CHAMPALAL FAUJMAL FULPAGER Vs. LAXMIBAI HARAKCHAND RAKA

JUDGEMENT

(1.) The appellants filed an application in the Court of Deputy Accountant-cum-Tenancy Awal Karkum, Kopargaon under Sections 14, 29, 31 read with Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act") in respect of two lands on the ground that the respondent tenants had committed default in payment of rent for four years. The Court of First Instance allowed that application holding that the respondents did not pay arrears of rent and committed default in respect of the years 1970-1971, 1971-1972 and 1972-1973. The respondents filed an appeal before the Sub-Divisional Officer, Sangamner. The appeal was dismissed, affirming the order passed by the Court of First Instance. Thereafter, the respondents approached the Revenue Tribunal, Pune by filing a revision petition, which was also dismissed. Under the circumstances, the respondents filed writ petition invoking the jurisdiction of the High Court under Article 227 of the Constitution of India. The High Court, by the impugned order, reversed the concurrent findings of fact recorded by the three courts below on the ground that the appellants had admitted the payment of rent for the year 1971-1972. In that view of the matter, the writ petition was allowed and the order passed by the Court of First Instance, as affirmed by the Appellate Authority and the revisional authority, was set aside and in the result, the application filed by the appellants before the Court of First Instance was dismissed. Hence, this appeal.

(2.) The learned counsel appearing for the appellants urged that the High Court committed serious error in reversing the concurrent findings of fact arrived at by the three courts below that the respondents were in arrears of rent and they were defaulters for three years, namely, 1970-1971, 1971-1972 and 1972-1973. He pointed out that although the Court of First Instance noticed that the respondents were defaulters for four years viz, 1969-1970, 1970-1971, 1971-1972 and 1972-1973, but in the operative portion of the order, the said court held that the respondents were defaulters for three years only. Even assuming that the respondents had paid rent for the year 1971-1972, excluding that year also, the default committed by them was for a period of three years and as such the application filed by the appellants ought to have been allowed under Section 25(2) of the Act. Alternatively, he submitted that, even otherwise, the High Court was not justified in dismissing the application but ought to have passed an order, at least, under Section 25(1) of the Act. On the other hand, the learned counsel representing the respondents submitted that the High Court was right in taking note of the admission made by the appellants that the rent was paid for the year 1971-1972 and the three courts below had recorded a finding of default on the part of the respondents only for the years 1970-1971, 1971-1972 and 1972-1973. There was no finding on arrears of rent in regard to the year 1969-1970. In that situation, the High Court could not take into consideration the arrears of rent for the year 1969-1970. According to the learned counsel, the High Court was correct in dismissing the application as the default was not for a period of three years, which is a condition precedent for passing an order under Section 25(2) of the Act. As regards the alternative submission made by the learned counsel for the appellants, the learned counsel submitted that that order could be passed under Section 25(1) of the Act.

(3.) In view of the fact that the Court of First Instance, the appellate court and the revisional court did not record any finding with regard to arrears of rent for the year 1969-1970 and they had held that the respondents were defaulters in respect of years 1970-1971, 1971-1972 and 1972-1973, the High Court, after noticing the admission made on behalf of the appellants in regard to the payment of arrears of rent for the year 1971-1972, in our view, was right in holding that no case was made out for passing an order under Section 25(2) of the Act.