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The petitioner claims to be a tenant of the respondents in respect of Survey No. 227 admeasuring 21 acres and 22 gunthas situated at village Mandwad, Taluka Nandgaon, District Nasik and assessed at Rs. 5.50. According to the petitioner he is cultivating this land as a tenant of the respondents for more than 45 years.

2. In 1957 the 1st respondent Shaikh Bashir Shaikh Pathan filed a suit against the petitioner under section 29 read with section 31 of the Bombay Tenancy and Agricultural Lands Act, 1948 before the Tenancy Court, being Tenancy Suit No. 121 of 1957, for possession on the ground that he required the lands bona fide for personal cultivation. The Tenancy Mahalkari, Nandgaon by his order dated 29-10-1958 held that tenancy of the petitioner to the extent of 1/4th part of the said survey number should be terminated and possession of this 1/4th portion amounting to 5 acres and 15½ gunthas should be handed over to the applicant landlord. The petitioner preferred an appeal from this order being Tenancy Appeal No. 58 of 1959. One of the contentions raised before the District Deputy Collector Malegaon who heard this appeal was that the suit land was Devasthan land and hence the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 do not apply to the suit land. This objection was negatived by the District Deputy Collector who observed that in the case of Devasthans which are not registered public trusts under the Bombay Public Trusts Act, the position of the tenants is the same as that of tenants of other lands. After considering all aspects the District Deputy Collector dismissed the appeal and ordered that the entire land should continue to be with the petitioner.

8. In H.S. Phadnis's "Hereditary Offices Act", Fourth Edition, Appendix 5 page 287, it is stated, 'The devasthan lands in the territories to which Bombay Act II of 1863 applies, viz., the Districts of the Dekkan, Karnatak and Khandesh are inalienable by virtue of section 8......... In G.R. No. 12302, December 2, 1908. Government have laid down that full assessment should be levied from the alienees of devasthan lands, in cases where it is ascertained, (1) that the profits of the inam land have been permanently diverted from the institution for which it was granted or continued as endowment property; (2) that the terms of the settlement or adjudication permit of the levy of the full assessment .........Devasthan lands are made Khalsat by levy of full assessment when they are mortgaged for a long term or the temple is destroyed etc."

11. In the case of Ramijiabi Maktumsaheb Jamadar v. Gudusaheb wd Faridsaheb Avati, reported in 54 Bom.L.R. 405 the provisions of Bombay Act II of 1863 along with the provisions of the Bombay Rent-free Estates Act (XI of 1852), and the Bombay Hereditary Offices Act, 1874 were considered by a Division Bench of this Court. The Court held that if property is, which was originally watan property continued with the holder thereof, but without the holder having render services and with full levy of assessment from him, the effect of such continuance is that the property ceases to be watan property and is converted into a ryotwari holding in which the holder is invested with the rights of an ordinary occupant. In the present case also though the lands have continued with the original holders there is no material to show that the holders have fulfilled their obligations attached to the Devasthan land. Full levy of assessment is also made on this land. The provisions of section 8 of Clause 3 are therefore not attracted.

17. The petitioner has been lawfully cultivating these lands for more than 45 years. He is therefore entitled to the benefit of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948.

19. It was submitted by the petitioner that in an earlier proceeding between the same parties namely, in Tenancy Appeal No 58 of 1959 before the District Deputy Collector the same contention, namely, that the land being Devasthan land, the provisions of the Bombay Tenancy and Agricultural Lands Act do not apply, was negatived by the District Deputy Collector. He has held that Devasthans which are not registered public trusts cannot get the benefit of exemption. The position of tenants of such land is the same as that of tenants of other lands. It was contended that this finding is binding on the parties and the issue has become res-judicate. Since even otherwise, the contention has no merit, I need not examine the plea of res-judicata.