ORDER :- The short and interesting question that arises in this writ petition is as to whether the petitioners' contention that the respondents and their predecessor-in-title by name Ashru were the tenants is barred on account of the decision in another tenancy case which was given on the hypothesis that they were the tenants.

2. The controversy arises in the following manner: Survey No. 177, admeasuring 34.19 acres and situated at Anjani Bk. was originally owned by the petitioner No. 1 Krishnabai and her husband Raghunath. Raghunath is now dead and the petitioners Nos. 2 to 10 are his legal representatives. The respondents Nos. 1 to 11 are the heirs and legal representatives of a person by name Ashru. After the new Tenancy Act, Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 came into force, the name of Ashru was entered as a tenant of Survey No. 177. Such an entry was made as laid down in S. 8 of the Tenancy Act. It reads as follows:

" 3. (1) As soon as may be after this Act comes into force the Tahsildar shall cause a list of persons, other than occupancy tenants, and protected lessees, who are deemed to be tenants under sub-s. (1) of S. 6 to be prepared for entry in the Record of Rights in accordance with the provisions of Chap. IX of the Code.

(2) After such list is prepared it shall be published in the prescribed manner and if no application is made by the landlord or the tenant or any other person interested within a period of six months of the date of such publication disputing the correctness or omission of any entry, such list shall be final.

(3) If an application is made to the Tahsildar by the landlord or the tenant or any other person interested in the prescribed manner within the aforesaid period, disputing the correctness or omission of such entry, the Tahsildar shall decide the dispute in accordance with the provisions of sub-s. (2) of S. 100 of this Act and such decision subject to appeal or revision under this Act shall, notwithstanding S. 106 of the Code, be final.

(4)....................."

3. The owners Krishnabai and Raghunath felt aggrieved by the entry of Ashru in the list of tenants prepared under S. 8. They, therefore, filed an application under S. 8 (3) of the Tenancy Act disputing that entry. The application was numbered as Revenue Case No. 72/59 of 1959-60. In that application it was alleged that Ashru was not a tenant but was a partner in cultivation, and that therefore, his name should be deleted from the list of tenants. The Tenancy Naib-Tahsildar heard the controversy. He recorded the evidence that was led before him. It is necessary to mention at this stage that Ashru died during the pendency of this proceeding and his heirs (viz. present respondents Nos. 1 to 11) were brought on record. The Tenancy Naib-Tahsildar held that the name of Ashru from the list of the tenants should be deleted as he was only a partner in cultivation. This order was challenged by some of the Legal representatives of Ashru. It appears that at that time Raghunath was dead and his heirs were also brought on record. The appeal before the Sub-Divisional Officer was numbered as 9/59 of 1964-65. The appellate authority dismissed the appeal on 28-3-1970. The legal representatives of Ashru took the matter in revision to Maharashtra Revenue Tribunal in Revision Application No. 1432 of 1970. The Tribunal allowed the revision on 15-12-1971. He held that on account of certain decisions in proceedings under S. 38 of Tenancy Act, it would not be possible for the landholder to contend that Ashru was not a tenant. I will refer to the nature of these proceedings in details at later stage. It is this order of the Maharashtra Revenue Tribunal that is being challenged before me.

4. Section 38 of the Tenancy Act allows termination of the tenancy at the instance of the landlord if the landlord needs the property for his bona fide personal cultivation. That section contemplates that the landlord should give a notice to that eff

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