A.M. Khanwilkar, J.
1. This is yet another matter where the petty and small landlord has been waiting for the fruits of the statutory protection given to such landlords since 1962. The matter has been swinging like pendulum from one authority to another since 1964. Briefly stated, the predecessor of the petitioners was the owner in respect of suit lands Survey No. 619/2 and 619/3, admeasuring 1 acre 5 gunthas and 1 acre 4 gunthas respectively, situated at Village Karadi, Taluka Khatau, District Satara. The said Nivrutti Gangaram Pawar predecessors of the petitioner had filed an application for issuance of certificate under Section 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act'). The appropriate authority allowed the said application, presumably on January 27, 1961. On the basis of that decision, Certificate under Section 88-C came to be issued in favour of Nivrutti Gangaram Pawar on 23rd June 1964. The consequence of issuance of such a Certificate is that the provisions of Section 32 to 32R of the Act became inapplicable to the suit land. The quintessence for issuance of such a Certificate is a finding recorded by the authority that the holding of Nivrutti Pawar does not exceed economic holding and his total income including the rent from the agricultural lands does not exceed Rs. 1,500/- per year. Since Nivrutti Pawar was a certificated landlord, he had the privilege of terminating the tenancy in respect of the Suit lands for personal cultivation by virtue of Section 33-B of the Act. In exercise of that statutory remedy, said Nivrutti Pawar issued notice on 24th August 1964 to the respondent tenant. At this stage, it is necessary to mention that initially said Nivrutti Pawar terminated tenancy in respect of seven different lands, out of which, proceedings as against another tenant Bhiku Nimbalkar attained finality and the landlord succeeded in obtaining possession of the land admeasuring 1 acre 5 gunthas. Insofar as respondent is concerned, the said Nivrutti Pawar initiated action against the respondent by terminating tenancy in respect of five different lands. However, ultimately, the proceedings have been confined only to two lands referred to above I shall make reference to this aspect in detail a little later. As mentioned earlier, on issuance of Section 88C certificate on 23rd June 1964, immediately within the statutory period. Petitioners' predecessor Nivrutti Pawar issued notice under Section 33-B on 24th August 1964 and soon thereafter, within the statutory period, filed application under Section 33-B read with Section 29 before the Tenancy Authority for possession of the suit lands on 21st September 1964. It is necessary to note that insofar as the order passed on application for issuance of certificate under Section 88-C of the Act is concerned, that was allowed to attain finality and is not the subject matter of challenge in the present Writ Petition. In fact the respondent did attempt to challenge the validity of the Certificate in proceedings under Section 33-B, from which, the present Petition emanates, but that challenge has been repelled finally by the Maharashtra Revenue Tribunal in its order dated 30th November 1983, whereafter, the said aspect has not been agitated by the respondent before the authorities below on remand of the case for retrial.
2. As mentioned earlier, the present Petition arises out of application filed by Nivrutti Pawar for possession of the suit lands under Section 33-B read with Section 29 of the Act. The said application was allowed by the Tahsildar on 30th June 1966 in relation to the suit lands, holding that the predecessor of the petitioners established bona fide requirement for personal cultivation. Against the said decision, matter was carried in appeal, which was allowed by the Appellate Authority. However, the petitioners' predecessor eventually took up the matter upto this Court by way of special Civil Application No. 969 of 1977 and this Court by Judgment and Order dated November 27, 1980 allowed the said Writ Petition, but remanded the case for further enquiry to the Appellate Authority. From the decision of this Court, it appears that this Court has clearly opined in paragraph 2, that the application as filed by Nivrutti Pawar was within the stipulated period of time. However, the controversy before this Court was whether the decision of the Appellate Court recording the fact that notice issued by the petitioners' predecessor terminating the tenancy on 24th August 1964 was not served on the tenant. While examining that aspect, this Court clearly found that there was clinching record to establish the fact that the said notice was duly served on the tenant. However, this Court remanded the matter to the Appellate Court to examine the other issues with reference to the provisions of Section 33-B namely, the issue of bona fide requirement and the question of holding in the context of Section 33-B(5)(b) of the Act. After the abovesaid order, the appeal as originally filed by the respondent tenant, stood restored before the Appellate Authority, being Tenancy Appeal No. 27 of 1966. When that Appeal was pending, the petitioners' predecessor Nivrutti Pawar died on 4th January 1981. After the death of Nivrutti Pawar, an application was preferred before the Appellate Authority which is at page 30 of the paper-book, clearly asserting that all the petitioners were the heirs and successors in interest of the estate of Nivrutti Pawar. However, for some reason, only petitioner No. 1 (Prakash Nivrutti Pawar) came to be described in the cause title of the appeal as heir of Nivrutti Pawar. Be that as it may, the Appellate Court proceeded to decide the appeal on that basis, but by its Judgment and Order dated March 31, 1982 was pleased to dismiss the Appeal preferred by the respondent tenant, holding that Nivrutti Pawar was entitled for restoration of suit lands. The Appellate Authority, however, did not address to the issues that ought to have been considered in view of the remand order passed by this Court, namely, the issue of bona fide requirement and the holding of the parties. As the Appellate Authority directed the restoration of possession, the respondent preferred Revision before the Maharashtra Revenue Tribunal, Pune being Revision No. 3 of 1982 (TNCB 237/82). The Tribunal allowed the said Revision Application and remanded the matter to the First Authority. In fact, in view of the remand order passed by this Court, the Tribunal, at best, could have remanded the matter once again to the Appellate Authority and not to the First Authority to re-examine the matter afresh. The reason for remand recorded by the Tribunal can be discerned from paragraph 9 of the decision, which mentions that the Court below has not considered the two issues which it ought to have examined. That reason is unexceptionable. However, in terms of the Judgment and Order passed by the Tribunal on November 30, 1983, the matter stood restored to the file of the First Authority for re-examination of the aforesaid two issues of bona fide requirement and holding. The First Authority formulated following two issues for its consideration, which read thus :
'(1) Whether the applicant i.e. deceased heir of the original landlord has proved bona fide requirement of suit lands for personal cultivation?
(2) Whether the applicant has proved that he is within the holding?'
3. Insofar as the first issue is concerned, parties led further evidence before the First Authority. That was required in view of the changed circumstances because of the death of Nivrutti Pawar - predecessor of the petitioners. The petitioner No. 1 examined himself and one more witness Kisan Anna Sankpal to establish the plea of bona fide requirement. It is relevant to note that in the earlier round, the petitioners' predecessor Nivrutti Pawar had entered the witness box to depose on the issue of bona fide requirement. Through that evidence, he had clearly asserted that he had no other agricultural land in his possession and that he wanted possession of the suit land for personal cultivation. After remand, as aforesaid, the petitioner No. 1 entered the witness box and asserted that he required the suit land for personal cultivation. He has also deposed that the petitioners did not possess any other land except land bearing Survey No. 522/5 admeasuring 1 acre 5 gunthas received from another tenant Bhiku Rama Nimbalkar pursuant to Court's order, but stated that possession of the said land was yet to be received. Nevertheless, the evidence of petitioner No. 1 clearly asserts that the land was required by him for his personal cultivation and that, none of the petitioners had any other agricultural land in their possession. It is on the basis of this evidence, the First Authority answered the issue of bona fide requirement in favour of the Applicant. Even the second issue regarding holding was answered in the affirmative by the First Authority. Consistent with the said finding, the First Authority allowed the said application and directed restoration of possession of the suit land by the respondent tenant to the Applicant. Against this decision, the respondent carried the matter in appeal. The Appellate Court, on the other hand, reversed the finding of fact returned by the First Authority on both the aforesaid issues. It is interesting to note that the Appellate Authority proceeded to reverse the finding of fact in very casual manner, as can be discerned from the relevant portion from its decision, which reads thus :-
'The lower Court has decided the issue No. 1 in affirmative but it is seen that lower Court might have not seen the cross-examination in lower Court that he has admitted that his income is Rs. 200/- to Rs. 300/- per month, means there is no genuine need for the landlord to obtain possession of the land in dispute. Hence, the heirs of the landlords requires for cultivating land personally is not bona fide.
The lower Court had decided the issue No. 2 in affirmative but lower Court does not know there is no question of deciding the issue in affirmative or in negative only to consider the holding on the date on which opponent landlord is brought on record. The certificate given by the village Surli, Taluka Koregaon (page 321 L.C. papers) that respondent is not holding that and it is produced by the respondent is sufficient on going through the above facts and considering the income of the respondent is Rs. 200/- to Rs. 300/- per month. It seems there is no bona fide requirement of dispute land.'
4. Insofar as the issue of bona fide requirement is concerned, the only reason mentioned by the Appellate Court to reverse the finding returned by the First Authority which was based on analysis of all the relevant materials on record is that the applicant had admitted that his income was Rs. 200/- to Rs. 300/- per month. On this reasoning, the Appellate Authority proceeded to hold that it means that the requirement of the applicant was not genuine. Insofar as the issue of holding is concerned, no positive opinion is recorded by the Appellate Court. In this backdrop, the petitioner No. 1 carried the matter in Revision before the Maharashtra Revenue Tribunal being Reference No. 2 of 1987 (TNC.B.85/87). The Tribunal has affirmed the aforesaid view expressed by the Appellate Authority on the reasoning that the finding recorded by the Appellate Authority is neither perverse, nor does it omit to consider material evidence on record. The reason which weighed with the Revisional Authority to affirm the view expressed by the Appellate Authority can be discerned from paragraph 4 of its decision, which reads thus :--
'4. The evidence on record has been minutely perused and arguments, advanced on both sides are also considered with great thought. On perusal of the evidence on record, the following aspects of the case are disclosed:
The matter in this revision has taken new start after remand order passed by this Tribunal in Revision Application No. MRT-NS-VIII-3182 dated 30-11-1983. By this remand order the matter is remanded back to the trial Court for deciding whether applicant - landlord heir of the deceased original landlord bona fide requires the suit land for personal cultivation and also to consider his holding on the date on which the opponent landlord is brought on record. After such remand the trial Court started further enquiry and recorded the statement of the applicant Prakash Nivrutti Pawar and of his witness Kisan Anna Sankpal and also the statement of the Dinkar Maruti Jadhav. The applicant in his statement had admitted that he gets Rs. 200/- to Rs. 300/- per month. His witness has admitted that applicant Prakash gets income of Rs. 10/- to Rs. 15/- per day out of his work of hair cutting. His annual income is of Rs. 4,000/-. So on the basis of this evidence the lower appellate Court had held that the applicant had failed to prove his bona fides. The applicant has no agricultural implements and the applicant is residing 32 to 35 miles from the suit land. So the order passed by lower appellate Court cannot be said in an perverse. He has considered all evidence of both the Court. So there is no material omission of evidence. The suit lands are now being cultivated by the opponent and his separated brothers there are other heirs to deceased landlord. They are not joined in demanding possession. Hence one of the landlord can only ask for possession in respect of his share only. It had been contended on behalf of the opponents that in view of certain decision of the trial Court and Supreme Court all heirs are required to be joined for getting possession from the tenants. However the learned counsel for the opponent has not produced relevant authority to substantiate his proposition. Any way the applicant - landlord had failed to prove his bona fides to claim possession Under Section 33-B(5) of the Tenancy Act.'
I have purposely reproduced the reasoning of the Appellate as well as the Revisional Authority, to only later on demonstrate as to how the same is untenable. It is this decision of the Tribunal dated 7th February 1969, which is subject matter of challenge in the present Writ Petition.
5. According to Mr. Govilkar for petitioners, the basis on which, the two authorities below proceeded to reject the claim of the petitioner is untenable. He submits that in fact, application was preferred before the Appellate Authority for bringing on record all the heirs of deceased Nivrutti Pawar. However, due to inadvertence, it is only petitioner No. 1's name came to be incorporated as Applicant being heir of deceased Nivrutti Pawar. Learned Counsel contends that nevertheless, the petitioner No. 1, later on deposed before the Authority asserting about the bona fide requirement for personal cultivation of the suit land and has also adduced evidence with regard to his holding as well as that of the other petitioners. Learned Counsel further submits that insofar as the issue of bona fide requirement is concerned, the petitioner No. 1 has clearly deposed to that effect during the evidence and which is also supported by another witness examined on behalf of the petitioners and which evidence has not been contradicted by any positive material to show that the requirement of the petitioner No. 1 was not bona fide. Insofar as the issue on holding is concerned, besides the evidence recorded before the authorities below, reliance is also placed on averments in paragraph 10 of the Writ Petition which re-iterates the position that the petitioners together do not possess any other agricultural land, except the land bearing survey No. 522/5, admeasuring 1 acre and 5 gunthas, which has been received from another tenant pursuant to Court's order. Whereas, the holding of the respondent is around 15 acres. It is on this basis, learned Counsel contends that both the issues of bona fide requirement and the issue of holding in the context of Section 33-B(5)(b) of the Act will have to be considered and answered accordingly in favour of the petitioners.
6. On the other hand, the learned Counsel for the respondent contends that the application as filed before the First Authority by Nivrutti Pawar was barred by limitation. He further contends that in any case, after the death of Nivrutti Pawar, it was imperative that all the heirs of Nivrutti Pawar are brought on record because all of them would inherit the certificate together. He therefore submits that since that has not happened in the present case, the application cannot be proceeded further and ought to have been rejected on this count alone. Learned Counsel further submits that since the Certificate issued in favour of Nivrutti Pawar has been inherited by all the heirs of Nivrutti Pawar together, each of the heir was obliged to establish his bona fide requirement as well as evidence regarding the holding and their income. Learned Counsel submits that even though the application was one under Section 33-B of the Act and was being pursued by the heirs of the deceased landlord, in that case also, the heirs were obliged not only to bring the evidence regarding economic holding as on the date of their being brought on record, as also with regard to their respective income and if it was to be found that the twin requirement of Section 88-C for obtaining Certificate was not fulfilled by them collectively, then, no relief under Section 33-B could be granted in favour of the heirs of the original owner.
7. Having considered the rival submissions and relevant materials on record, I would first proceed to examine the requirement of law with regard to the scope of proceedings after the death of the original owner. It is well settled that the Certificate issued in favour of the landlord under Section 88-C of the Act is with reference to the qualification possessed by the landlord as on 1st April 1957. The landlord, at the relevant time, should qualify the twin requirement of Section 88-C of the Act regarding the economic holding and the income not exceeding Rs. 1,500/- per annum. Only such landlords are entitled for Certificate under Section 88-C of the Act. The question is what is the effect of the death of the original landlord who had either applied for issuance of Certificate under Section 88-C of the Act which is pending, or, as in this case, the Certificate was already granted in his favour That position is no more res-integra. This Court, in the decision reported in 1997 Mh.L.J. 848 Maruti Bade v. Dattatray Vishnu Maval, on analysing the relevant decisions, has held that the Certificate is heritable and the legal representatives of the landlord would inherit such a Certificate. However, the legal representatives have to succeed in establishing their qualification as to bona fides and holdings by reference to the date of their being brought on record. The observations made with regard to qualification as to bona fide and holding of the legal representatives with reference to the date of their being brought on record in this decision is obviously with reference to the requirement of Section 33-B of the Act. This is so because in cases where the Certificate is already issued and the landlord terminates the tenancy and files application for possession on the basis of such Certificate, then, the right of the landlord gets crystallised and the exemption certificate issued in his favour under Section 88-C of the Act gets exhausted. This position is enunciated by the Apex Court in recent decision in the case of Moreshwar Balkrishna Pandare and Ors. v. Vithal Vyenku Chavan and Ors. reported in : [2001]3SCR712 , the Court has referred to this legal position. In the circumstances, the legal position is that once Certificate under Section 88-C is issued and the landlord has issued notice in exercise of rights under Section 33-B of the Act and proceeds to file application for possession under Section 33-B read with Section 29 of the Act as has happened in this case, it necessarily follows that the Certificate under Section 88-C gets exhausted. Once the Certificate gets exhausted, the parties cannot be relegated to establish the qualifications and requirement that flow from Section 88-C of the Act. In other words, once the Certificate is exhausted, the requirements of 88-C would recede into the background and the owner or his heirs, as the case may be, would be required to establish the claim only with reference to Section 33-B of the Act, which is bona fide requirement and holding of the respective parties, as is required to be considered in the context of Section 33-B(5)(b) of the Act. This is so because on exhaustion of the Certification under Section 88-C, the tenant cannot claim revocation of Certificate, invoking rights under Section 88-D of the Act. This position was squarely considered by the Apex Court in the case of Moreshwar Pandare (supra). If the tenant cannot take recourse to remedy under Section 88-D of the Act, on happening of exemption certificate getting exhausted, then, it would necessarily follow that the grounds which are available for revocation of Section 88-C certificate for disrobing the landlord or his heirs from getting possession under Section 33-B cannot be permitted to be pressed into service. Understood thus, the matter will have to be considered only in the context of requirements of Section 33-B of the Act between the parties. Strong reliance was placed by Mr. Kate for the respondent on the observations of the Division Bench of this Court reported in : AIR1967Bom428 in the case of Smt. Parvatibai w/o Ramchandra Rokade v. Shankar Madhu Varkhade and Ors. In paragraph 15 of the said case, this Court has observed thus :--
'There are, on the other hand, ample provisions in the Act to ensure that the successor in interest of a certificated landlord would not be able to secure benefit conferred by Section 33-B, if he is not himself a small holder with limited income.'
To my mind, this observation will be of no avail to the respondent. In the first place, the Division Bench of this Court was not concerned with the question as to whether the heirs of the landlord would be required to once again establish the twin requirement under Section 88-C so as to qualify to get possession by taking recourse to application under Section 33-B of the Act. Whereas, the said case had arisen out of proceedings where Certificate under Section 88-C was issued in favour of the landlord and after his death, his widow gave notice terminating the tenancy of the excluded tenant and applied for possession of the lease land under Section 33-B of the Act on 27th March 1962. That application was allowed by the First Authority. However, the Tribunal took the view that the applicant was not entitled to apply for possession under Section 33-B of the Act, as she was not herself the landlord. That reasoning of the Tribunal was subject matter in issue before the Division Bench and it is only in that context, the Division Bench examined the question as referred to in paragraph 1 of the Judgment, namely :--
'Whether the right of a certificated landlord to apply under Section 33B of the Bombay Tenancy and Agricultural Lands Act, 1948, for possession of land from an excluded tenant is personal to the certificated landlord and lapses on his death or whether it can be exercised by his successor in interest.'
As mentioned earlier, the Division Bench in the case of Parvatibai (supra) was not concerned with the question as to what requirement is to be established by the successor in interest, so as to succeed in getting possession under Section 33-B of the Act. Neither the Division Bench in that case was concerned, nor has observed that successor in interest will have to once again satisfy the twin requirement under Section 88-C, so as to be entitled to take recourse to remedy under Section 33-B of the Act. On the other hand, as observed earlier, the legal position, has now been settled after the recent decision of the Apex Court in Moreshwar Pandare's case (supra). The Apex Court has clearly held that once the certificated landlord issues notice terminating the tenancy and proceeds to file application for possession under Section 33-B read with Section 29 of the Act, the exemption certificate gets exhausted. Once the exemption certificate gets exhausted, there would be no occasion for the authorities to relegate the parties to the twin requirement under Section 88-C of the Act. Whereas, the Certificate under Section 88-C of the Act is issued in favour of landlord who has qualified the requirement as obtained on 1st April 1957, and that position gets crystallised with the issuance of the certificate in his favour. In this view of the matter, the heirs of the certificated landlord will not be required to once again qualify the twin requirement under Section 88-C of the Act, but application under Section 33-B of the Act will have to be decided only with reference to the conditions stipulated in 33-B of the Act, namely, whether the heirs have established bona fide requirement for their personal cultivation and holding of the respective parties. Undoubtedly, the holding of the heirs of the landlord will be with reference to the date of their being brought on record. The holding that has to be considered is not the economic holding that required under Section 88-C of the Act, but holding with reference to the requirement of Section 33-B(5)(b) of the Act. On analysing the above legal position, I shall now proceed to decide with the factual matrix of the present case.
8. In the present case, after the death of the original landlord Nivrutti Pawar, the petitioner No. 1 represented the estate of the deceased Nivrutti Pawar. The petitioner No. 1 entered the witness box and has deposed with regard to his bona fide requirement for personal cultivation. That evidence has remained unshaken. The First Authority considered the relevant evidence in this behalf and has answered the issue of bona fide requirement in favour of the Applicant. The Appellate Authority, however, overturned that finding of fact on the sole reasoning that the applicant had admitted in his cross-examination that his income is Rs. 200/- to Rs. 300/- per month. There is some dispute regarding whether there is admission as stated by the Appellate Authority. Assuming that there is such admission, as noted by the Appellate Authority, that would make no difference as the income of the Applicant was not germane to decide the issue of bona fide requirement for personal cultivation. The income of the applicant was relevant only if the proceedings were at the stage of issuance of Section 88-C Certificate, but that stage is already over and in fact, the Certificate as issued in favour of the landlord has got exhausted on terminating the tenancy by issuing notice and/or filing application for termination. The Tribunal has affirmed the view noted by the Appellate Authority on the reasoning that the same is not perverse, nor there is material omission of evidence. Both the reasons recorded by the Tribunal do not commend to me. To my mind, the opinion of the Appellate Authority is not only perverse, but it also omits the relevant materials on record, as was referred to by the first Authority. No doubt, the First Authority has not analysed the entire evidence which it ought to have done, but that does not mean that the finding and conclusion reached by the First Authority can be said to be untenable or unsubstantiated from the evidence on record. On the other hand, the finding on the issue of bona fide requirement as recorded by the First Authority would need no interference. To get over this position, Mr. Kate contends that all the heirs of the deceased Nivrutti Pawar ought to have been brought on record and each of them were required to establish their individual bona fide requirement for personal cultivation. Reliance is placed on the decision of the Division Bench of this Court reported in 1961 NLJ 474 ; 1961 B.L.R. 657 in the case of Jainabai Haji Ramjan Shaikh v. Bakaji Bhau Mandalik. Reliance is placed on the observations made at page 658, which reads thus :--
'Everyone of them has an interest in every part of the land. All of them collectively are the landlords and the tenant is responsible for payment of rent to all of them. No one co-owner can be said to have leased any particular part of the land and consequently he cannot make an application for exemption of any part of the land from the provisions of sections 32 to 32R. Any application by him for exemption from the applicability of Sections 32 to 32R must be in respect of the whole land, in which he has an undivided share. The income, which will consequently have to be taken into consideration, will be the income of all the persons, who own or who have leased the land jointly.'
9. In the first place, in this reported case, the 'Certificate issued under section 88-C of the Act' was subject matter of challenge. In that case, the original owner had died leaving behind two sons and one daughter whose names were entered in the record of rights. Subsequently, the petitioner in that case, was alone shown as Kabjedar, but as Manager of the Joint Family, who in turn, applied for issuance of certificate under Section 88-C of the Act, which was granted on the reasoning that her income was less than Rs. 1,500/-. The matter has been examined by the Division Bench in that context. The Division Bench has found that the petitioner in that case was a Mohammedan and the Mohammedan Law did not recognise a joint family. It is in that context, the Division Bench of this Court went on to observe that if the land belongs to a joint family, the income of the joint family will have to be considered. In the present case, however, the petitioner No. 1 came to be substituted in place of Nivrutti Pawar in Section 33-B proceedings. In such a case, the question of establishing bona fide of all the heirs of deceased Nivrutti Pawar would not arise. Mr. Govilkar for the petitioners has rightly placed reliance on the decision of the Apex Court in the case of Sri Ram Pasricha v. Jagannath and Ors. reported in : [1977]1SCR395 . No doubt, in that case, the matter was one arising from Rent Act proceedings, however, the principle enunciated in the said decision would apply with full force to the case on hand. The Apex Court has observed that it is enough if the requirements are 'only of one of the member of the family' or the Defendants on the ground of personal requirement was to be established. The Apex Court has adverted to the extract from Salmond on Jurisprudence in paragraph 26 and then proceeded to observe in paragraph 27 as follows :
'Jurisprudentially, it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the Plaintiff who is admittedly the landlord and co-owner of the premises, is not the owner of the premises within the meaning of Section 13(1)(f)- It is not necessary to establish that the Plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the Defendants.'
The Apex Court in paragraph 28, then went on to observe :--
'We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is.'
To my mind, the test expounded by the Apex Court in the above decision will apply with full force to adjudicate application filed by the heirs of the certificated landlord under Section 33-B read with Section 29 of the Act. In such a situation, even one heir of the deceased certificated landlord can pursue the matter against the tenant if permissible in law in other respects. The successor in interest who pursues the matter, will have to establish his bona fide requirement of such land for cultivating it personally. In such a situation, the bona fide requirement of all the individuals independently or collectively cannot be the basis for non-suiting the heir who has otherwise established his bona fide requirement for cultivating the suit land personally.
10. It is seen that the Appellate Authority has non-suited the petitioners on the issue of bona fide and personal requirement on the singular reasoning that the income of the petitioner No. 1 was around Rs. 200/- to Rs. 300/- per month. This reason alone, in my view, is not at all tangible to examine the issue of bona fide and personal requirement of the landlord in the context of provisions of Section 33B, relevant in respect of proceedings under Section 88C though. The revisional authority has approved this reason having found that the annual income of the applicant was Rs. 4000/-. The revisional authority has committed the same mistake as that of the appellate authority. The revisional authority has given additional reasons that:
i) The applicant has no agricultural implements;
ii) The applicant is residing. 32 to 35 miles away from the suit land;
iii) The appellate authority has considered all evidence and there is no material omission of evidence;
iv) The suit land is now being cultivated by the respondent and his separated brothers who are not joined as parties to the proceeding; and
v) One of the landlords can ask for possession only in respect of his share.
Taking the first reason, that cannot be the basis to doubt the bona fide and personal requirement of the landlord. It will be useful to apply the principle enunciated by the Apex Court in the case of Raghunath Panhale reported in : AIR1999SC3864 while considering the landlord's claim in the Rent Act matters. Similar far stretched reason, was frowned upon by the Apex Court. Indeed, the test expounded by the Apex Court in this decision while considering the landlord's claim of bona fide requirement is in relation to Section 13(1)(g) of the Bombay Rent Act - which posits that requirement should not only be 'bona fide' but also 'reasonable'. Whereas in the present enactment (Bombay Tenancy and Agricultural Lands Act) the Landlord has to only assert that the requirement is 'bona fide' which is of lesser degree than the additional factor of 'reasonable'. Understood thus, that reason will be unstatable law. The. second reason also is untenable, for it overlooks the legal provision such as Section 2(16) that would enable the Landlord to legitimately get the lands cultivated with the help of labour, or under personal supervision of oneself etc. Even in that case the Landlord will be presumed to have cultivated the land personally. I am observing this on the assumption that the petitioner No. 1 was to be prevented from cultivating the land himself on day to day basis because of the distance from his present residence and that he was not to shift his residence near the suit lands even later. Even the third reason does not commend to me. On plain language of the relevant extract of the decision of the Appellate Authority (as reproduced in paragraph 3 above) that reasoning cannot stand the test of judicial scrutiny. For the Appellate Authority has not adverted to the relevant materials on record nor analysed the same at all. The fourth reason recorded by the Revisional Authority is also manifestly wrong. That plea is not even remotely argued at any stage including before this Court, by the respondent. Assuming that now the respondent and his separated brothers were cultivating the suit lands, that does not mean the action instituted against the respondent is incompetent. Because throughout the parties have proceeded on the basis that the respondent was the tenant and not his brothers. The respondent's brothers, assuming that they are now cultivating the suit lands along with respondent, they would be bound by the order passed against the respondent as they were only claiming through him and not in their own rights. Insofar as the fifth reason is concerned, I have elaborately dealt with the same in paragraph 9 above. Besides, as observed in para 2 above the application filed before the Authority was to bring all the petitioners on record being the legal heirs of deceased Nivrutti Pawar. But for some inexplicable reason only the name of petitioner No. 1 is incorporated in the record of this proceeding. However, that would make no difference to the legality of the proceedings. Accordingly, neither the opinion of the Appellate Authority nor that of the Revisional Authority can be sustained.
11. Indeed, the entitlement of such successor in interest would be subject to other conditions specified in Sub-section (5) of Section 33-B of the Act. In the present case, we are only concerned with Condition No. (b) in Sub-section (5). To my mind, while considering application such as the present one, the Authority will have to reckon the holding of all the heirs on the date on which they have been brought on record for the purposes of deciding the claim set-up even by one of the heir for bona fide requirement for cultivating the land personally. In the present case, the original owner had deposed that he had no other agricultural land in his possession. After his death, the petitioner No. 1 entered the witness box and once again, deposed that neither he, nor his other brothers namely other petitioners herein own or possess any other agricultural land. In the cross-examination, it is, however, accepted that the petitioners would get possession of land bearing Survey No. 522/5 admeasuring 1 acre 5 gunthas from another tenant Bhiku Rama Nimbaikar. In the Writ Petition, as mentioned earlier, in Paragraph (X) at page 8, it is reiterated on affidavit that none of the petitioners own or possess any other land except the land Survey No. 522/5, which is admeasuring only 1 acre 5 gunthas. This assertion made on affidavit has remained uncontroverted. There is no reason to doubt the statement as made by the petitioner No. 1 before the First Authority and once again re-iterated by all the petitioners before this Court. That position could have been controverted by the respondent only by adducing positive evidence which is lacking in this case.
12. In this view of the matter, it will have to be found that the petitioners are collectively holding only 1 acre and 5 gunthas of the land bearing Survey No. 522/5 and no other land. If that is so, the petitioners would be entitled for possession of the suit lands which in all admeasures 2 acres 9 gunthas, inasmuch as the evidence on record clearly establishes that the respondent is in occupation of agricultural land to the extent of 15 acres. In that sense, the petitioners would qualify for the relief of possession in terms of Section 33-B of the Act because if the possession of the suit lands which is admeasuring 2 acres and 9 gunthas was to be restored and made over to the petitioners that would not result in the holding of the respondent being reduced than the holding of the petitioners of all agricultural lands including the suit lands. On this reasoning itself, the application as filed for possession of the suit land under Section 33-B read with Section 29 ought to succeed.
13. Before parting, I shall advert to one more decision, relied upon by the Counsel for the respondent. Reliance was placed on the decision of the Supreme Court reported in : AIR1996SC3487 in the case of Ganapati Bayaji Patil v. Shridhar Babaji Vibhute (Dead) by LRs. and Ors. to contend that it was open to the tenant to set up plea of validity of Certificate under Section 88-C of the Act in the present proceedings under Section 33-B of the Act. This submission, however, overlooks that the observations made in the said decision was in the fact situation of that case. In that case the Appellant was the tenant in occupation of the lands in question on the tillers' day. The landlord in respect of the said land on tillers' day i.e. 1st April 1957 was a joint family, of which, the original respondent was a member. Partition was effected on 31st March 1958. On the basis of that Partition, the original respondent applied for issuance of certificate under Section 88-C of the Act and that Certificate was granted. On the basis of that Certificate, application under Section 33-B for possession came to be filed by the original respondent. The same was allowed in favour of the respondent. Before the Supreme Court, it was contended on behalf of the tenant that the certificate under Section 88-C of the Act as granted, was without notice to him. And more importantly, the said Certificate was invalid because the landlord did not fulfil the criteria as on 1st April 1957. In that context, the matter was considered by the Apex Court. The question which was raised on behalf of the tenant was, in that sense a jurisdictional issue inasmuch as if no certificate could have been granted in favour of the original respondent-landlord because the Partition was effected only on 31st March 1958, which is much after the tillers' day, then surely that question would go to the root of the matter. It is in that context, the matter was considered by the Apex Court and the issue was answered in favour of the tenant. However, in the present case, Certificate issued under Section 88-C has not been challenged at all, nor it was argued that no notice was issued to the respondent before issuance of that certificate because such argument was not available in view of the finding recorded by the authorities in the earlier round of proceedings. The Tribunal in its decision dated 31st November 1983 has negatived the challenge to the validity of certificate under Section 88-C which was set-up by the respondent herein. That question was later on not agitated before the Tenancy Authority nor before the Appellate Authority or Revisional Authority. Understood thus, the decision in the case of Ganpati Bayaji Patil (supra) is inapposite to the fact situation of the present case.
14. Learned Counsel for the respondent had also contended that the application as filed by the original certificated landlord Nivrutti Pawar was barred by limitation. Learned Counsel contends that this question was specifically argued before the authorities below but they have not addressed to that aspect at all. He submits that if that question was to be answered in favour of the respondent, then the entire proceedings would be invalid. I have dealt with this aspect as last question because the original record was examined by both the Advocates and on perusal of the original record, the position that emerges is that Certificate was issued in favour of Nivrutti Pawar on 23rd June 1964. The record also establishes that notice was given by Nivrutti Pawar under Section 33-B on 24th August 1964 and the application under Section 33-B read with Section 29 for possession came to be filed on 21st September 1964. All this happened within three months from the date of issuance of certificate which is the statutory period provided by Section 33-B(3) of the Act. Besides, to my mind, this issue stands concluded by the decision of this Court between the parties dated November 27, 1980 wherein it is clearly observed in paragraph 2 that the application filed by said Nivrutti Pawar was within the stipulated period. To get over this position, learned Counsel for the respondent contended that the application has not been filed before 1st January 1962, even when the order on application for issuance of certificate under Section 88-C has been passed on 27th January 1961. This submission overlooks the position that emerges on conjoint reading of Section 88-C, 33-A and 33-B (3) of the Act. Section 88-C is a provision which enables the certificated landlord to apply for issuance of a Certificate. The order passed on such an application is not the basis to treat the landlord as the certificated landlord, but it is only on issuance of the Certificate that such a person would become a certificated landlord; and it is only a certificated landlord who can invoke the rights under Section 33-B of the Act. To my mind, mere passing of the order on the application filed by the landlord for issuance of Certificate under Section 88-C, does not, by itself, result in the landlord becoming a certificated landlord; but it is only on issuance of Certificate under Section 88-C(4) that the landlord would become a certificated landlord, as can be seen from the definition of certificated landlord occurring in Section 33-A(i). Till the Certificate is issued under Section 88-C(4), it will have to be assumed that the application under Section 88-C remained undisposed and the landlord would get right to invoke provisions of Section 33-B of the Act only upon issuance of the Certificate. If the Certificate is issued after 1st January 1962 as in this case on 23rd June 1964, such a landlord would be governed by Clause (b) of Sub-section (3) of Section 33-B of the Act and not by Clause (a) of the said sub-section. In the present case, the certificated landlord has issued notice as well as filed application within three months from the date of issuance of certificate and therefore, the application as filed was well within limitation. It will be appropriate to refer to the decision in the case of Mahadu Bala Garade reported in : 1988(3)BomCR658 in which, this Court in Paragraph 4 has observed that the limitation for filing application under Section 33-B would commence from the date of certificate and its receipt by the landlord. A priori, there is no substance in the argument regarding the application under Section 33-B being barred by limitation.
15. On the above reasoning, all other reasons which have weighed with the Appellate Authority or the Revisional Authority so as to non-suit the petitioners, cannot be sustained in law; and, therefore, the orders passed by the Appellate Authority as well as the Revisional Authority are set-aside and instead, the order passed by the Tahsildar dated 11th February 1985 directing the respondent to deliver the possession of the suit lands, is restored.
16. Petition succeeds on the above terms. No order as to costs.
17. All concerned to act on the ordinary copy of this order, duly authenticated by the Personal Secretary.