Bhau Anna Patil Since Deceased ... vs Smt. Dhondibai Bhima Nhavi Since ...
2003 Latest Caselaw 917 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition under Article 227 of the Constitution of India takes exception to the judgment and order passed by the Maharashtra Revenue Tribunal, Bombay, Camp at Kolhapur, dated 8th December, 1989 in Revision Application No. MRT-KP-45/1986.

2. The land in question is situated at village Vasagade, taluka Karvir, district Kolhapur, bearing Survey Nos. 37(2B), 38(2B) and 38(6B), totally admeasuring 0.27 Ares only. The respondent is the landlady, whereas the petitioner is the tenant. The land was leased for sugarcane cultivation. The landlady filed application under Section 43B for fixation of reasonable rent for the year 1972-73, which was decided by fixing the reasonable rent at Rs. 490/- per annum. Later on, the petitioner tenant filed application under Section 43A(i)(b) read with Notifications dated 14th February. 1958, as amended on 8th October, 1969, for purchasing the suit land. That application was filed on 16th November, 1973. It appears from the record that the said application was allowed by the first authority on 31st July, 1974, and purchase price of Rs. 4,900/- was fixed to be paid by the petitioner in respect of the suit land. It appears that the said decision became final with the decision of the Revisional Court on 6th April, 1979. After the decision, the Petitioner has already paid purchase price, for which reason certificate has been issued on 5th June, 1980 mentioning that the petitioner has become owner of the suit land. At the same time, when the above proceedings were in progress, the respondent landlady had filed application on 26th December, 1978 under Section 25 read with Section 14 of the Act for possession of the suit land, on the ground that the petitioner-tenant was persistent defaulter for more than 3 years from 1972-73 till the filing of the application on 12th December, 1978. The application also asserts that after every default committed by the petitioner, the landlady had given intimation to the petitioner as required under Section 25 of the Act. Be that as it may, the said proceedings were decided for the first time by the tenancy authority on 29th June, 1981. The tenancy authority, however, did not grant the prayer for possession, but only directed the Petitioner tenant to pay the amount towards the arrears of rent. Against that decision, appeal was preferred by the respondent, which was also dismissed on 27th January, 1986. Eventually, the respondent carried the matter in revision before the Tribunal, which has allowed by the impugned judgment and order and ordered restoration of possession of the suit lands to the respondent.

3. Mr. Rege for the petitioners contends that the revisional authority has completely misdirected itself in allowing the revision application, much less in ordering restoration of possession. He submits that it is a matter of record that the petitioner had initiated proceedings for purchase of suit lands as back as on 16th November 1973 which application was allowed on 31st July, 1974. It is also a matter of record, contends Mr. Rege, that the said order has become final on 6th April, 1979 and pursuant to which the Petitioners paid the purchase price and obtained certificate from the competent authority on 5th June, 1980. According to Mr. Rege, with issuance of certificate on 5th June 1980, the tenants have become owners of the suit lands and, in which case, the action initiated by the Respondent landlady for possession of the suit lands on the ground of default for the earlier period cannot be proceeded further, as it is well-settled that if the tenancy is determined by the landlord with issuance of notice, the tenant would continue to occupy the lands as his estate in possession and it is only after the order of dispsosession is passed by the competent authority, that he would become unauthorised occupant. It is, therefore, submitted that since the tenant has already been declared as owner of the suit lands, in any case of the suit lands on the ground of default for the earlier period cannot be proceeded further, as it is well-settled that if the tenancy is determined by the landlord with issuance of notice, the tenant would continue to occupy the lands as his estate in possession and it is only after the order of dispossession is passed by the competent authority, that he would become unauthorised occupant. It is, therefore, submitted that since the tenant has already been declared as owner of the suit lands, in any case on 5th June, 1980 with issuance of certificate, after that date, the authority cannot proceed to dispossess the tenant on the ground that he had committed default for the earlier period. Reliance is placed on the decision of Division Bench of this Court in Namdeo Vishnu Joshi v. Raghunath Ganu Kadam .

4. On the other hand, Mr. Patil for the respondent landlady contends that no fault can be found with the conclusions reached by the revisional authority that the case was covered by Section 25(2) of the Act. He further contends that if that finding was to prevail, then the order as passed by the revisional authority for restoration of possession is unexceptionable one. He submits that the purported certificate at page 33 of the paper book of the present writ petition was also pressed into service before the revisional authority and the same was discarded by the revisional authority, as can be discerned from the observations made in paragraph 7 of its judgment. In other words, submits the learned Counsel, there is nothing on record to establish the fact that the petitioner tenant had become owner of the suit land before the order of dispossession came to be passed by the revisional authority. If that is so, no fault can be found with the conclusions reached by the revisional authority.

5. Having considered the rival submissions, to my mind, there is force in the submission advanced on behalf of the petitioners that it is only after order of dispossession is passed that the tenancy rights would stand terminated in law. However, in the present case, before the could happen, the petitioners tenants were already declared as owners by the Court of competent jurisdiction on the application filed by the tenant in that behalf on 16th November, 1973. The tenancy authority has allowed the said application on 31st July, 1974 fixing the purchase price of the suit land. That order ultimately became final with the dismissal of revision application filed by the respondent landlady on 6th April, 1979. Thereafter, the tenant appears to have deposited the purchase price and, as a consequence of which, certificate has been issued in his favour on 5th June, 1980. And once such a certificate is issued, the tenant would become owner of the suit lands. And once the tenant has become owner of the suit lands, the right of the original landlady to seek possession on the ground of default would come to an end, if there was no final order of dispossession before such date.

6. Understood thus, to my mind, the order of possession having been passed by the revisional authority for the first time on 8th December, 1989, that would be of no avail to the respondent landlady.

7. To overcome this position, Mr. Patil contends that there was nothing on record to establish the fact that the petitioners have become owners. He submits that the revisional authority has rightly discarded the purported certificate relied upon by the petitioners on the ground that the original certificate was not produced and the xerox copy produced raised serious doubts about it authenticity. Assuming that the Tribunal was justified in doubting the correctness of the certificate, as has been recorded in para-graph 7 of the impugned judgment, the appropriate course in that situation would have been to remand the case to the appellate authority to ascertain the factum of issuance of certificate in favour of tenant, as claimed by the tenant; and if it is established on record that such a certificate was issued on 5th June, 1980, it necessarily follows that the tenant has become owner of the suit lands, in which case, the order of dispossession cannot be passed by the Tenancy Court on the basis of application instituted by the respondent landlady, although in earlier point of time. Ordinarily, since 1 lie suit land is only 0.27 Ares, I would not have thought it necessary to remand the matter, but directed the parties to produce the relevant records on affidavit before this Court. But, instead, since Mr. Patil is disputing the factum of issuance of certificate in favour of the tenant, the appropriate course is to allow the parties to adduce relevant evidence in this regard before the appellate authority. In the circumstances, the impugned judgment and order passed by the revisional authority is set aside and the matter is remanded to the file of the appellate authority to examine as to whether the certificate has already been issued in favour of the tenant on 5th June, 1980 as claimed; and if that finding was to be recorded in the affirmative in favour of the tenant, then no further orders, would be necessary, for the reasons already mentioned above.

8. Petition disposed of on the above terms. The appellate authority is directed to decide the proceedings within three months from the date of receipt of writ of this Court. Rule made absolute on the above terms. No order as to costs.