JUDGMENT B.P. Dharmadhikari, J.
1. By this writ petition under Article 227 of Constitution of India, the petitioner, legal heir of alleged tenant Ramchandra challenges the orders passed by the Tahsildar, Akola refusing to fix purchase price by holding that the said predecessor was not the tenant as also the order in appeal passed by Sub-Divisional Officer, Akola and the order in Revision passed by Maharashtra Revenue Tribunal, Nagpur upholding both these orders. The respondents in writ petition are owners in their capacity as legal heirs of original owner Narayan.
2. The controversy superficially can be stated thus. Legal heirs of deceased Ramchandra moved application on 7-9-1984 under Section 46 of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereinafter referred to as Tenancy Act, for fixation of purchase price before Tahsildar and President Agricultural Lands Tribunal, Akola contending that deceased Ramchandra was in possession of agricultural fields survey number 22/1 and survey number 23/1 of mouza Kaulkhed, Tahasil and District Akola. The parties are concerned with land admeasuring 12-22 acres from these survey numbers. These survey numbers originally belonged to Narayan and legal heirs of Ramchandra, contended that they have become owners because of provisions of Sections 46 and 49 of Tenancy Act. He prayed for grant of certificate under section is 46, 48 and 49 of Tenancy Act. Application was opposed by legal heirs of Narayan who pointed out that Sub-Divisional Officer has already held that Ramchandra was not the tenant and was not entitled to ask for fixation of purchase price. It is stated that this decision was reached in 1977-78 and thereafter owners took possession. They further pointed out that in said Revenue Case 12/59 (27)/72-73 decided on 24-7-1974 it is held that Ramchandra is not the tenant and said decision is binding on his legal heirs. They also pointed out earlier decree for specific performance obtained by deceased Ramchandra and sale of 56 acres in his favour by Narayan as per that decree. The respondents even challenged legality of that sale deed and also Will executed by Ramchandra in favour of applicants before Tahsildar. However, it is not necessary to look into those aspects for the purposes of deciding present petition. Tahsildar decided the matter on 13-2-1989 and found that tenancy is not established. He also found that the documents of Kabulait Patta dated 8-2-1944 and 13-4-1947 executed by deceased Narayan in favour of deceased Ramchandra were in fact money lending transaction. Tahsildar further found that applicants before him did not bring the land under cultivation and agriculture is not the only source of their livelihood. No details of any lease money paid by them to landlord/owner were furnished. In view of this he declined to fix purchase price. Raghunandan son of Ramchandra challenged this verdict of Tahsildar by filing appeal under Section 107 of Tenancy Act before Sub-Divisional Officer. Appellate Authority has decided the appeal on 19-2-1990 and recorded a finding that as per registered document of lease dated 30-4-1947 the tenure was ten years which expired in 1956 and thereafter Ramchandra was in unlawful possession of land in question. This authority also found that the controversy is concluded by order dated 24-7-1974 in which Ramchandra was held not to be the tenant of 12.22 acres. It also found that they have already purchased 56 acres of land and ceiling limit under the Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961 was 54 acres and hence they were not entitled to purchase/get more land. The Sub-Divisional Officer therefore maintained the order of Tahsildar. This order came to be challenged by Raghunandan son of Ramchandra in Revision Application 37/1990 before MRT at Nagpur under Section 111 of Tenancy Act, 1958. Learned Member of MRT made reference to earlier litigation and found that in Second Appeal decided on 6/7 August, 1969, decree for specific performance was given to deceased Ramchandra to the extent of only 56 acres of land as per provisions of Section 89(1) of Tenancy Act and it was also executed. The MRT found that the agreement of which specific performance was sought was for 68.22 acres and as purchase of 12.22 acres of land was not permitted in view of provisions of Section 89(1), Ramchandra or his heirs could not attempt to purchase said 12.22 acres by invoking Section 46 or 49-A of Tenancy Act. Learned Member felt that what is prohibited under Section 89(1) cannot be permitted to be achieved indirectly by invoking other provisions of Tenancy Act. He further found that in the process there was surrender of his tenancy rights by deceased Ramchandra in favour of landlord Narayan and, landlord is entitled to obtain possession thereof in view of provisions of Sections 20 and 21 of Tenancy Act. He therefore dismissed the revision. It is this order along with other two orders of lower authorities which form the subject-matter of challenge in present petition.
3. These facts in-turn demonstrate that what appears, superficially, to be simple is not so and reference to earlier litigation between parties is called for. Fortunately, there is no dispute between parties insofar as these facts are concerned. There is a judgment dated 6/7-8-1969 delivered by the learned single Judge of this Court (Hon'ble Justice Shri D. B. Padhye) in Second Appeal 367/1958 and Special Civil Application No. 61/1968 between parties. The facts can be conveniently drawn from this judgment. The dispute in Second Appeal was about 68.22 acres of land and deceased Narayan was appellant while deceased Ramchandra was respondent. Narayan was tenure holder of these agricultural lands and Ramchandra was lessee. On 30-4-1947 Narayan and Ramchandra entered into an agreement for sale whereby Ramchandra agreed to purchase entire 68.22 acres of land for consideration of Rs. 6000/- only. On same day there was another agreement between parties for period of 10 years for lease of these lands and Ramchandra was to be the lessee thereof. It appears that in year 1950 Narayan gave notice to Ramchandra to purchase all lands within one month but Ramchandra in reply asserted that under the terms of agreement he was not liable to do so and he could purchase it till 31st March, 1957. On 24th October, 1956 Ramchandra gave notice to Narayan to execute sale deed and when latter declined, a suit for specific performance vide Civil Suit No. 15A/1957 came to be filed and it was dismissed on 25-1-1958. Ramchandra filed Regular Civil Appeal and only point argued in that appeal was whether suit was filed within three years of the time fixed for performance of contract. The District Judge allowed the appeal and decreed the suit for specific performance. The Second Appeal 367/1958 was preferred by Narayan against this appellate decree. It is to be noted that the Tenancy Act mentioned above came into force on 30-12-1958.
4. Deceased Narayan appears to have filed one more Civil suit vide 212-B/1959 which was decided on 30-3-1959 and Ramchandra was held entitled to continue as tenant. Alleging Ramchandra has committed certain breaches and invoking Section 19 of Tenancy Act, on 24-3-1961 Narayan filed application for termination of lease against Ramchandra. This application was rejected by Naib-Tahsildar on 28-10-1963 and ultimately this issue also reached High Court in Special Civil Application No. 631/1968. This Special Civil Application is also decided along with Second Appeal 367/58 on 6/7-8-1969. The Hon. High Court found that breaches pointed out by Narayan were rectified and were not in existence on 28-10-1963 when Naib-Tahsildar decided the matter. It therefore dismissed Special Civil Application.
4A. Insofar as Second Appeal 367/58 is concerned, the High Court dismissed the same subject to certain observations. Narayan and Ramchandra were both permitted to apply to Collector and obtain permission under Section 89(1) of Tenancy Act and in case of grant of permission, Narayan was directed to executed sale deed in favour of Ramchandra within one month. In case of default, trial Court was permitted to execute such sale deed. If permission was refused, the learned single Judge recorded that respondent Ramchandra in second appeal was ready and willing to purchase lands to the extent prescribed by proviso to Section 89(1) for the whole of consideration agreed between parties and if such option is exercised, Narayan would execute sale deed in respect of such land in favour of Ramchandra and in default, Civil Court would execute the same. It was also stated (as has been recorded) that if Ramchandra was not willing to purchase land within prescribed limit for whole consideration, no sale deed would be executed and Ramchandra would be entitled to get back the amount deposited by him towards sale consideration in trial Court.
5. It appears that after this judgment on 14-1-1970 Ramchandra filed application under Section 89 for permission which came to be registered as R. C. No. 39/59/23 of 1969-70. However this application was withdrawn by him by moving an application on 29-3-1971 which came to be allowed on 20-5-1971. The decree was executed and Ramchandra purchased of 2/3 of ceiling area i.e. 56 acres on 20-8-1973 in Regular Execution Case 108/91. It is to be noted that at that time ceiling limit fixed under Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 was 84 acres and Ramchandra purchased 2/3 of 84 acres when agreement in his favour was for 68.22 acres. Ramchandra expired on 8-11-1973 while Narayan expired on 29-9-1975.
6. Narayan had filed on 28-3-1973 application under Section 89 read with Section 120(c) of Tenancy Act for eviction of Ramchandra on the ground that the ceiling limit was being lowered and Ramchandra purchase land in excess of such ceiling limit and therefore Narayan was entitled to restoration of possession. This was opposed by Ramchandra on the ground that he was not tenant and his possession was on the strength of agreement for sale. It was further stated that Tenancy rights, if any merged with his rights under part performance of contract and he was entitled to remain in possession and he was contemplating to move Civil Court for his rights regarding remaining land. It is further stated that as sale deed was already ordered to be executed by Civil Court, there was no question of transfer of ownership under Section 46 of Tenancy Act. The attempt of Narayan was dubbed as mala fide and deserving dismissal. In this view of matter, on 24-7-1974, Sub-Divisional Officer Akola held that Ramchandra was not tenant and ceased to be so in 1957 after expiry of period of 10 years. The application was held to be not tenable holding that land above 56 acres was excess/surplus land available for disposal according to provisions of Ceiling Act. This order was not challenged by petitioner and has become final against them.
The above-mentioned application for determination of purchase price under Section 46 of Tenancy Act was moved by petitioner on 7-9-1984 in this background.
7. I have heard Advocate Shri R.K. Deshpande for petitioner and Advocate Shri Kaptan with Advocate Shri Tathod for respondents.
8. By inviting attention to the judgment in second appeal, learned counsel for petitioner contended that Narayan himself accepted that lease and sale are independent transactions also independent of each other. He contended that on 7th August, 1969, when this Court decided the Second Appeal with special civil application, there was no dispute that Ramchandra was tenant. He further states that even application filed by Narayan on 28-3-1973 treated Ramchandra as tenant. He argued that as such Ramchandra was tenant under old Berar Regulation of Agricultural Leases Act, 1951 and as he was protected lessee under the old Act, he became deemed tenant under Section 6(2) of Tenancy Act. As such, by operation of law Ramchandra became owner in terms of Section 49A or Section 46 of Tenancy Act. He states that Section 42 permitted Ramchandra to purchase land upto 3 family holdings and therefore Ramchandra could have purchased entire 68.22 acres of land. He states that provisions of Section 89 were not at all relevant and applicable. He points out that Section 89(1) itself saves other provisions of the Act and as Ramchandra got ownership under such other provisions of the Tenancy Act. Ramchandra became owner of entire land leased out to him by Narayan. He states that Ramchandra did not purchase 56 acres under Section 89 but that application for permission under Section 89 was withdrawn by Ramchandra. He has taken this Court through the judgment delivered by Hon. Single Judge in Second Appeal/special Civil application in August, 1969. he further pointed out that when trial Court decreed suit of Ramchandra for specific performance i.e. on 30-7-1958 provisions of Tenancy Act were not in force and there was no question of purchase by lessee Ramchandra. He argues that even if tenant of Agricultural land is treated as non-agriculturist and permission under Section 89 of Tenancy Act is held to be necessary, still said permission is not required to purchase land upto 2/3 area of the prescribed ceiling limit. He argues that Ramchandra purchased 56 acres without permission only because of this position. The High Court judgment delivered on 6/7 August, 1969 did not prejudice or defeat the rights accrued to Ramchandra under Tenancy Act and theory of surrender worked out by M.R.T. is totally illegal and defeats the provisions of welfare measure in the shape of Tenancy Act.
9. As against this, Advocate Kaptan for respondents 1 to 6(heirs of Narayan) contended that Ramchandra and petitioner were/are not agriculturist and as such, provisions of Section 89 of Tenancy Act are applicable and this Court has permitted sale of only 2/3 area i.e. 56 acres in favour of Ramchandra. He contends that accordingly Ramchandra did purchase 56 acres and balance land i.e. 12.22 acres has reverted back to Narayan. He invites attention to the order of Sub-Divisional Officer dated 24-7-1974 to urge that said order finally decides the status of Ramchandra and it has not been challenged either by Ramchandra or his legal heirs. He has read out the relevant portion of said order and stated that Ramchandra has expressly stated that his tenancy rights merged with right of purchase under the agreement and Ramchandra himself came forward with case that he was in possession in part performance. He also points out that Ramchandra himself stated that there was no question of acquisition of ownership under Section 46 of Tenancy Act. He has relied upon the judgment of Hon'ble Apex Court between Vijayabai and Ors. v. Shriram Tukaram reported at 1999(1) Mh.L.J. page 1 and stated that as Ramchandra is held not to be tenant by Sub-Divisional Officer in his order dated 24-7-1974. Ramchandra or his legal heirs cannot now contend that Ramchandra was tenant and issue of said relationship is no more "res Integra" between parties. He further argues that it was not open to Ramchandra and is not open to present petitioner to contend that said issue should be re-examined. He states that not only res judicata but also principles analogous thereto estop the petitioners from raising it. He also argues that if non-agriculturist wants to purchase any agricultural land, permission under Section 89(1) is a must regardless of its area.
10. As is apparent from facts stated above, status of Ramchandra as tenant is not in dispute at least till 28-3-1974 when Narayan filed application under Section 89 and Section 120(c) of Tenancy Act against him. In view of the stand taken by Ramchandra or on his behalf in those proceedings, Sub-Divisional Officer on 24-7-1974 concluded that Ramchandra was not tenant. Prior to that, in Civil Suit 212-B/1959 decided on 30-3-1959 Ramchandra has been held to be tenant. On 24-3-1961 Narayan moved proceedings for termination of lease against Ramchandra and said proceedings have been ultimately dismissed by High Court on 6/7-8-1969 while deciding special Civil application 631/1968. This High Court has found that Ramchandra had rectified the breaches by 28-10-1963 i.e. the date of order of Tahsildar. Thus, Ramchandra continued as tenant even beyond August, 1969. In such circumstances status of Ramchandra after August, 1969 assumes importance. In this background, when the order of Sub-Divisional Officer dated 24-7-1974 is seen, it is apparent that said authority has examined the issue in the light of orders of High Court dated 6/7-8-1969 and also evidence adduced before him. In paragraph 10, he has found that Ramchandra had no land of his own before purchasing 56 acres of land of Narayan. In paragraph 11, he found that Ramchandra was tenant between 1947 to 1957 and then there was agreement for sale which ultimately resulted in a decree for specific performance. In view of this, Sub-Divisional Officer held that Ramchandra ceased to be tenant after 1957. Ramchandra or his legal heirs got the finding which they wanted. This order was challenged by Narayan in Maharashtra Revenue Tribunal but that revision came to be dismissed as abated on 30-1-1977 because Narayan died on 29-9-1975. It is apparent that certain important factors which had bearing on the issue have not been considered by Sub-Divisional Officer. However, the issue was for adjudication before competent authority and finding has been given after due trial. Ramchandra was in contact of Advocates since beginning because from the judgment of Second Appeal 367/1958 it appears that there was one more Second Appeal having number 876 of 1944 after decision of which the sale deed was agreed to be executed. The first Civil suit between parties is of year 1957 and it was filed by Ramchandra. In such circumstances, it cannot be said that plea taken by Ramchandra before Sub-Divisional Officer in reply to application dated 28-3-1973 of Narayan was without any deliberations. It is clear that after expiry of lease, Ramchandra continued in possession and, according to him, it was in part performance of agreement for sale specific performance of which came to be decreed subsequently.
11-12. The judgment of Hon'ble Apex Court reported at 1999(1) Mh.LJ.1(supra) is important in this respect. In said case question was whether a person who admitted that he was never tenant in compromise between parties and purchased in terms thereof part of land and order under Section 8(3) of Tenancy Act came to be passed in favour of landlord can be allowed to reagitate said issue again. Said person claimed right to purchase and restoration under Section 49-B and though initially it was rejected by Tahsildar, appellate authority i.e. Sub-Divisional Officer granted this relief which came to be maintained right upto Division Bench of this Court in L. P. A. The Hon'ble Apex Court while allowing the appeal of landlord has observed as under :-
8. Normally this Court would not interfere with any such finding of fact recorded but where the conclusions are arrived at by misconstruing the provisions of an Act and without appreciating the principle of estoppel, including adjudication of such right in early proceeding under the same Act between the same party this Court would not hesitate to reconsider such adjudication of facts. The facts are very clear in the present case. The question, whether respondent No. 1 was a tenant of appellants of the suit land came up for consideration under this very Act and the Tahsildar in a proceeding initiated under Section 8(3) passed an order deleting the name of respondent as tenant. The question, whether respondent No. 1 was tenant of appellants or not was directly in issue in this proceeding which was finally adjudicated by the competent authority, holding against the respondent. Section 49B refers to transfer of possession and ownership of lands to certain dispossessed tenant. This section is applicable only where a tenant referred to in Section 46 or 49A was in possession of the land on the appointed day but was dispossessed before the relevant date. Thus before a power could be exercised under it there has to be a tenant of the suit land who is dispossessed on the relevant date. But this fact was no more res Integra between the appellants and respondent No. 1 on the date suo motu notice was issued by the Tahsildar. As aforesaid, dispute if any regarding tenancy between respondent No. 1 and appellants of the suit land stood concluded in the proceedings under Section 8. The said order passed under Section 8 is appealable but no appeal was preferred. Thus so far the appellants and respondent are concerned, inter se between them as they were parties therein, this issue became final. In other words, on the date when Tahsildar exercised his suo motu power of initiating proceeding under Section 49B there was no material on the record of the Tahsildar to proceed under it, the only record of an entry of 1958-59 stood erased when name of respondent No. 1 was deleted by the competent authority under this very Act.
13. We find in the present case Tahsildar reopened the very question which finally stood concluded, viz. whether respondent No. 1 was or was not the tenant of suit land? He further erroneously entered into a new premise of re-opening the question of validity of the compromise which could have been in issue if at all in appeal or revision by holding that compromise was arrived at under pressure and allurement. How this question be up for determination when this became final under this very same statute. This is also not a case that respondent No. 1 made any application even under Section 46(1A)(a) for getting back the possession from the appellants or any application under Section 49B. So on the relevant date there did not exist any record for the Tahsildar to initiate proceedings suo motu except the record of 1958-59 entry which stood deleted. This apart, finding of pressure and allurement recorded was not even pleaded. No pleading has been placed before us which shows such a pleading though it was brought in by oral evidence. On the other hand, we find the compromise was acted upon as respondent No. 1 purchased part of the same suit land of an area of 10 acres 38 gunthas for the consideration of Rs. 7,000/-. In other words the compromise was acted upon under which respondent gained part of the same property. On the facts of this case and further when respondent did not raise any such issue for 11 years, we find exercise of power by Tahsildar suo motu under Section 49B to be without jurisdiction and unsustainable in law.
14. It would be impermissible to permit any party to raise an issue inter se where such an issue under the very Act has been decided in an early proceeding. Even if res judicata in its strict sense may not apply but its principle would be applicable. Parties who are disputing now, if they were parties in an early proceeding under this very Act raising the same issue would be stopped from raising such an issue both on the principle of estoppel and constructive res judicata. The finding recorded even by the High Court that possession by the landlord could only be by an order under Section 36(2) is also not sustainable as that only conceived of the case where tenant is dispossessed and landlord is seeking to get back possession of the suit land from such tenant. In the present case there was no such question. For this respondent No. 1 has to be at least a tenant and whether he is a tenant stood concluded, as aforesaid earlier, hence initiation of proceeding under Section 49B cannot be sustained in law.
15. Learned counsel for the respondent faintly referred to Section 6 of the Act to contend that respondent No. 1 would be deemed tenant. As aforesaid, Section 6 refers to a person lawfully cultivating any land belonging to another person to be held to be deemed tenant in case such land is not cultivated personally by the owner. In the earlier proceeding when application is made by the appellants under Section 8(3) of the Act it was specifically stated that appellants were cultivating the suit land personally and through respondent's father and later respondent No. 1 as their Saldar (Servant) and this question having been specifically pleaded order was passed under Section 8(3) holding respondent No. 1 not to be the tenant. In other words, respondent No. 1 could not be said to be the lawfully cultivating the land of another person as appellants (owner) were personally cultivating the land themselves or through their Saldars, hence, Section 6 would not confer any benefit to the respondent. Section 6 excludes a person to be deemed tenant in case the owner is cultivating the land personally."
In the facts of present case also when legal heirs of deceased Ramchandra filed proceedings again on 7-9-1984, they have not relied upon any new contract between themselves and legal heirs of Narayan. The issue of landlord tenant relationship between both deceased did arise for consideration before Sub-Divisional Officer after Narayan moved application on 28-3-1973 seeking restoration of possession under Section 120(c) of Tenancy Act. By the said section Collector, after summary inquiry, has been authorised to evict any person unauthorisedly occupying or wrongfully in possession of any land to the use and occupation of which he is not entitled under said provisions and the said provisions do not provide for eviction of such person. The issue regarding status of Ramchandra as tenant very much arose for consideration in this proceeding and Ramchandra took specific stand that he was not a tenant. Petitioner has not pointed out as to why this order dated 24-7-1974 should not be accepted as clinching the issue in view of the above referred judgment of Hon'ble Apex Court. For claiming ownership either under Section 46 or 49A of Tenancy Act the petitioner has to establish that Ramchandra was holding said 12.22 acres of land as tenant either on 1-4-1961 or 1-4-1963. As already stated above, order dated 24-7-1974 concludes that Ramchandra was not tenant after 1957. The Tahsildar who has considered subsequent application moved by legal heirs of Ramchandra has also independently found that there is no evidence produced before him to prove any such tenancy. He is further found that 12.22 Acres lands were not brought under cultivation and agriculture is not the only source of livelihood of applicant. This application of mind by Tahsildar is not shown to be perverse.
13. In view of this discussion, I find that the issue of landlord-tenant relationship between parties is properly appreciated by Tahsildar and other higher authorities. I further find that it was not open to petitioners to contend that they are tenants, that too after 10 years, in the face of earlier order dated 24-7-1974 passed by Sub-Divisional Officer. Hence, no case is made out for interference in writ jurisdiction. Writ petition fails and is dismissed. No costs.