Rajaram Nivrutti Ghadge, Babu ... vs Trimbai Shripad Dharurkar
2002 Latest Caselaw 981 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Maharashtra Revenue Tribunal, Pune dated 21-1-1989 in Revision No. MRT-SH-I(SIC)-8/88 (TEN b 34/88). The petitioners are tenants in respect of land situated at village Sale, Taluka Pandharpur. District Solapur. The predecessors of Respondents was the owner of the suit land and being a widow was disabled landlady within the meaning of Section 32F of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereafter referred to as the Tendency Act) Accordingly, the tiller's day was postponed. She dies on 12-12-1970. After the death of landlady, the Respondent inherited the property and has become the landlord. According to the Respondent, the tenants were persistent defaulters since attest 1970-71 onwards and intimations were given to the tenants by the landlord in that behalf, in spite of which the tenants did not pay the amount towards rent. In the circumstances, notice was issued by the landlord on 17-7-1973 terminating the tenancy of the tenants in respect of the suit land. Thereafter the landlord instituted an application under Section 14 read with Section 25 of Tenancy Act for possession of the suit land on the ground of persistent default committed by the tenant on 8-5-1974. Even during the pendency of this application the tenants committed default for which separate proceedings have been taken out by the landlord. The first authority allowed the application preferred by the Respondent and held that the tenants were persistent defaulters and therefore tenancy was validly terminated by the landlord. IN the circumstances the authority ordered the tenants to hand over possession of the suit lands to the Respondent landlord. Against that decision the Petitioners carried the matter in appeal before the Sub Divisional Officer, Pandharpur. Even the appellate authority has affirmed the view taken by the first authority in allowing application preferred by the Respondent landlord. It will be appropriate to advert to finding recorded by the appellate authority in this behalf which reads thus:-

"In the present case the Respondent is claiming possession on the ground that the tenant failed to pay rent for 11 years from 1970-71 to 1980-81. The appellants-tenants have produced money order receipt stating that he has sent the rent amount of Rs. 1000/- and Rs. 200/ for the year 1970-71 to 1971-73 on 7-6-1974. It is however observed that the money orders were actually sent after expiry of 3 months period given by the landlord by his notice dated 17-3-1973 as per the provisos of Section 14(1)(b) of the Tenancy Act. It is also seen that the respondent landlord had obtained a decree in Civil Suit bearing No. 38/72 against the appellant's tenant for recovery of rent for the year 1970-71 the fact which supports that the tenant did not pay the rent. In this case the appellants-tenants have failed to give evidence to show that he had paid rent in time for the years from 1970-71 to 1980-81. They have submitted that there was scarcity conditions during the year 1971-72 and as such as per the provisions of proviso to Section 25(1) of the Tenancy Act on account of total or partial failure of crops they may be given concession for a period of one year for payment of rent. But these provisions of Tenancy Act does not support the say of the appellant tenants as they have failed to pay the rents for subsequent years also".

2. Against this decision the petitioners carried the matter in revision before the Tribunal. Even the Tribunal was pleased to dismiss the revision application by impugned judgment and order dated 21-1-1989. It is against this concurrent view taken by the authorities below present writ petition has been filed under Article 227 of the constitution of India.

3. Only two contentions have been raised before this Court. It is contended on behalf of the petitioners that when the landlord had already resorted to proceedings under Section 31 read with Section 29 of the Tenancy Act for possession of the suit lands on the ground of bonafide and personal cultivation, it was not open to the landlord to invoke the provisions of Section 14 read with Section 25 of the Act to claim possession of self same suit land on the ground of default. The second contention raised is that no separate intimation was sent by the landlord with regard to the respective defaults committed by the tenants and in such a case the application for possession could not have been proceeded further.

4. On the other hand Mr. Sali for the Respondent landlord has supported the conclusion reached by the authorities below and contends that both the contentions have been considered by the authorities below and have been rejected.

5. Having considered the rival submissions in so far as the first contention raised on behalf of the petitioners, it is relevant to note that the Tribunal has considered the same in paras 4 to 6 of its judgment and after referring the decision of the Division bench reported in 64 BLR page 635 in the case of Ramachandra Anant Joshi v. Janardan Tulshiram Ghuge, has held that it was open to the landlord to institute proceedings under Section 14 read with Section 25 of the Tenancy Act when the earlier proceedings taken out by the landlord for possession of self same land for bonafide requirement under Section 31 read with Section 29 of the Tenancy Act were pending and undisposed. It is not possible to take a different view in the matter. If the proceedings filed by the landlords under Section 31 read with Section 29 of the Tenancy Act were undisputedly pending, then there was no determination of the relationship of the landlord and tenant as such, till those proceedings attained finality. So long as relationship of the landlord and tenant is continued between the parties, it was open to the landlord to claim possession of self same suit land on the ground of persistent default which is substantive remedy available to the landlord under the Tenancy Act. No provision has been brought to my notice by which the remedy under Section 14 read with Section 25 of Tenancy Act is barred merely because the landlord has instituted earlier proceedings under Section 31 read with Section 29 of the Act with regard to the suit land for possession on the ground of bonafide requirement. Understood thus, no fault can be found with the conclusion reached by the Tribunal that it was open to the landlord to determine the tenancy in respect of the suit land on the ground of persistent default committed by the tenants even while the earlier proceedings for possession of the suit lands on the ground of bonafide requirement under Section 31 read with Section 29 of the Tenancy Act were pending before the authority.

6. The takes me to the second contention raised on behalf of the Petitioners that there was no intimation given by the landlord in respect of respective defaults for the years 1970-71, 1971-72 and 1972-73 respectively. This plea has been considered by the first authority and the authority has held, while examining issue No.6 that the landlord has proved that intimations of defaults on each defaults within 3 months were given. Besides what is relevant to note is that this contention was not canvassed either before the appellate authority or before the revisional authority viz. Maharahstra Revenue Tribunal, as no reference is made to that effect in the decision of the authority. The learned Counsel for the Petitioners would rely on the ground No. 26 in the memo of writ petition which reads thus:

"26. It was further an error to hold that the Petitioners have failed to pay the rent for 3 years of which the 3 intimations were given to the petitioners."

On plain reading of this ground, to my mind, the Petitioners have accepted the fact that 3 intimations were given to the petitioners, but what is sought to be contended is that conclusion reached by the authorities below that the petitioners had failed to pay the rent for 6 years as per intimation is inappropriate. That is entirely a different grievance made by the Petitioners, which is not the contention raised before me. The concurrent findings recorded by three courts below that the Petitioners were persistent defaulters and did not pay the amount demanded in the notice before the statutory period of 3 months, the possession conclusion is that the application for possession preferred by the landlord under Section 14 read with Section 25 of the Act will have to be allowed. Therefore, no error can be found with the orders passed by the authorities below in that regard.

Accordingly their is no merit in this petition. The same is therefore rejected with costs all throughout. In view of the above order, Civil Application No. 618 of 2002 is disposed of

Certified copy expedited.