JUDGMENT - These three matters can conveniently be decided by a Common judgment as practically the same and similar points are involved in them. In all these matters, the respondent is a public trust known as Shringarshi Sansthan, Ansing. Special Civil Application No 1370 of 1972 is filed by the erstwhile tenant Maroti, who was in possession of survey No. 51 (situate at village Ansing) as a tenant of the trust. The contention of the trust is that he did not pay rent for the years 1966-67, 1967-68 and 1968-69. Notices dated 27-6-1967, 10-6-1968 and 24-6·1969 were sent by the trust to the tenant terminating the tenancy for each of these defaults under section 19 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act (hereinafter referred to as the Tenancy Act). The notices were not complied with. The trust was compelled to file a suit to recover the rent and the decree dated 10-2-1970 has been passed. Thereafter the application dated 25-2-1970 was made by the trust for getting possession on the ground of non-payment of rent. That application was numbered as Rev. Case No. 3159 (10-B/69-70.) The main contentions that are relevant for the purpose of deciding these matters can very well be stated in brief. Maroti contended that the notices terminating the tenancy have Dot been properly served on him and, as such, the trust was not entitled to claim possession for non-payment of rent. He also alleged that the liability to pay rent has merged into a decree passed on 10-2-1970 and, as such, he cannot be stamped as a defaulter in payment of rent. The Naib Tahsildar did not grant possession. He held that on account of the excess payment of rent made sometime prior to 1965, the tenant was not in arrears of rent for 1965-66 1966·67 and 1967-68. An order was made that the tenant should pay real for 1968-69 failing which the tenancy shall stand terminated. Against this order, the Trust filed an Appeal No. 157 159-A/70-71. The appeal was dismissed. The matter was taken up before the Maharashtra Revenue Tribunal in Tenancy Revision Application No. Ten-A-149/72. The revision was allowed and an order in favour of the trust for delivery of possession was passed. It is this order that is being challenged in Special Civil Application No. 1370/1972. 2. The appeal was dismissed. The matter was taken up before the Maharashtra Revenue Tribunal in Tenancy Revision Application No. Ten-A-149/72. The revision was allowed and an order in favour of the trust for delivery of possession was passed. It is this order that is being challenged in Special Civil Application No. 1370/1972. 2. Special Civil Application No. 1371/1972 is with respect to two survey numbers 62 and 63 of Ansing. Jairam and Ganpat were the tenants. Jairam died on 3-5-1969. Notices dated 27-6-1911, 10-6-1968 and 24-6-1%9 have been sent by the landlord trust as these tenants were in arrears for the years 1966-67, 1967-68 and 1968-69. The trust has also filed a suit to recover the arrears and a decree dated 25-8-1970 has been passed. An application under section 19' read with sections 30 and 36 of the Tenancy Act was filed by the trust against the present petitioners 1 to 7 (who were heirs and legal representatives of deceased Jairam) and Ganpat, the second tenant. The allegation was that the trust was entitled to possession for non-payment of rent. Practically the same contentions that have been raised by Maroti were also agitated in this application. This application was numbered as Rev. Case No. 1/59-10-B of 69-70. Similar order was passed by the Tenancy Naib Tahsildar that the tenants were in arrears only for 1968-69 and that those arrears should be paid within three months failing which the tenancy shall stand terminated. This order was confirmed in Appeal No. 155/59-A of 1970-71 but it was set aside by the Maharasbtra Revenue Tribunal in Revision Application No. Ten-A-147 of 72. It is, this order that is being challenged. 3. Special Civil Application No. 1372/1972 is in connection with survey No. 66. It was in possession of Sadashio (petitioner) as a tenant. The contention of the trust is that Sadashio did not pay rent for the years 1963-64, 1964-65, 1965-66, 1966-67, 1967-68 and 196&-69 and that the trust has issued notices dated 29-6-1967, 10-6-1968 and 26-6-1969, terminating the tenancy for each of these defaults. The trust also obtained a decree dated 10-2-1970 for the arrears, and then filed an application for possession. That application was numbered as Rev. Case No.2/59-10-B of 69-70. Sadashio raised contentions similar to those of Maroti. The trust also obtained a decree dated 10-2-1970 for the arrears, and then filed an application for possession. That application was numbered as Rev. Case No.2/59-10-B of 69-70. Sadashio raised contentions similar to those of Maroti. The Naib Tahsildar recorded similar findings that the tenant Sadashio was in arrears for one year and that he should pay the amount of rent within three months, failing which his tenancy shall stand terminated. This order was confirmed by the appellate Court in Tenancy Appeal No. 156/59-A of 70-71. It was, however, set aside by the Maharashtra Revenue Tribunal in Revision Application No. Ten-A-148 of 1972. Sadashio is challenging this order. 4. In all these matters, the main contention of the petitioners is that they could not be treated as in arrears of rent particularly when the trust has secured or obtained decrees for the rent for the years 1966-67, 1967-68 and 1968-69. The contention of Shri Munshi is that the rent arrears have been merged into a decree and, as such, there could not be any arrears of rent. According to him, the only liability of the tenant was to pay the decretal debt and not the arrears. He relied upon the decision of Mr. Justice Abhyankar in Smt. Shantabai v. The Maharashtra Revenue TribunaJI. In that case the landlord gave notice dated 13-10-1960, alleging therein that the tenant has committed defaults in the payment of rent for the years 1955-56, 1956-57, 1957-58, 1958-59 and 1959-60. However, before issuing these notices, the landlord had already obtained a decree for the rent for 1955-56 and 1956-57. One more decree for rent for the year 1957-58 was also passed against the tenant. This fact has been taken into account and the controversy has been discussed in the following words: "The petitioner has obtained a decree for arrears of lease money for the years 1955-56 and 1956-57 and also costs in that decree. 'Some payment has been made specifically towards discharging that decree and that payment will have to be appropriated towards that decretal debt. The petitioner has also obtained a decree for arrears of lease money for the year 1957-58 and also costs in that litigation. The respondent tenant will have to in-charge his liability under that decree. But these two are decretal debts and the liability by way of arrears of lease money has merged in these decrees. The petitioner has also obtained a decree for arrears of lease money for the year 1957-58 and also costs in that litigation. The respondent tenant will have to in-charge his liability under that decree. But these two are decretal debts and the liability by way of arrears of lease money has merged in these decrees. I do not think, under the provisions of section 19 of the new Tenancy Act there is any right in the landholder to determine the tenancy of a tenant for non-payment of rent in respect of the period upto and inclusive of the year 1957-58. The rights will have to be. worked out for such alleged non-payment under the provisions of the Berar Regulation of Agricultural Leases Act if any of these provisions are available. It is thus clear that so far as termination of the tenancy for non-payment of rent is concerned, the landlord is entitled to issue a notice under section 19 of the new Tenancy Act in respect of the years 958-59 and onwards, and not with respect to anterior period" 5. Thus the matter before Mr. Justice Abhyankar has been decided on the hypothesis that the arrears under the new Tenancy Act can be considered only from 1958-59 onwards. Of course, there is an observation in the judgment that the arrears for 1955-56, 1956-57 and 1957-58 have been merged into decree. It appears that there is no specific decision as to whether on account of that merging the tenant can or cannot be treated as a defaulter in payment of rent. This is clear from the fact that the default prior to 1958-59 could not be decided and dealt with under the Bombay Tenancy Act, but under the Berar Regulation of Agricultural Leases Act. Hence, the question of arrears for the years 1955-56, 1956-57 and 1957-58 was not relevant while deciding the matter under the new Tenancy Act. Of course, there is an observation in the judgment of Mr. Justice Abhyankar, that liability for arrears upto 1957-58 is merged into decree. 6. Mr. Deshpande submitted that the above observation may be treated as obiter when the liability prior to 1957-58 was not at all relevant. He also argued that the views expressed in the observation may not be accepted. The landlord gets two rights if the tenant commits default in payment of rent. 6. Mr. Deshpande submitted that the above observation may be treated as obiter when the liability prior to 1957-58 was not at all relevant. He also argued that the views expressed in the observation may not be accepted. The landlord gets two rights if the tenant commits default in payment of rent. He can enforce the tenant's liability by filing a suit to recover the arrears. Secondly, he can also terminate the tenancy for such default. Mr. Deshpande submitted that the observation of Mr. Justice Abhyankar, would jeopardise the right of the landlord to terminate the tenancy if he tries to exercise the right to recover arrears by filing a suit and getting a decree. This submission appears to be worth considering. The Tenancy Act does not provide any remedy for recovering arrears of rent. Of course, the tenant is given an option to make payment if he is desirous of seeking a relief against non-payment. But the tenant may m may not exercise the option. In the latter case, the landlord would get possession for non-payment of rent. But what should happen to the arrears of rent? 7. Mr. Deshpande rightly posed a question as to what the landlord has to do if his conduct in filing a suit to recover the arrears is likely to be construed against him in a proceeding for seeking possession under the Tenancy Act. It is common experience that sufficient time is spent in final termination of the proceedings under the Tenancy Act. Sometimes such a proceeding goes on for years. Instances are not uncommon that by the time the landlord gets an order of possession, his claim for arrears of rent may become time barred. Mr. Deshpande, therefore, submitted that the landlord will have to forego the claim of rent if the filing of a suit and getting a decree for rent results in wiping off the default by merging the arrears of rent into" a decree. This contention no doubt, is relevant and deserves to be appreciated while deciding as to whether the default is wiped off or not by getting decree for arrears. However, it is not necessary to consider this question in details inasmuch as the peculiar facts· of this case was show that there is no scope for a submission of Mr. Munshr that the arrears in question should be treated as merged into decree. 8. However, it is not necessary to consider this question in details inasmuch as the peculiar facts· of this case was show that there is no scope for a submission of Mr. Munshr that the arrears in question should be treated as merged into decree. 8. The relevant date for considering the default in payment of rent would be the date on which notices were given. The tenant was under an obligation to pay arrears as per notice if he wanted to protect his possession. In Spl. C. A. No. 544/1963, there was already a decree (for arrears, of rent) in favour of the landlord when the notice dated 13-10-1963 was given. Here the question in different. Notices were given in June 1967, June 1968 and June, 1969. It is common ground that till all these notices were issued, no decree for arrears was passed against any of the tenants. The decrees were actually passed long thereafter. Thus, at the relevant time (when the notices were issued) there could not be any question of the rent liability having been merged into decree. In the present case, the tenant cannot claim any benefit simply because the landlord obtained decrees for arrears of rent at a later date. 9. The other contention of the petitioners in all these three petitions is that the notices have not been properly served. This contention, however is without substance. Maroti (Petitioner in Spl. C. A. No. 1370/ (972) has entered the witness-box. However, he does not specifically state that he did not receive notices. He expressed his failure of memory in that respect. Ganpat has not made any statement in the examination-in chief that the notices were not served as alleged by the trust. In the cross-examination he admits that in the Civil Court no contention has been raised that the notices were not received. Sadashio (Petitioner in Sp1. C. A. No, 1372/1972) has not at all stated that the notices have not been served upon him. In view of this state of evidence, it will be very difficult for Shri Munshi to urge that the notices would be bad for want of service. 10. Thus, the result is that all the three petitions are liable to be dismissed. Rules issued in Special Civil Applications Nos. 1370, 1371 and 1372 all of 1972 are discharged. The petitioners should pay the respondent's costs in all these matters. 10. Thus, the result is that all the three petitions are liable to be dismissed. Rules issued in Special Civil Applications Nos. 1370, 1371 and 1372 all of 1972 are discharged. The petitioners should pay the respondent's costs in all these matters. Rules discharged.