MARUTI NAMDEO GADE Vs. DATTATRAYA VISHNU MAVAL

JUDGEMENT

(1.) DECEASED Dattatraya, the father of the respondent, was the owner of the lands in dispute. The lands were held by the petitioner as his tenant. The deceased made an application under Section 33B of the Tenancy Act on March 27, 1962 for possession of the lands for bona fide personal cultivation, after obtaining certificate under Section 88 -C thereof. The Tenancy Awal Karkun, Khed, allowed it on October 14, 1964. The tenant challenged this order in appeal on January 3, 1969, i.e. more than four years after the expiry of sixty -days limitation period, alleging that the impugned decision was not communicated to him. During the pendency of the appeal, the landlord died and his son, the respondent, was brought on the record, as his heir. The Sub -Divisional Officer allowed the appeal and remanded the case to the Mamlatdar for a fresh inquiry into the bona fides and holdings of the respondent. Respondent's revision application, however, was allowed by the Revenue Tribunal on the ground that the appeal by the tenant to the Sub -Divisional Officer was time -barred. The validity of this order is challenged in this Special Civil Application under Article 227 of the Constitution of India.

(2.) MR . Apte, the learned advocate appearing for the petitioner -tenant, contends that the Revenue Tribunal misconceived the facts while holding the appeal to have been time -barred. The contention is well founded. The roznama of the Tenancy Awal Karkun indicates that the case was heard on August 29, 1964 and adjourned for judgment without fixing any date. The judgment was pronounced on October 14, 1964, when parties or their pleaders are not shown to have been present. The decision is shown to have been intimated to the parties under roznama dated October 24, 1964. There is, on the records at page 87, a copy of such intimation addressed to the parties. Under the endorsement at the bottom of this copy, the Gram Sevak is directed to serve the original on the parties, get their signatures on the copy, and submit a compliance report. Records do not contain any such signature sheet or the compliance report. This impelled the Sub -Divisional Officer to hold that the order was not shown to have been communicated to the tenant and as such the tenant's appeal cannot be said to have become time -barred. He also relied on the conduct of the landlord himself in this behalf in not moving for possession till December, 1968. The Tribunal has not touched this vital aspect of the matter and merely relied on the copy of the intimation at page 87 dated October 24, 1964 in support of his inference of service thereof on the parties without any further material whatsoever. Mr. Dhupkar, the learned advocate appearing for the respondent, could not rely on any material on record from which, inference of service of such intimation on the tenant, or his otherwise knowledge of the order, before sixty days of January 3, 1969 could be drawn. The appeal could not thus have been held as time -barred. The order of the Tribunal thus is liable to be quashed.

(3.) IN the case of Babu Kallappa v. Mhalsabai : (1974)76BOMLR603 Bhasme J., however, took the view that the ratio of Hariba Keshav's case would be inapplicable to a situation where the landlord dies after succeeding in securing an order for possession from the Mamlatdar, as his heirs are entitled to support the order on grounds on which it was passed without being required to prove their own requirements and holdings. Mr. Dhupkar strongly relies on the ratio of this judgment. The learned Judge was dealing with a case where the landlord died during the pendency of the tenant's appeal, as in the present case, against an order for possession. The learned Judge relied on the judgment of the Supreme Court in the case of Phool Rani, v. Naubat Rai : [1973]3SCR679 in support of his view. In Parvatibai Mahadeo Nerlekar v. Mahipati Tatyaba Mungse (1974) SCA 2369of 1970, decided by Joshi J., on August 14, 1974 (Unrep) Joshi J. differed from this view and held that Phool Rani's case had no relevance to the point and does not bear out the assumptions made in Babu Kallappa's case. He, therefore, followed the ratio of Hariba Keshw's case. Hence reference of this case by Sawant J. to Division Bench which has come up before us for consideration.