JUDGMENT - S.B. BHASME, J.:---These are proceedings between the parties under section 70 (b) of the Tenancy Act. The question is whether the petitioner alone is the tenant or whether he along with his brothers and the heirs of his brothers are tenants. The dispute arises under the following circumstances : --- 2. One Bhiwa, father of the petitioner and other brothers of the petitioner, was the tenant of the suit land. It appears that on 30.12.1946 petitioner alone executed a registered rent note for three years in favour of the landlords, i.e., the Pathaks. His name came to be entered in the record of rights presumably on the basis of this rent-note. It appears that Bhiwa died on 18-7-1949. 3. The Pathaks, as landlords, made an application only against the petitioner for possession of the land under section 31 of the Act. The same was dismissed. They made a similar application for a certificate under section 88-C only against the petitioner. The same was dismissed. Petitioners brothers Shankar and Kondiba made an application against the petitioner for a declaration that they all brothers were the tenants of the land. This was under section 70(b) of the Act. The Pathaks, as landlords, were not made parties to this proceeding. But they appeared as witnesses. This application was dismissed on 9-1-1960 and the Court held that the petitioner alone was the tenant. Even the appeal against that decision was dismissed on 14-5-1960. 4. On 25-6-1964 the Pathaks made an application for a declaration that all the brothers, i.e., sons of Bhiwa, are the tenants of the land. The Tenancy Aval Karkun held that it was so. The Appellate Court re-recorded a finding that the petitioner alone was the tenant. The Maharashtra Revenue Tribunal in revision restored the declaration made by the Tenancy Aval Karkun in favour of the brothers, and set aside tenancy finding of the Appellate Court. 5. Mr. Karandikar, who appears for the petitioner, submitted that the proceedings for declaration are barred by res judicata. It is once held by the Tenancy courts in proceedings under section 31, 88-C and 70 (b) of the Act that petitioner alone is the tenant of Pathaks. This contention is certainly well founded. But on merits, I find that after Bhiwas death, all his sons including the petitioner would be entitled to claim tenancy rights. It is once held by the Tenancy courts in proceedings under section 31, 88-C and 70 (b) of the Act that petitioner alone is the tenant of Pathaks. This contention is certainly well founded. But on merits, I find that after Bhiwas death, all his sons including the petitioner would be entitled to claim tenancy rights. It is for this reason that I have refused to interfere with the declaration made by the Tribunal in favour of all the sons of Bhiwa. 6. Mr. Karandikar submitted that there was a partition in the family of Bhiwas sons even during the lifetime of Bhiwa. This was before 1949. The petitioner purchased the lands from his brothers which was allotted to them, perhaps in the family partition. It may be so. But the partition in the family of Bhiwa effected before Bhiwas death will not affect the rights of Bhiwas sons in tenancy. Bhiwa is shown to be the protected tenant under the 1939 Act. The record shows that from 1939 onwards till 1945 he was cultivating the land as a tenant. His name was entered as a protected tenant. The presumption is that he was a protected tenant till his death in 1949. His tenancy rights cannot be brought to an end, by the registered rent note dated 30-12-1946 executed by the landlords, the Pathaks, Mr. Karandkar tried to reply upon certain mutation entries under which the name of the petitioner entered as a tenant of the land. But this part of the record is not very clear. 7. Then Mr. Karandikar argued that under section 40 of the Tenancy Act before its amendment the landlords had to offer the tenancy to the heirs of the protected tenant. The landlords in the present case has not adduced any evidence for showing that he had offered the tenancy to all the sons of Bhiwa. There is no clear evidence on this point. But when Bhiwa died as a protected tenant, all his sons will have interest in the tenancy rights. Now the landlords also accept the position that all the sons of Bhiwa are the tenants of the land. The declaration made by the Tribunal is just and proper. 8. In the result the application fails and the rule is discharged with no order as to costs. ------