JUDGMENT -BHIMRAO N. NAIK, J.:---This petition is filed by a petitioner - tenant challenging a decree for possession passeed against him on the ground of erecting permanant construction and on the ground of non payment of rent.

2. Few facts which are relevant for the purpose of this petition are as follows:

3. The premises in dispute consist of one big room admeasuring 20 x 15 feet forming part of City Survey No. 136 and bearing plot No. 34/11/2 in the industrial Zone at Pune. The petitioner was inducted as a tenant for running a lathe machine workshop in the premises. The premises were let to the petitioner sometime in the year 1972. The agreed rent was Rs. 175/- per month and according to the landlord the education cess and other taxes were to the tune of Rs. 59.50 per month. Respondent - landlord sent a letter on 6th of July, 1977 informing the petitioner - tenant that he wants to occupy the premises himself and the tenant is in arrears of rent from 1st of December, 1976. There was not a whisper about any permanent construction carried out by the petitioner without the consent of the landlord. After receipt of the said letter, the petitioner filed an application at Exhibit-4 for fixation of standard rent on 13th July, 1977. In that application, he prayed that the interim rent should be fixed and a direction should be issued for depositing the amount. Accordingly, on 21st of July, 1977 the Court passed the following order:

"Interim rent is fixed at Rs. 120+ education cess p.m. Applicant to deposit arrears of rent at this rate within one month from today and go on depositing the same on or before 10th of every month or whenever it becomes due."

It appears, in pursuance of this order, the petitioner-tenant deposited a sum of Rs. 1,000/- on 1st August, 1977. Not only he deposited but on 3rd of August, 1977 the tenant intimated the fact of such a deposit to the landlord by his letter which is at Exh. 45.

4. It appears that on 7th of September, 1977 the landlord issued a notice of demand as contemplated under section 12(2) and also a notice of termination and claimed arrears of rent from 1st December, 1976 upto 30th September, 1977. In the notice, possession was claimed on the ground of (i) non payment of rent, (ii) permanent construction and (iii) bona fide requirement.

5. The trial Court by its judgment and order dated 31st of July 1979, inter alia, held that the petitioner is not a defaulter and the landlord does not require the premises bona fide and reasonably for the personal occupation and he also held that the notice is valid and further a finding was recorded that the tenant has not carried out permanent construction. It is important to note here that the Court did not go into the question whether the nature of construction alleged is of a permanent nature or not but it only went on the basis of burden of proof. It was the specific stand taken by the tenant that he accepted the premises along with the construction alleged to have been carried out. Therefore, he himself has not erected any permanent construction. For this purpose the trial Court expected the landlord to produce the original plan and since the landlord did not produce the original plan it took the view that the landlord failed to establish his case and thus ultimately failed to prove that the tenant carried out any construction. In this view of the matter, the trial Court dismissed the suit by its judgment dated 31st July, 1979.

6. Being aggrieved and dissatisfied by this judgment, the landlord filed Civil Appeal No. 587 of 1979. So far as the ground of permanent construction is concerned, the appeal Court recorded a finding that the burden of proof is wrongly put upon the landlord and the tenant failed to establish that he has not carried out the alleged construction. It is also equally important to note that even the appeal Court notwithstanding the argument did not go into the question regarding the nature of construction whether the alleged construction is a

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