KISAN SAKHARAM JAINAK Vs. SHRIKRISHNA PRABHAKAR KIRKOLE

JUDGEMENT

(1.) THE Respondent claiming to be the legal heirs of one Shridhar Waman Kirkole who was the landlord moved an application sometime in the year 1962 which was numbered as Tenancy Case No.99 of 1962 on the ground that the deceased landlord Shridhar Waman Kirkole was a certificated landlord and as such was entitled to resume possession in terms of Section 33B of the Bombay Tenancy and Agricultural Act, 1948. Initially the Issues framed were as under by the Additional Mamlatdar, Pune :-

(2.) LEARNED Counsel for the Petitioner contends that the respondent could not have claimed to resume possession under Section 33B based on the certificate issued in favour of the original deceased landlord under Section 88C. There is great merit in the contention of the Learned Counsel. It is only a landlord to whom a certificate is issued under Section 88C of the Bombay Tenancy and Agricultural Lands Act who is entitled to resume possession in terms of Section 33B. If a legal heir is claiming through the said landlord the said legal heirs based on the certificate issued to the landlord is not entitled to the benefit. Section 33B is very clear as to when a certificated landlord is entitled to resume possession. The heirs cannot claim the benefit as the heirs themselves may not be entitled to a certificate under Section 88C for various reasons including holding of land and/or independent income which goes to more than Rs.1,500/- per annum. In these circumstances, the application by the Respondent landlord to resume possession based on the said certificate was itself not maintainable. The Authorities below have not addressed themselves to the question in respect of the fact that the evidence on record clearly shows that the Applicant Respondent was having income of more than Rs.202/- per month which would work upto more than Rs.1,500/- per annum. In that view of the matter, the Respondent would not if he had moved an application under Section 88C of the Act be granted the certificate. In these circumstances, the application by the Respondent claiming resumption of the possession based on the certificate granted if and at all to the original landlord was not maintainable.