Sanganbassappa Channappa ... vs Shri Vishwanath Shivlingappa ...
2002 Latest Caselaw 528 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition takes exception to the order passed by the Maharashtra Revenue Tribunal, Pune dated June 30, 1986 in Revision No. MRT.SH.II.1/86 (TEN 8 /36/85) Pune.

2. Briefly stated, the land bearing Gat Nos. 830, 824 and 807 situated at village Kini, Taluka Akkalkot, District Solapur was owned by Sangabassappa Manikshetty. Some time in the year 1941, the said Sanmgabassappa Manikshetty by his Will created a public trust in respect of the subject property and also provided maintenance to her widow Nillawabai from the income of the said land of the trust. The said Sangabassappa Manikshetty however, leased out the suit land to one Shivlingappa viz. father of the Respondent Nos. 1 and 2 and husband of Respondent No. 3 herein in the year 1950-51. It has come on record that in the Village Record mutation entry has been mae on 15-2-1954 to indicate that the subject property is a trust property. The said Sangabassappa Manikshetty however, expired on 3-11-1995, leaving behind widow Nillawabai. Under the Will executed by him, Nillawabai was to get maintenance. The parties, however, have proceeded on the premise that Nillawabai became the landlady after the demise of the husband Sangabassappa Manikshetty. The matter has been examined in that perspective. Be that as it may, it is Respondents' case that the said Nillawabai dispossessed Shivlingappa, their predecessor in title from the suit lands in the year 1956 which is before the tiller's day i.e. 1-4-1957. In the circumstances, Shivlingappa had filed application under Section 29(i) for restoration of possession of the suit land in which an exparte order was passed in favour of said Shivlingappa directing handing over possession of the suit lands to him. Against the said decision Nillawabai had filed an appeal in which both Nillawabai and Shivlingappa entered into compromise whereunder it was agreed between the parties that Nillawabai would retain possession of the suit land. This compromise has been recorded on 29-6-1959. However, soon thereafter Nillawabai expired on 15-7-1967. The said Shivlingappa predecessor of the Respondents filed Tenancy Case under Section 32 1B of the Act before the Tahasildar for restoration of possession. This application is undoubtedly filed against the predecessor of the trustees which was created by deceased Sangabassappa Manikshetti in respect of the suit land. The Tahasildar after adjudication of the matter by order dated 31-10-1973, allowed the application filed by the said Shivlingappa and ordered restoration of possession of the suit lands. Pursuant to this order, the said Shivlingappa is stated to have been put in possession of the suit lands, as is seen from the mutation entry. However, being dissatisfied by the above said order, the trustees preferred an appeal before the S.D.O. Solapur, which appeal was however dismissed on 5-6-1974. Consequently the trustees took up the matter in revision before the M.R.T., Pune bearing No. 290/1974. The Revisional authority allowed the said revision preferred by the trustees and was pleased to quash the proceedings initiated by Shivlingappa under Section 32 1B of the Act. It is not in dispute that this order passed by the Tribunal, negating the claim of restoration of possession set up by Shivlingappa, has attained finality, as the same has gone unchallenged. The predecessor of the Respondent in that sense suffered the said order during his life time. The said Shivlingappa died on 12-9-1975. The record indicates that Tahasildar fixed rent in respect of the suit land some time on 19-12-1975. Taking clue from this development, the Respondent Nos. 1 and 2 filed tenancy Case No. 6 of 1980 under Section 70(b) of the Act in the year 1980 before the Additional Tahasildar, Akkalkot asserting that they are tenants. The application does not specifically set out as to whether the tenancy is claimed prior to the tiller's day or on the basis of possession obtained by Shivlingappa, their predecessor, in the year 1973. Be that as it may, the said application was allowed by the Tahasildar on 16-9-1980. The Tahasildar held that the Respondents were tenants in respect of the suit lands. Against this decision, the trustees preferred an appeal before the S.D.O. Solapur, being Tenancy Appeal No. 14 of 1981. The said appeal was allowed by the S.D.O. Solapur by judgment and order dated 5-6-1982. In this decision the S.D.O. has opined that the amount received by the trustees from the Respondents was not towards rent but as mesne profits. The matter was carried in appeal by the Respondents. The appellate authority by its order however, remanded the case for fresh enquiry in terms of the observations made in the said order dated 5-6-1982. Accordingly, the matter was reexamined by the Tahasildar. The Tahasildar after reexamining the rival case, by order dated 12-9-1983 has held that the Respondents were not cultivating the lands personally as they were working in Panchayat Samiti as peons. The Tahasildar further held that they got the lands cultivated through the labourers. In the circumstances, the Tahasildar held that the Respondents were not tenants and were not entitled for declaration in that behalf under Section 70(b) of the Act. Against this decision the Respondents carried the matter in appeal being Tenancy Case No. 50 of 1983 before the S.D.O. However, it is relevant to point out that the Petitioners are relying on possession receipt by Talathi Kini mentioning that Gat Nos. 507, 830 and 824 have been taken over and handed over to the trustees. (Kabje pavati is also part of record). The appeal preferred by the Respondent was however allowed by the Assistant Collector, Solapur Division, Solapur by order dated dated October 31, 1984. The Appellate authority placed reliance on the mutation entry in respect of the suit lands pertaining to the year 1973 indicating that the possession of the suit land was handed over to the tenants. The Appellate Court has also adverted to the receipt produced by the tenants for the year 1976-77 that the trustees accepted the amount by way of rent of the suit land. The Appellate Court further took into account that the trust has not obtained any certificate under Section 88B of the Act, and, therefore, rights of tenant which had crystallized cannot be taken away. Consistent with these observations, the Appellate authority allowed the appeal and declared that the Respondents were tenants in the suit land. The Petitioners being dissatisfied by the said order, filed revision application before the M.R.T. Pune. The Tribunal has more or less toed the same line of reasoning given by the appellate authority for dismissing the revision preferred by the Petitioners. It is against this decision the present writ petition under Article 227 has been filed by the Petitioners.

3. The first contention raised is that the original tenant having entered into compromise with Nillawabai, it was not open for his successors to assert that they still continued to be tenants in respect of the suit lands claiming through the original tenant. It is contended that undisputedly the original tenant Shivlingappa was dispossessed prior to the tiller's day and that in the proceedings for restoration of possession the said Shivlingappa and Nillawabai, who was accepted to be landlady, entered into a compromise, and that compromise having gone unchallenged by him or for that matter by his successors, would be binding on them and denude the Respondents to claim that the original tenant was in possession of the suit lands on the tiller's day. It is further contended that in any case the original tenant had taken recourse to the proceedings under Section 32 1B of the Act and which proceedings were evidentially rejected by the revisional authority and that order has become final. It is therefore, contended that the relief for restoration of possession at the instance of the original tenant having been rejected and having attained finality, the Respondents who are the successors of the original tenant cannot assert tenancy rights in respect of the suit land. It is contended that mere factum of possession would be of no avail to the Respondents, assuming the same is sought to be established on the basis of mutation entry. The learned Counsel has further contended that the receipts issued by the trust by itself cannot create tenancy in favour of the Respondents. It is contended that in the application filed before the authorities below, the Respondents have come with a positive plea that they were claiming tenancy through their predecessor Shivlingallpa. In the circumstances, according to the petitioners, the present proceedings were nothing but abuse of process especially when the earlier proceedings had attained finality and were binding on the Respondents who were successors in interest or the original tenant.

4. Mr. Katikar for the Respondents contends that there is no infirmity in the view taken by the Appellate Court and as confirmed by the Revisional Court. According to him this is not a matter which warrants interference under Article 227 of the Constitution of India. He submits that the mutation entry pertaining to the year 1973 clearly indicates that the tenant was put in possession of the suit lands. The original tenant Shivlingappa was undoubtedly shown as tenant in the year 1950-51 by virtue of lease issued by the original owner Sangabassappa Manikshetti. It is therefore contended that tenancy would relate back prior to the tiller's day and therefore the Respondents being his successors in interest will have to be declared as tenants in exercise of power under Section 70b of the Act. He has also placed reliance on the factum that tenancy authority had fixed rent in respect of the suit land in the year 1975. According to him, this order has attained finality and was not challenged by the trustees. He has also placed strong reliance on the receipts issued by the trust clearly accepting the Respondents as tenants. Besides the receipt, he has also referred to observations made by the Courts below relating to the admission of one of the trustees that the Respondents were tenants. According to him, therefore, in such a situation no fault can be found with the courts below for having recorded finding of fact that the Respondents were tenants in respect of the suit land and therefore the present writ petition was devoid of merits.

5. Having heard the rival submissions, in my opinion, the Courts below have completely misdirected themselves in enquiring into the matter having regard to the admitted facts on record. From the facts which have gone unchallenged are that, after the demise of Sangabassappa parties proceeded with clear understanding that Nillawabai had become the landlady and since she was widow she was disabled landlady within the meaning of Section 32F of the Act. Besides, it transpires from the record that the original tenants Shivlingappa was dispossessed by Nillawabai in 1956 and that Shivlingappa took recourse to proceedings for restoration of possession before the tenancy authorities. In the said proceedings, however, Shivlingappa compromised with Nillawabai on 29-6-1959 and pursuant to the said compromise , the said Nillawabai continued to remain in possession of the suit lands. The fact remains, therefore, that since 1956 when Shivlingappa came to the dispossessed till the life time of Nillawabai upto 15-7-1967, she occupied and enjoyed the suit land and that Shivlingappa was not in possession thereof. However, it is only after the demise of Nillawabai, Shivlingappa instituted proceedings under Section 32 1B for restoration of possession, in the year 1970. This proceedings also came to be dismissed by virtue of order passed by M.R.T. on 5-6-1974. It is not in dispute that the said order has attained finality as the same was never challenged by the said Shivlingappa during his life time. It is also matter of record that even the Respondents have not challenged the said order dated 5-6-1974 passed by the Tribunal. The position that emerges from this situation is that Shivlingappa, though was inducted as a tenant in the year 1950, but came to be dispossessed before the tiller's day and that he was not in possession atleast till 31-10-1973 when the Tahasildar had passed order directing restoration of possession on his application under Section 32 1B of the Act. The fact remains however, that the said proceedings under Section 32 1B have been eventually rejected by the Tribunal. To put it differently, possession obtained by Shivlingappa in the said proceedings pursuant to the order passed by the first authority would be of no consequence for examining the claim with regard to the plea of tenancy set up by the Respondents. The said Shivlingappa original tenant, however, obtained possession of the suit lands in the year 1973 only on the basis of the order passed by the first authority which came to be annulled by the revisional authority and which decision has attained finality. The fact which has now been brought to the notice of this Court is that pursuant to the order passed by the Tribunal dated 5-6-1974 the Talathi Kini has handed over possession of the suit land to the trustees petitioners herein. Assuming that the Respondents are still in possession, that would not materially affect the decision making process in the present case - inasmuch as in the present case the Respondents have approached the tenancy authorities for declaration that they were the tenants. Such proceedings, to my mind, would be unavailable to the Respondents in the light of the fact that their predecessor had entered into compromise, which has gone unchallenged by their predecessor during his life time. As seen earlier, compromise was arrived on 29-6-1959 and Shivlingallpa died as late as on 12-9-1975. At no point of time Shivlingappa challenged the said compromise nor did he take any steps to challenge the said compromise. No doubt Shivlingappa had filed application under Section 32 1B of the Act for restoration, as is seen from the record that application has been dismissed by the revisional authority by order dated 5-6-1974. If this be so, the consequence is that there is no order in favour of Shivlingappa for restoration of possession. The fact that he obtained possession pursuant to the order passed by the first authority in proceedings under Section 32 1B would be of no avail for deciding the issue that arises for consideration. The Respondents could have successful in claiming to be tenants in respect of the suit land provided it was possible to establish that the said Shivlingappa was in possession on the tiller's day and in any case he was put in possession by court of competent jurisdiction pursuant to a valid order for restoration of possession passed under Section 32 1B of the Act. Understood thus, it is not possible to countenance the argument that the right of Shivlingappa to claim that he continued to be tenant in respect of the suit land subsisted merely because he was put back in possession in October 1973. If the predecessor of the Respondents had no right to continue in the suit lands as tenant, much less as deemed purchaser, then, surely the Respondents cannot claim better title then their predecessor. It is not in dispute that the application filed before the first authority by the Respondents is clearly on the basis that they were claiming tenancy in respect of the suit land through their predecessor, the original tenant Shivlingappa. This crucial aspect of the matter has been glossed over by the authorities below and that they have proceeded to examine the matter on the basis of some subsequent records which have come on record. Once the order passed by the tenancy authority under Section 32 1B directing restoration of possession to the original tenant Shivlingappa is reversed and the application stands rejected by the superior authority, then it is not possible to permit the Respondents to fall back upon the factum of original tenant having been put in possession pursuant to such order in the year 1973. In that sense, the mutation entry would be of no consequence to decide the controversy that arises in the present case. Be that as it may, the fact that the tenancy authority had fixed rent in respect of the suit land sin the year 1975 and which has gone unchallenged would again be of no consequence. In any case such event by itself cannot create any right of tenancy in respect of the suit land in favour of the Respondents. We have already noted that the Respondents are not claiming to be tenants in their own rights, but are claiming to be tenants through their predecessor Shivlingappa, which is evident from the application preferred by them before the first authority. If this be so, then the matter will have to be examined only in that perspective and if it is found that the Shivlingappa did not continue to be the tenant, then surely the Respondents cannot permitted to claim higher title than what was possessed by their predecessor Shivlingappa himself. Much reliance was placed by Mr. Katikar on the receipt issued by the trustees in favour of Respondents accepting them to be tenants. It is not the case of the Respondents that they were induced as tenants after the tiller's day or that they were claiming tenancy in their own rights. The receipts issued by the trust would therefore be of no avail. As rightly observed by the lower authority, that receipt cannot be treated as rent receipts as such.

6. In the present case however, as observed above, the Respondents claim to be tenants through their predecessor - Shivlingappa. The parties however, proceeded before the authorities on the premises that after the death of Sangabassappa Manikshetti his widow Nillawabai became the landlady. The authorities below have also adverted to this aspect while observing that since the landlady was widow on the tiller's day i.e. 1-4-1957, by virtue of provisions of Section 32 1A to 1F, stood postpone. In this context it needs to be observed that if the Respondents proceed on the premise that Nillawabai had become the landlady, then surely it was obligatory on the part of the original tenant Shivlingappa to give intimation regarding his intention to purchase the suit land within the statutory period provided under Section 32F of the Act. In this case it is common ground that no such intimation was given by the said Shivlingappa, the predecessor in title of the Respondents. The consequence of such failure is that the sale would become ineffective. In which case it will be open to the landlords to recover possession of the suit lands by taking recourse to provisions under Section 32P of the Act. On the other hand, if it proceeds on the premise, as was attempted to be argued on behalf of the Respondents that, the Respondents were put in possession in the year 1973, then they were tenants inducted after the tiller's day i.e. 1-4-1957. If this be so, then by virtue of Section 32 O of the Act, the Respondents were obliged to give intimation regarding their intention to purchase the suit lands within the statutory period. It is common ground that even such intimation has not been given by the original tenant or for that matter the Respondents at any point of time. The consequence of such failure is also provided in Section 32 O that the sale becomes ineffective. Even in that case the Respondents cannot be said to have become deemed purchasers. Taking any view of the matter, in my view, both the Courts below wholly misdirected in issuing declaration in favour of the Respondents that they are tenants in respect of the suit lands. On the other hand, I am disposed to restore the order passed by the first authority, after remand, in rejecting the application dated 12-9-1983, for the above said reasons. In my view, the proceedings regarding declaration of tenancy in favour of the Respondents are wholly ill advised. Assuming that the Respondents may be justified in contending that they are in possession, which claim is however falsified by the possession receipt issued in the year 1983, as referred to above, which is already part of the record; the possession in the first place would not be one as tenant within the meaning of the provisions of the Act of 1948. In any case, since the Respondents have failed to give intimation within the statutory period of their intention to purchase the suit lands they would be denuded of their right in this behalf and for which reason the consequences as provided under Section 32 O or 32 P for the purchase having become ineffective would follow. In such a situation, no fruitful purpose would be served by adjudicating the issue as to whether the Respondents were tenants as contended. However, I have already held as stated above that the Respondents cannot be said to be tenants.

7. In the circumstances, this writ petition succeeds. Orders passed by the Tribunal dated June 30, 1986 and the order dated October 31st 1984 are set aside and instead the order passed by the Additional Tahasildar and A.L.T. Akkalkot dated September 12, 1983 is restored. Writ petition is allowed in the above terms. No order as to costs.

Certified copy expedited.