The bona fides of the heirs of a deceased certificated landlord, rather than the deceased landlord himself, should be considered in determining their right to possession under Section 33B of the Bombay Tenancy and Agricultural Lands Act, 1948.

SHAH j.- This Special Civil Application under Article 227 of the Constitution of India raises a question of law as to the interpretation of section 33B of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the 'Act').

2. The question of law raised in this case relates to the rights of the heirs of the certificated landlord to get possession of the land under section 33B where the certificated landlord dies after he makes an application for possession of the land under section 33B.

3. To properly appreciate the points involved, it would be necessary to state a few undisputed facts. The land, Survey No. 81/2, admeasuring 13 acres situate at Darphal, taluka Madha in Sholapur district belonged to one Deepchand and was in possession of one Keshav as a tenant. Deepchand obtained a certificate under section SSC of the Act and after serving the tenant with a notice made an application for possession of the land against Keshav on January 9, 1962 under section 33B of the Act before the Tenancy Awal Karkun. Keshav died during the pendency of the application before the Tenancy Awal Karkun. The petitioners were brought on record as heirs. The Tenancy Awal Karkun rejected the application of Deepchand on the ground that he did not bona fide require the suit land for personal cultivation. This decision of the Tenancy Awal Karkun was challenged by Deepchand by an appeal before the Special Deputy Collector for Tenancy. Appeals, Sholapur. During the pendency of the appeal, on December 1, 1964 Deepchand also died, and respondents Nos. 1 to 5 were brought on record as his heirs. The appellate authority reappreciated the evidence led by the parties and passed an order. for delivery of possession on the basis that the deceased landlord had proved that he required the land bona fide for his personal cultivation. The bona fides or otherwise of the heirs of Deepchand were not considered presumably on the ground that the original application was made by Deepchand. In this view of the matter, the appellate authority allowed the appeal and passed an order for delivery of possession of the entire land to the respondents. The petitioners preferred a revisional application before the Maharashtra Revenue Tribunal. It was contended before the Tribunal that in view of the death of the original landlord during the pendency of the proceedings, it was necessary to consider the bona fides of his heirs, and for that purpose the, matter requires to be remanded. Since, however, the Tribunal was or the view that when the landlord dies at t he appellate stage, the question of his successors bona fides cannot be taken into consideration, he negatived the submissions on behalf of the petitioners, and confirmed the finding of the appellate Court. In the result, the revision application was dismissed, and hence the petitioners have filed this Special Civil Application.

4. When the petition came up for final hearing before Hajarnavis J., on behalf of the petitioners, two contentions were raised. Firstly, it was contended that in view of the death of the original landlord, the bona fide requirements of the heirs of the landlord alone ought to be considered ; and secondly, on merits, it was contended that the landlord did not require the land bona fide for his personal cultivation. On the question of law, his attention was drawn to two decisions of single Judge of this Court which have taken contrary views on the point in question. The first one was in the Case of Shankar Gopal v. Prabhakar1, wherein Vaidya. J. took the view that although the heirs of the deceased landlord are entitled to continue proceedings under section 338 started by their predecessors, still it is necessary for them to establish that they bona fide require the land for personal cultivation. The other decision pointed out to him was an unreported decision in Damu Sakharam F'ulzade v. Bhaskar Fralhad Patil2. Relying on certain observations in Madhav Vithoba v. Dhondudas