1. The above Special Civil Application, under Article 227 of the Constitution of India, is directed against the decision of the Maharashtra Revenue Tribunal, Poona, dated March 31, 1967. The petitioners are the tenants; and respondents Nos. 1 to 4 arc the heirs of the original landlord Dattatraya Govind Kulkarni, who obtained a certificate under Section 88C of the Bombay Tenancy and Agricultural Lands Act, 19.V8, and filed Tenancy Case No, 101 of 1902 praying for possession on the ground of bona fide requirement for personal cultivation under Section 33B of the Act, after terminating the tenancy of the petitioners, in respect of the lands in dispute between the parties situate at Nidhal in Taluka Khatav. The Tenancy Mahalkari by his order' dated July 8, 1904, ordered that the possession of the suit lands should be given by the petitioners to Dattatraya Govind Kulkarni under Section 33B read with Section 29 of the Act. The petitioners carried an appeal under Section 74 of the Act before the Special Deputy Collector for Tenancy Appeals at Satara. In that appeal respondents Nos. 1 to 4 were brought on record as the heirs of Dattatraya Govind Kulkarni, who died on August 20, 1904. The Special Deputy Collector allowed the appeal and set aside the order passed by the Tenancy Aval Karkun on the ground that respondents Nos, 1 to 4, the heirs of deceased Dattatraya Govind Kulkarni, were not entitled to the benefit of the order for possession passed in favour of the deceased Dattatraya. For this purpose reliance was placed by him on a Full Bench decision of the Maharashtra Revenue Tribunal. Respondents Nos. 1 to 4 then filed a revision application under Section 70 of the Act before the Maharashtra Revenue Tribunal, which reversed the decision of the Special Deputy Collector on the ground that the Full Bench decision of the Revenue Tribunal was overruled by this Court in. Parvatibai Ramchandra v. Mahadu : AIR1967Bom428 , in which it was held by Tarkunde and K. K. Desai, JJ. (p. 889):.The right of in certificated landlord to apply under Section 33B of the Bombay Tenancy arid Agricultural Lands Act, 1948, for possession of land from an excluded tenant does not lapse on his death and can be exercised, within the specified time, by his successor-in-interest.
If the successors could exercise the right of terminating the tenancy, as held in that case, they would certainly be entitled to continue the said proceedings when the same were pending before the Tenancy Authorities. The Tribunal was, therefore, right in the instant casein setting aside the order of the Special Deputy Collector.
2. The question, however, which arises in the facts and circumstances or the case is as to whether the Revenue Tribunal was justified, after so setting aside the order of the Special Deputy Collector, in upholding the order of the Tenancy Aval Karkun directing the petitioners to deliver possession without considering as to whether the heirs of the original landlord, respondents Nos. 1 to 4 herein, required the land bona fide for personal cultivation. Section 37 of the Bombay Tenancy and Agricultural Lands Act, 1948 lays down that after the landlord takes possession of the land upon the termination of the tenancy under Section 33B, if he fails to use it for any of the purposes specified in the notice given under Section 33B, within one year from the date on which he took possession or if he ceases to so Use it within 12 years from that date, the tenant is entitled to restoration of possession. Section 33B requires the landlord to satisfy the tenancy authorities that the land is required for bona fide personal cultivation. Section 37 manifestly implies that whoever gets possession for personal cultivation in the proceedings under Section 33B must be cultivating the land after getting possession, It follows that the tenancy authorities must be, therefore, satisfied in all cases that the land is required for bona fide personal cultivation by the person getting possession thereof.
3. Mr. Limaye, the learned Counsel for the heirs of the original landlord, submitted that once the order for possession was passed in favour of the original landlord, it is not necessary for his heirs to establish that they require the land for personal cultivation and the heirs wore entitled as of course to the benefit of that order. Perhaps, this would have been so if the order for possession was final and executable. The order for possession passed by the Tenancy Aval Karkun, in the instant case, had not become final as the tenants could and did file an appeal against his decision under the Act to the Collector; and a Revision Application was filed by the heirs of the original landlord before the Maharashtra Revenue Tribunal. In view of the effect of Sections 38B and 87 stated above, the contention of Mr. Limaye, therefore, cannot be accepted in the present case as the order for possession under Section 83B (3) read with Section 29 passed by the Tenancy Mahalkari was subjected to an appeal under Section 74 and revision under Section 76 of the Act and was incapable of being executed under Section 73 (2) of the Act.
4. If, applying the decision in Parvaibai's case, the heirs must be held to be entitled to continue the proceedings under Section 33B started by their predecessor, it is further necessary for them to establish that they bona fide required the land in dispute for personal cultivation. In the present case, however, the Revenue Tribunal assorted that the question of bona fide requirement of the landlord or his heirs was 'sealed' because the Deputy Collector and the Tenancy Mahalkari both held that Dattatraya Govind Kulkarni bona fide required the land. The Tribunal, in my opinion, made that assumption regarding the bona fide requirement of the heirs without any foundation and contrary to the record. Neither the Deputy Collector nor the Tenancy Mahalkari had given any opportunity to the heirs to prove their bona fide requirement of the lands for personal cultivation or to the tenants to prove that the heirs did not require the lands bona fide for personal cultivation. The decision of the Tribunal, therefore, suffers from an error apparent on the face of the record in so far as it proceeded to decide the matter as if the question of bona fide requirement of the heirs of the landlord was 'sealed'.
5. For these reasons, the proper order that should be passed in this case is to set aside the orders of the Tribunal, the Deputy Collector and the Tenancy Mahalkari and to remand the case to the Mamlatdar, Khatav, with a direction to give an opportunity to respondents Nos. 1 to 4 to establish that they bona fide require the lands for personal cultivation and to give further an opportunity to the petitioners to prove to the contrary and then to dispose of the case in accordance with law. Rule is, therefore, made absolute. In the circumstances of the case, there will be no order as to costs.