WRIT PETITION 4492 on 21 January 1988

JUDGMENT :

1. Heard Mr. Anil Anturkar, learned Senior Advocate forPetitioners in WP No.4492 of 1988 and Respondents in WP No.2523 of1991 and WP No.2520 of 1991 and Mr. Dilip Bodake, leanredAdvocate for Petitioner in WP No.2523 of 1991 and WP No.2520 of1991 and Respondent in WP No.4492 of 1988.

2. Writ Petition No.4492 of 1988 has been filed by ShankarShripad Latkar and others (for short “landlord”) against the judgmentand order dated 21.01.1988 passed by the Maharashtra RevenueTribunal, Pune (for short “MRT”) in MRT Revision Case No.328 of1985.

3. Writ Petition No.2523 of 1991 has been filed by DattatrayaHaribhau Borawake Ors. (for short “tenant”) against the samejudgment.

4. Writ Petition No.2520 of 1991 has been filed by the tenantagainst the judgment and order dated 14.04.1991 passed by the MRT,Pune in MRT Case No.64 of 1990.

5. The description of the suit lands is under:-

6. Parties shall be referred to as landlord and tenant forconvenience. Needless to state that the parties to the presentPetitioners are all successors-in-title of the landlord and tenant and shall be bound by the outcome of the present Writ Petitions. Such ofthe relevant facts which are necessary for determination of the presentdispute are stated herein under:-

(i) On 05.05.1943, the suit land was leased to the tenantfor harvesting sugarcane by a registered lease deed.for harvesting sugarcane by a registered lease deed.

(ii) On 20.05.1964, rent of the suit lands was fixed atRs.950/- per year in Case No.74 of 1964 filed by thelandlord.Rs.950/- per year in Case No.74 of 1964 filed by thelandlord.

(iii) On 19.03.1973, landlord filed Tenancy Case No.08 of1973 in the Court of the Tahsildar, Phaltan seekingpossession of the suit land on the ground of the tenant1973 in the Court of the Tahsildar, Phaltan seekingpossession of the suit land on the ground of the tenant being in arrears of rent for three years prior thereto for the years 1969 -1970, 1970 -1971 and 1971 – 1972 andalso in view of sub-division of the suit land.

(iv) On 05.03.1975, Tahsildar, Phaltan dismissed the saidcase.case.

(v) On 31.01.1976, landlord’s Appeal No.18 of 1975against the aforesaid judgment and order of Tahsildarwas dismissed by the Sub-Division Officer (for short“SDO”), Phaltan.against the aforesaid judgment and order of Tahsildarwas dismissed by the Sub-Division Officer (for short“SDO”), Phaltan.

(vi) On 31.12.1976, MRT allowed the landlord’s Revision

Application and set aside both the aforesaid judgmentspassed by the Tahsildar and SDO and remanded thecase to the Tahsildar for fresh consideration anddisposal.passed by the Tahsildar and SDO and remanded thecase to the Tahsildar for fresh consideration anddisposal.

(vii) On 03.06.1984, landlord filed an Application before the Tahsildar, Phaltan seeking possession of the suit landfrom the tenant on the following grounds:-from the tenant on the following grounds:- (a)that the tenant committed defaults inpayment of rent for more than three years;payment of rent for more than three years; (b) that the tenant sublet and sub-divided thesuit lands without landlord's permission; andsuit lands without landlord's permission; and

(c) that the landlord required the suit lands forhis bonafide personal cultivation.his bonafide personal cultivation.

(viii) On 04.03.1985, the Tenancy Court allowed thelandlord’s Application by returning a finding that thetenant committed default for more than three yearsbeginning from 1967 - 1968 onwards up to 1982 –1983 that is for 15 years and the landlord required thesuit lands for his bonafinde cultivation. In so far as theground of subleting and sub-division was concerned,landlord’s Application on that ground was dismissed.landlord’s Application by returning a finding that thetenant committed default for more than three yearsbeginning from 1967 - 1968 onwards up to 1982 –1983 that is for 15 years and the landlord required thesuit lands for his bonafinde cultivation. In so far as theground of subleting and sub-division was concerned,landlord’s Application on that ground was dismissed.

(ix) On 30.09.1985, the SDO confirmed the aforementionedfindings and dismissed the tenant’s Appeal No.17 of1985.findings and dismissed the tenant’s Appeal No.17 of1985.

(x) On 27.01.1988, the tenant’s Revision ApplicationNo.328 of 1985 was allowed by the MRT by re-appreciating and reassessing the entire evidence andresultantly concurrent findings given by the Tahsildarand the SDO were set aside. MRT held that landlordhad failed to prove his case under Section 25(2) of theMaharashtra Tenancy and Agricultural Lands Act, 1948(for short “the said Act”) and remanded the case backto the Tahsildar with a direction that on the ApplicationNo.328 of 1985 was allowed by the MRT by re-appreciating and reassessing the entire evidence andresultantly concurrent findings given by the Tahsildarand the SDO were set aside. MRT held that landlordhad failed to prove his case under Section 25(2) of theMaharashtra Tenancy and Agricultural Lands Act, 1948(for short “the said Act”) and remanded the case backto the Tahsildar with a direction that on the Application of the tenant for making payment of arrears of renttogether with costs of proceedings, the Tahsildar shallgive the tenant time of three months to deposit thearrears and on such compliance pass a suitable orderunder the provisions of Section 25(1) of the said Act.

(xi) Being aggrieved landlord on 29.04.1988 filed thepresent Writ Petition No.4492 of 1988 challenging theorder dated 27.01.1988.present Writ Petition No.4492 of 1988 challenging theorder dated 27.01.1988.

(xii) On 10.06.1991 i.e. after 3 years the tenant filed WritPetition No.2523 of 1991 challenging the samejudgment and order of the MRT.Petition No.2523 of 1991 challenging the samejudgment and order of the MRT.

(xiii) Pursuant to the order dated 27.01.1988 which is thesubject matter of challenge in both the aforesaid WritPetitions, though the tenant was directed to depositarrears of rent in the Trial Court within three monthsfrom the date of the said order, the tenant failed todeposit and / or comply with the order of the MRT.The landlord therefore filed Application seekingpossession of the suit lands being Tenancy Case No.15of 1988.subject matter of challenge in both the aforesaid WritPetitions, though the tenant was directed to depositarrears of rent in the Trial Court within three monthsfrom the date of the said order, the tenant failed todeposit and / or comply with the order of the MRT.The landlord therefore filed Application seekingpossession of the suit lands being Tenancy Case No.15of 1988.

(xiv) On 30.09.1988, Tahsildar allowed the aboveApplication and directed the tenant to deliverApplication and directed the tenant to deliver possession of the suit lands to the landlord.

(xv) On 25.01.1999, tenant’s Appeal against the above judgment and order of the Tahsildar was partly allowedby the SDO, Phaltan and the matter was remanded backto the Tahsildar.by the SDO, Phaltan and the matter was remanded backto the Tahsildar.

(xvi) On 18.04.1991, landlord’s Revision Application No.64

of 1990 against the order of the SDO was allowed bythe MRT, Pune and the Tahsildar was directed to takesteps to hand over possession of the suit lands to thelandlord.the MRT, Pune and the Tahsildar was directed to takesteps to hand over possession of the suit lands to thelandlord.

(xvii) Being aggrieved in June 1991 the tenant filed the thirdWrit Petition namely Writ Petition No.2520 of 1991against the aforesaid order dated 18.04.1991 passed bythe MRT, Pune. Writ Petition namely Writ Petition No.2520 of 1991against the aforesaid order dated 18.04.1991 passed bythe MRT, Pune.

7. The above three Writ Petitions having common facts areheard together and disposed of by this common judgment.

8. At the outset, it is pertinent to note the reliefs prayed for bythe parties in the above three Writ Petitions. For convenience, reliefsprayed for are reproduced herein under:- 8.1.In Writ Petition No.4492 of 1988, the following relief isprayed for by the landlord:- “(A) That this Hon’ble Court may in the exercise of itsjurisdiction under Article 227 of the Constitution of Indiaquash the order at Ex. C and restore the order at Ex. ‘A’which is confirmed by the order at Ex. ‘B’.” jurisdiction under Article 227 of the Constitution of Indiaquash the order at Ex. C and restore the order at Ex. ‘A’which is confirmed by the order at Ex. ‘B’.”

8.2. In Writ Petition No.2523 of 1991, the following relief is prayed for by the tenant:-

“(a) the part of the Judgment of the Maharashtra RevenueTribunal, Pune in Revision Application No.MRT-MS-VIII-12/85(TNC.B.328/85) and the Judgments and orderspassed in Tenancy Case No.17 of 1985 by the SubDivisional Officer, Phaltan, District Satara and theJudgment and order passed in Tenancy Case No.7 of 1984passed by the Tenancy Aval Karkoon Phaltan, be set asideand quashed.”Tribunal, Pune in Revision Application No.MRT-MS-VIII-12/85(TNC.B.328/85) and the Judgments and orderspassed in Tenancy Case No.17 of 1985 by the SubDivisional Officer, Phaltan, District Satara and theJudgment and order passed in Tenancy Case No.7 of 1984passed by the Tenancy Aval Karkoon Phaltan, be set asideand quashed.”

8.3. By this Petition findings pertaining to payment / non-receipt of rent were challenged.

8.4. In Writ Petition No.2520 of 1991, the following relief is prayed for by the tenant:- “(a) that the Judgment and Order passed in RevisionApplication No.MRT.NS.III/1/90 (TNC.64/90) and theJudgment and order passed in Tenancy Case 15 of 1988by the Tenancy Aval Karkoon, Phaltan, be set aside andthe Judgment and order passed in TNC Appeal 37 of1988 by the Assistant Collector, Phaltan Sub Division,District, Satara, be restored and confirmed.”Application No.MRT.NS.III/1/90 (TNC.64/90) and theJudgment and order passed in Tenancy Case 15 of 1988by the Tenancy Aval Karkoon, Phaltan, be set aside andthe Judgment and order passed in TNC Appeal 37 of1988 by the Assistant Collector, Phaltan Sub Division,District, Satara, be restored and confirmed.”

9.

9. Mr. Anturkar, learned Senior Advocate appearing for thelandlord i.e. Petitioners in Writ Petition No.4492 of 1988 and theRespondents in Writ Petition No.2523 of 1991 and Writ PetitionNo.2520 of 1991 has made the following submissions:-

(i) That there is no dispute about the various proceedings between the parties before the Authorities as the ordersspeak for themselves. That the issue herein pertains toSection 25(2) of the said Act. That it is an undisputedfact that tenants have been in possession of the suitproperty since long. That tenants have defaulted to paythe agreed rent for more than three years which is theminimum requirement for their eviction under Section25(2) of the said Act.

(ii) That there are concurrent finding of fact, in favour ofthe landlord on the above issue regarding default inpayment of rent. the landlord on the above issue regarding default inpayment of rent.

(iii) It is settled law that the Revisional Court should not interfere in the concurrent finding of fact, unless thesaid finding is perverse, which no ordinary prudentperson could have arrived at. There is no such findingrecorded by the MRT, that the concurrent finding whichhas been recorded by the Tahsildar and the Sub-Divisional Officer is a perverse finding and therefore,the limited jurisdiction of the Revisional Tribunal, couldnot have been used by MRT for the purpose ofinterfering with concurrent finding of fact.

(iv) He would submit that the impugned order holds thatthe notice dated 24.02.1984 was sent on the sameground for recovery of rent from 1969 – 70 onwardswhich is an incorrect finding. That admittedly in theearlier round of litigation in Tenancy Case No.8 of 1973which was decided on 14.03.1973, the period of defaultof payment of rent was from 1969 – 70 to 1971 – 1972.Hence according to him once this position was settledby the order dated 14.03.1973, the subsequent noticedated 24.02.1984 pertained to the period 1973 – 1974onwards upto 1984. He would submit that MRT hasreturned a finding that on two receipts dated11.04.1975 and 17.04.1974 the landlord has admittedthe signatures of Digamber on the said receipts. Hewould submit that even if this is true the Respondentscannot succeed on the basis this fact alone. The entireperiod between 1973 – 1974 and 1983 – 1984 is bereftof any documentary evidence of payment of rent.Particulars of payment of rent, money, orders, receiptsetc. for the entire period has not been produced.Despite that in the impugned order dated 27.01.1988the MRT has given the benefit of doubt to the tenantand directed him to pay the arrears in 3 months and on such payment directed the Tahsildar to pass orderSection 25(2). This having not been complied with, thePetitioner landlord has approached this Court. Hewould submit that for the order dated 27.01.1988 tosustain, the payment of rent for the period 1973 – 74 to1983 – 84 is required to be placed on record. The MRThas not examined the same and therefore the decisionis challenged by the landlord. Parties had agreed to ayearly rent of Rs.950/- per year. No shred of evidenceto show payment of rent made has been produced, thustenant’s Revision ought to have been rejected. Hewould submit that in one sweeping statement the MRThas allowed the tenant’s Revision by holding that from1973 onwards upto 1984 the rent sent to them(landlord) was refused by them. In the deposition oflandlords (2 of them) no such statement appears.

(v) The case of the tenant is that there are rent receipts of29.05.1976, 31.05.1978, 28.03.1981, 02.04.1982,20.05.1976, 31.05.1978, 31.03.1979, 20.03.1981 and31.03.1983. However these are not produced.According to the landlord from 1973 to 1984 no rentwas paid at any given point of time.29.05.1976, 31.05.1978, 28.03.1981, 02.04.1982,20.05.1976, 31.05.1978, 31.03.1979, 20.03.1981 and31.03.1983. However these are not produced.According to the landlord from 1973 to 1984 no rentwas paid at any given point of time.

(vi) Hence, he has prayed for setting aside of the impugnedorder dated 27.01.1988.

10. Mr. Bodake, learned Advocate for the tenant i.e.Respondent Nos.5a to 5e and the Petitioners in Writ Petition No.2523of 1991 and Writ Petition No.2520 of 1991 has in his reply made thefollowing submissions:

(i) According to him the question that arises forconsideration is whether the landlord proves that thetenant has committed three defaults in payment of rentand whether the tenancy is terminated by a legal andvalid notice?

Issues

That the case regarding arrears of rent for the year1969 - 1970 to 1971 - 1972 is decided in favour oftenants right up to the High Court in SpecialApplication No.901 of 1978 and therefore said findingis binding on landlord. Hence the notice dated29.02.1984 which was served upon the tenant by thelandlord cannot be said to be a legal and valid notice.It is pertinent to note that above said notice dated29.02.1984 does not disclose the specific years of rentsdefaults made by the tenants. Hence the case of thelandlord based on the said subsequent notice is held to be illegal and the tenant has been given a chance toremedy the payment of arrears under the order dated27.01.1988.

(ii) That as per provisions of Section 14(1)(i) of the saidAct, the tenant is required to pay rent for any revenueyear before 31[st] May of that particular year. So, theforfeiture for rent default would be incurred on the 31[st]May and therefore, notice given prior to such datewould not be legal and valid notice in view of saidprovision of law. That the notice sent by the landlord ispremature and therefore could not be acted upon.

(iii) That the landlord has received rent by money orderswhich were sent by the Respondents / tenants and itappears from record that money orders weredeliberately refused by the landlord. That perusalrecord shows that the landlord has admitted in his crossexamination that whatever rent receipts were issued infavour of the tenant were acceptable to him and thesame were signed by him or Digambar. Henceaccording to him it would imply that the landlordseparately and separate receipts were issued to them.

(iv) That in support of the landlords’ case reliance is placed on the evidence of the witness namely Mr. DigambarRaoji Wagh who has deposed that he used toaccompany the landlord at the time of demanding therent. He has further deposed that tenants never paidrent but receipts were issued to the tenants. It appearsfrom his evidence that he respected the landlords as his“Guru Ghar”. This was since the time of his ancestorsas he was just the neighbour of the landlords. That thiswitness admitted that he did not know which cropswere produced in the suit land in the year 1960 – 1967and from 1969 - 1983. He has also deposed thattenants have not paid rent and the rent receipts werepassed by Digambar, but he did not attest them aswitness. Hence from his evidence it is clear that he is oninterested witness who has got due veneration / respectfor the landlords as his “Guru Ghar” and therefore hisevidence cannot be accepted.

(v) That landlords had received rent till the year 1972 andsaid fact landlord has been admitted in cross-examination. It is also admitted by the landlords thatno notice was served on the tenants from the 1969 -1984 for non-payment of rent by the tenants. Thissaid fact landlord has been admitted in cross-examination. It is also admitted by the landlords thatno notice was served on the tenants from the 1969 -1984 for non-payment of rent by the tenants. This

conduct on the part of the landlord goes to show thatthere was no substance in the notice which wassubsequently issued by the landlords to the tenants on29.02.1984 as they could not have proved that thetenants had committed default in payment of rent forany “three years” and that they had given intimation tothe tenants to that effect within the period of theremonths after each default. Hence this case would notfall under the provisions of Section 25(2) of the saidAct. The findings and observations made by both theauthorities below that the landlords have satisfied allthe requirements of Sections 14, 25 and 27 andprovisions of Section 43 of the said Act, thereforecannot be said to be correct.

(vi) That in view of the above submissions, this case cannotfall under the provisions of Section 25(1) of the saidAct, and the tenants will have to be given furtherstatutory time to deposit the arrears of rent in the Courtfrom the date of the order and if they comply with thesame, the Tahsildar shall in lieu of making the order forejectment should pass order directing that the tenancyhad not been terminated and thereupon the tenantsfall under the provisions of Section 25(1) of the saidAct, and the tenants will have to be given furtherstatutory time to deposit the arrears of rent in the Courtfrom the date of the order and if they comply with thesame, the Tahsildar shall in lieu of making the order forejectment should pass order directing that the tenancyhad not been terminated and thereupon the tenants shall hold the land as if the tenancy had not beenterminated.

11. In respect of Writ Petition No.2523 of 1991 and Writ PetitionNo.2520 of 1991 are concerned parties have made identicalsubmissions.

12. I have heard the learned Advocates and with their ableassistance perused the pleadings in the present proceedings.Submissions made by Advocates has received due consideration of theCourt.

13. The fundamental facts are admitted. Relationship of partiesis also admitted. The only dispute is whether the default of paymentof rent occurred, whether it was for a continuous period of 3 years andwhether the statutory notice was issued by the landlord. Thecontroversy revolves around the answers to these 3 questions. Thoughthe order dated 27.01.1988 is directed against the landlord, it clearlygives the opportunity to the tenant to make the Application to theTahsildar and pay the arrears of rent and on payment to pass asuitable order under Section 25(1). Record clearly indicates thattenant has not complied with this order within the stipulated time. Thetime granted to the tenant and the Tahsildar came to an end on26.04.1988. Therefore the landlord filed Application being TenancyCase No.15 of 1988 seeking possession. This Application was allowed by the Tahsildar, SDO and the MRT and order dated 18.04.1991 waspassed by the MRT which is impugned in the 3[rd] Writ Petition.

14. In the above background, tenant still pleads that the orderdated 27.01.1988 (though partly in favour of tenant) but now nolonger sustainable and order dated 18.04.1991 be set aside and a freshopportunity be given to the tenant to pay the arrears of rent. Once theorder dated 18.04.1991 was passed, the tenant filed Writ PetitionNo.2523 of 1991 on 10.04.1991 to challenge the order dated27.01.1988 partly. The timeline and conduct of the tenant suggestsone and only one thing. That there has been gross dereliction on thetenant’s part in complying with the order dated 27.01.1988.

15. That apart, on merits also the case of the tenant does notstand proven. Compliance of the provisions of Section 25 requirepayment of rent every year and in case of non-payment of rent for 3years continuously the said provision can be invoked. Tenant’s pleathat rent has been paid for the period 1969 to 1984. All that has to bedone is to show as to how the rent was paid. Payment of rent cannotbe accepted on the basis of averments, conjecture and surmises as isbeing done in the present case. Mr. Bodake has argued that this Courtneeds to presume that if there are two rent receipts one of 1974 andthe other of 1975 admitted on record, then it be presumed that thetenants had paid rent for all the preceding and succeeding years between 1973 and 1984. The provisions of Section 25(2) are clearand unambiguous. Section 25(2) talks of 3 consecutive defaults.Copy of notice is on record. The receipt of notice is not denied by thetenant. Hence factum of notice is proved. Record indicates that thetenant has replied to the notice. Once the notice satisfies therequirements of Sections 14, 25 and 27, it has to be deemed to be avalid termination notice. Hence on this ground the tenant’s case fails.

16. In the present case, it is seen that rent has been statutorilyfixed for the suit lands in tenancy proceedings No.74 of 1962 @Rs.950/- per year. The tenant has produced some money ordercoupons, but the landlord has specifically denied the same / receipt ofthe same. Landlord has entered the witness box in support of his case,but the tenant chose not to enter the witness box and lead hisevidence on this crucial testimony. Hence the Tahsildar has correctlyheld and given cogent reasons in respect of findings in answer to thequestions pertaining to termination notice, arrears of rent, intimationof default and commission of defaults. It has been clearly held that thepayment of rent by money order should also be complete. Recordindicates that none the money order amount shows or tallies withRs.950/- per annum. Certainly the rent cannot be partly paid bymoney order and partly by cash. It has to be either fully by moneyorder or fully by cash. In this context the tenant has deposed that Rs.950/- was to be paid in full for the suit lands in full and it wasnever agreed that each of the tenant’s successors shall pay theirrespective share. The Tahsildar has returned a very serious findingthat the receipts of payment produced by the tenant for the years1974, 1969 and 1972 seem to be fabricated to the naked eye andhence not reliable. Further there is a finding that some receipts of themoney orders do not show the dates and the tenant has admitted thesame. This is a very strong circumstance.

17. The next question which is relevant and decided in favour ofthe landlord is with respect to his bonafide requirement for hispersonal cultivation. The impugned order dated 27.01.1988 emanatesfrom Tenancy Case No.7 of 1984 decided by the Tahsildar. This is adetailed and speaking judgment which cogently decides all issues onthe basis of evidence under the provisions of Section 14(a) read withSection 25(2) and 29 of the said Act. The Appeal against thisjudgment is comprehensively dismissed on 30.09.1985 by the SDO.However in the Revision proceedings and the order under challengei.e. judgment dated 27.01.1988 in paragraph No.11 has it is held thatthe tenant had made a valid tender of rent each year to the landlordbut the landlord for reasons best known to him refused to accept themoney orders. This finding is attributable in a very general sensewithout specifying any period. This is not acceptable. Such a findinghas to be specific and cannot be based upon presumption.

18. Once there is ambiguity on proving the tenant’s case on thebasis of material evidence, the same has to be decided accordingly onthe basis of the material on record. The period of default in thestatutory notice is from 1973 to 1984. Nowhere in the recordcontinuity of 3 years of payment of rent is established. There is nodoubt that 3 consecutive defaults have occurred in the present caseduring the above period. Thus invocation of Section 25(2) of the saidAct is called for and the same are attracted.

19. In view of the above observations and findings, theimpugned judgment dated 27.01.1988 passed by the MRT is quashedand set aside. The judgments / orders dated 04.03.1985 passed by theTahsildar in Tenancy Case No.7 of 1984 and the SDO in TenancyAppeal No.17 of 1985 are upheld. Consequently the orders dated18.04.1991 and 25.01.1990 stand quashed and set aside as a result ofwhich the order / judgment dated 30.09.1988 in Tenancy Case No.15of 1988 under Section 25(2) of the said Act is upheld.

20. Writ Petition No.4492 of 1988 stands allowed in the aboveterms. terms.

21. Writ Petition No.2523 of 1991 is dismissed.

22. Writ Petition No.2520 of 1991 is disposed of in the aboveterms and in view of the judgment / order allowing Writ PetitionNo.4492 of 1988.

23. Interim Applications, if any, and Civil Application, if any, allstand disposed.

[ MILIND N. JADHAV, J. ]

24. After the Judgment is pronounced, Mr. Bodake, learnedAdvocate appearing for the contesting Respondent has sought stay ofthe Judgment to enable the Respondents to approach the SupremeCourt. The request of Mr. Bodake, though opposed by Mr. Deshmukh,learned Advocate for Respondents, is however granted. The presentJudgment / Order shall remain stayed for a further period of 10 weeksfrom today.

[ MILIND N. JADHAV, J. ]

Digitally signed byAJAYAJAY TRAMBAKTRAMBAKUGALMUGALEUGALMUGALEDate: 2023.06.0609:37:09 +0530