Bombay High Court
Chindha Nathu Gujar vs Murlidhar Shankar Gune on 1 August, 1996
Equivalent citations: 1997(3)BOMCR53
Author: R.G. Deshpande
Bench: R.G. Deshpande
JUDGMENT R.G. Deshpande, J.
1. The petitioner-tenant in the present matter has come up before this Court challenging the judgment and order dated 22nd April, 1983 passed by the Maharashtra Revenue Tribunal, Bombay in Revision Application No. Ten.A. 22G of 1982 arising out of the judgment and order dated 31-8-1982 passed by the Sub-Divisional Officer, Chalisgaon in Division Jalgaon in Tenancy Appeal No. 3/1981 which, in turn, arose out of the judgment and order dated 12-1-1981 passed by Tahsildar, Chalisgaon in Tenancy Case No. 2/73 which was initiated on the basis of an application under section 25(2) and 29 of the Bombay Tenancy and Agricultural Lands Act, 1948.
2. Field Survey No. 73 admeasuring 21 acres and 17 gunthas assessed to Rs. 74.69 situated at Ozar village, Tq. Chalisgaon is the subject-matter of the present petition. The undisputed fact is that the present respondent-landlord was holding this land as Patil Inam land on which the petitioner was a tenant. It is also not disputed that the respondent-landlord did secure possession of half portion of the above-said field Survey in accordance with the provisions of section 29 read with section 31 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the "Tenancy Act", for the purposes of brevity). Thus, it is half of the Field Survey No. 73 referred to above, with which we are concerned now in this dispute, which was held as a tenant by the petitioner.
3. Application under sections 25(2) and 29 of the Tenancy Act was filed by the respondent on 30th November 1972 to recover the possession on the ground that the tenant-petitioner was in default in making the payment of rent for the years 1969-70; 1970-71 and 1971-72 inspite of the intimations given to the tenant. In support of his contention, the respondent-landlord did produce certain documents on the record as well as the copies of intimations. The respondent-landlord did issue notice under section 14 read with section 29 of the Act on 11-8-1972 mentioning therein that since the petitioner-tenant did fail to make the payment of rent for the years 1969-70 to 1971-72, the tenancy of the tenant to stand terminated after three months of the receipt of the notice by the tenant. This application initiated by the respondent-landlord was numbered as Tenancy Case No. 2/73 on the file of Tahsildar, Chalisgaon. The Tahsildar, Chalisgaon who dealt with the matter did frame necessary issues and after recording the necessary statements of the parties concerned, observed that the landlord did serve the tenant with a valid notice for the tenant's failure in making the payment and inspite of the notice, the tenant did fail in making payment for three years. He, therefore, observed that the tenancy of the petitioner stood terminated in pursuance of the notice and that the landlord was justified in presenting an application for possession which was well within time. The learned Tahsildar, on the basis of the documents before him and pleadings, reached to the conclusion that Field Survey No. 73/1 was liable to be restored to the landlord under sections 29(2) and (3). Since the order was regarding restoration of land to the landlord, the aggrieved tenant approached before the Sub-Divisional Officer, Chalisgaon, Division Jalgaon by way of an appeal under section 74 of the Act, which was registered as Tenancy Appeal No. 3/81. The learned authority of the lower Appellate Court observed that record did indicate that the landlord did not receive the rent for the years 1969-70; 1970-71 and 1971-72 inspite of intimations given to the tenant. The Appellate Authority further rightly observed that the application made by the landlord under section 29(2) of the Act was well within time of two years as prescribed under the Act. The learned Sub-Divisional Officer also observed that though from the facts, it is seen that the petitioner-tenant was a defaulter, according to the learned lower Appellate Authority, section 25(2) of the Act would give some relief to the tenant against termination for non-payment of rent and, therefore, the learned Tahsildar instead of directly restoring the land to the respondent-landlord should have followed the procedure prescribed under section 25(1) of the Act and, according to which the Mamlatdar should have called upon the petitioner-tenant to tender to the landlord the rent in arrears together with the cost of the proceedings within three months from the date of the order. The learned Sub-Divisional Officer, therefore, set aside the order passed by the Tahsildar and sent the matter back to the Tahsildar for initiating or starting proceedings under section 25(1) of the Tenancy Act, by his order dated 31st August, 1982. Against this order of the lower Appellate authority, the present respondent-landlord approached before the Maharashtra Revenue Tribunal, Bombay vide Revision Application No. Ten. A.22 G of 1982 challenging the order on various grounds and precisely argued before the M.R.T. that it was an established finding of fact on the record that the tenant was a defaulter for the years 1969-70 to 1971-72 and further that inspite of due intimations, no rent was paid and the tenancy stood terminated and the landlord was entitled for restoration of possession was ordered by the Tahsildar , Chalisgaon. The learned Member, Maharashtra Revenue Tribunal, Bombay, therefore, set aside the order of the Sub-Divisional Officer i.e. appellate authority and restored the order passed by the Tahsildar. It is this order which is under challenge before this Court in the present petition.
4. Before going into the merits in the instant matter, some other important points deserve consideration. It is an admitted position that the respondent-landlord had already resumed half of the land of Field Survey No. 73 in accordance with the provisions of the Tenancy Act itself. The remaining half was with the petitioner-tenant as a tenant thereof. The petitioner-tenant had applied for determination of the purchase price of this tenanted land in favour of tenant under section 32G of the Act. Along with these proceedings, an application under section 32-O at the instance of the landlord also, was under consideration as the tenant failed to exercise his right to purchase the field in question within two years. Both these applications were dealt with together by the Tahsildar and the Tahsildar did reject the application of the landlord which is filed under section 32-O, whereas allowed the application filed by the tenant for fixing of price, observing that under section 29(2) read with section 31 of the Act, the tenant had become a deemed purchaser of the remaining half. It would not be out of place to mention at this stage only that the present petitioner happened to be the legal representative of the original tenant who was one Nathu Gujar. It is also to be noted that the land, as observed above, was an Inam land and after the abolition of Patilki vide Bombay Act No. 35/62 from 4-9-1962, the land was resumed under section 6 and then it was regranted to the landlord on 24-12-1962. This is how after regrant, the above-said two applications under section 32-O and 32-G were initiated. After having rejected the application of the landlord under section 32-O, the revenue authority concerned, did fix the purchase price in favour of the petitioner-tenant. The landlord did approach the Assistant Collector, Jalgoan against the above-said orders which were dated 30-9-1970. The appeals filed before the Assistant Collector were registered as Tenancy Appeal Nos. 84 and 85 which were decided by a common order dated 15-3-1971 by the Assistant Collector, Jalgaon. The learned Asst. Collector, Jalgaon confirmed the view of the Tahsildar that section 32-O of the Tenancy Act did not apply. The appellate authority, therefore, held that before fixing the price of the land in question, the Tribunal should have followed an inquiry as to the holding of the tenant and should have also taken the average yield under consideration before fixing the price. The Asst. Collector, Jalgaon, therefore, remanded the matter to the Agricultural Lands Tribunal for inquiry on this point. Against this decision of the Assistant Collector dated 15-3-1971, the present respondent-landlord, as is clear from the record, approached the Maharashtra Revenue Tribunal by way of two Revisions which were Revision Application Nos. Ten. A. 225/1971 and Ten. A. 251/71. These Revisions were heard and decided by the learned Member of the Maharashtra Revenue Tribunal, Bombay by his common judgment and order dated 12-3-1972, a copy of which is produced by Shri Gatne, the learned advocate for the petitioner and which is taken on record with the consent of Advocate Shri Deshmukh, for respondent-landlord. The learned Member of the Maharashtra Revenue Tribunal, who was concerned with the above-said two Revisions, as is seen from the order, observed that the orders passed by both the Revenue authorities in those matters were not liable to be sustained in law and the proceedings initiated by the Agricultural Lands Tribunal under section 32-G as well as section 32-P of the Act, did deserve to be quashed, observing that in view of the specific provisions of section 88CA, it was not open for either of the parties to take recourse to any of the provisions under section 32-A to 32-R of the Act. The learned Member of the Maharashtra Revenue Tribunal observed further that it was not open for the landlord to take recourse to any other provisions under the Act and to take steps to recover possession of the land if he is so advised which means that if at all he was entitled to recover the possession on the ground of default on the part of the tenant.
5. On the basis of the facts above, this Court has to consider now as to whether the judgment and order dated 22-4-1983 passed by the Member, Maharashtra Revenue Tribunal, Bombay could be said to be correct and the point which needs consideration is as to whether the petitioner-tenant entitled for the benefits of section 25(1) of the Act, in view of his stand that he could not be said to be a defaulter in the facts and circumstances of the case.
6. Shri Gatne, the learned Counsel appearing on behalf of the petitioner-tenant along with Advocate Shri Sankaye, vehemently argued that the notice dated 11th August, 1972 issued by the landlord under section 14 read with section 29 of the Act was bad in law, particularly when, according to Shri Gatne, the petitioner-tenant was not at all in arrears of rent at least till the year 1969-70. He further argued that though for the years 1970-71 and 1971-72, it is clear from the record that no rent is paid, according to Shri Gatne, his client i.e. the petitioner-tenant was not liable to pay the said rent in view of the pendency of proceedings under section 32-G as also under section 32-O read with P, which were initiated at the instance of the tenant and the land- lord, to which a reference is already made above in the previous paragraphs, which was registered as Tenancy Case No. 6/69. Shri Gatne showed from the record that the initiation of above-said proceedings under section 32-O and P & G at the instance of the parties was in the year 1969, wherein the purchase price was fixed in favour of the petitioner-tenant by allowing his application under section 32-G. According to Shri Gatne on 1st April, 1957 itself, the petitioner was deemed to have become purchaser of the field in question and it was simply a matter of fixation of price which was going on and which was decided in his favour by the Tahsildar. Shri Gatne, therefore, argued that since he had become the owner of the land in question, there was no occassion for him to pay rent for the subsequent years, at least, till the setting aside of that order by the Maharashtra Revenue Tribunal vide its order dated 13th March, 1972.
7. The second contention raised by Shri Gatne in the matter was that in view of these specific facts in the case, the Revenue authorities below were not justified in reaching to the conclusion that the petitioner - tenant was a defaulter for three years and further that inspite of there being due intimations in accordance with the provisions of section 25(2) of the Act. Shri Gatne, further, argued that even assuming for the sake of arguments that he could not be declared to be a purchaser and owner of the field in question in view of the decision of the M.R.T., since he was till then prosecuting the matter absolutely under bona fide belief and when the same was also entertained by the revenue authorities and had given due decision thereon, the petitioner - tenant by no stretch of imagination, could be said to be a defaulter and it was for the Mamlatdar to have issued notice under section 25(1) calling upon the petitioner-tenant to make the payment of rent within stipulated period, as is provided under the said section. Shri Gatne further tried to suggest by way of an additional aspect for consideration that since the provisions of section 88CA are introduced for the first time by Act No. 63/1958 which came into effect on 11th July 1958, till then he could be said to be a deemed purchaser as he was in the land in question till tiller's day and there was no occasion for him to make the payment of rent in his capacity as a tenant as he did not remain to be a tenant then. This argument of Shri Gatne, no doubt, is very strong and convincing but whether the argument deserves to be accepted or not will have to be found out on the basis of arguments advanced by Shri Deshmukh, the learned Counsel appearing on behalf of the respondent-landlord. Shri Deshmukh, the learned Counsel for the respondent-landlord argued with great emphasis on the point that the provisions of section 88CA of the Act totally debars the application of sections 32 to 32 R, both inclusive sections 33-A, 33-B and 33-C to the land held as Inam or Watan for service useful to Government but not assigned as remuneration to the person actually performing such service for the time being under section 23 of the Bombay Hereditary Offices Act, 1874 or any other law for the time being in force. Shri Deshmukh has specifically pointed out that in view of coming into operation of section 88-CA, the application made by the respondent -landlord under section 32-O or the application made by the petitioner-tenant under section 32-G were not liable to be entertained at all. According to Shri Deshmukh, the learned Member of the M.R.T. is well-justified in observing that the very applications were not maintainable and naturally the decision to which the learned Member of the M.R.T. did arrive at was liable to be sustained. Shri Deshmukh further argued that one of the important aspects of the matter is that it is a finding of fact given by the Revenue authorities below that the petitioner-tenant was in arrears for three years i.e. for the years 1969-70 to 1971-72, that too inspite of due intimations in that respect. Shri Deshmukh tried to suggest that it would not be appropriate in the writ jurisdiction for this Court under Article 227 of the Constitution to disturb the finding of fact given by the Revenue authorities below. Shri Deshmukh further contended that even otherwise since the status of the petitioner-tenant did not change into that of landlord at any time, there was no question nor was there any reasonable excuse for the petitioner-tenant to withhold the payment and Shri Deshmukh, therefore, suggested that on each count, the petitioner-tenant was not entitled to the relief he sought for through his application or that the case of the tenant that he could not be labelled as a defaulter, could not be accepted. Shri Deshmukh further contended that the landlord once having complied with the provision of intimation as embodied under section 25(2) of the Act, then there was no necessity for the appellate authority to send the matter back for taking appropriate steps under section 25(1) of the Act. Shri Deshmukh wanted to suggest that the only course open was to straightway put the field in question in possession of the landlord without any further action under section 25(1) of the Act.
8. To understand the rival contentions, it would be necessary at this stage to refer to certain provisions of the Act. Section 32 of the Act speaks about the deemed purchase by the tenant of the land held by him as a tenant on the tiller's day. Section 32(1) reads as under :---
"32(1) On the first day of April, 1957 (hereinafter referred to as "the tillers 'day') every tenant, shall (subject to the other provisions of this section and the provisions of) the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant if -
(a) such tenant is a permanent tenant thereof and cultivates land personally ;
(b) such tenant is not a permanent tenant but cultivates the land leased personally ; and
(i) the landlord has not given notice of termination of his tenancy under section 31 or,
(ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land; or
(iii) the landlord has not terminated this tenancy on any of the ground specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March 1957, under section 29 for obtaining possession of lands ;
Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Maharashtra Revenue Tribunal under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed is hereinafter referred to as "the postponed date".
Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub-section (3) of section 31 shall be deemed to have purchased the land on the 1st day of April, 1958, if no separation of his share has been effected before the date mentioned in that proviso."
In pursuance of the provisions of section 32, Shri Gatne, the learned Counsel, tried to argue that, in any case, particularly when it is admitted position that the petitioner was a tenant on the field in question, there was no other go than to reach to the conclusion that his client, i.e. the petitioner, could be deemed to have purchased the land and, therefore, according to Shri Gatne, the question of his status as that of a tenant thereafter, did not arise. Shri Gatne, has further specifically pointed out that at the instance of the landlord on his application under section 31, the petitioner had parted with half of the land and, therefore, the petitioner could not have been conveniently said to have the rest of the field, in pursuance of the provisions of section 32 of the Act. Basing the case on this footing, Shri Gatne, further pointed out that it was only after resumption of the land by the landlord his client, i.e. the petitioner, did apply under section 32-G to determine the price of the land to be paid by the tenant. According to Shri Gatne, the initiation of application at the instance of the tenant was absolutely under bona fide belief that he had every right to purchase the land and for that, necessary steps were taken under section 32-G only. Shri Gatne, further, pointed out that this application which was registered as Application No. 6/69 to which a reference is already made above, the same was decided in his favour by fixing the price by the Tahsildar and Agricultural Lands Tribunal and, therefore, once having fixed the price and the instalments to be paid by the tenant, there was no occasion nor was there any necessity for the tenant to pay any rent and that is the reason why the rent for the years 1970-71 and 1972-73 is not paid. Shri Gatne, suggests that in such circumstances, it would be difficult to call the tenant as a defaulter for the rent for that period. Shri Gatne, in support of his arguments, further, pointed out that though the matter for fixation of price was remanded by the appellate authority, it was only for fixation of correct price and not for any other purposes. According to Shri Gatne, the appellate authority was also of the opinion that the tenant was entitled to purchase the field in question and, therefore, according to him, to that effect the order of the trial Court could be said to have been sustained by the appellate Court. Shri Gatne further points out that for the first time in the year 1972 and to be precise, on 13th March 1972, when the Maharashtra Revenue Tribunal held that the applications under sections 32-G and 32-P that is of the tenant and landlord respectively, were not maintainable in view of section 88CA, it was at that time only, it could be said that the petitioner-tenant should have paid the rent for the previous years but he could not have been called as a defaulter or in arrears of rent. Shri Gatne, reiterated his argument by saying that all these proceedings were taken under the bona fide belief and even the Revenue authorities also entertained and decided the matter from time to time. Shri Gatne, therefore, wanted to suggest that in such a case, the procedure should have been adopted by the Mamlatdar of issuing the notice under-section 25(1) of the Act, calling upon the tenant to tender to the landlord any arrears of rent together with the cost of the proceedings within three months from the date of order and if within that stipulated time the tenant would have deposited the amount, then he could not have been declared liable for ejectment. Shri Gatne, heavily relied on this provision of section 25(1) of the Act, specifically pointing out that since there were no intimations as regards three defaults to which a reference is made in section 25(2) of the Act. Section 25(2) reads as under :---
"Section 25(2) :
Nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent and the landlord has given intimation to the tenant to that effect within a period of three months on each default."
The above-said section 25(2) suggests that in a case where a tenancy is terminated for non-payment of rent for any three years by the tenant and if in case of such defaults the landlord had given due intimations to the tenant to that effect within a period of three months on each default then only in that case, the tenant would not be entitled to the relief under section 25(1) else the tenant is definitely protected by section 25(1). Shri Gatne, in the instant matter, tried to point out that there is nothing on the record to suggest or show that for the three alleged defaults i.e. for the periods 1969-70, 1970-71 and 1971-72, the landlord had given three independent intimations and that too within three months' time of each default. Shri Gatne, further, specifically pointed out that it was for the first time on 11th August 1972, that the landlord has given a composite notice for three years and has sought to terminate the tenancy in pursuance thereof. Shri Gatne, further, argued that the finding given by the Sub-Divisional Officer that inspite of intimations given to the tenant, it is on the record that the respondent-landlord did not receive the rent for the above-said period of three years, is a wrong finding given by the Sub-Divisional Officer. Shri Gatne, the learned Counsel, argued that there is nothing on record to show that the intimations were given by the landlord in time.
9. From the record, it is clear that the notice dated 11th August, 1972 which was served by the landlord on the tenant refer to three years default and the tenancy is sought to be terminated on that ground. Shri Deshmukh, the learned Counsel, tried to suggest that even though three years period is referred to for the purposes of section 14 of the Act for terminating the tenancy of the tenant, even a single default is sufficient and according to Shri Deshmukh even otherwise the tenant was liable to be evicted on that count and the landlord was entitled to the possession of the field in question. Shri Deshmukh also tried to suggest that even otherwise it is a finding given by all the Revenue authorities below that due intimations were given and inspite of that the tenant did not pay the rent. Shri Deshmukh, therefore, wanted to suggest that this is a finding of fact which should not be disturbed in the present petition. To counter this contention of Shri Deshmukh, Shri Gatne, the learned Counsel, vehemently argued that merely because a finding is given by the appellate authority observing that "inspite of intimations", according to Shri Gatne, which is an absolutely erroneous finding which is based on no evidence and according to Shri Gatne, it was not necessary for him to challenge that observation by way of Revision or otherwise, before the higher authority for the simple reason that the judgment was in his favour, He, therefore, suggested that merely because this finding is not earlier challenged by the tenant, would not in any manner, prevent the petitioner from arguing on that point to show that this finding is absolutely erroneous. I do find some substance in the argument of Shri Gatne. If a particular adverse observation is made by the authority concerned, however the ultimate result is in favour of that particular party, then such a observation recorded in ordinary course, would not be challenged. Shri Gatne relied on the provisions of section 76 to show that the order could not be said to be otherwise revisable under section 76 of the Act. This is also one of the reasons why he did not challenge only that much finding which was against him. On the other hand, Shri Deshmukh, taking advantage of the silence on the part of the tenant in the matter, argued that having acceded to such a finding, it is now not open for the tenant to allege that the said finding is perverse, baseless and without any cogent evidence to that effect on the record. Shri Gatne, in support of his contention did rely on three judgments in the matter of Gopala Ganu Wagale v. Nageshwardeo Patas Abhishekh Anushthan Trust; in the matter of Damdilal v. Parashram; and, in the matter of Arjun Makhijani v. Jamnadas Tuliani. All these three judgments are mostly the point that if there is a manifested error on the face of the record or that the finding is given ignoring evidence on record or that the finding is based on no evidence on record or that the finding is based on no evidence at all, then it is open for the High Court under Article 227 of the Constitution, to correct the error and, if necessary, by setting aside the orders of the Courts below. I do not feel that there could be two opinions about the same. The propositions as laid down in these judgments, no doubt, would indicate the powers to the High Court under Article 227 of the Constitution. However, from these judgments, it is clear that when there is a manifest error on the record and when the finding recorded by the authorities below is not based on evidence or that there is not even slightest iota of evidence to support such a finding, in such a case, the High Court could be said to be justified even in interfering on the finding of fact by the Revenue authorities, which could be termed as incorrect finding of fact or an erroneous finding of fact. In the matter of Damdilal v. Parashran, , it is observed by the Supreme Court that even in second appeal, if it is noticed that the lower Appellate Court overlooking the very material part of the evidence having bearing on the question, reached to the finding, such a finding of fact arrived at ignoring the important and relevant evidence is bad in law and the High Court could be said to be justified in setting aside such a finding. This is a matter wherein Their Lordships of the Supreme Court were dealing with the matter on the point of jurisdiction of the High Court under section 100, Order 41, Rule 33 of the Civil Procedure Code. Shri Gatne, tried to suggest that ultimately the ratio is the same that without evidence some finding of fact is arrived at, the hands of the High Court under Article 227 cannot be said to have been tightened merely because the authorities below have reached to the erroneous finding. The above three decisions relied on by Shri Gatne also deals with the same point wherein Shri Gatne invited my attention to the observations made in para 17 of the said judgment on page 627, which is as under :---
"17. In so far as the submission made by the learned Counsel for defendant 6 that a finding of fact could not be interfered with in writ petition by the High Court is concerned, by and large no exception can be taken thereto. The rule in this behalf, however, is not inflexible but has exceptions recognised by judicial decisions which being well known are not necessary to be recapitulated. For instance this rule will not apply if a finding is arbitrary or based on no evidence or is such that no one properly instructed in law could have given it the same being in the teeth of some statutory provision or in ignorance of binding precedents. In our opinion, in the instant case is one which falls within the exception to the said Rule. It is true that the landlord by getting his plaint subsequently amended set up the plea that the garage had been illegally sublet by the tenants to defendant 6. It is however, equally true that the said plea was categorically denied by the tenants and it was specifically asserted by them that they had never sublet the garage to defendant 6 and that defendant 6 was a trespasser. As regards defendant 6 himself he pleaded to have come into possession of the garage for a period of six months on the basis of an agreement entered into between him and Daulat, the son of one of the tenants. In the lifetime of his father Daulat could not have the status of a joint tenant and in the eye of law he had no interest in the garage, apart from using it in his capacity as the son of one of the tenants. He was not in a position either to sublet the garage or even to grant a licence thereof. As seen above, the High Court has emphasised in its judgment under appeal that no positive plea of sub-tenancy, whether lawful or unlawful, was raised by defendant 6 in unequivocal terms admitted in his deposition also before the trial Court that he came in possession by virtue of agreement with Daulat, the son of defendant 1. He further admitted that he did not know that defendants 1 to 5 were the tenants of the flat, storeroom and garage and that he did not make inquiry as to who were the tenants. This being the situation there was no scope for even drawing an inference that taking of possession of the garage of six months by defendant 6 in pursuance of the agreement entered into between him and Daulat may have been with the tacit approval of the tenants namely defendants 1 to 5. Nothing has been brought to our notice to indicate that the case of the landlord was that the tenants had sublet the garage to defendant 6 in the trial Court. That part, defendant 6 in his presence and he had personal knowledge about the transaction of subletting. The High Court has also pointed out in para 25 of its judgment under appeal that in support of their plea that defendant 6 was a trespasser defendants 1 to 5 had led evidence and that the lower Court had no justification to ignore that evidence. It was apparently, therefore, a case where no one properly instructed in law could have come to the conclusion that the tenants had illegally sublet the garage to defendant 6. In this state of affairs it cannot obviously be said that the High Court committed any error in holding that defendant 6 was a trespasser. This being so, defendant 6 indisputably could not derive any benefit out of the amended sub-section (2) of section 15 of the Act."
10. From these judgments, it is clear that in appropriate cases, this Court can even interfere in finding of fact when it is noticed from the record that the said finding is arrived at by the authorities below on the basis of no evidence to that effect. It is an admitted position in the instant matter that there is only one notice dated 11th August 1972, which refers to three defaults, that too for the first time. Prior to this, there was no notice of any type given by the landlord to the tenant indicating the defaults committed by the tenant for any other independent year. Shri Gatne, also tried to take the help of the conduct of the landlord to suggest that even the landlord also could be said to be labouring under wrong notion since the proceedings under section 32 G were going on, it would not have been open for him to issue notice under section 14 of the Act which he issued only after the final order passed by the Maharashtra Revenue Tribunal on 13th March 1972. This argument of Shri Gatne, cannot be straightaway negatived rather it would be even hard to reject this argument outright. Shri Deshmukh, learned Counsel for the respondent-landlord tried to suggest that on each default and that too within the prescribed period of three months an intimation was given to the tenant strictly in accordance with the provisions of section 25(2) of the Act. Shri Deshmukh further pointed out that because of this only the authorities below have specifically observed that the tenant has failed to pay the rent inspite of intimation to him. Shri Deshmukh rightly suggested that the section does not require a notice in writing and intimation, according to Shri Deshmukh, even could be oral. There cannot be any doubt as regards this argument of Shri Deshmukh that an intimation could also be oral and section also does not insist for written intimation. However, the question remains after the intimation was given what is there on the record to show that any oral intimation was given or what is there on the record to reach to this conclusion that the intimation must have been given by the landlord to the tenant on each occasion and that too within a period of three months as prescribed under section 25(2) of the Act. With the help of the learned Counsel, I have tried to find out from the record as to what is the evidence to that effect on the record. Shri Deshmukh, tried to show from the record that it was the case of the petitioner-tenant himself that he had paid the rent till the year 1969-70. However, according to Shri Deshmukh, it indicates the tendency of the tenant to blow hot and cold simultaneously. As against this, Shri Gatne, the learned counsel for the petitioner-tenant, tried to suggest that though he has said that his client has paid the rent upto 1969-70 and if on the second occasion he says that he was not required to pay any rent as he could be treated as a purchaser in pursuance of section 32 G of the Act. Shri Gatne, therefore, wanted to say that this itself would not in any way lead to the conclusion that there was a intimation to the tenant on each occassion nor could this stand of the tenant be treated as intimation to the tenant of the defaults in question, as contemplated by section 25(2) of the Act. I do not have any hesitation in accepting this argument of Shri Gatne and it is absolutely clear from the record that there were no specific three intimations given by the landlord to the tenant as contemplated under section 25(2) of the Act. If there is no evidence to this effect, then naturally the finding which is given by the Revenue authorities below observing that inspite of intimations, the landlord did not receive the rent, could be said to be an erroneous finding and difficult to sustain.
11. The next question that arise for consideration is as to what could be the effect of non-maintainability of the application under section 32-G of the tenant in pursuance of the provisions of section 88CA of the Act. Shri Gatne wanted to take advantage of this proceeding anyhow to justify the default on his part by saying that he was bona fidely prosecuting the matter under the Tenancy Act under section 32-G and not only he but even the Revenue authorities who also entertained the application at the initial stage itself and the matter had gone upto Maharashtra Revenue Tribunal wherein the M.R.T. did observe that the application under section 32-G of the Act was not maintainable in view of the prohibition of section 88CA. Shri Deshmukh, the learned Counsel for the petitioner argued and according to me rightly that once having found that the very application under section 32-G at the instance of the tenant itself was not maintainable in view of the provisions of section 88CA; the question as to whether the matter was being prosecuted bonafidely and as to whether the applicant did proceed under the bona fide belief, could not be said to be of any help to the petitioner-tenant and I do not think that Shri Deshmukh could be said to be wrong in putting the arguments in this way. The argument of Shri Deshmukh on this point is absolutely convincing, just and according to law. It is pertinent to note that the application which itself could not be said to be maintainable and if that remedy is wrongly availed of by the party concerned and if the same is entertained and further prosecuted before the higher Courts that in no way confer any rights on the party contesting that application to say that not only he but also the Revenue authorities under the bona fide belief did entertain the application and gave decisions. If the initial application itself could be said to be not maintainable then any process on that application, either at the instance of the party or at the instance of revenue authorities would not validate the application or action taken in pursuance thereof. The petitioner-tenant, therefore, cannot be said to be justified in saying that because of the pendency of those proceedings he did not pay the rent.
12. Ultimately the matter rests on the point that the tenant is found to be a defaulter as alleged by the landlord and the tenant cannot take the advantage of the proceedings under section 32-G and for the purposes, even if the proceedings under section 32-O and 32-P which were initiated at the instance of the landlord. The M.R.T. was justified in holding that all these applications relating to proceedings under sections 32-G, 32-P and 32-O of the Act, were not maintainable and were liable to be set aside. Then the only question remains to consider i.e. as to whether the M.R.T. was justified in setting aside the finding of the Sub-Divisional Officer whereby the S.D.O. sent the matter back to the Tahsildar for initiating action under section 25(1) of the Act. For this purposes, it will have to be seen as to what is the case of the petitioner-landlord. It is the specific case of the petitioner-landlord that he terminated the tenancy of the tenant and was seeking possession of the land specifically on the ground that the tenant did commit three defaults for the years 1969-70 to 1971-72. Even according to the petitioner-landlord, the notice which he had given on 11th August 1972, was the first notice and prior to that there was no question to issue the notice. If the tenancy is sought to be terminated on three defaults, could it be said that he could be justified even asking for termination even on one default under section 14 of the Act. The question that when the provisions of section 25 are being attracted in the instant matter, then it is necessarily to be seen as to whether the provisions of section 25(2) are complied with by the landlord. It appears that as suggested by Shri Gatne, even the petitioner was labouring under a wrong notion that he could not have given notice earlier for the first default in the year 1969-70 under section 14 of the Act, because the proceedings under section 32-G were going on. However, as pointed out earlier, the proceedings which were barred by provisions of section 88CA are now to be totally left aside and not to be taken into consideration as those proceedings could be said to be of no help to either of the parties.
13. Having once arrived at the conclusion that there were no three independent intimations, as contemplated under section 25(2) of the Act, then the course remained open is initiation of action by the Mamlatdar under section 25(1) of the Act. Section 25(1) of the Act specifically provides, "where any tenancy of any land held by any tenant is terminated for non-payment of rent and the landlord files any proceeding to eject the tenant, the Mamlatdar shall call upon the tenant to tender to the landlord the rent in arrears together with the cost of the proceeding within three months from the date of order, and if the tenant complies with such order, the Mamlatdar shall, in lieu of making an order for ejectment, pass an order directing that the tenancy had not been terminated and thereupon the tenant shall hold the land as if the tenancy had not been terminated." The proviso to this section specifically provides :---
"Provided that if the Mamlatdar is satisfied that in consequence of total or partial failure of crops or similar calamity the tenant has been unable to pay the rent due, the Mamlatdar, may for reasons to be recorded in writing, direct that the arrears of rent together with the cost of the proceedings if awarded, shall be paid within one year from the date of the order and that if before the expiry of the said period the tenant fails to pay the said arrears of rent and costs, the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted.
(2) Nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent and the landlord has given intimation to the tenant to that effect within a period of three months on each defaults."
From the above provisos it is clear that in appropriate cases, even the concession is given to the tenant to make the payment as it would be granted by the Mamlatdar, taking into consideration the capacity of the tenant to pay the same in a particular circumstance and situation. Admittedly, in the instant petition, such intimation notice was given by the Mamlatdar, calling upon the petitioner-tenant to pay the amount of arrears along with costs within three months, as is prescribed under section 25(1) of the Act. The provisions of section 25(1) immediately comes into operation, the moment there is no compliance of section 25(2) so far as regards the intimation to the tenant for each of three defaults is concerned. I have no hesitation, therefore, in accepting that the view taken by the learned Sub-Divisional Officer was just and proper and the view taken by the M.R.T. whereby he reversed the order of the learned S.D.O. is absolutely incorrect.
14. Shri Gatne, the learned Counsel for the petitioner, further, tried to assail the very validity and correctness of the notice dated 11th August 1972 which was issued under section 14 of the Act. Shri Gatne, tried to suggest that the said notice, in fact, does not mention about the amount of arrears nor the arrears are demanded by the landlord by the said notice, apart from the fact that it is a composite notice. Shri Gatne, further, tried to suggest that the landlord by the same notice has simply terminated the tenancy without giving a chance to the tenant to justify if any failure on his part in not making the payment of rent. In view of my observations made earlier I do not want to go into the question of validity or otherwise of the notice under section 14 of the Act.
15. Shri Deshmukh, the learned Counsel appearing on behalf of the respondent, reiterating his arguments by submitting that by no stretch of imagination, the provisions of section 25 (1) of the Act would come into operation in the present type of case, particularly when, according to Shri Deshmukh it is so held by the Supreme Court in the matter of Raja Ram Paranjpe v. Aba Maruti Mali, . According to Shri Deshmukh, this judgment is directly on the point and also dealing with the provisions of section 14, 25(1) and 25(2) so also sections 29(2) and (3) of the Act. Shri Deshmukh heavily relied on this judgment in support of his argument, specifically pointing out that Their Lordships have observed that in a case where the tenancy is terminated under section 14, the tenant could not be said to be entitled to the relief against the said termination under sub-section (1) of section 25 because of the provisions of sub-section (2) of that section. Shri Deshmukh wanted to suggest that the tenancy is terminated in accordance with the statutory provisions and the landlord acquired the statutory right of the land in question and, therefore, ejectment of the tenant as a necessary consequence. I have carefully gone through the said judgment with the assistance of the learned Counsel Shri Deshmukh and I find that the said case cannot be said to be applicable to the present case, in view of the specific changes made in the provisions of the Act itself. To understand this difference, it would be necessary for me to refer to the provisions of the Act as it then existed on the Statute Book and those which exist today. Their Lordships of the Supreme Court while dealing with the matter referred to above, on page 755 in para 4 has reproduced the provisions of law as they were in existence at the relevant time and I feel it necessary to reproduce the same here in this judgment :-
"(5) We now set out the relevant provisions of the Act.:
Section 5(1) : No tenancy of any land shall be for a period of less than ten years :
PROVIDED that at the end of the said period and thereafter at the end of each period of ten years in succession, the tenancy shall, subject to the provisions of sub-sections. (2) and (3), be deemed to be renewed for a further period of ten years on the same terms and conditions notwithstanding any agreement to the contrary.
(2) ...
(3) Notwithstanding anything contained in sub-section (1) :
(a) every tenancy shall, subject to the provisions of sections 24 and 25, be liable to be terminated at any time on any of the grounds mentioned in section 14 ... ...
... ...
Section 14(1). Notwithstanding any agreement, usage, decree, or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated unless such tenant :-
(a)(1) has failed to pay in any year within fifteen days from the day fixed .... the rent of such land for that year, ... ...
... ...
PROVIDED that no tenancy of any land held by a tenant shall be terminated on any of the grounds mentioned in this sub-section, unless the landlord gives three months' notice in writing intimating the tenant his decision to terminate the tenancy and the ground of such termination.
Section 25(1). Where any tenancy of any land held by any tenant is terminated for non-payment of rent and the landlord files any proceeding to eject the tenant, the Mamlatdar shall call upon the tenant to tender to the landlord the rent in arrears together with the costs of the proceeding within fifteen days from the date of order, and if the tenant complies with such order, the Mamlatdar shall, in lieu of making an order for ejectment, pass an order that the tenancy has not been terminated, and thereupon the tenant shall hold the land as if the tenancy had not been terminated :
PROVIDED that if the Mamlatdar is satisfied with that in consequence of total or partial failure of crops or similar calamity the tenant has been unable to pay the rent due, the Mamlatdar may, for the reasons to be recorded in writing, direct that the arrears of rent together with the costs of the proceedings if awarded, shall be paid within one year from the date of the order and that if before the expiry of the said period, the tenant fails to pay the said arrears of rent and costs, the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted.
(2) Nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in section 14.
Section 29(1) . A tenant or an agricultural labourer or any artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply in writing for such possession to the Mamlatdar.
.... .... .... ....
(2) No landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be is deemed to have accrued to him.
(3) On receipt of application under sub-section (1) or (2) the Mamlatdar shall, after holding an inquiry, pass such order thereon as he deems fit."
It would be better also to reproduce the provisions of sections 14, 25(1) and (2) for the purpose of knowing the difference between the said provisions. Section 14 of the present Act reads as under :
"14(1) Notwithstanding any law, agreement or usage or the decree or order of the Court, the tenancy of any land shall not be terminated-
(a) unless the tenant -
(i) has failed to pay the rent for any revenue years, before 31st day of May thereof;
(ii) has done any act which is destructive or permanently injurious to the land;
(iii) has sub-divided, sub-let or assigned the land in contravention of section 27;
(iv) has failed to cultivate it personally; or
(v) has used such land for a purpose other than agriculture or allied pursuits ; and
(b) Unless the landlord has given three months' notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination, and within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated.
(2) Nothing in sub-section (1) shall apply to the tenancy of any land held by a permanent tenant unless by the conditions of such tenancy the tenancy is liable to be terminated on any of the grounds mentioned in the said sub-section."
16. Now, it is necessary to see that as to what is the difference between the two provisions. Section 14 is substituted for original section vide Bombay Act No. 13 of 1956. Section 10 thereof as the same under section 25(1). Section 25(1) as it stands in the Statute Book today appears to have been numbered as sub-section (1) of said section 25 by Bombay Act No. 33 of 1952 vide section 5 thereof. The proviso to sub-section (1) of section 25 is also added by Bombay Act No. 33 of 1952 vide section 5(1) thereof, and sub-section (2) of section 25 which is bracketed completely which can be said to be outer bracket, were substituted for the words, "provided that nothing in this section" that too by section 33 of 1952 vide section 5(2) thereof. The material amendment to this provision of section 25(2) is shown by internal bracket. Sub-section (2) of section 25 which reads as under :-
"and the landlord has given intimation to the tenant to that effect within a period of three months on each default."
This portion is substituted for the words and figures "within the period specified in section 14", and this was done by Bombay Act No. 13 of 1956 vide its section 17(2).
17. It was very much necessary to reproduce this so as to find out as to whether the judgment of Their Lordships of the Supreme Court (cited supra) could be said to govern the present case. When the matter was being dealt with in the Supreme Court in the case of Raja Ram v. A.M. Mali (supra), we see that section 14(1) and to be precise 14 (1)(a)(1) did specifically read," has failed to pay in any year within fifteen days from the day fixed as......rent of such land for that year,....................
Provided that no tenancy of any land held by the tenant shall be terminated on any of the grounds mentioned in this sub-section unless the landlord gives three months' notice in writing intimating the tenant his decision to terminate the tenancy and the grounds for such termination.
18. From the above-said provision, it is clear that the landlord intending to terminate the tenancy of his tenant who having found to be in default in accordance with the provisions of section 14, if the tenant failed to pay the rent for that year within 15 days from the date fixed, only in that case, the landlord was entitled to give notice under section 14 intimating his intention to the tenant to terminate his tenancy for that reason. However, in the amended provision as reproduced above, a specific date as 31st May is now fixed and if the tenant fails to make any payment of rent of any particular year on or before 31st of May of that subsequent year, a landlord is entitled to issue notice under section 14 which is a notice of three months in writing thereby intimating the tenant his decision as regards termination of his tenancy, and that too on the ground mentioned in the notice.
19. It is very pertinent to note that there is material difference between the two sections i.e. section 25(2) as it stood earlier at the time of hearing of the matter by the Supreme Court and the section as is amended in the year 1957. It is apparent from the provisions of section 25(2), the old one and the new one that there is a lot of difference between the two. In new section i.e. the present one with which we are concerned, the bracketed portion I have already referred to above, there is a material change and to be precise, change the entire tenor of that section. Old section 25(2) since I have already reproduced the same above, avoiding its repetition, I observe, a specific reference to the notice under section 14 and further it is specifically says that the provisions of sub-section (1) of section shall not apply to any tenant whose tenancy is terminated for non-payment of rent if the tenant has failed for three years to pay rent within the period specified in section 14. The amendment to this section as is introduced by Act 13 of 1956 changes the tenor thereof. The present section as it stands today, is as under :-
"Nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent and the landlord has given intimation to the tenant to that effect within a period of three months on each default."
In the old section, it was only with reference to section 14 notice which has been completely given a go-by way of an amendment and the so called exception is carved out for invoking the provisions of section 25(1). This exception is that if a landlord in the case of his tenant who has committed three defaults has given three intimations and that too within a period of three months of each default only in that case, the provisions of section 25(1) could not be said to be applicable. In other words, if in a given case, the landlord has not given due intimations as are contemplated under section 25(2) of the Act, in that case, the tenant could be said to be entitled to the relief under section 25(1) of the Act. It is pertinent to note that this amended provision of section 25(2) was not for consideration before the Supreme Court and hence while giving the decision by Their Lordships in , Their Lordships had no occasion to consider this provision and I feel the decision cited by Shri Deshmukh would not be applicable to the present case.
20. A similar question had come up for decision before the Supreme Court in 1980 Mah. L.J. 58 Joharabai v. Arjun, under the provisions of section 28 (1) and section 32 of the Hyderabad Tenancy and Agricultural Lands Act (21 of 1950) after the amendment to the proviso of section 28 (1) of the Act as was amended by the Act No. 28 of 1960. This section 28 of the Hyderabad Tenancy Act is analogous to the provisions of section 25 of the Bombay Tenancy and Agricultural Lands Act, 1948. The proviso to section 28 (1) of the Act is mostly similar to sub-section (2) of section 25 of the Bombay Act. Their Lordships while dealing with the question as regards intimation under that Act, observed that since the application for possession which was made in that case was made much after coming into force of the amendment by way of proviso, the right could not be said to have been accrued to the landlord before the amendment because the notice terminating the tenancy was also issued after the proviso was amended. The sum and substance of this judgment is that a tenant committing default for three years before amendment of proviso and landlord having given notice of termination after amendment and applying for possession long thereafter, it would be the amended proviso which would apply and there could not be said to have been a right accrued to the landlord to institute proceedings for eviction, particularly when the landlord having failed to give six months' notice after each default as is contemplated by the provisions of the Hyderabad Act. In the instant case, we have seen that amendment to sub-section (2) of section 25 did come into force by amending the Act i.e. Bombay Act No. 13/1956 vide its section 17(2). As already pointed out above, since these provisions were not before Their Lordships of the Supreme Court while deciding the case , I feel that the said case cannot be said to be applicable in the present facts and circumstances and it is also rightly argued by Shri Gatne, the learned Counsel for the petitioner.
21. In another case, i.e. 1980 Bombay Cases Reporter, page 33 in the matter of Raghunath Ambadasrao v. Kishan Vithoba Kamble and others, His Lordship of this Court had an occasion to consider the very same point under section 28(1) proviso of Hyderabad Tenancy Act wherein the landlord had taken proceedings under section 28 read with section 32 of the Act against the respondent Nos. 1 and 2 for recovery of rent in which a decree for payment was passed. The respondents failed to comply with the order of payment. However, no application was made by the petitioner against the respondents on the ground of section 32 of the Act. The petitioner initiated action for possession of the suit land only on the ground of non-payment of rent. In the said application, the landlord averred that intimations for each of the said defaults required under section 28 (1) were given by him. The first two revenue authorities i.e. Tahsildar and Deputy Collector, held that since no intimations were given by the landlord as required by the provisions of the Act, the respondents i.e. the tenant in that case, could not be said to be in default for payment of rent arrears. His Lordship further observed that since there were no intimations of default within six months of each default, the petitioner failed to prove that he had given intimations of each default. This Court further observed specifically that the oral intimation cannot be accepted bereft of particulars. The petitioner since failed to prove the requisite intimations under the provisions of section 28(1), no order of termination of tenancy and eviction would have been passed. In the present petition also before this Court, I have already observed that there was no evidence whatsoever as regards the intimation, except the bare statement by the landlord that he had given intimations. I do not think that such statement of oral intimations could be accepted bereft of any particulars as the landlord has not given in any manner any details as regards the intimations, but for a bare statement. In fact, the revenue authorities below when observed that "Inspite of intimations", has not discussed anything as to what type of evidence was led before the revenue authorities below to prove three successive intimations for each default and that too within the period of three months of default as is contemplated by section 25(2) of the Act. I, have, there fore, no hesitation to hold that in the instant case, no order of termination of tenancy directly could be passed without availing of the provisions of section 25(1) of the Act and, therefore, the learned revenue appellate authority i.e. Sub-Divisional Officer was justified in directing the Tahsildar to initiate action under section 25(1) of the Act.
22. The question, then raised by Shri Deshmukh, the learned Counsel for the respondent, was as to whether would it be justifiable for this Court, much the less under Article 227 of the Constitution of India to disturb the so called finding of fact on the point of intimations. I have already pointed out that neither the Tahsildar nor the M.R.T. in their judgments, did give any reason as to why the said authorities reached to the conclusion that the intimations were given and also they have not discussed any evidence whatsoever as is clear from their orders. Shri Gatne, the learned Counsel for the petitioner also argued but for the bare statement by the landlord that he did give intimations which was rebutted by the tenant through his statement, could not be said to be sufficient enough to hold that the intimations were given. Shri Gatne could be said to be right in arguing this, particularly when sub-section (2) of section 25 requires three specific intimations for three defaults. It is definitely incumbent on the landlord to prove the said three intimations and further that the same were given within the stipulated time under that section. No evidence of any kind to that effect appeared to have been adduced and, therefore, I have specifically observed that the finding arrived at could be said to be the finding based on no evidence and in such circumstances in the interest of justice and to avoid any prejudice to any of the parties, this Court can interfere in appropriate cases. Shri Deshmukh, the learned Counsel for the respondent, tried to rely on in the matter of Madhusudandas v. Smt. Narayanibai, and Shri Deshmukh argued that it were the revenue authorities below who had an occasion to observe the demeanour of the witness and in such circumstances, the High Court under Article 227 should not disturb the finding given by the Tahsildar. It is no doubt that it is always the trial Court, which has an opportunity to weigh and observe the demeanour of the witnesses examined before it. However, if according to Shri Deshmukh, the petitioner-tenant could not be said to be a trustworthy and that too as observed by the Tahsildar it was necessary for the Tahsildar to make a specific observation in that respect that after having observed the said person and after noticing his demeanour, the learned Tahsildar should have observed, was not impressed by the said witnesses, his statement and according to him, the said witness could not be said to be trustworthy. I do not see that any observations to this effect as regards the reliability of the said petitioner-tenant is doubted by the revenue authorities below.
23. Shri Deshmukh further tried to base his case on 1975 Mh.L.J. page 22 in the matter of Dhan Singh v. Laxminarayan; and in the matter of Maruti Bala v. Dashrath Babu Wathare, and on the basis of which Shri Deshmukh argued that this Court should not have reappreciated the evidence and according to him, at the most, it was for the M.R.T. who could have thought over the matter. I have already observed that neither in his pleadings nor in his statement the landlord has given any particulars about the alleged intimations. In fact, the intimations as are contemplated by section 25(2), do definitely require a strong proof as that is the particular stage in the process which has to be proved on the basis of which either of the parties could be said to be entitled to the relief sought for. The intimation as in the present case bereft of any particulars, I do not think can be accepted, Shri Deshmukh further tried to rely on in the matter of State of Maharashtra v. Harishchandra and others, 1976 Mh. L.J. page 22 in the matter of Dhan Singh v. Laxminarayan, and argued that the concurrent finding of fact cannot be disturbed by this Court. The question is if the alleged finding of fact if appeared to have been based on no evidence at all and if there is no discussion whatsoever by the authorities below as to on what basis the authorities did reach to the conclusion then in such a case, I do not think that the hands of this Court are tied down under Article 227 of the Constitution and even not to interfere in such a case when legal right of a particular party is prejudicially being affected. The case cited by Shri Deshmukh refers to the provisions of section 100 of the Civil Procedure Code and it is well-established that in accordance with the provisions of section 100 in second appeal, the High Court is generally not to interfere in finding of fact but if it appears that the question involved happened to be a mixed question of fact and law then in such circumstances, in appropriate cases, the High Court can interfere strictly in the interest of justice.
24. Shri Gatne, the learned Counsel appearing on behalf of the petitioner, brought to my notice the decisions in the case of Gopala Wagale v. Nageshwardeo Patas as also in the matter of Damadilal v. Parashram. These are the cases in which Their Lordships have specifically observed that if there is a manifest error committed by the authorities below, in such circumstances, under Article 227, the High Court can correct the same or that a finding which is arrived at ignoring the evidence having been found bad in law, in such a case also, the High Court in appropriate cases can interfere. Shri Gatne relied on decision in the matter of Arjun Makhijani v. Jamnadas Tuliani, to show that if a finding by the authorities below is arrived at having no evidence, the High Court can be said to be justified under Article 227 to interfere therein. The same view, according to Shri Gatne, is taken in in the matter of State of Uttar Pradesh v. District Judge, Unnao and another. Agreeing with the arguments of Shri Gatne and particularly in the facts and circumstances of the present case, I do not find it difficult to hold that since in the present case, there were alleged three defaults but for which there is no evidence to show that there were three independent intimations and that too within the stipulated time, as contemplated by section (2) of section 25 of the Act, the petitioner-tenant is definitely entitled to the relief under section 25 (1) of the Act and though the reasons given above, are different from the reasons given by the learned Sub-Divisional Officer, I uphold the order of the Sub-Divisional Officer and set aside the order passed by the Tahsildar so also the order passed by the Maharashtra Revenue Tribunal. The matter shall proceed in accordance with the order passed by the learned Sub-Divisional Officer. The petition is allowed accordingly. Rule is made absolute. In the circumstances of the case, there shall be no order as to costs.