( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 202 OF 1991 Murlidhar s/o Bhau Sable Since deceased, by L.Rs. 1A. Smt. Lochana Murlidhar Sable 1B. Mangal Sinath Jogdand 1C. Sangeeta Sanjay Shete 1D. Babasaheb Murlidhar Sable, All r/o Tandli-Wadgaon, Tq. and District Ahmednagar. PETITIONERS VERSUS Smt. Battasabai w/o Bansilal Sikchi Since deceased, by L.Rs. Shri Rajendraprasad Bansilal Sikchi, R/o Tandale Wadgaon, Tq. and District Ahmednagar. RESPONDENT ..... Mr. P.R. Katneshwarkar, advocate for the petitioners. Mr. V.S. Bedre, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 4th January, 2010] ORAL JUDGEMENT : 1. This petition is filed by agricultural tenant against judgement and order rendered by learned Member ( 2 ) of Maharashtra Revenue Tribunal, Pune, in revision application No. MHT/AH/V/2/89 (TNC B.96/89). 2. By the impugned judgement and order, the learned Member of Maharashtra Revenue Tribunal reversed findings of the Tenancy Tribunal and the Sub-Divisional Officer and allowed the landlady’s application for termination of the tenancy and possession. 3. There is no dispute about the fact that the agricultural land survey No. 130, admeasuring 5 hectares 90 Ares, situated at village Tenadali-Wadgaon was owned by deceased respondent – Smt. Battasabai. There is also no dispute about the fact that the deceased Bhagubai was tenant in respect of the suit land on the tiller’s day. The confirment of statutory ownership on said Bhagubai was deferred because the landlady Battasabai was a widow. Said Bhagubai died on 14-07-1969, leaving behind her grandchildren, including the deceased petitioner – Murlidhar. The landlady had attempted to recover the possession from deceased tenant Bhagubai during her lifetime. Her application for restoration of possession ( 3 ) was dismissed by the Tenancy Tribunal. The litigation was carried upto the High Court. It appears that the matter was remanded to the Tenancy Tribunal. Thereafter, deceased Bhagubai (tenant) was directed to deposit rent arrears. After her death, the landlady filed application for recovery of possession against the three legal heirs, including the deceased petitioner on the ground that they had committed delays in payment of the annual rent. The application was, however, dismissed. A revision petition was carried to the Maharashtra Revenue Tribunal. It was eventually dismissed on 05-01-1977. The deceased landlady again issued a notice dated 08-03-1982 calling upon the deceased petitioner (tenant) to restore possession of the tenanted land on account of non-payment of the rent for years 1978-79, 1979-80 and 1980-81. She alleged that the agreed rent was Rs. 40/- p.a. and in view of the continuous delays for payment of rent, she was entitled to seek relief under section 25 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, “the BT&AL Act”). 4. The application of the landlady was dismissed ( 4 ) by the Tenancy Tribunal. She filed an appeal before the Sub Divisional Officer. The appeal was also dismissed. Thereafter, she preferred revision application which came to be allowed, vide the impugned judgement and order. 5. Heard learned counsel for the parties. 6. At the outset, let it be noted that the Maharashtra Revenue Tribunal (M.R.T.) upsetted concurrent findings of the facts rendered by the two Tribunals, while exercising revisional jurisdiction. It is well settled that the revisional jurisdiction can be exercised when it is shown that findings are rendered by the trial Court and/or the appellate Court on basis of misreading of the evidence or perversity. The learned Member of the M.R.T. seems to have reappreciated the evidence as if the matter was before him in first appeal. The clinching question is whether the notice issued by the landlady was duly served on the tenant and there was default in payment of the rent for continuous three years’ period. It appears that the landlady did ( 5 ) not issue notice in respect of each default. It was her case that she issued a composite notice dated 08-03-1982. The notice was served on brother of the deceased petitioner. The petitioner had submitted that he had sent the rent arrears through money orders. He had placed on record the money order receipts in order to show that the landlady refused to accept the money orders. The learned Member of the M.R.T. observed that the Power of Attorney Holder of the landlady stated that he did not receive the money orders from the tenant and, therefore, the latter ought to have proved the endorsement of refusal by examining the postman. This is rather improper and incorrect approach of the M.R.T. Once it is found that the money orders were addressed to the landlady and that the address was proper one, there is legal presumption under section 27 of the General Clauses Act regarding due service. In fact, it was necessary for the landlady to rebut the presumption. 7. The landlady did not enter the witness box to deny the receipt of the money orders. Her Power of Attorney holder had offered such denial. The money ( 6 ) orders were not addressed to him and his denial could not be accepted. 8. Though it is undisputed that the landlady had previously filed proceedings against the deceased petitioner and others for recovery of possession, alleging that they were the tenants of the land in question, yet without any basis, the learned Member of the M.R.T. expressed doubts regarding status of the deceased petitioner as a tenant. The learned Member observed : “The opponent’s grandmother Bhagubai was cultivating the suit land and after her death the suit land was being cultivated by the present opponent as a grandson on the basis of a will executed by her and thus the opponent came to be recognized as a tenant by the landlady who did not know the provisions of law in this respect. It may be noted that the tenancy rights cannot be transferred by will and the person who claims to be the tenant on the strength of such will and continued to cultivate the land would not get that tenancy rights as per provisions of law. Thus, prima ( 7 ) facie, it appears that the opponent status as a tenant is not lawful.” The above observations of the learned Member of the M.R.T. are indicative of rather prejudicial approach to the matter, which was required to be decided within the ambit of revisional jurisdiction. When there was no dispute raised by the landlady regarding status of the deceased petitioner, it is difficult to appreciate as to why the learned Member of the M.R.T. could have expressed doubt about status of the petitioner as a tenant. The observations of the learned Member are based on mere surmises. 9. The fact situation obtained in the present matter reveals that the landlady had not issued notice after default for each year. Even the composite notice issued by her was prior to the end of the agricultural year. The alleged demand notice was issued on 08-03-1982. On plain reading of section 25 (1) of the Bombay Tenancy and Agricultural Lands Act, 1948, it is amply clear that the Mamlatdar is required to follow due ( 8 ) procedure before passing order of ejectment. As a first measure, the Mamlatdar is required to call upon the tenant to tender to the landlord the rent in arrears together with the cost of the proceeding within period of three months from the date of order, even though such order is not complied with and the Mamlatdar is satisfied that partial failure of crops or any other similar calamity had caused inability to the tenant, the time for payment may be extended. Sub-clause (2) of section 25 is significant for the present purpose. It reads as follows : “25. Relief against termination of tenancy for non-payment of rent - (1) ***** (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.” ( 9 ) 10. It is manifestly clear that ejectment order cannot be passed unless it is proved that the tenant has failed to pay the rent and the landlord has given intimation to the tenant in respect of the default within period of three months on each default. In the present case, there is no evidence on record to show that the landlady had given intimation to the tenant within period of three months after each default. It is well settled that the provisions of the Bombay Tenancy and Agricultural Lands Act are intended to provide umbrella of protection to the class of tenants. It is social legislation for benefit of tenants. In the present case, the landlady did not prove compliance of sub-clause (2) of section 25. The testimony of Power of Attorney could not be given undue importance. The learned Member of the Maharashtra Revenue Tribunal seems to have transgressed the revisional jurisdiction while passing the impugned order. 11. For the reasons aforestated, I have no hesitation in holding that the impugned judgement and ( 10 ) order is unsustainable. Hence, the petition is allowed. The impugned judgement and order is set aside. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp202-91