ABA KRISHNA LOKARE Vs. GOPAL KASHINATH VATEGAONKAR

JUDGEMENT

(1.) BOTH these petitions can be disposed of by a common judgment. The land is question is an agricultural land situated at village Yeravale, Taluka Karad, Dist. Satara. One Kashinath Wategaonkar was recorded as owner of the suit land. His name was however, deleted from the record of rights in respect of certain lands and name of his son Gopal came to be inserted by mutation entry No. 2646 on 31st December, 1956. The petitioners in writ petition No. 1160 of 1984 were tenants in the suit lands since prior to tillers' day dated i. e. 1st April, 1957 (hereinafter referred to as tenants for sake of brevity ). Suffice it to observe that Gopal and his father Kashinath jointly filed application for issuance of exemption certificate under section 88-C of the Bombay tenancy and Agricultural Lands Act, 1948 (the said Act) on the assertion that they had no land in their possession and were eligible for issuance of such certificate. The appropriate authority favoured the said Gopal and Kashinath with certificate under section 88-C of the Act. That decision was carried right upto this Court and which has become final. In other words, Gopal has been held to be a certified landlord. On the basis of the said certificate the said Gopal by a notice terminated the tenancy of the tenants in respect of the suit land on the ground of bonafide requirement. Later on, Gopal instituted application under section 31 read with section 29 of the Act for possession of the suit land. Separate applications were filed against each of the tenants. The said applications were disposed. of against which the matter was carried further and eventually came to be remanded for fresh enquiry. After the remand, applications came to be finally disposed of by the tenancy Aval Karkoon by his decision dated 29th March, 1977. The said authority found that the landlord was entitled to get possession of the suit land in terms of the relief claimed in the application. Against this decision, matter was carried in appeal by the tenants. The appellate authority by its decision dated 12th July, 1979, however, allowed the original applications preferred by gopal only to the extent of half share in the suit land. In other words, the appeals preferred by the tenants were partly allowed, on the following terms :-

(2.) WHAT is relevant to note for our purpose is that during the pendency of the writ petition, the landlord Gopal Kashinath had expired and his heirs and legal representatives have now been brought on record. In the light of this development, the Counsel for the tenants submits that the heirs and legal representatives of the original landlord will have to establish the claim for possession of the suit land on the ground of bonafide requirement afresh. To buttress this submission reliance is placed on the decision of this Court in the case of Maruti Namdeo gade Vs. Dattatraya Vishnu Maval, reported in 1977 Mh. L. J. 848 and in the case of Hariba Deshav Barbole Vs. Smt. Motibai Deepchand reported in 1974 mh. L. J. 823 and lastly a recent decision in the case of Nivrutti Gangaram Pawar Vs. Dinkar Maruti Jadhav reported in 2004 (2)Mh. L. J. 674 : [2004 (2) ALL MR 193]. In substance, the arguments of the tenant is that the law obligates the heirs and legal representatives of the deceased landlord to establish their bonafide and personal requirement as on the date, when they have been brought on record. It is argued that since final order on the application preferred by the landlord is yet to be passed and before such an order could be passed, the landlord having died and his heirs and legal representatives having been brought on record, they are obliged to establish their bonafide requirement on the date when they have been brought on record of the proceedings. On this submission, the Counsel for the tenants submits that no other enquiry into the matter is relevant because order of possession as already passed or likely to be passed on the application filed by the original landlord cannot be given effect to in view of these changed circumstances, unless the heirs and legal representatives were to establish their bonafide and personal requirements afresh.

(3.) ON the other hand, Counsel for the heirs and legal representatives of Gopal, original landlord, applicant, submits that the tenants cannot take advantage of the changed circumstances, especially in the fact situation of the present case. It is submitted that the tenant's revision application has been dismissed by the Tribunal on the ground of unexplained delay and this Court by accepting the arguments of the tenants, will in effect, open the Pandora's box which is impermissible. The learned Counsel submits that the view taken in the reported decisions relied upon at the instance of tenants are of no avail, in the fact situation of the present case. He further submits that the writ petition as preferred by the tenants ought to be dismissed as no fault can be found with the view taken by the Tribunal in rejecting the application on the ground of unexplained delay. He further submits that on the other hand, the writ petition preferred on behalf of the landlord which is now pursued by the heirs and legal representatives of the land lord will have to be allowed so as to grant the application preferred by the landlord in its entirety and not restricted to half share in the specified lands as has been ordered by the authority below.