Kishor Waman Darne And Ors. vs Tarabai Waman Gharat And Ors.
2002 Latest Caselaw 193 Bom

JUDGMENT

J.G. Chitre, J.

1. The petitioners are taking exception to the judgment and order passed by the learned Member of M. R. T. in TEN. A. 29 of 1988 dated 7-3-1989, by which the learned Member of M.R.T. dismissed the revision application preferred by the petitioner challenging the judgment and order passed by Assistant Collector, Panvel Division, Panvel in Tenancy Appeal No. 12/1987. The learned Assistant Collector had dismissed the said appeal filed.

2. The land in dispute is Survey No. 21, Hissa No. nil, admeasuring 3 acres, 12 gunthas and 8 Ares, situated within the revenue limits of village Ranwad, Tal. Uran, District Raigad. The litigation has chequered history since the case had travelled through the bouts in number of Courts in litigation. The present respondents had filed an application on 17-5-1974 under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as, Act for convenience) seeking a declaration that they are tenants of the suit lands. The said application was dismissed on 17-1-1976 in default of appearance of the present respondents on the date of hearing. The said order was, however set aside in revision petition preferred before S.D.O., Panvel Division, Panvel by his order dated 23-11-1976 and the matter was remanded back for fresh hearing according to law. The present petitioners preferred revision application against the said order to M.R.T. which was numbered as Revision Application No. TEN. A. 11/1977 which was dismissed by the Tribunal on 7-7-1977 thereby upholding the order of S.D.O., Panvel Division, Panvel.

3. After the case was remanded, the trial proceeded before Tahsildar, Uran. The present respondents led evidence in support of their case by examining the witnesses. The present petitioners also led evidence on their behalf. The learned Tahasildar after hearing the parties and after weighing the evidence led before him, by his order dated 31-1-1979, declared that the present respondents were tenants of the suit land and directed further that their names be recorded as tenants in the record of rights. Against the said order, the present petitioners filed an appeal before the Assistant Collector, Panvel Division, Panvel, which was numbered as Tenancy Appeal No. 12/1979. The said appeal was dismissed by the Assistant Collector by his order dated 12-5-1979 and the order of Tahsildar dated 31-1-1979 was confirmed. The present petitioners filed revision application which was numbered as TEN. A. 178/1979 before M.R.T. and the M.R.T. remanded the matter back to Assistant Collector, Panvel by his order dated 27-11-1979 for deciding the appeal on the question of limitation. Thereupon the Assistant Collector on hearing the parties set aside the order of Tahasildar by his order dated 24-4-1980. Feeling aggrieved by the said order, the respondents preferred revision application bearing No. TEN A. 27/21 before M.R.T. The M.R.T. again remanded the case back to the Assistant Collector, Panvel for deciding it afresh and for reconsidering the point regarding limitation and cause of action, on full appreciation of the evidence and facts as disclosed by the evidence on record. While remanding the case the Member of M.R.T. had appreciated the evidence and had also held that the respondents were in possession and occupation of the suit land and the period of limitation did not run against them. So also the application filed by the tenants was within time limit. The learned Member directed the Assistant Collector to decide two issues by his order dated 5-12-1981.

3-A. On remand this time, the Assistant Collector, Panvel decided the appeal by his order dated 28-5-1984 and set aside the order passed by Tahasildar and remanded the case back to him for fresh hearing and recording the evidence with liberty to both the parties to lead evidence, particularly, about the possession of the suit land. However the parties did not lead fresh evidence, oral or documentary. Thereafter, Tahasildar, Uran, declared the respondents as tenants by deciding the said matter and gave a direction that their names should be recorded as tenants in respect of the suit land in the record of rights. The said decision was challenged by the present petitioners by preferring Tenancy Appeal No. 12/87 which was decided by Assistant Collector, Panvel on 21-12-1987 whereby he dismissed the said appeal and feeling aggrieved by the said judgment and order passed by Assistant Collector, the present petitioners submitted Tenancy Revision Application No. TEN. A. 29/88 which was dismissed.

4. Shri Karlekar, Counsel appearing for the petitioners, placed reliance on the judgment of the Supreme Court in the matter of Madan Lal v. Mst. Gopi and Anr., wherein the Supreme Court held that:

"Though whether a person was in a fit state of mind to execute the adoption is a question of fact, where both courts below ignored the weight of preponderating circumstances and allowed their judgments to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and in coming to its own independent conclusions".

He submitted that in this case, two witnesses were examined by the respondents for declaring them to be tenants and two witnesses were also examined by the petitioners. Therefore, there was evidence of two witnesses from both the sides. He further submitted that in addition to that, the present petitioners had adduced documentary evidence which corroborated the evidence of the witnesses examined by them and the contentions raised by the petitioners. For the purpose of coming to the conclusion whether a particular claimant is a tenant of the agricultural land, following objects would be necessary to be considered seriously.

(1) Whether he was cultivating the land in question continuously for a substantial period?

(2) Whether his claim as a tenant has been appeased by the landlord by accepting the rent which would be indicated by the receipts issued by the landlord in that context or any documentary evidence or the overt act of the landlord?

(3) By auxiliary documentary evidence.

It has been submitted by Shri Karlekar in the present case that respondents who claims to be the tenants of the suit land did not adduce such evidence. He further submitted that the oral evidence which has been accepted by two Courts below and the M.R.T. did not prove in legal sense that the respondents were tenants of the suit land. He submitted that instead of weighing the evidence properly, the two courts below and M.R.T. had committed gross error of law in holding them as tenants and therefore, this Court be pleased to set aside the said judgments and orders by exercising the jurisdiction of superintendence in view of Article 227 of Constitution of India.

5. Shri Sabrad, Counsel appearing for the respondents submitted that the two Courts below and the Tribunal was justified in coming to the conclusion that the respondents were the tenants of the suit land and that was so proved by oral evidence adduced by them. He submitted that tenancy can be created by oral agreement also and the present case indicates that. He submitted that there has been concurrent findings of two courts below and the Tribunal in favour of respondents and therefore, this Court be pleased to dismiss the writ petition.

6. The jurisdiction and power of the High Court indicated by Article 227 of the Constitution of India are wider as well as restrictive. The word "superintendence" means that, it is the duty of the High Court to see that judicial behaviour of subordinate Courts and the Tribunals should be disciplined in legal parlance in administration of justice. Therefore, this Court will have to be careful in exercising the jurisdiction which is wider and stricter.

7. Therefore, this Court will have to consider whether the judgments and orders of two Courts below were with defect and erroneous in procedure? Chorus of voices of witnesses does not make out melody, what is necessary in it is intrinsic value of the truth. Therefore, while appreciating oral evidence, the Court has to inform itself as to whether a reasonable person could have accepted such evidence for coming to a conclusion that the party adducing such evidence has "proved" the fact which it is in law bound to prove? This Court will have to see whether Courts below and tribunal has accepted the evidence which the persons of reasonable prudence would not have accepted it.

8. Here respondents claim that they were tenants of the suit lands; therefore, they were obliged to prove that there was an oral agreement of tenancy in respect of the suit land in their favour which was acted upon by the parties which can be proved by their consequential conduct. What could be the consequential conduct is the acceptance of such status of the tenant by landlord by accepting rent either in cash or kind and executing receipts in that context. The existence of entries in the record of rights would be supporting said claim of status and auxiliary circumstance of taking crop, selling it in market, possessing agricultural implements and seen cultivating said land by adjoining land owners or the persons who couid have seen such activities in normal course of their routine business of life are corroborative circumstances. In the present case there are no receipts produced by the respondents to show that rent was given and accepted in cash or kind and receipts were passed in token of that. There is no evidence adduced for the purpose of showing that entries in record of rights have been entered in support of that. There is no documentary evidence in support of their claim that they were cultivating the said land as tenants. If a person is cultivating land, he is bound to grow crop on it and that crop would be consumed by him for his personal use and some of part would be sold for the purpose of satisfying other domestic needs for survival. There is no documentary evidence in that context. It is true that primary evidence comes generally in the way of oral evidence but when both the rival parties are placing reliance on oral evidence, the chorus created by voices cannot make out the tune of truth. It has to be proved, as law requires, as defined in Section 3 of Indian Evidence Act and the Court is obliged to have a process of reasoning for appreciating that evidence. The words "weighing, scanning and appreciating" mean that a process of reasoning has to be

followed for the purpose of finding out the truth by sifting the chaff from grain. The grain of truth is to be found by adopting correct process of appreciation of evidence.

9. In the present case the two Courts below and the learned Member of M.R.T. also fell in error by giving undue importance to the fact that the petitioners happened to be "Mukhtyar Vakil" by pointing out that he must have taken care to see that no record is created against him establishing the tenancy of the respondents. How a person can be condemned like this and how a person's personal character can affect the credibility of the evidence given by him when his evidence is acceptable on other counts. The person may be tricky in his professional activities or in his professional life, but that does not by itself mean that the evidence given by him is to be discarded or thrown out on that count alone. Apart from that if a person happens to be "Mukhtyar Vakil" that does not mean that he is bound to play tricks and he is supposed to be tricky for defeating the rights of other persons. Such approach was not required to be adopted by two Courts below and was not to be upheld by the learned Member of the Tribunal, but unfortunately it has been done so.

10. The two Courts below and the learned Member of the Tribunal also blamed the present petitioners for not creating a document when "Padvi" was given to the original claimant who happens to be a carpenter. When the original claimant based his case on oral agreement of tenancy, how the present petitioners can be blamed for not creating a document in respect of the said "Padvi" in which the original claimant was permitted to reside as a carpenter. This approach of scanning the evidence is also defective but unfortunately, that was adopted by the two courts below and was upheld by the learned Member of M.R.T.

11. The approach which has been adopted by the two Courts below and the learned Member in accepting the evidence of the respondents is also erroneous. When a Court is accepting the evidence of a particular party, it is bound to discuss the evidence of both the parties and to find out the merit or demerit of the evidence adduced by both the parties and it is obliged to adopt the process of scanning and weighing the evidence. Unfortunately in this case the evidence which has been adduced by the petitioners has not been considered, leave aside discussed. Without discussing the evidence of both the parties in relation to each other and adopting a process of reasonable appreciation of evidence, the two Courts below jumped to the conclusion that, the respondents had proved that they were tenants of the suit land and that has been adopted in the same style by the learned Member of M.R.T. Here comes the criteria for interference by the High Court. When this Court is exercising jurisdiction and powers in view of article 227 of Constitution of India the approach would be stricter and wider also. When this Court finds that there has been a defect in procedure and the judgments and awards the defective, illegal, this Court is bound to interfere in it.

12. The judgment and order which has been passed by the learned Member of M.R.T. upholding the findings of fact recorded by the two Courts below suffers from the defect of procedure. The two Courts below and the M.R.T. have accepted the evidence which a person of reasonable prudence would not have accepted and that acceptance of evidence has resulted in passing of the orders which are perverse and therefore, this Court has to issue a writ of Certiorari for

the purpose of quashing those judgments and orders for the purpose of maintaining the disciplined course of administration of justice, Thus, petition stands allowed with costs and the judgments which are assailed by this petition stands set aside. Rule stands made absolute.