D.B. Deshpande, J.
1. This is landlord's writ petition challenging the order of the Maharashtra Revenue Tribunal dated 20th April, 1981, allowing the revision application filed by the tenant and it arises out of the following facts :---
2. The facts giving rise to this litigation are as follows. The petitioner before this Court is the landowner of Serial No. 65 situate at village Sangavi and respondent No. 1 is admittedly the tenant of the petitioner. The land rent was agreed at Rs. 200/- which is five times the land revenue. In all, the landowner petitioner started five proceedings against the tenant respondent. On 27-7-1970, he started proceedings against the tenant for recovery of rent for six years from 1963-64 upto 1969-70. On 18-5-1973, he started another proceedings against the tenant for recovery for rent for two years for 1970-71 and 1971-72. On the same day i.e. on 18-5-1973 the landlord filed another application against the tenant under section 19 read with section 32 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, for ejectment of the tenant and for possession of the land on the ground that the tenant was a defaulter in payment of rent for more than three years and he contended in the petition that a notice terminating his tenancy was given to him on 9-8-1971 as well as on 29-5-1972. He averred further that the tenant has received these notices.
3. On 21-9-1976, he started one more proceedings for recovery of rent for three years for the year 1972-73, 1973-74 and 1974-75. It appears that the office informed the landowner that this proceedings is not traceable and so in the last proceeding started on 21st July, 1977, the landowner claimed recovery of rent for five years from 1972-73 upto the end of 1976-77. All these applications were kept pending.
4. The tenant appeared and denied that he has was a defaulter. However, at the time of leading evidence the tenant did not step in the witness box and the landowner appeared in the witness box and gave evidence for him. After considering the entire evidence the learned Naib Tahsildar passed an order on 29th August, 1979, directing the tenant to pay to the landowner Rs. 2,400/- by way of rent for a period from 1967-68 to the end of 1978-79. But the Tahsildar did not pass any order about possession on the ground that the landowner did not prove that his holding did not exceed the ceiling limit. The tenant did not prefer any appeal against this decision and he acquiesced in this decision to pay arrears of Rs. 2,400/-.
5. Land owner went to appeal which was heard by the Deputy Collector Land Reforms, Nanded. The learned Deputy Collector in the judgment agreed with the contentions raised by the landowner and he observed that the naib Tahsildar was wrong in rejecting the claim for possession for not proving that his holding was beyond ceiling limit. But it appears that while writing final order he wrote that the appeal was rejected. Feeling aggrieved the land owner gave an application to the Deputy Collector probably for a review of this order. On 27th February, 1980, the learned Deputy Collector observed that it was through in advertence that he wrote the order that the appeal was rejected the instead he passed the following order :
'In view of the above discussion the appeal is allowed, the appellant (landlord) is entitled for restoration of possession of the suit land'.
6. Feeling aggrieved by this order the tenant went in revision to the Maharashtra Revenue Tribunal. The learned members of the Maharashtra Revenue Tribunal allowed the revision and set aside the order of the Deputy Collector granting possession to the land owner and it is this order which is being challenged by the landowner under Article 227 of the Constitution of India.
7. Now, the fact remains that the Naib Tahsildar passed an order directing the tenant to pay arrears of Rs. 2400/- for a period from 1967-68 upto 1978-79. The tenant has not preferred any appeal against this decision and hence this decision has become final between the parties. It is, therefore, apparent that the tenant was in arrears of rent for this entire period mentioned in the order of the Naib Tahsildar.
8. I have already pointed out earlier that on 18-5-1973, the landowner filed two applications against the tenant; one was regarding recovery of rent for the years 70-71 to 71-72 and the other was for possession. Under section 19 read with section 32 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, and the learned Deputy Collector, has rightly observed that the possession should be delivered to the landowner. On the face of it the learned member of the Maharashtra Revenue Tribunal, has clearly gone wrong in allowing the revision filed before him. Now, in order that the landowner should claim possession from the tenant, the provision is contained in section 28(1) of the Hyderabad Tenancy and Agricultural Lands Act, 1950. The provisions runs as follows :
'Where a tenancy of any land held by a tenant's is terminated for non-payment of rent and the landholder files any proceedings to eject the tenant, the Tahsildar shall call upon the tenant to tender to the landholder the rent in arrears together with cost of proceedings, within (ninety) days from the date of the order, and if the tenant complies with such order the Tahsildar shall, in lieu of making an order of ejectment pass an order directing 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 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 sub-clause (i) of Clause (a) of sub-section (2) of section 19 (and the landholder has given intimation to the tenant of the default within the period of six months of each default).'
It will, therefore, be seen that the landowner would be entitled to possession if he proves that the tenant has failed to pay rent for any three years and the landlord has given intimation to the tenant of default within a period of six months of each default. Now, the record clearly shows that there are three such intimations on record. Intimation for default on 1969-70 is dated 23rd July, 1970 and it is sent by the registered post and is received by the tenant on 6th August 1970. Intimation for default of 1970-71, is received by the tenant by registered post on 18th June, 1971 and intimation for default of 1971-72 is received by the tenant through registered post on 1st June, 1972 and hence three defaults are intimated to the tenant within a period of six months from each default. The learned Member of the Maharashtra Revenue Tribunal has with reference to the four applications filed by the landlord held that in the first application the arrear were for only 1969-70 out of the three defaulted periods and the learned member then held that the second applications defatted 18-5-1973, for recovery of rent of two years was only for defaults of 1970-71 and 1971-72 and according to the learned member this is not the sufficient compliance with the provisions of law. The learned member has observed that it would be incorrect to count the intimation of default for the year 1969-70 along with the intimation of default for the years 1970-71and 1971-72. I am unable to understand what the learned member means thereby. The member has accepted the position that intimation of these defaults is sent to the tenant by the landlord. Probably, the landlord member has overlooked that on 18-5-1973 the landlord has filed a separate application for recovery of possession in addition to the other application filed by him on the said day for recovery of rent for two years i.e. for 70-71 and 1971-72 and that is why he is fallen in error. There is a clear proof of fact that each year the landlord has intimated to the tenant about the default committed by him and three such intimations are there on the record and this position is accepted even by the learned member of the Maharashtra Revenue Tribunal. Thus, before the landlord filed an eviction application on 18-5-1973, there was intimation of three defaults each year within six months of each default and the arrears were for more than three years and hence the landlord is entitled to possession from the tenant respondent. Result is that the order passed by the Deputy Collector is correct and that passed by the Maharashtra Revenue Tribunal is clearly contrary to law.
9. Writ petition deserves to be allowed and it is accordingly allowed. The order passed by the Maharashtra Revenue Tribunal allowing the revision application is quashed and that of the Deputy Collector dated 27th February, 1980 awarding possession to the landlord is restored. It is clarified that the order of the Naib Tahsildar for recovery of Rs. 2,400/- stands intact. Rule made absolute. The tenant to pay costs of this writ petition to the landlord and bear his own.