surrendering the tenancy interest; but on the document of surrender no such endorsement was made by the Mamlatdar. The surrender order therefore suffers from two infirmities viz. (i) the endorsement by the Mamlatdar about his satisfaction that the tenant understood the nature and the consequence of the surrender and that it was voluntary and (ii) such endorsement was not made upon the document of the surrender. The Mamlatdar did not comply with the statutory provisions and therefore the surrender on the interest of the tenant in the land in favour of the landlord was not legal and proper and the order passed by the Mamlatdar is without jurisdiction invalid illegal and non est. ( 14 ) SHRI A J. Patel learned Advocate for the petitioner has referred the judgment by the Division Bench of this High Court in Hormasji Sorabji Patel and Ors. v. The Gujarat Revenue Tribunal and Anr. Special Civil Application No. 1465 of 1966 rendered by D. A. Desai and P. D. Desai JJ (as their Lordships were then) some portion of which is reported in [1973] 14 GLR 643 and submitted that as observed in the said judgment substantial compliance will satisfy the requirement of the provisions of Sec. 5 (3) BTandal Act and Rule 2a of the said Rules. In that judgment on considering the relevant provisions of clause (b) of Sec. 5 of the BTandal Act and sub-rule 2a of 6 the BTandal Rules it was held that the order regarding the surrender was without jurisdiction and nullity as there was no recording of satisfaction of Mamlatdar that the tenant had understood the nature and consequence of the surrender and that the Mamlatdar was satisfied about the same. ( 15 ) SHRI Patel learned Advocate for the petitioner has however referred to the observation that in a given case the landlord can make an application that the tenant was willing to surrender his tenancy right and the Mamlatdar must verify the surrender in the manner prescribed under Rule 2a and submitted that the instrument of surrender is not required to be submitted by the tenant. The said observation was with regard to the verification of the application which may be submitted by the landlord and therefore it was observed that even if the landlord submits such an application the Mamlatdar must verify the surrender in the prescribed manner. The order was held illegal and non est for said reasons. It was therefore not considered as to whether the order is without jurisdiction and illegal if the endorsement of the finding of the Mamlatdar is not made on the instrument of surrender. It does not lay down the law that the application submitted by the landlord be considered to be an instrument of surrender. It is obvious that the tenant has to surrender his tenancy interest and therefore he could pass the instrument of surrender and not the landlord. It appears from the order of the Mamlatdar that the Writing Exh. I was submitted by the tenant show-ing his willingness to surrender the land; that can be considered to be instrument of surrender but on that instrument no endorsement appears to have been recorded by the Mamlatdar. The judgment in Hormasji Sorabji Patels case does not lay down the law as sought to be by Shri A. J. Patel learned Advocate for the petitioner. The judgment in Hormasji Sorabji Patels case does not lay down the law as sought to be by Shri A. J. Patel learned Advocate for the petitioner. ( 16 ) SO far as another infirmity about recording satisfaction by the Mamlatdar is concerned Shri Patel has tried to seek support from the observations in the case of Hormasji to the effect that unless this satisfaction is recorded expressly or it can be inferred by necessary implication from the order the Mamlatdar will have no jurisdiction to accept surrender and submitted that considering the order passed by the Mamlatdar (Annexure-D) on 4/03/1955 it can be inferred by necessary implication that the Mamlatdar has recorded his satisfaction as the Mamlatdar stated that the tenant was ready to hand over the possession voluntarily. But referring the order it cannot be said that the Mamlatdar endorsed his finding about his satisfaction that the tenant understood the nature and the consequence of the surrender Mere referring the statement of the tenant in that behalf is not sufficient but it is obligatory for the Mamlatdar to record his satisfaction in that behalf. Even if endorsement to that effect may not be express it should be such as can be inferred by necessary implication In the instant case endorsement of finding about the requisite satisfaction cannot be inferred by the necessary implication. ( 17 ) THE provisions of sub-sec. (1) of Sec. 15 BTandal Act are considered by the Supreme Court in Vallabhbhai Nathabhai v. Bai Jivi and Ors. AIR 1969 SC 1190 . 18. The ratio of the judgment is that in case of surrender which s not in accordance with the provisions of the Act and the Rules Examination of the tenancy does not become effective and the relationship the tenant and the landlord continues; and in case possession is taken away by the landlord on the basis of the surrender order the tenant can claim for possession by application under Sec. 29 of the Act. ( 18 ) THE provisions of Sec 5 (3) (b) BTandal Act and the Rule 2a BTandal Rules are considered by the Supreme Court in Ramchandra Keshav Adke (Decd ) by Lrs. v. Govind Joti Chavare and Ors. ( 18 ) THE provisions of Sec 5 (3) (b) BTandal Act and the Rule 2a BTandal Rules are considered by the Supreme Court in Ramchandra Keshav Adke (Decd ) by Lrs. v. Govind Joti Chavare and Ors. AIR 1975 SC 915 in which the Circle Inspector who verified the surrender did not endorse that the tenant and voluntarily made the surrender after understanding the nature and consequences and therefore the surrender was held vitiated and non est. It is observed:"the requirement language. the beneficent purpose and importance of Sec. 5 (3) (b) and Rule 2a for efficacious implementation of the general scheme of the Act all unerringly lead to the conclusion that those provisions were intended to be mandatory and not directory. "it is further observed:"the requirement as to the recording of its satisfaction by the authority in the manner prescribed by the Rule is the substance of the matter and not an empty formality. In the absence of the requisite endorsement therefore it cannot be said that there has been even a substantial compliance with the statutory requirements. " ( 19 ) SHRI Shah for the respondents has referred the judgment in the case of Chhaganbhai Khushalbhai Patel v Zaverbhai Hathibhai Spl. C. A. No. 3028 of 1979 rendered by A. M. Ahmadi J. on 9/10/1987 Reported in 1988 (1) GLR 151 ) in which the point for consideration was different and therefore provisions of sub-sec. (2) of Sec. 15 and Sec. 29 BTandal Act were considered. So far as present litigation is concerned the provisions of sub-sec. (2) of Sec. 15 are not much relevant. Apart from that for reasons recorded above I have held that surrender is not legal and valid. ( 20 ) IN view of the above discussion it should be held that the surrender of the interest of the tenant and the order passed by the Mamlatdar are not in accordance with the mandatory provisions of clause (b) of Sec. 5 BTandal Act and the Rule 2a BTandal Rules and therefore the surrender is illegal invalid without jurisdiction and non est. Relationship of the tenant and the landlord therefore continued even though possession of the land was taken away by the petitioner on 4/03/1955 the dispute however dose not rest there as it is required to consider the effect of such an invalid surrender and the continuance of the relationship of the landlord and the tenant on right to be considered deemed purchaser under Sec. 31 BTandal Act in case the tenant has not applied for possession of the laud within the period of two years under Sec. 29 BTandal Act. The possession taken over by the petitioner-landlord on 4/03/1955 being unauthorised and wrongful it was necessary for the tenant Mahijibhai to apply for the possession under sub-sec. (1) of Sec. 29 BTandal Act. A tenant entitled to the possession of the land has to apply in writing for such possession to the Mamlatdar within the period of two years from the date on which right to obtain possession of the land is deemed to have accrued to the tenant. As the possession was unauthorisedly and wrongly taken away by the landlord on 4/03/1955 the tenant Mahijibhai should have applied for possession under Sec. 29 (1) BTandal Act on or before 3/03/1957 Instead he applied to the Mamlatdar in the year 1973 for the possession. From the order of the Mamlatdar it appears that the application was submitted under Sec. 32pp and Sec. 32g; while in view of the Gujarat Revenue Tribunal the tenant should be considered deemed purchaser of the land under Sec. 32g BTandal Act. Section 32pp and Sec 32g are not applicable to the facts of the present case. Under Sec. 32g the Tribunal has to issue notice and determine the price of the land to be paid by the tenant immediately after the tillers day. Section 32pp only provides an opportunity to the tenant to purchase land which has been at the disposal of the Collector under Sec 32p of the Act. . ( 21 ) AS observed by the Supreme Court in the case of Vallabhbhai (supra) it was necessary for the respondent-tenant Mahijibhai to submit an application under Sec. 29 (1) BTandal Act within the period of two years for possession of the land. No such application was submitted within the prescribed period and therefore the Mamlatdar could not have awarded possession of the land under Sec. 29 of the Act. No such application was submitted within the prescribed period and therefore the Mamlatdar could not have awarded possession of the land under Sec. 29 of the Act. ( 22 ) AS observed above the relationship of the tenant and the landlord subsisted even though the possession was unauthorisedly taken over by the landlord. The question therefore requiring consideration is as to whether the respondent-tenant Mahijibhai should be considered deemed preacher of the land under Sec. 32 BTandal Act. By Act 13 of 1956 drastic provisions are made in the Bombay Tenancy and Agricultural Lands Act and as provided in Sec. 32 the tenant is deemed to have purchased from his landlord the land cultivated by him on the tillers day i. e. on 1/04/1957 provided certain conditions specified in the said Section are satisfied Section 32 provides that on the first day of April 1957 (the tillers day) every tenant shall subject to the other provisions of the said Section and the provisions of the next succeeding Sections he deemed to have purchased from his landlord the land held by him as tenant if such tenant cultivates the land leased to him personally. If the land leased to tenant is cultivated by him personally he is deemed purchaser under the provisions of Sec. 32 of the Act. for two years prior to 1/04/1957 the tenant Mahijibhai was not in possession and was not cultivating the land personally. He therefore cannot be considered to be the deemed purchaser under the providing of Sec. 32. Right of such tenant whose possession is takes away unauthorisedly is protected under sub-sec. (1a) of Sec. 32 if such tenant is evicted before 1-4-1957 and is not in possession of the land and has made the application for possession of the land under sub-sec. (1) of Sec 29 BTandal Act within the prescribed period specified in the said sub-section and if the application is allowed by the Mamlatdar or the Collector in appeal or Gujarat Revenue Tribunal in revision the tenant shall be deemed to have purchased the land on the date on which the final order allowing the application is passed. (1) of Sec 29 BTandal Act within the prescribed period specified in the said sub-section and if the application is allowed by the Mamlatdar or the Collector in appeal or Gujarat Revenue Tribunal in revision the tenant shall be deemed to have purchased the land on the date on which the final order allowing the application is passed. If at all the tenant Mahijibhai would have submitted an application within the prescribed period of two years and if the ultimate result would have been in his favour he would have been considered to be the deemed purchaser under the provisions of the Act. The tenant Mahijibhai was not in possession of the land on appointed day i. e. 15/06/1955 and therefore the provisions of sub-sec. (1b) of Sec. 32 are not applicable. If at all the tenant Mahijibhai would have been personally cultivating the land on the tillers day or would have submitted the application under Sec. 29 BTandal Act within the prescribed period of limitation and that application would have been decided in his favour he would have been considered to be the purchaser of the land on that day. Even though the relationship of the tenant and the landlord continued Mahijibhai would not get the benefit of the provisions of Sec. 32 of the Act. ( 23 ) THE provisions of sub-secs. (1) and (1a) of Sec 32 are considered in two judgments by Gujarat High Court In Bhagwanji Himarstnhji v. Gujarat Revenue Tribunal [1972] 13 GLR 165 decided on 21/07/1970 by J. B Mehta J the facts were practically similar as the tenant was dispossessed and evicted from the land by the landlord before 1/04/1957 ( 24 ) THE submission of Shri Shah learned Advocate for the respondents that the relationship of the tenant and the landlord continued on the tillers day and therefore the tenant is deemed to have purchased the land under Sec. 32 (1) BTandal Act cannot be accepted as the tenant is deemed to have purchased the land only if he is cultivating the lard leased to him personally on the tillers day. ( 25 ) THE Legislature being conscious of the fact of unauthorised possession by the landlord and depriving the tenant of his right to purchase the land on the tillers day has made specific provision under sub-sec. ( 25 ) THE Legislature being conscious of the fact of unauthorised possession by the landlord and depriving the tenant of his right to purchase the land on the tillers day has made specific provision under sub-sec. (1a) of Sec. 32 BTandal Act under which the tenant can get protection and assert his right to purchase the land even on future date. But it is necessary for the tenant to assert his right of getting the possession within the prescribed time under Sec. 29 BTandal Act. ( 26 ) A conjoined reading of sub-sec. (1) and sub-sec. (1a) of Sec. 32 clearly leads to the conclusion that in case the tenant is dispossessed unauthorisedly by the landlord prior to the tillers day he has to apply and assert his right under sub-sec. (1) of Sec. 29 BTandal Act. Only in that case the tenant will get right to purchase the land or will be considered deemed purchaser on the future date. ( 27 ) SHRI Shah learned Advocate for the respondents has referred the judgment in the case of Patel Shanabhai Vithaibhai v. Patel Bakorbhai Vithalbhai and Ors. AIR 1972 Gujarat 184 in which the provisions of sub-secs. (1) and (1a) of Sec. 32 are considered by M. P. Thakkar J. (as His Lordship was then ). It was a case in which the tenant was forcibly dispossessed only three days prior to the tillers day. The point for consideration was as to whether it is necessary to get the benefit under Secs. 32 (1) and 32g that the tenant should be in physical possession of the land on the tillers day and in light of that it was observed that there is prima facie no warrant for holding that the tenant must be in physical possession of the land on the tillers day and the Section itself does not make possession on the tillers day a sine qua non for becoming a deemed purchaser. Even though on the tillers day physical possession may not be with the tenant he may still cultivate the land personally and therefore it is not necessary to establish the actual physical possession on the tillers day. That decision was rendered in relation to the special facts of the case and therefore does not help the respondents to assert their right to purchase the land. That decision was rendered in relation to the special facts of the case and therefore does not help the respondents to assert their right to purchase the land. In the instant case the possession of the petitioner-landlord is unauthorised and wrongful and not illegal or unlawful as he got possession by the order of the Mamlatdar which was not in accordance with the statutory provisions. It is unequivocally observed that all that is required for the tenant to establish is that the relationship of the tenant and the landlord subsists that he satisfies the requirement of Secs. 32 (1) (a) and 32 (1) (b) and that there is no provision which takes away such right from him. ( 28 ) SATISFACTION and compliance of requisite conditions under Sec. 31 is necessary to get the right as deemed purchaser on tillers day. It is apparent that for getting benefit under Sec. 32 (1) the tenant is required to satisfy the other requirement that he was cultivating personally the land leased to him. ( 29 ) THE respondents are not entitled to purchase the land under Sec. 32ff as the deceased tenant Mahijibhai was not and the respondents are not the tenant within the meaning of sub-clause (d) of clause (1b) of Sec. 2 BTandal Act which provides that the tenant should continue the possession of the land after the surrender of the tenancy at any time after the appointed day i. e. 15/06/1955 In the instant case surrender was prior to the appointed day and the tenant did not continue to remain in possession with or without the consent of the landlord and therefore the provisions of Sec. 32ff are not attracted. ( 30 ) IN view of above the declaration by the Gujarat Revenue Tribunal that the respondent-tenant is deemed to be purchaser of the land under Sec. 32g of the Act cannot be sustained. That observation by the Gujarat Revenue Tribunal is without jurisdiction not legal and proper. The order by the Gujarat Revenue Tribunal therefore vitiates for want of jurisdiction and for reasons recorded above and be set aside and the application filed by the respondent-tenant be dismissed. ( 31 ) SHRI M. C. Shah learned Advocate for the respondents has not addressed on the right to purchase the house sites or houses. The order by the Gujarat Revenue Tribunal therefore vitiates for want of jurisdiction and for reasons recorded above and be set aside and the application filed by the respondent-tenant be dismissed. ( 31 ) SHRI M. C. Shah learned Advocate for the respondents has not addressed on the right to purchase the house sites or houses. The Revenue Tribunal has observed that the houses belong to the petitioner landlord and he has allowed the tenant to occupy them just before 5 years as the tenant-Mahijibhai wanted to stay as he was having the water pump in the adjoining field. ( 32 ) PETITION is allowed. The order by the Gujarat Revenue Tribunal is quashed and set aside The petition by the respondent-tenant in dismissed. Rule made absolute with no order as to costs. (KMV) Rule discharged. .