Babu Gangaram Choudhari And Ors. vs M.R. Deshpande And Ors.
2002 Latest Caselaw 539 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition under Article 227 of the Constitution takes exception to the order passed by the Maharashtra Revenue Tribunal, Pune dated 23-2-1987 in Revision No. MRT-P.XII-4-1984 (TNC-B-289/84), Pune.

2. The petitioners are the landlords in respect of survey Nos. 142/2-A and 142/2-B, now renumbered as Gat No. 868/4 at Naigaon, Taluka Haveli, District Pune. This matter involves chequered history. Suffice it to mention that the respondents are claiming through their predecessor-in-title Sopana Choudhari. The tenancy authority initiated proceedings under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 for declaring Shankar Rambhau Sopana as the tenant in respect of the suit lands. Before the Tenancy Authority, the respondents disputed the title of the petitioners as landlords. To dispel that contention the petitioners placed reliance on the order passed by the Civil Court declaring Babu Gangaram Chaudhari, predecessor of the present petitioners, as owner of the suit land. In the said proceedings, the authority proceeded to examine the claim of the respondents and held that Shankar Rambhau Chaudhari was the joint manager of the family of the original tenant. The Additional Mamlatdar and A.L.T., Haveli by order dated 16th June, 1965, although decided the issue of tenancy and that the respondents having become deemed purchaser, however, observed that the respondents would be entitled to put the purchase only 2 acres and 15.1/2 gunthas out of the suit land since their holding, at the relevant time was 45 acres and 24.1/2 gunthas. Against this decision the matter was taken in appeal by both the parties. Both the appeals were allowed on 22-11-1967 and the matters were remanded to the trial Court to find out the exact holding of the tenant. Against this decision the petitioners preferred revision before the Maharashtra Revenue Tribunal. The Tribunal allowed the said revision application and was pleased to set aside the order passed by the Appellate Authority on the ground that the same was passed without affording hearing to the parties. The revision was, accordingly, allowed on 7-8-1969 and the matter stood restored to the file of the Appellate Authority. The Appellate Authority, after hearing both the sides, by order dated 30-3-1971, once again remanded the matter to the first authority for recalculating the holding of the tenant for the reasons recorded in the said order. Against this decision the petitioners carried the matter in revision before the Tribunal. However, the Tribunal by order dated 10-11-1971 was pleased to affirm the view taken by the Appellate Authority. Accordingly, the remand proceedings proceeded before the Tahsildar, Haveli in which the said authority by its order dated 24-1-1974 took the view that the tenant's holding was 63 acres and 38.1/2 gunthas and as such he was not entitled to purchase any portion from the suit land as his holding exceeded the ceiling limits. The Tahsildar, accordingly, declared the purchase ineffective. Against this decision, the matter was carried in appeal by the respondents being Appeal No. 112/76. However, the said appeal was dismissed by the Additional Collector, Pune by order dated 18-1-1977. Against this decision the respondents carried the matter in revision before the Tribunal which was, however, partly allowed on 12-12-1977 holding that the respondents were entitled to purchase only 4 acres and 22.1/2 gunthas out of the suit lands and the matter was remanded to the Agricultural Lands Tribunal for fixing purchase price of the said area. This authority took the view that the respondents total holding was 43 acres and 17.1/2 gunthas.

3. Before proceeding further to the other relevant facts, I think it would be proper to advert to the conclusion reached by the Tribunal in this order as it will have direct bearing on the question that requires to be considered in this petition. The same reads thus :

"In the instant case it is found that the applicants hold as owner 43-17.1/2 Gs. only. The remaining land included in the holding is cultivated by them as tenants. As the area held by them as owner is not equal to or in excess of the ceiling area. The embargo provided by section 32-B will not apply. On the contrary, the applicants must be held to be entitled to purchase so much part of the land as will raise their holding to the extent of the ceiling area, by virtue of sub-section (2) of section 32-A which provides as follows :-

32-A tenant shall be deemed to have purchased lands under section 32(1).

2. In the case of a tenant who holds land as owner below the ceiling area such part of the land only as will raise his holding to the extent of the ceiling area.

It is therefore, clear that in this case the tenant family is entitled to purchase an area of 4A-22.1/2 Gs. which is the difference between the area held by them as owner and the ceiling area.

In the result, the revision application is allowed partially and the orders of the courts below are modified to the extent of declaring the purchase to be effective only for an area 4A-22.1/2 Gs. out of the suit land. Consequently the matter is remanded to the Agricultural Lands Tribunal for determining the price of the said area under section 32-G of the Act.

There will be no order as to costs of the parties to the proceedings in the circumstances of the case."

4. Being dissatisfied, the respondents carried the matter by way of Writ Petition No. 869/79 in this Court. This Court was pleased to summarily dismiss the said writ petition. The order passed by this Court reads thus :

"Special Civil Application involves, pure question of facts and in view of concurrent findings of facts Special Civil Application rejected."

5. On dismissal of this writ petition, all contentions that were available to the respondents regarding merits of their submission in relation to their entitlement to purchase land over and above land admeasuring 4-A-22.1/2 Gs., obviously stood concluded against them. The effect of this order of the High Court, in my view, therefore, was to uphold the order passed by the Revisional authority holding that the respondents were entitled to purchase only 4 acres and 22.1/2 gunthas out of the suit lands.

6. Be that as it may, the petitioners were also aggrieved by the order passed by the revisional authority and, therefore, had filed Writ Petition No. 1589/79. This writ petition was essentially to assail the correctness of the view taken by that authority holding that the respondents were entitled to purchase an area of 4 acres and 22.1/2 gunthas as referred to above. In this writ petition, the issue that weighed with this Court was that the Maharashtra Revenue Tribunal had overlooked the fact that out of an area of 20 acres 21 gunthas held by the respondents as tenants, the respondents herein were declared as deemed purchasers of an area of 8 acres 16 gunthas on April 1, 1957 and if this area was to be included in the holding of the respondents, in that case the respondents were not entitled to be declared as purchasers of any area out of a suit land. This Court was, prima facie convinced about the grievance made by the petitioners, as is evident from para 5 of its judgment dated 6th October, 1980. The petitioners had argued before this Court that the tenancy authorities had recorded finding of fact that the respondents have purchased all tenancy lands except land at Survey Nos. 106/3 and 106/4 of village Naigaon. Since this Court was persuaded by the above said submissions, it observed in para 6 of its judgment, which reads thus :

"In my judgement, it would be proper if the Agricultural Lands Tribunal to whom the proceedings are remanded by the Maharashtra Revenue Tribunal is directed to determine whether the respondents were declared as purchasers of any area which was in their occupation as tenants on April 1, 1957 out of the lands situated at Village Naigaon. In case, the respondents are declared as purchasers of any area, then the questions would be whether including that area in the holding of the respondents, the holding would exceed the ceiling limit. In case, the Agricultural Lands Tribunal comes to the conclusion that the respondents have purchased an area of 4 acres 22.1/2 gunthas or more out of 20 acres 21 gunthas from village Naigaon, then obviously, the respondents cannot be declared as purchasers of any portion of land out of the suit lands. In case, the respondents have not purchased any area or area of less than 4 acres 22.1/2 gunthas tenanted to them, then naturally, they would be entitled to be declared as purchasers of that area of land which would raise their holding to the ceiling limit."

7. Consistent with the abovesaid view, this Court was pleased to allow the writ petition and set aside the order passed by the Maharashtra Revenue Tribunal albeit at the instance of the petitioners, and remanded the matter to the Agricultural Lands Tribunal for determination of the holding of the respondents in the light of the observations made above and to pass appropriate orders.

8. After the abovesaid order of this Court in Writ Petition No. 1589/1979, the matter proceeded before the Tahsildar which after considering all the relevant aspects has taken the following view :

"Thus from all the above facts it will be seen that Rambhau is the tenant. After him, Sadhu became a joint family manager. It is clearly mentioned in M.E. No. 191 Dated 20-2-64 that Sadhu is the joint family Manager and has purchased the lands of Shri Bokil viz. S. No. 120/5 and 121/2 as joint family manager. Thus the family is not separated. It is also quite clear that the holding of the tenant is 43-A-17/1/2 G. (16 acres at Naigaon and 27-17.1/2 at Tarade) as on 1-4-57. And also Shri Sadhu has purchased land under section 32-G out of S. No. 120/5 admeasuring 0.34 G. and 121/12 admeasuring 4-A-9-G i.e. total 5-A.036. Thus the total holding will be 43-A + 17.1/2G + 5-A.3-G =48-A 20.1/2 G and as such it exceeds the ceiling limit. Hence the tenants are not entitled to purchase the suit land. Though it is seen from the extract of V.F. VII-XII of Gat No. 525 that there is Annewari shown in it, but it is for the year 1974-75 and no evidence about the position of 1-4-57 is produced. On perusal of the extracts of V.F. VII-XII of the section No. 105 and 122/1, it is seen that Rambhau was the joint family manager. Afterward Sadhu become the Karta. It is also true that the Gat Nos. 1239, 494, 631/2, 742, 748 and 751 have been purchased by the tenants admeasuring 8A, 16G and so their total area exceeds the ceiling limits."

The Tribunal has in terms held that the respondents tenants have purchased lands at Naigaon from their erstwhile landlords which was more than 4 acres 22.1/2 gunthas. In the light of observations made by this Court, the respondents were, therefore, not entitled to purchaser any portion out of the suit land.

9. The respondents, however, carried the matter in appeal. The appeal Court affirmed the view taken by the Tribunal and was, therefore, pleased to dismiss the appeal preferred by the respondents by order dated 31st October, 1984. The respondents thereafter carried the matter in revision before the Maharashtra Revenue Tribunal. The Tribunal, by the impugned order, has entertained entirely new pleas and has adjudicated the matter on the basis of issues that were not germane inasmuch as the same were completely outside the scope of enquiry directed by this Court in its order dated 6-10-1980. To recapitulate, the limited enquiry directed by this Court was whether the respondents were declared as purchasers of any area of land which was in their occupations as tenants on April 1, 1957 out of the land situated at Naigaon and have purchased the same in excess of 4 acres 22.1/2 gunthas. Instead of limiting the adjudication to that question, the Tribunal has permitted the respondents to raise new pleas which, as a matter of fact, stood concluded on account of dismissal of tenants writ petition by this Court on 11-6-1979, being Writ Petition No. 869/79. The Tribunal, after considering the several other pleas raised before it, was pleased to allow the revision application preferred by the respondents and also pleased to set aside the order passed by the lower authority and declared that the respondents had become deemed purchasers of the suit land and they were entitled to purchase the lands admeasuring 20.33 acres. It is this decision of the Tribunal which is subject matter of challenge in this writ petition.

10. The main grievance of the petitioners is that the Revisional Tribunal has completely exceeded its authority under section 76 of the Act and has also transgressed the scope of enquiry directed by this Court in its order dated 6-10-1980. According to the petitioners, no other question except the one kept open by this Court could have been examined and entertained. The petitioners have, therefore, criticised the approach of the Tribunal in dwelling upon matters which are wholly irrelevant for deciding the point in issue being impertinent.

11. On the other hand Mr. Karandikar, learned Counsel for the respondents has vehemently supported the view taken by the Tribunal. According to him, the Tribunal cannot be faulted for having adjudicated the contentions which were pressed into service on behalf of the respondents. He submits that as a matter of fact, this Court had kept all the issues open as would be evident from the observations made in para 7 of the judgment dated 6-10-1980. Strong reliance has been placed on the observations made by this Court in the said decision which reads thus:

"Accordingly, the petition succeeds and the order of the Maharashtra Revenue Tribunal is set aside and the proceedings are remitted back to the Agricultural Lands Tribunal for determination of the holding of the respondents as indicated hereinabove and thereafter to pass appropriate orders. The Agricultural Lands Tribunal will naturally take into consideration the requisite provisions of the Act before passing the order."

12. Mr. Karandikar, learned Counsel submits that in view of this observation it was open to the respondents to raise all contentions which could be backed by the requisite provisions of the Act and that the same were raised before the Tribunal. Therefore, the Tribunal was justified in adjudicating upon those contentions to decide the matter in accordance with the provisions of the Act before passing the final order.

13. Having considered the rival submissions to my mind, on plain language of the judgment of this Court in Writ Petition No. 1589/79 dated 6-10-1980 which is reproduced above, it is more than evident that this Court remitted the matter for a limited enquiry. The enquiry was only in respect of the fact as to whether the respondents were declared as purchasers of any area which was in their occupation as tenants on April 1, 1957 out of the land situated at village Naigaon and that they have actually purchased those lands and the extent of purchase. It is plainly preposterous to contend that this Court had kept all the issues open to be adjudicated by the tenancy authority. In the first place, on reading the order of this Court dated 6-10-1980 as a whole, that submission cannot be countenanced. In any case, such an intention cannot be ascribed to the said order of the High Court. Moreover, it cannot be overlooked that the respondents had challenged the decision of the lower authorities which had taken the view that they were entitled to purchase only 4 acres and 22.1/2 gunthas out of the suit lands before this Court by way of substantive Writ Petition No. 869/79, which was summarily dismissed on 11-6-1979. By the dismissal of that writ petition, all contentions on merits of the controversy and more particularly regarding the entitlement of the respondents to purchase land in excess of 4 acres and 22.1/2 gunthas stood concluded. By no stretch of imagination this Court can be said to have enlarged the enquiry in the writ petition filed by the petitioners herein. In the circumstances, the argument advanced on behalf of the respondents that all questions could have been raised and ought to have been considered to pass appropriate order in accordance with law is wholly ill-advised. It is not in dispute that the respondents have accepted the order passed by this Court in their writ petition dated 11-6-1979. If that order has remained unchallenged, the orders passed by the tenancy Court declaring that the respondents would be entitled to purchase only 4 acres and 22.1/2 gunthas out of the suit land has obviously attained finality. That issue could not be reopened by taking advantage of the remand order passed by this Court in the writ petition filed by the petitioners and particularly when the remand was limited only for examination of one single fact. In any view of the matter the revisional authority has completely gone over board in declaring that the respondents were entitled to purchase suit land admeasuring 20.33 acres. If this be so, all contentions which weighed with the Tribunal and which were pressed into service once again before this Court, to my mind, are impertinent and not germane for deciding the present proceedings. On the other hand, the first authority as well as the Appellate Authority has recorded a clear finding of fact after investigating into the relevant materials after remand, that the tenants have purchased land in excess of 4 acres. 22.1/2 gunthas out of the lands situated at village Naigaon in respect of which they were declared as deemed purchasers as on April 1, 1957. This finding of fact is based on the materials on record. It is not possible to label the same either as perverse or manifestly wrong. A priori, the Tribunal in its revisional jurisdiction under section 76 of the Act could not have interfered with the same. For the same reason it will not be open for this Court to overturn the said finding of fact in exercise of writ jurisdiction under Article 227 of the Constitution of India. If this be so, no further enquiry is necessary as, this Court in its decision dated 6-10-1980 which has also attained finality, has found that in case the Tribunal comes to the conclusion that the respondents have purchased an area of 4 acres 22.1/2 gunthas or more out of 20 acres, 21 gunthas from village Naigaon, then obviously the respondents cannot be declared as purchasers of any portion of land out of the suit land. In this view of the matter, the decision of the Tribunal which is impugned in this writ petition cannot be sustained. In my view, the same is perverse.

14. Mr. Karandikar besides supporting the reasons indicated by the Tribunal in the impugned judgment also placed reliance on the decision of the Apex Court Digambar Adhar Patil v. Devram Girdhar Patil (died) and another, to contend that partition evidenced by entries in record of rights and corroborated by oral evidence of brother, such lands will have to be excluded and will have to be held as individual holding. However, to my mind, entertaining this contention would entail in travelling beyond the scope of enquiry ordered by this Court in its order dated 6-10-1980, which cannot be permitted. Moreover, in the present case, as observed earlier, two courts below have recorded clear finding of fact that the tenants family was not separated on or before 1-4-1957 and the lands were purchased by the Manager of their family. The authorities below have also recorded a clear finding of fact that Sadhu became the Manager of the joint family of the tenants and he purchased the lands of Shri Bokil viz. S. Nos. 120/5 and 121/2 as joint family Manager. This fact was established from M.E. 191 dated 20-2-1964. The remand ordered by this Court was related to these lands and the finding of fact in that behalf cannot be overturned. If this be so, no other enquiry was necessary as these lands admeasured 5-A-36-Gs. which was in excess of 4-A-22.1/2 Gs. No doubt the lower authorities have adverted to the record of rights in respect of Gat No. 525 showing annewari, but then it has observed that the entry regarding "annewari" is of 1974-75 and no evidence is brought on record about the position of 1-4-1957. In the first place, entry in the record of right relating to Gat No. 525 was wholly impertinent, as that was not the subject of enquiry after remand. Secondly, the entry only mentions "annewari" which could mean shares of respective member and not partition as such. Thirdly, that entry is for the period 1974-75 and not prior to 1-4-1957 and no evidence is adduced regarding the position on 1-4-1957. That entry pressed into service, therefore, is of no consequence.

15. Mr. Karandikar further contends that certain lands which were uncultivable have been taken into account for the purpose of computing the holding of the respondents. However, this question is being raised for the first time before this Court that too across the bar and, therefore, cannot be permitted. In any case this is not the enquiry that was directed by this Court while allowing the previous writ petition of the petitioners. Accordingly, this contention is not available to the respondents.

16. Accordingly, this writ petition succeeds with costs all throughout. The impugned order of the Maharashtra Revenue Tribunal is set aside and instead the one passed by the Additional Tahsildar, Haveli on 28-2-1983 is restored.

The parties may be provided with ordinary copy of this Court duly authenticated by Private Secretary of this Court.