The death of the landlord during the pendency of the appeal against an order for possession does not abate the proceedings, but the heirs of the landlord must prove their own requirements and holdings in order to succeed in the appeal.

DESHPANDE J.-Deceased Dattatraya, the father of the respondent, was the owner of the lands in dispute. The lands were held by the petitioner as his tenant. The deceased made an application under section 33-B of the Tenancy Act on March 27, 1962 for possession of the lands for bona fide personal cultivation, after obtaining certificate under section 88C thereof. The Tenancy Awal Karkun, Khed, allowed it on October 14, 1964. The tenant challenged this order in appeal on January 3, 1969, i. e. more than four years after the expiry of sixty days limitation period, alleging that the impugned decision was not communicated to him. During the pendency of the appeal, the landlord died and his son, the respondent, was brought on the record, as his heir. The Sub-Divisional Officer allowed the appeal and remanded the case to the Mamlatdar for a fresh inquiry into the bona fides and holdings of the respondent. Respondent's revision application, however, was allowed by the Revenue Tribunal on the ground that the appeal by the tenant to the Sub-Divisional Officer was time-barred. The validity of this order is challenged in this Special Civil Application under Article 227 of the Constitution of India.

2. Mr. Apte, the learned advocate appearing for the petitioner-tenant, contends that the Revenue Tribunal misconceived the facts while holding the appeal to have been time-barred. The contention is well founded. The roznama of the Tenancy Awal Karkun indicates that the case was heard on August 29, 1964 and adjourned for judgment without fixing any date The judgment was pronounced on October 14, 1964, when parties or their pleaders are not shown to have been present. The decision is shown to have been intimated to the parties under roznama dated October 24, 1964. There is, on the records at page 87, a copy of such intimation addressed to the parties. Under the endorsement at the bottom of this copy, the Gram Sevak is directed to serve the original on the parties, get their signatures on the copy, and submit a compliance report. Records do not contain any such signature sheet or the compliance report. This impelled the Sub-Divisional Officer to hold that the order was not shown to have been communicated to the tenant and as such the tenant's appeal cannot be said to have become time-barred. He also relied on the conduct of the landlord himself in this behalf in not moving for possession till December, 1968. The Tribunal has not touched this vital aspect of the matter and merely relied on the copy of the intimation at page 87 dated October 24, 1964 in support of his inferel}ce of service thereof on the parties without any further material whatsoever. Mr. Dhupkar, the learned advocate appearing for the respondent, could not rely on any material on record from which, inference of service of such intimation on the tenant, or his otherwise knowledge of the order, before sixty days of January 3, 1969 could be drawn. The appeal could not thus have been held as time-barred. The order of the Tribunal thus is liable to be quashed.

3. Mr. Dhupkar, however, contends, that remand of the case to inquire into the holding and bona fides of the heirs of the landlord was wholly uncalled for, when, the original landlord died during the pendency of, appeal long after the order for possession was passed in his favour, and his heir, the respondent was entitled to defend the order on the pleadings and the facts proved at the trial qua his father. This contention is contrary to the ratio of Shankar Gopal v. Prabhakar1. Vaidya J. in this case examined the scheme of section 33B of the Tenancy Act and held that the death of the landlord during the pendency of the appeal against an order in his favour, necessitates enquiry into the bona fides and holdings, of the heirs of such landlord and such heirs cannot defend the order by reference to such findings qua the landlord. This view is affirmed by the Division Bench (Deshmukh and Shah n.) in the case of Hariba Keshav