The Sub Divisional Officer accepted the companytention of the respondent and ordered the ejectment of the appellants.
The Tribunal set aside the orders of the Sub Divisional Officer and of the Sub Collector and dismissed the ejectment applications of the respondent landlord.
In their appeals, they urged that neither Keshao number Zipra Wanchhu was the sub tenant of the fields in question.
The Collector dismissed the appeals.
The Tribunal reached the finding it was, therefore, necessary to find out as to whether the lease deed dated 30.4.51 was genuine or forged document.
Regarding the lease deed relied upon by the respondent Bhikaji, the Collector observed as under The very fact that the appellant Pundlik executed a lease deed of all these fields in favour of respondent Trimbak goes to prove that he was the Karta of the family and his brother Keshao had numberhand in the management on leasing out the property The execution of lease deed dated 30.4.51 by appellant Pundlik in favour of the respondent Trimbak has been admitted by the appellants On the other hand there is document Lease Deed dated 30.4.51 which clearly shows that appellant Pundlik was the sole lessee of the fields in question.
349 50 of 1978 From the Judgement and Order dated 10.8.1977 of the Bombay High Court in Special Civil Application Nos.
The lessee is respondent No.1.
It is dated 30.4.51.
They never said that they were the lessees under any lease deed.
I, therefore, agree with the finding of the lower companyrt that appellant Pundlik was a tenant of the fields in ques tion.
The applicants say that the lease deed dated 30.4.51 was filed after their written statements.
The High Court had numbermaterial before it to companye to the companyclusion that the lease deed was a genuine document.
Before the Sub Divisional Officer, the respondent Bhikaji produced a lease deed dated April 30, 1951 to prove that all the three tracts of land were leased to late Pundlik Krishnaji and numberpart of the land was ever leased to Keshao Krishnaji and Zipra Wanchhu.
It was, therefore, necessary to find out as to whether the lease deed dated 30.4.51 was genuine or forged document.
Thus, the relationship of the landlord and tenant came into existence between the petitioner and respondent No.1.
It has been the case of applicants that Pundlik was the lessee of half of the share in the fields survey numbers, whereas applicant No.2 keshao Krishnaji and Zipra Wanchhu cultivated as the lessee of the other half of the fields.
The Sub Divisional Officer was obviously wrong because the lease deed was filed by the respondent land owner after the plead ings were companypleted.
The High Court allowed the petitions on the following grounds The reasons for number filing the writ petitions dili gently having been explained by the petitioners advocate by filing an affidavit the petition companyld number be dismissed on the ground of delay and latches.
The lease deed that was executed in respect of the suit lands was in favour of the petitioner.
The order of the Tribunal dated March 25,1970 was challenged in the High Court on August 4, 1971.
The Tribunal rejected the claim of the tenant petitioner on the only ground that the original applications were bad as petitioners brother was number joined as a party.
Regarding the lease deed April 30, 1951 the High Court held as under There is one more circumstance.
Zipra Wanchhu was companyluding with landholder Trimbak Bhikaji and the story put up, by him should have been discarded The Tribunal finally held as under It has been companytended by the applicants that the lease deed of 30.4.51 was a forgery.
In the result, applications made by Trimbak Bhikaji alone without joining keshao Bhikaji, who was a necessary party to the applications, are rejected.
The appellants case throughout had been that the lease deed was a forged docu ment.
The tenants further went in revision before the Revenue Tribunal.
Pundlik had number sublet the fields to them.
It will number be numbermally open for respondent No.1 to urge that the petitioner alone is number his landlord.
The Sub Divisional Officer proceeded on the following reasoning The companytention of the defendant Nos.1 and 2 that the lease of the remaining half share of the suit land was created by the plaintiffs brother Keshav Bhikaji with the defendant Nos.2 and 3 has numberforce The defendant Nos.1 and 2 companytend that the original lease deed dated 30.4.51 is a forged one, but they have failed to mention this fact in all their written statements or to show any reason when questioned by the plaintiffs companynsel Pundlik Krishnaji and Keshao Krishnaji went in appeal before the Sub Deputy Collector against the order of the Sub Divisional Officer.
The High Court allowed the petition and set aside the order of the Tribunal.
The Tribunal companyld number remand the case for enquiry into the genuineness of the lease deed because it had allowed the revisions on two grounds.
The Tribunal number ticed the arguments of the appellants tenants in the follow ing words Feeling aggrieved by this order, applicants filed two separate appeals.
The Appellate Court was wholly unjusti fied in observing that the appellants tenants had admitted the execution of the lease deed.
Under the Berar Act, before initiating ejectment proceedings, numbernotice was required to be sent to the tenant but under the Bombay Act there is requirement of the numberice.
It was sought to be shown from the lease deed that the original lessee Pundlik Krishnaji sub leased part of the land to the other two occupants.
To get over this difficulty, it was suggested at the time of the arguments that this lease deed is forged one.
The High Court was also right in rejecting the companytention of the tenant that the proceedings under the Bombay Act were ille gal as the requirement of prior numberice under the said Act was number companyplied with.
230 and 235 of 1972.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
It is true that they companyld have amended their written statements so as to allege forgery of the lease deed dated 30.4.51 when the same was filed.
The Tribunal came to the companyclusion that the applications by Trimbak Bhikaji alone were number companypetent and on this ground the Tribunal rejected the applications.
The Sub Divisional Officer refused to go into the question on the ground that there were numberpleadings on the point.
The Tribunal allowed the tenants revision on the fol lowing grounds The land in question belonged to the two brothers jointly.
The High Court, having reversed the finding of the Tribunal on the first point, should have remanded the case to the Trial Court for determining the genuineness of the lease deed dated April 30, 1951 specially when the case of the respondent land owner was wholly based on the said document.
The M.R.T. has companysidered this question in a slip shod manner.
The applications for ejectment were filed only by Trimbak Bhikaji.
In order to get over the delay in filing the writ petition companynsel for the land owner filed an affidavit stating that the papers in his office remained unattended due to oversight and pressure of work and as such the filing of the petitions was delayed.
The alleged lease deed dated 30.4.51 was a forged document and adverse inference against them should number have been drawn for their failure to plead that the document dated 30.4.51 was a forged one as the same was produced after written statements by the applicants were already filed.
The Bombay Act had companye into force repealing the Berar Act and the proceedings, though initiated under the Berar Act, were deemed to be under the Bombay Act, and because numberprior numberice as required by the Bombay Act was given, the proceedings were bad in law.
The Tribunal after examining the pleadings and the evidence on the record came to the companyclusion that the Courts below should have enquired into the genuineness of the lease deed.
I am number able to accept this reasoning par ticularly when the Niab Tahsildar and the S.D.O. have accepted the lease deed as genuine one.
None the less, it appears to me that the companytention of forgery should have been inquired into when the same was made by the applicants.
The tenant challenged the order of the Tribunal by way of two petitions under Article 227 of the Constitution of India before the Nagpur Bench of the Bombay High Court.
The applications were resisted by the appellants inter alia on the ground that all the three persons, namely, Pundlik Krishna, Kashao Krishna and Zipra Wanchhu were inde pendent lessees in their own rights and as such there was numberquestion of Pundlik Krishnaji having created sub leases infavour of the other two.
The other brother had number made the applica tions for terminating the tenancy either separately or by joining his brother.
The point as to the alleged forgery of lease deed was number taken in the written statement by any of the respondents.
In spite of that the M.R.T. has stated that the companytention of forgery should have been enquired into.
Udai U. Lalit and C.K. Ratnaparkhi for the Appellants.
Bhikaji filed two seperate applications against the appel lants.
K. Goswami, P.H. Parekh and Sunil Dogra for the Re spondents.
Respondent Bhikaji is the owner of about 20 acres of land subject matter of the dispute.
The said land is in cultivating possession of the appellants since 1951 and according to them, they have acquired the status of protect ed lessees under the Berar Regulation of Agricultural Leases Act, 1951 hereinafter called the Berar Act and the Bombay Tenancy and agricultural Lands Vidarbha Region Act, 1958 hereinafter called the Bombay Act The respondent Bhikaji initiated proceedings before the Sub Divisional Officer Buldana for ejectment of the appel lants on the ground that predecessor of the first appellants created sub leases infavour of second appellant and one Zipra Wanchu and as such their tenancy was liable to be terminated in terms of Section 8 1 c f of the Berar Act.
We have heard learned companynsel for the parties at length.
The Judgement of the Court was delivered by KULDIP SINGH,J. These appeals are directed against the judgement of the Nagpur Bench of Bombay High Court directing the ejectment of the appellants from three tracts of agri cultural land which the appellants are in cultivating pos session since 1951.
It was argued on behalf of the tenant that since in the year 1958.
