1 unreported IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2678 OF 1991. Baburao Narayan Nanavare, major, Occ.Agri., R/o Suregaon Taluka Kopergaon, District Ahmednagar. ... Petitioner. Versus 1. Dammu S/o of Dulaji Lohar, now deceased through L.Rs. 1-A) Sou.Minabai Bhaurao Nanavare, Age 27 years, Occ.Household, R/o Kolpewadi, Tq.Kopargaon, Dist. Ahmednagar. 2. Bhanudas S/o Sampat Shirsat, major, Occ.Agri., R/o Kolpewadi Taluka Kopergaon, Dist.Ahmednagar. ... Respondents. ... Mr.S.B.Kadu, advocate holding for Mr.V.D.Hon, advocate for the petitioner. Mr.S.S.Kulkarni, advocate holding for Mr.S.D.Kulkarni, advocate for the Respondent No. 1. ... CORAM : V.R.KINGAONKAR,J. Date : 23.02.2010. 2 ORAL JUDGMENT 1. By this petition, the petitioner impugns judgment and order rendered by Maharashtra Revenue Tribunal (For short, MRT) in Revision Application No.TNC.B-70/89. 2. Indisputably, the petitioner is landlord. He leased out land Gat No.203, admeasuring 0.83 Ares situated at village Suregaon by virtue of a lease deed dt.9.8.1960. The deceased Respondent No.1 was lessee. The deceased Respondent No.1 allegedly had agreed to pay the rent for each agricultural year for period of 25 years which was the tenure period for lease. There is no dispute about the fact that the deceased Respondent No.1 used to cultivate the said land in pursuance to the terms of the lease transaction at least uptil about 1978. The petitioner issued a notice dated 9.11.1982 alleging that the land was subletted by deceased Respondent No.1 in favour of the Respondent No.2. It was alleged further that the deceased Respondent NO.1 had not paid the rent amount though it was due. Thus, on the ground of 3 default in payment of the rent and on the ground of alleged subletting, tenancy rights of the deceased Respondent NO.1 were terminated and both the Respondents were called upon to handover possession of the land in question. Though a copy of the notice was issued to the Respondent No.1, yet, he had refused to accept the same. The deceased Respondent NO.1 did not reply the notice. 3. The deceased Respondent No.1 contested the application filed by the petitioner U/s 29 of the Bombay Tenancy and Agricultural Lands Act, 1940 for restoration of possession of the leased land. The deceased Respondent No.l asserted that the land was never subletted to the Respondent No.2. He further asserted that the entire rent amount was paid. He contended that the tenancy could not have been terminated for the reasons stated in the notice. He opposed the application and sought dismissal of the same. 4. The Additional Tahsildar was pleased to allow the application and directed that the land 4 in question be handed over to the petitioner. That order was challenged by the deceased Respondent No.1 by filing Tenancy Appeal No. 9/1984. The Tenancy Appeal was dismissed. The deceased Respondent No.1 - Damu Lohar preferred Revision Application No.TNC.B-70/89 before the MRT. The MRT allowed the application mainly on two grounds. First, it was held that there was no tangible material to infer alleged sub-tenancy in favour of the Respondent No.2. It was held that the petitioner failed to prove alleged sub- tenancy transaction between the Respondents interse. It was further held that the application was barred by limitation inasmuch as it was not filed within period of two (2) years as contemplated U/s 29(2) of the BT & AL Act. The MRT, therefore, allowed the Revision application and reversed orders passed by the Tenancy Tribunal and the Appellate Tenancy Tribunal. 5. Mr.Hon, strenuously argued that findings of the MRT are incorrect and perverse. He would submit that the Revision Application is 5 allowed chiefly because the MRT came to the conclusion that the application filed U/s 29 was outside the limitation prescribed by the law. He contended that the view taken by the MRT is unsustainable in view of the Apex Court's judgment in "Venkatesh Narahar Katti Vs. Hajisaheb Khadirsaheb Mulla and another" AIR 1966 Supreme Court 1085. He argued that findings of the facts rendered by the Tenancy Tribunal and the Appellate Tribunal ought not to have been interfered with by the MRT. He contended that the petitioner is already inducted in possession of the land in question and that deceased Respondent No.1 was no more interested to get restoration of possession and, therefore, the order of the MRT is unsustainable. It is argued that the testimony of independent witness, namely, Waman was duly appreciated by the Tenancy Tribunal and the Appellate Tribunal and, therefore, the MRT could not have entered into the arena of reappreciation of evidence. It is argued that the MRT has exceeded the jurisdiction. Consequently, Mr.Hon, urged to reverse the impugned judgment and order. Per 6 contra, Mr.Kulkarni, supports the impugned judgment. It is argued that though tenure period of lease is over, yet, the Tenancy Rights of deceased Respondent No.1 and his heirs will remain unabated and, therefore, the petitioner can not take advantage of the fact that period of lease is over. It is argued that the petitioner can not have any grouse against the findings of the MRT because the transaction of subletting is, in fact, not at all supported by any reliable evidence. 6. Before I proceed to consider the rival submissions, in order to clear the deck, it may be stated that the non-payment of the rent was one of the ground for termination of the tenancy but there is concurrent finding of all the three Tribunals that such ground was of no avail. In fact, it was conceded before the Appellate Tenancy Tribunal that the rent was received by the petitioner. Obviously, the tenancy could not have been terminated on the ground that deceased Respondent No.1 - Damu had committed willful default in payment of the agreed amount of the 7 rent. It also may be mentioned that the petitioner is brother-in-law of deceased Respondent No.1 Damu. It has come on record that deceased Respondent No.1 Damu was illiterate, rustic and was an ironsmith. 7. The conduct of the parties also is relevant to some extent. The petitioner asserted that he did not receive rent from deceased Respondent No.1 (Damu). This allegation was found to be untrue. The petitioner's advocate gave concession in this behalf at the appellate stage. The petitioner did not examine the Respondent No. 2 - Bhanudas to whom, the land was allegedly subletted. The petitioner, however, examined PW Waman in support of his contention regarding the alleged subletting. According to PW Waman, the land in question was being cultivated by him in the past. He narrated that the land in question was subletted to him by the deceased Respondent NO.2 and lateron it was subletted to the Respondent No.2 since about 1978. 8. The notice issued to deceased 8 Respondent No.2 does not show that previously the land was subletted to PW Waman Jamdhade. The testimony of PW Waman purports to show that he had left cultivation of the land in question somewhere in 1978 and thereafter it was being cultivated by the Respondent No.2. He admitted that he did not possess any receipt to show that he had paid rent to the deceased Respondent No.1 - Damu. He admitted that there was no written document about the transaction between himself and the deceased Respondent No.1. So also there is no documentary evidence regarding the transaction interse between deceased Respondent No.1 Damu and the Respondent No.2. The fact that the Respondent No.2 did not come forward and did not accept the notice issued by the petitioner can not be of any significance. It only shows that the Respondent No.2 was not interested in contesting the application. 9. There is no revenue entry in the relevant 7/12 record to show that PW Waman was in possession of the land in question prior to 1978 for a couple of years. So also there is no 9 revenue entry to show name of the Respondent No.2 in the cultivation column. The MRT noticed that there was no documentary evidence about sub- tenancy nor any single entry was taken in the revenue record to infer cultivation of the said land by the Respondent No.2 and at any point of time. And that the version of the petitioner regarding alleged subletting was too vague. He had not stated commencement of the period of sublettting or terms thereof. It was found that the Tenancy Tribunal merely inferred that there was subletting of the suit land because the deceased Respondent No.1 admitted the fact that he did not possess agricultural implements when he had entered the witness box. The absence of agricultural implements with the deceased Respondent No.1 Damu could not be the reason to infer existence of subletting transaction. His conduct of keeping silence over the notice was duly explained by him. He admitted that he did not reply the landlord's notice but explained that he did not want to invite quarrel with the petitioner due to their internal relationship. 10 10. All said and done, the inferential finding rendered by the Tenancy Tribunal and confirmed by the Appellate Tribunal was not founded on reliable and tangible material. In the absence of any documentary evidence or reliable evidence, finding about the subletting of the land in question could not have been rendered by the Tenancy Tribunal. It is true that revisional jurisdiction is rather limited and findings of facts could not be interfered with. Still, however, it can not be overlooked that if findings of facts are based on no tangible evidence or are found to be perverse, the jurisdiction of the MRT is not ousted. The MRT can not be a mute spectator to endorse totally perverse findings of the Tribunals below. 11. The application could not be, however, dismissed on the ground of limitation. The view taken by the MRT is contrary to the settled law. The Supreme Court in "Venkatesh Narahar Katti Vs. Hajisaheb Khadirsaheb Mulla and another" (supra) categorically held that the starting point of limitation in such a case would be from the date 11 of issuance of the notice of termination. Needless to say, the view taken by the MRT that the application was outside the limitation as provided U/s 29(2) of the BT & AL Act, is unsustainable. 11. In the result, the petition is found to be without merits and as such is dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/wp267891