Mathur, C.J.:--
1. This appeal has come up before us after it has been referred on difference of opinion between the brother Judge constituting the Division Bench.
2. It is necessary, for disposing of this appeal, to recapitulate the brief facts. Kanubhai got on lease a portion of land bearing Kh. No. 148/1/1 situated at village Dhabli, tahsil Sanwer, district Indore, from Smt. Mukta Bai for establishing a factory. There was some dispute that Kanubhai was not establishing an industry and, therefore, Smt. Mukta Bai filed a petition under S. 168 (4) of the M.P. Land Revenue Code before the S.D.O. for eviction of Kanubhai from the land in question. A preliminary objection was raised on behalf of Kanubhai that petition under Sec. 168 (4) of the Code is not maintainable as it is applicable only if the lease is granted for agricultural purposes and not for non-agricultural purposes. Therefore, the petition is not maintainable.
3. Aggrieved against this order, the matter was taken up in revision before the Additional Collector. The Additional Collector, by his order dated 24.1.1978 allowed the revision and set aside the order of the S.D.O. This matter was taken up before the Additional Commissioner and the Additional Commissioner by his judgment dated 30th June, 1980 over-ruled the view taken by the Additional Collector. The matter was then taken up before the Board of Revenue. The Board of Revenue rejected the revision petition by the order dated 30th November, 1982, maintaining that the petition before the S D.O. is maintainable, irrespective of the fact that it was not a lease for agricultural purposes. Aggrieved against this order of Board of Revenue writ petition was filed before this Court which came up to be registered as M.P. No. 245 of 83 challenging the order of the Board of Revenue. The matter was disposed by learned Single Judge by the order dated 16.3.1985 and in that the writ petition was allowed and the order passed by the S.D.O., Indore Additional Revenue Commissioner and Board of Revenue was quashed. Aggrieved against this order LPA 12/85 was preferred before the Division Bench and in that Division Bench there arose difference of opinion between Hon'ble Shri Justice V.D. Gyani and Hon'ble Shri Justice R.D. Shukla (as he then was). Gyani, J. took the view that S. 168 (4) is applicable for both agricultural and non-agricultural purposes. Gyani, J. concluded his order as follows:
“The construction put by the learned Judge on lease that the aid of section 172 of the code restricting 'lessee' u/s 168 for agricultural purpose only, cannot be accepted. It would be contrary to elementary principle of interpre¬tation to read from other provisions while interpreting a section which does contain the definition”
Shukla, J. concluded his order as follows :
“It is, thus, evident that the right of lessor and lesee of other than agricultural land shall be governed by other law including Transfer of Property Act and M.P. Accommodation Control Act in this case. It may further be observed here that accommodation as defined under the M.P. Accommodation Control Act, includes [section 2 (a) (1)] any land which is not used for agricultural purposes the lease of this land for the purpose of factory building clearly covered under this definition."
4. On difference of opinion between two brother Judges constituting the Division Bench the matter was referred to a third Judge for answer. Justice Verma who gave his opinion agreeing with the view expressed by brother Gyani, J. He observed:
“Thus, keeping in mind the aforesaid provisions of law, the details of which have been mentioned by me above, I here hold that an application under S. 168 (4) of the Code would be maintainable by Bhumiswami before the S.D.O. for ejecting the Lessee, provided such a Bhumiswami is covered under sub-sec. (2) of S. 168 of the Code."
Therefore, in view of the opinion given by the third Judge, the view taken by the Single Judge in his order dated 16.3.1985 is set aside and the appeal is allowed.
5. Learned counsel for the respondents submitted that the appeal was not maintainable before the Division Bench. This objection at this distance of time cannot be considered as no such objection was taken before the Division Bench. The Division Bench has decided the matter and reference was made to the third Judge on difference of opinion and the third Judge has given his opinion. Therefore, this objection cannot be raised at this stage. Same is overruled.
6. In the result the Letters Patent Appeal is allowed. The judgment of learned Single Judge is set aside and writ petition is dismissed. No order as to costs.