SARKARIA - (1.) THIS appeal in directed against the judgment and order, dated the 10/08/1970, of the High Court of Judicature at Bombay.
(2.) APPELLANTS are heirs of one Ramkrishna Khandu Chaudhari who was a protected tenant of the suit lands belonging to Respondent No. 1. The landlord made an application against the tenant in the Court of Extra Aval Karkum for possession of the suit lands under S. 29 read with Sections 14 and 25(2) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called the Act) on the ground that the tenant had committed defaults in payment of the rents for the years 1953-54, 1954-55 and 1955-56. The Aval Karkun who tried the application, found that the annual rent of the lands payable by the tenant had paid Rs. 1045/12.00 towards the rent of these three years. He held that the appellants were not willful defaulters and granted them under S. 25 (1) three months' time to pay the arrears of rent. He however refused to pass any order for payment of the subsequent rent. The tenant did not appeal against this order. But the landlord preferred an appeal to the District Deputy Collector, Jalgaon who on 30/09/1961 allowed the appeal set aside the order of the Aval Karkun and remanded the case for finding out the exact amount of the arrears up to the date of the order and decreeing the claim accordingly. The landlord preferred a Revision to the Maharashtra Revenue Tribunal which allowed the same by its order, dated 4/09/1962, and remanded the case to be examined in the light of the law laid down by this Court in Raja, Ram v. Aba Maruti, (1962) Supp 1 SCR 739 = ( AIR 1962 SC 753) and in some High Court judgments. It further directed that the District Deputy Collector might allow the parties to lead additional evidence, if he thought it necessary. On remand, the Deputy Collector allowed the parties to lead evidence and redecided the case. He held that the rent fixed was Rs. 500.00 per year, and that only one default, and not three defaults, had been proved and consequently, the landlord was not entitled to the possession of the suit lands. He remitted the case to the Extra Aval Karkun for passing an order under Section 25(1) of the Act. The landlord again went in revision before the Tribunal against this order, dated 23/04/1964. The Tribunal held that the Deputy Collector had no jurisdiction to reopen the issue relating to the amount of agreed rent between the parties. It also examined the law laid down by this Court in Raja Ram Mahadev's case (supra). It set aside the order of the Deputy Collector and directed delivery of possession of the suit lands to the landlord. For impugning this order, dated 13/04/1967, of the Tribunal, the tenants moved the High Court by a writ petition under Article 227 of the Constitution. The writ petition came up for hearing before a learned single Judge of the High Court, who by his order, dated 14/11/1969, referred this question to the Division Bench: "Can the tenant be said not to have failed for any three years to pay rent within the meaning of Sec. 25 (2) of the Bombay Tenancy Act, when as a result of part payments made by him, total amount of arrears does not exceed rent equivalent to two years.''
(3.) THE Division Bench decided this question against the tenants and dismissed their writ petition. THE High Court granted a certificate under Article 133 (1) (b) of the Constitution that the case was fit for appeal to this Court: This case is admittedly governed by the Act as it stood before the amendment of 1/08/1956. The material provisions of the Act relevant for decision of this appeal may now be set out.;