JUDGMENT - S.A. BOBDE, J.:This petition is directed against the order of the Maharashtra Revenue Tribunal dated 21st January, 1985 by which the Maharashtra Revenue Tribunal has reversed the findings of the learned Additional Collector who held that the respondent has surrendered the tenancy in respect of the agricultural land in question in petitioner's favour and that the respondents are therefore, not in possession of the land as tenants.

2. The predecessor of the petitioners i.e. the original petitioner Dattatraya Narayan Gupte was landlord of Survey No. 7/5 admeasuring 1 acre 10 gunthas situated in village Bamanghar Taluka Bhor. Alleging that the original tenant Dagdu Pandu Mandhare has surrendered the tenancy in his favour, Dattatraya Gupte filed a suit in the Court of Civil Judge J.D. Bhor for an injunction restraining the respondent from disturbing his cultivation of the land in question. The defendants to the suit and the present respondents are admittedly the heirs of the original tenant Dagdu Pandu Mandhare.

3. The Civil Court referred the following question under section 85-A of the Bombay Tenancy and Agricultural Lands Act :

“Do the defendants prove that defendant No. 1 is in possession of the suit land as a tenant since lifetime of his father Dagdu ?

4. The Court of first instance i.e. Additional Tahsildar Bhor referred to the order of the E.A.K. Bhor in Tenancy Suit No. 29 of 1956 dated 21st June, 1956, which clearly showed that Dagdu Mandhare had voluntarily surrendered the suit land in favour of landlord and the possession of the suit land was ordered to be handed over to the landlord. However, the Additional Tahsildar Bhor found that Pandurang Mandhare the heir of Dagdu Mandhare was in cultivating possession and that the landlord has not obtained possession of the land in accordance with law. He therefore, concluded that Pandurang Mandhare is cultivating the suit land as a tenant.

5. In an appeal carried to the Additional Collector by Dattatraya Narayan Gupte the landlord, the Appellate Authority held that it was clear from the evidence on record that the predecessor of respondents one Dagdu Pandurang Mandhare surrendered his tenancy on 21st July, 1956. The surrender had been accepted as a voluntary by the Tenancy Aval Karkun who had issued an order directing handing over the possession land in question to the landlord and effecting change in the record of rights. In fact, the Appellate Authority further found from the revenue record that Dattatraya Narayan Gupte is shown as cultivating the land personally since 1956-57. The Appellate Authority held that section 15 of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as the Tenancy Act) does not make the handing over of the possession, a condition precedent before the surrender can be said to be legal. However, as regards the actual possession, the Appellate Authority rendered an ambiguous finding as regards actual possession and held that presuming that Mandhare is in possession of the land, it cannot be said that he is in possession as a tenant because no fresh tenancy has been created in his favour by the appellant-landlord. In any case, the Appellate Authority took the view that Mandhare cannot be said to be in possession as a tenant in view of the surrender dated 21st July, 1956 and the fact that there is no proof of creation of fresh tenancy.

6. Pandurang Mandhare carried the matter to the Maharashtra Revenue Tribunal by way of revision. The Maharashtra Revenue Tribunal embarked on fullscale reappraisal of evidence, as is apparent from its order, and thereupon came to the conclusion that Dattatraya Narayan Gupte the landlord is residing in Bombay and cannot be said to be cultivating the land personally and that Mandhare has clearly expressed his intention to be in possession. In fact, the Maharashtra Revenue Tribunal has come to the conclusion that Mandhare has been on the land from 1956 till 1971 for 15 years and therefore, interferred wi

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