A landlord's filing of a suit for rent for the period after the termination of tenancy amounts to a waiver of the right to possession.

JUDGMENT - Shah, J.

1. This is an application filed by a tenant against the landlord-respondents challenging the order passed by the Maharashtra Revenue Tribunal in revision against the order passed by the Sub-Divisional Officer who, in his turn, reversed the decision of the Naib Tahsildar in an application made by the landlords for possession of the land in question on the ground of personal bona fide cultivation. The landlords before making the application to the Naib Tahsildar, gave notice to the tenant on 26th March, 1959, under Section 39 (I) of the Bombay Tenancy and Agricultural Lands (Vidara-bha Region and Kutch Area) Act, 1958 (hereinafter referred to as the Tenancy Act). Thereafter, an application for possession of the land was made to the Naib Tahsildar under Section 36 of the Tenancy Act on 23-7-1959. This application was resisted by the tenant on several grounds. The Naib Tahsildar, however, allowed the landlords application on 22nd of March 1960 and ordered the tenant to deliver possession to the landlords.

As against this order the tenant took an appeal to the Sub-Divisional Officer who, after considering the evidence recorded in the case and having dus regard to the arguments advanced on both the sides, reversed the decision of the Naib Tahsildar on all the counts and dismissed the landlords application on 19th July, 1960. The landlords being aggrieved by the decision of the Sub-Divisional Officer, filed a revision application before the Maharashtra Revenue Tribunal and that application was allowed by the Tribunal on 18-2-1961 and the landlords, accordingly, became entitled to recover possession of the land from the tenant. Following upon this decision of the Tribunal, the tenant filed the present petition in this Court under Articles 226 and 227 of the Constitution and challenged the validity of the order o£ the Tribunal.

2. It appears that while this writ-petition was pending in this Court, the landlords filed a civil suit in the Court of the Civil Judge, Senior Division, at Yeofmal for the recovery of rents from the tenant for a period of three years, that is to say, for the years 1958-59, 1959-60 and 1960-61. The tenant came to know about the; filing of this suit by the landlords and immediately thereafter, he made an application to this Court on 16-8-1961 for amendment of the petition to the effect that the landlords being the reversioners, by reason of their having filed a suit for rent, should be deemed, as a matter of law, to have ratified the original lease granted by Jani and, therefore, they could not be allowed to claim possession of the field from him. Rule was issued upon this application and it was served upon the landlords in due course. The landlords, however, do not seem to have cared to file any affidavit in reply to this application for amendment. At the time when the rule was issued upon this application it was ordered that it would be heard along with the present petition filed by the tenant. The petition as also this amendment application, accordingly, came up for hearing yesterday before us, and it was urged on behalf of the tenant by Mr. Qazi that in view of the conduct of the landlords in filing the suit for rent for the three years, the landlords had recognized the tenant as a tenant despite the order for possession made by the Maharashtra. Revenue Tribunal as aforesaid and that, accordingly, the landlords must be deemed to have waived their right to recover possession in pursuance of that right. Mr. Kherdekar, on the other hand, urged that waiver was a question of fact and that there was not enough material before us in order to enable us to decide as to whether there was any such waiver on the part of the landlords by reason of their having filed the suit for recovery of rent against the tenant. He also invited our attention to some cases which, however, turned out to be those in which claims for damages were also included. Obviously, where in a suit for ejectment claim for damages is

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