JUDGMENT - KHANWILKAR A.M., J.: - The principal question that needs to be addressed in the present petition is: what was the holding of the petitioner landlady on the date when she made application for possession under section 33-B read with section 29 of the Bombay Tenancy Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act') on 27th January, 1965. It is not in dispute that exemption certificate under section 88-C of the Act has been issued in favour of the petitioner on 30th October, 1964. On the basis of that certificate, the petitioner filed application for possession of the suit land from the respondents tenants on 27th January, 1965. The first authority, after several remands, have eventually found, as of fact, that the petitioner landlady was not in possession of any agricultural land on the date of application i.e. 27th January, 1965. For reaching at this conclusion, the authority has analysed the evidence on record, both documentary as well as oral. Indeed, it has referred to the statement made on behalf of the landlady in the cross-examination that she has come in possession of certain lands in the year 1965-66 for her personal cultivation. Even that aspect has been examined by the first authority and a finding of fact recorded that the petitioner landlady was not holding any land or was not in possession of any agricultural land on 27th January, 1965 vide judgment and order dated October 31, 1986. That view has been affirmed by the Appellate Authority in judgment and order dated May 11, 1987. However, the Tribunal, for the first time, has interfered with the concurrent finding of fact recorded by the two authorities below, on the following reasoning :

"11. Although the finding is concurrently given by both the lower authorities I cannot agree with them. Both the lower authorities have failed to appreciate the contents of the VII-XII extracts of the suit land as well as of the land that belongs to the landlady. The provisions of the Tenancy Act are required to be construed in such a way that they do not defeat the statutory rights of the tenant without any substantial reason. In the instant case it is abundantly clear from the extracts of the VII-XII in respect of the concerned lands to show that the landlady is in possession of 13 acres 33 gunthas of land as owner. It is much more than the holding of the tenant. She is apparently not entitled to restoration of the suit land area of which is about 1 acre 8 gunthas. It is erroneous to hold that landlady was not holding any land on the material date i.e. 27-1-1965. This observation is not based on substantial evidence. Both the lower authorities have erroneously come to the conclusion that the landlady is entitled to the restoration of the suit land. It is not open to the certificated landlady to claim the suit land when her holding is much more than the total holding of land of her tenant.

12. For the reasons discussed above I am of the opinion that the orders passed by both the learned authorities below are contrary to the provisions of law i.e. of sub-section (b)(5) of section 33-B and thus they are illegal. The said provisions are mis-interpreted by the lower authorities to mean that the holding of the tenant and landlady which was available on 27-1-1965 was the basis for determining the issue. Under these circumstances, the revision application will have to be allowed and the orders of both the lower authorities will have to be set aside. I, therefore, pass the following order."

2.Having gone through the record and considering the decisions of the authorities below, I have no hesitation is taking the view that the decision of the Tribunal cannot be sustained. In the first place, it was not open to the Tribunal to reappreciate the evidence of record to arrive at a different finding of fact. Assuming that the Tribunal has proceeded on the assumption that the authorities below have committed error apparent on the face of the record, even so, the conclusi

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