Parashram Bhikaji Raut And Ors. vs Maharashtra Revenue Tribunal And ...
2004 Latest Caselaw 1285 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. Heard learned Advocate Z.A. Haq for petitioner, learned Advocate Sable for respondent Nos. 2 and 3 and learned A.G.P. Mr. Mandpe for respondent No. 1.

2. By this petition under Articles 226 and 227 of Constitution of India the petitioner, who claims to be a tenant, is challenging orders passed by Sub-Divisional Officer, Balapur and Maharashtra Revenue Tribunal, Nagpur holding that the petitioner is not tenant of field Survey No. 17 of Mouza : Alegaon, Tq. Patur and reversing the order of Tahsildar, Patur by which the said Tahsildar had held that the original petitioner Parashram had right of the tenant holding suit land and was entitled to purchase it under Section 41 of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as Tenancy Act). During pendency of the petition Parashram has expired and his heirs have been brought on record as per order dated 26-11-1992. It appears that Parashram presented the application under Section 50 of the Tenancy Act before Tahsildar, Patur for fixation of purchase price of field Survey No. 79 measuring 3.39 acres of village Alegaon contending that he is tenant of that field and his tenancy is created after specified date as given under Section 46 of the Tenancy Act and it is renewable every year. The Tahsildar after recording evidence of Parashram, one Udebhan Ganpat. Ganpat Bajirao Mahalle and original respondent Yashwant and his Mukhtyar has recorded finding that the petitioner was tenant who had right to purchase the said field. It appears that Yashwant expired in the meanwhile and his heirs filed appeal under Section 107 of the Tenancy Act before the Sub-Divisional Officer, Balapur. The said authority relied upon the order sheet dated 22nd March, 1971 recorded by Tahsildar and Agricultural Lands Tribunal in Revenue Case No. 59(13-A) 1963-64 of Mouza Alegaon and held that Parashram was not tenant but a partner and therefore, he had no right to purchase the suit field. The Sub-Divisional Officer therefore, allowed the appeal. Parashram challenged this order by filling revision under Section 111 of Tenancy Act before the Maharashtra Revenue Tribunal, Nagpur and the M.R.T. upheld the order of S.D.O. by observing that the petitioner was cultivating the suit land as partner and not as a tenant.

3. The unsuccessful tenant Parashram thereafter filed this petition. The petition has been admitted by this Court for early hearing on 16-7-1992.

4. Advocate Haq appearing for heirs of the original tenant Parashram contends that the order of Tahsildar was just and proper and required no interference. He contends that the fact that tenancy was renewable every year has been lost sight of and doctrine of res judicata has been wrongly applied. He contends that the alleged statement on which reliance has been placed to hold that there was not to other contract between Parashram and Yashwant in relation to the suit land after the year 1949-50 is not correctly considered and has been interpreted wrongly in favour of Yashwant. He read out that statement to substantiate his contention and alleged that by said statement Parashram only admitted that he remained in possession since 1949-50. He further states that even reliance upon order-sheet dated 22nd March, 1971 is misconceived because the said order-sheet is passed in the proceedings in which old revenue records have been considered and the learned Tahsildar has considered the position which came into existence thereafter and has had that Parashram was tenant. According to him, the new developments which are after earlier order between parties has been lost sight of by the S.D.O. as also the M.R.T. He points out that on record there are record of rights and 7/12, extract which reveal that Parashram was tenant of Trademark up to the year 1979-80 and these documents clearly show that the tenant was paying rent of Rs. 150/- every year and the tenancy was for the period of one year. He therefore, contends that these documents for subsequent period pointed out a new contract between Parashram and Yashwant, therefore, rejection of claim of Parashram only invoking Doctrine of Res judicata is misconceived and shows total non-application of mind.

5. As against this Advocate Sable appearing for respondents heirs of deceased Yashwant contends that the S.D.O. as also M.R.T. have correctly considered the position and have recorded finding that the deceased Parashram was partner and not tenant. He contends that if agreement of tenancy is to be pleaded, the date or year from which Parashram became tenant and its terms and conditions ought to have been pleaded and observations of M.R.T. in this respect are correct. He further pointed out that if it is the case of the petitioner that the status of Parashram as partner was altered mutually by parties subsequently such a change ought to have been expressly pleaded with necessary details. He therefore, contends that the view taken by M.R.T. in revision is just and proper. He contends that the S.D.O. has correctly appreciated the situation and the said appellate order could not have been interfered with in the revision. He therefore, contends that the findings reached are neither perverse nor there is jurisdictional error. He therefore, submits that there is no scope for interference in the writ jurisdiction.

6. Having heard both the sides. It is apparent that there was litigation earlier between the parties vide Revenue Case No. 59(13-A) 63-64 of Alegaon and in this proceedings on 22-3-1971 the Tahsildar and Agricultural Lands Tribunal has recorded statement of Parashram in which Parashram expressly denied his tenancy and has stated that he has been cultivating the suit land from 5-6 years in partnership and not as a lessee. The Tahsildar has further recorded that, thus, Parashram does not become tenant of the land under Section 6 and hence, ownership cannot be conferred upon him. In this case, the Tahsildar therefore, dropped the proceedings. Thus, it will be seen that in the face of this order Parashram again initiated proceedings for same purpose. It appears that earlier order dated 22nd March, 1971 passed by Tahsildar has not been challenged. In view of this position the said order becomes final and is binding on the parties. The M.R.T. has considered this aspect in para No. 1 of its order and has held that the S.D.O. was right in holding that the said order operates as res judicata.

7. Advocate Haq has relied upon the judgment of Hon'ble Apex Court reported at 2004(4) S.C.C. 281, Escorts Farms Ltd. v. Commr. Kumaon Division, to contend that plea of res judicata is available only when there is contest on issue between parties and if there is conscious adjudication of that contact by the Court, He contends that in the facts of the present, case from order dated 22nd March, 1971 it is apparent that there was no contest between parties and therefore, there is no conscious adjudication of the necessary issue by the Tahsildar. He therefore, contends that the said order cannot operate as res judicata between the parties. Perusal of the reported ruling clearly show that it was the case for which proceedings were under the Ceiling Act and the Hon'ble Apex Court in paragraph 52 has recorded that the proceedings were not adversarial as are proceedings in the civil suit. Observations in paragraph No. 56 on which reliance has been placed by the learned Counsel are required to be understood in this background. Apart from this in the facts of the present case, Parashram appeared to the proceedings before the Tahsildar which was for conferral of ownership upon him and initiated suo motu by the Revenue Authority. In this proceedings he has given statement that he is not tenant but a partner. The proceedings were therefore dropped. It is therefore, clear that in those proceedings contest between the parties was possible and the nature of the proceedings were adversarial. In such circumstances the above law settled by the Hon'ble Apex Court is not applicable here and reliance upon the said ruling is misconceived.

8. Advocate Haq has further pointed out that the period to which the said order dated 22nd March, 1971 relates is totally different and in view of the documents on record and the stand taken by Parashram that tenancy is yearly and renewable every year, subsequent contract of tenancy every year is pleaded and pointed out. He contends that the plea of res judicata ought not to have been applied to dismiss the application moved by Parashram. The Maharashtra Revenue Tribunal has considered this aspect in para No. 3 of this judgment. No specific date of fixation of tenancy in this respect is given by Parashram. This assumes importance because the petitioner is coming up with the case that the person who was earlier partners is later on became tenant. Therefore, date of change of such status assumes importance and such the date has not be pleaded. Not only this but the Sub-Divisional Officer has also considered the evidence (deposition) recorded by tahsildar, (recorded on 8-8-1985) wherein the applicant Parashram has stated that he is in cultivation of the said land since 1980. Whatever inference to be drawn from the said statement of Parashram is drawn rightly or wrongly by the Sub-Divisional Officer is totally an independent issue. The fact remains that in his entire deposition and even in this statement Parashram has not pointed out that his status underwent any change and nature of his possession changed after 1971. The statement is in Marathi and interpretations thereof by the Sub-Divisional Officer in his appellate order cannot be faulted with. In absence of specific assertion of such change, merely by relying upon the revenue records, heirs of petitioners cannot get over earlier order dated 22nd March, 1971. Parashram has been shown to be the partner and not tenant and that order attained finality.

In such circumstances, I do not find anything wrong with application of mind and appreciation of evidence by the Sub-Divisional Officer in appeal or by the Maharashtra Revenue Tribunal in revision. The petition therefore, fails and is accordingly dismissed. No order as to costs.