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 s. 33b of the tenancy act on March 27, 1962 for possession of the lands for bona fide personal cultivation, after obtaining certificate under s. 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 art. 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 inference 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. Prabhahar . 1970 72 Bom. L.R 695.. Vaidya J. in this case examined the scheme of s. 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 JJ.) in the case of Hariba Keshav v. Smt. Motibai . 1973 76 Bom. L.R 595. In this case the landlord died during the pendency of his appeal against an order rejecting his claim, for resumption. Shah J. speaking for the Court examined the relevant provisions and case law and held that, not the holding and bona fides of the deceased but those of his heirs on the date of their being brought on record become relevant in such cases and enquiry thereof afresh is imperative.

4. In the case of Babu Kallappa Khot v. Mhalsabai Malhar Kulkarni* . 1974 76 Bom. L.R 603., Bhasme J., however, took the view that the ratio of Hariba Keshav's case would be inapplicable to a situation where the landlord dies after succeeding in securing an order for possession from the Mamlatdar, as his heirs are entitled to support the order on grounds on which it was passed without being required to prove their own requirements and holdings. Mr. Dhupkar strongly relies on the ratio of this judgment. The learned Judge was dealing with a case where the landlord died during the pendency of the tenant's appeal, as in the present case, against an order for possession. The learned Judge relied on the judgment of the Supreme Court in the case of Phool Rani v. Naubat Rai . 1973 1 SCC 688, in support of his view. In Parvatibai Mahadeo Nerlekar v. Mahipati Tatyaba Mungse . 1974 Special Civil Application No. 2369 of 1970, decided by Joshi J., on August 14, 1974 Unrep.., Joshi J. differed from this view and held that Phool Rani's ease had no relevance to the point and does not bear out the assumptions made in Babu Kallappa's case. He, therefore, followed the ratio of Hariba Keshav's case. Hence reference of this case by Sawant J. to Division Bench which has come up before us for consideration.

5. In Phool Rani's case the Supreme Court was dealing with an appeal by the heirs of the original landlord in ejectment proceedings under s. 14(1)(e) of the Delhi Rent Control Act. The landlord died during the pendency of appeal against an order of the Rent Controller dismissing his claim on the preliminary point of the invalidity of the quit notice. The decision on this point was reversed in appeal after heirs of the landlord were brought on record. The Rent Controller, on remand, decreed the claim of the heirs and tenant's First Appeal was dismissed. The Second Appeal of the tenant to the High Court, however, was allowed, accepting his plea that on the death of the landlord during such eviction proceedings, the right to sue, perishes and does not survive to the heirs. The Supreme Court dismissed the heirs' appeal affirming the view of the High Court and upholding the said plea of the tenant. Chandrachud J. speaking for the Court, referred to the limitations to which landlord's such right is exposed under the Delhi Act and held that the right of any landlord to claim ejectment from the tenant under s. 14(1)(e) of the Delhi Rent Control Act was of a personal nature attracting maxim, actio personalis moritur cum persona, and on the death of such landlord such right to sue does not survive and, therefore, proceedings abate on his death, leaving it open to the heirs to claim ejectment for their own requirements in fresh proceedings.

6. In the first instance, this case is not a direct authority on any point arising under the provisions of Bombay Tenancy Act. Secondly, the case analyses the provisions of the Delhi Rent Act and only lays down that such ejectment proceedings, being of personal nature, abate on the landlord's death. Thirdly, the Supreme Court has affirmed and not reversed the judgment of the High Court in the above case and the cause of action of original landlord was found V not to have survived for the heirs. With respect, Babu Kallappa's case proceeds on wrong assumptions on both these points.

7. Fourthly, this case also does not lay down, as assumed, that the heirs can defend further proceedings and appeal etc., on findings relating to the personal qualifications of the deceased landlord. Passages from paras. 13 and 14 of the Supreme Court judgment in Phool Rani v. Naubat Rai quoted at page 608 in Bobu Kallappa v. Mhalsabai, with respect, do not seek to lay down any such rule of law. These are intended to explain the ratio of certain cases cited before it and analysed categorywise by the Supreme Court, in paras. 15 to 19. As made clear in the opening passage (of para 13) itself, the discussion was intended to indicate how these categories and the cases were “to be distinguished”. Supreme Court has been at pains to emphasise the true nature of this discussion in concluding passages as follows (p. 2114):

“We have referred to some of the decisions in the three categories, not with a view to determining their correctness but only in order to show that they rest on different principles or could be explained in reference to such principles.”

8. The judgment further proceeds:

“We are concerned with a matter not involving the application of any of those principles.”

and concludes:

“For reasons already stated, we are of the view that considering the nature of the claim made in the instant case and the bundle of facts which constitute the plaintiff's cause of action, his right to sue will not survive to his legal representatives”.

9. With respect, as held by Joshi J. the ratio of Phool Rani's case does not seem to have any application.

10. It is true, scheme of s. 33b of the tenancy act also does not admit of resumption by any claimant unless he satisfies that—(1) the claimant needs the land, (2) such need is bona fide and (3) he is in a position to personally cultivate it and (4) his holdings qualify him to so claim. This provision, being an inroad into protections afforded to the tenants, made in the interest of those, considered to be “the small landholders” cannot be availed of, unless the above qualifications are strictly proved. Ordinarily, with the death of the landlord during pendency of tenant's appeal or revision against an order of resumption, the very foundation of the claim gets extinguished and the tenant has hardly anything further to make out to succeed as against the heirs. Courts can ill afford to ignore such vital post-suit developments and would ordinarily be impelled to accept the tenant's appeal or revision. But the right of certificated landlord under s. 88C has been held to be heritable by this Court in Parvatibai Ramchandra v. Mahadu . 1967 69 Bom. L.R 883.. Claims under s. 33B, however, cannot be initiated beyond a specified date and the heirs cannot institute fresh proceedings where landlord dies after expiry of such date. Lest such rights of the heirs, becomes illusory, the proceedings initiated by the deceased before the specified date, have got to be allowed to be continued by his heirs, enabling them to exercise such rights. This way alone the legislative intendment can be effectuated. This necessarily excludes the application of the abatement rule, ordinarily applicable to personal actions, alluded to in Phool Rani's case. This explains the provisions enabling the heirs to be brought on record.

11. Ordinary rule of lis being decided on the facts as existing on the date of initiation thereof, is rendered inapplicable to such a situation. Rather, situations like these attract the powers of the Courts, whether at original, appellate or revisional stage, to take notice of the post-suit developments, recognised in the cases of Lachmeshwar v. Keshwar Lal . [1941] A.I.R F.C 5.; Nuri Mian v. Ambica Singh . 1916 I.L.R 44 Cal. 47. and Rustomji v. Sheth Purshotamdas . 1901 I.L.R 25 Bom. 600, B.C 3 Bom. L.R 227.. These powers can be exercised to do complete justice between the parties and to mould relief in the light of subsequent developments which render granting of original relief impracticable or unsustainable. The quality of the change in such circumstances during the pendency of litigation is different from the one discussed ins the case of Madhav Vithoiba v. Dhondudas . 1966 68 Bom. L.R 524.. An order of possession passed by the Mamlatdar in favour of landlord cannot be sustained, if the landlord dies during the pendency of proceedings and claim also cannot be rejected or allowed without enquiry into the holdings and bona tides of the heirs. Though, therefore, claims under s. 33B also are of personal nature, proceedings do not abate with the death of the claimant but enure for the benefit of the heirs. Heirs, however, cannot succeed in claiming resumption unless they prove their qualifications as to bona fides and holdings, by reference to the date of their being brought on record. That would be the deemed date of their application. This should be so without regard to whether the landlord dies before, or after, succeeding at any stage. In either case, resumption is not permissible unless the claimant proves his personal qualifications. Question of defending estate and, benefits arising thereto, under a decree cannot arise till the litigation goes through all the stages at the choice of the parties and order becomes final and immune from any interference. That the death of such landlord, after such termination, but before execution, relieves the heirs from proving their qualifications, is besides the point as such accidents are always implicit in any litigation. Section 37 of the Act however gives some relief to such tenants by enabling them to claim restitution when land is not cultivated personally by such heirs.

12. Following the ratio of Shankar Gopal v. Prabhakar and Hariba Keshav v. Smt. Motibai, the rule is liable to be made absolute. Order of the Tribunal set aside and that of the Sub-Divisional Officer restored.

Per Mukhi, J.:—

13. I agree that this Special Civil Application be allowed, the order of the Tribunal set aside and that of the Sub-Divisional Officer restored. I have, however, to make a few observations on the question of limitation.

14. It requires to be noticed that Tenancy Suit No. 231 of 1962 with which the proceedings commenced before the Tenancy Awal Karkun under s. 33B of the Bombay Tenancy and Agricultural Lands Act, 1948, was filed in 1962 and the order of the Tenancy Awal Karkun is dated October 14, 1964.

15. The appeal being Tenancy Appeal No. 1 of 1969 filed by the petitioner was, however, presented only on January 3, 1969, that is to say more than four years after the decision of the Tenancy Awal Karkun. The period prescribed for an appeal under s. 74 is to be found in s. 79 of the Act, by reason of which every appeal or application for revision under the Act is to be filed within a period of sixty days from the date of the order of the officer concerned.

16. There is, no doubt, therefore, that it was required of the appellant to show how the appeal was in time.

17. The appellant sought to do this by an averment in the memorandum of appeal in the following words:

“The Tenancy Awal Karkun has not yet intimated the decision of the suit to the appellant. Hence the appeal is in time.”

18. It may be mentioned that when the Sub-Divisional Officer, as the Appellate Court, dealt with the appeal, he proceeded on the basis that the appeal was in time, because there was nothing on record to show that the order was communicated to the parties. It requires to be noticed that the Sub-Divisional Officer did not (as erroneously assumed by the learned Member of the Maharashtra Revenue Tribunal) consider the contention of any delay as such. The learned Member of the M.R.T dealt with this aspect by observing that in the memo of appeal presented to the Court of the Sub-Divisional Officer, Junnar, there was no prayer for condonation of delay.

19. Now, it is substantially clear that if the order of the Tenancy Awal Karkun was not communicated to the parties or otherwise known to them, then it could be properly contended and argued that the appeal was in time, because the period of limitation had not begun to run.

20. It is true that s. 79 of the Act prescribes the period of sixty days from the date of the order, but a Division Bench of this Court in Bhalchandra Parvatishankar v. Muljibhai Bhagabhai has held that the words “date of the order” could properly be construed as the date from which the parties were fixed with the notice of the order. It may be mentioned that the Supreme Court has upheld this view and it was held in Harish Chandra v. Dy. L.A Officer that:

“Where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned.”

21. In that case, the Supreme Court was considering the date of the Collector's award as appearing in the Land Acquisition Act and the Court went on to say that (p. 1503):

“…the date of the award cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office: it must involve the consideration of the question as to when it was known to the party concerned either actually or constructively”.

22. In a later judgment of the Supreme Court in the case of State of Punjab v. Qaisar Jehan Begum the decision in Harish Chandra's case was approved and the question posed was “When did the respondents know the award either actually or constructively?” It was also held that the knowledge of the award did not mean a mere knowledge of the fact that an award had been made but the knowledge must relate to the essential contents of the award and that even these contents may be known either actually or constructively.

23. It would appear to me that in considering the question of limitation as to whether an appeal or a revision application is in time, what the relevant authorities have to consider is not only whether the order appealed against was formally communicated to the parties concerned, but also when the parties concerned actually came to know about the particular order. In other words, on the principles of natural justice and fair play, formal communication is not the criteria. If it could be shown that the party concerned had knowledge of the making as well as the basic contents of the order appealed against, then the limitation must run notwithstanding the fact that a formal communication, by serving a notice, has not been effected. In the case before us, there is nothing to show that the order was formally communicated. Unfortunately there is no material either from which it could be concluded that the appellant knew about the order and its contents at any particular time.

By the Court:

24. Rule is made absolute. Costs costs in the cause.

25. Rule made absolute.