Vithoba Rama Jadhav, Dagadu Rama ... vs Tukaram Tatya Salunkhe, ...
2005 Latest Caselaw 470 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, Pune, dated June 29, 1387, in Revision No. MRT-NS-VIII-10/77(TEN.b. 272/77): Pune.

2. This case has a chequered history. The land in question is an agricultural land bearing Survey No. 93/3, now Gut No. 262, admeasuring 5 acres 20 gunthas at village Vangal, Taluka and District Satara. It is not in dispute that the said land was classified as a Personal Inam Class II land. One Vishnu Bala Jadhav was the Inamdar in respect of this land. It appears that Shri Sakharam Manoji Bhoi (Kamble) was a Mirashi Tenant therein. Respondents Nos.2 and 3 herein, along with their brothers, Rajaram and Madhav, had filed a civil suit in the Court of First Class Subordinate Judge at Satara, being Suit No. 1362/1931 for recovery of money of Rs. 1,165/-against the said Mirashi Tenant Sakharam Manoji Bhoi (Kamble). That suit was decreed in favour of the plaintiffs therein. As a consequence, execution proceedings were taken out being Darkhast No. 423/1996 by the abovenamed plaintiffs. As the Mirashi Tenant Sakharam Manoji Bhoi (Kamble) was unable to satisfy the decree, his right, title, interest in the suit land, that of Mirashi Tenant, was put up for sale by public auction on 6th January 1936. In that public auction, original respondent No. 2 Chintaman Laxman Kale purchased the land being the highest bidder. The auction in favour of original Respondent No. 2 Chintaman Laxman Kale was confirmed and sale certificate issued on 23rd June 1938. From the record, it is seen that possession of the suit land was also given to the original Respondent No. 2 in execution proceedings on 6th October 1998 as stated in the possession receipt. It was the case of Respondents Nos.2 and 3 that the original Respondent No. 2 Chintaman leased the suit land to Petitioner No. 2 Dagadu Rama Jadhav, by a written Kabulayat on 5th May 1941 for an. yearly rent of Rs. 25/-. It is also seen from the record that in the year 1961, original Respondent No. 2 Chintaman Kale, as well as Respondent No. 3 Raghunath Kale, instituted R.C.S.No.129/1961 against the representative of original Mirashi Tenant, namely, Dattu Sakharam Bhoi, Ishwar @ Vishwanath Sakharam Bhoi and Bhagwanta Sakharam Bhoi for declaration of ownership and for injunction with possession, on the basis of purchase of the suit land in Court auction on 23rd January 1938 and possession obtained under receipt dated 6th October 1998. In the said suit, it was the case of the plaintiffs therein that they had subsequently let out the suit land to Petitioners herein Vithoba Rama Jadhav and Dagadu Rama Jadhav, who were also impleaded as defendants Nos. 5 and 4 respectively in the said suit. It was the case of the plaintiffs that inspite of possession enjoyed by the said persons, no mutation was effected in the revenue record much less of the auction, which was the main cause for obstruction created by the representatives of original Mirashi Tenant Sakharam Bhoi. Even this suit was decreed in favour of Respondents Nos. 2 and 3 herein by judgment and decree dated* 16th July 1363. It is held that Respondents Nos. 2 and 3 were the owners of the suit land. The Court then went on to issue direction to the abovenamed representatives of original Mirashi Tenant to deliver possession of the suit land to Respondents Nos.2 and 3. Against the said decree, Ishwar @ Vishwanath Sakharam Bhoi preferred appeal, being Civil Appeal No. 238 of 1363, which, however, was dismissed by the District Judge, Satara on 27th February 1965. The decree passed in R.C.S.No. 129/1961 was put to execution and as a consequence thereof, Respondents Nos.2 and 3 obtained possession on 14th June 1366 in Regular Darkhast No. 115/1966. Once again, thereafter, Respondents Nos. 2 and 3 executed fresh registered rent note (lease deed) in favour of the Petitioners on 4th June 1966 in respect of the suit land for a period of five years and the rent was fixed at Rs. 80/- per year. However, the Respondent No. 1 obstructed the possession of the Respondents Nos.2 and 3 and the Petitioners herein in the suit land, claiming that he was in lawful cultivation of the suit land as tenant. ' In the circumstances, Respondents Nos.2 and 3 along with the Petitioners filed another suit, being R.C.S. No. 152/1966 in the Court of Civil Judge, Junior Division Satara, against Respondent No. l for an injunction and, in the alternative, for possession. The case of the plaintiffs in this suit was that the Respondent No. l has been unauthorisedly inducted in the suit land with the sole intention to defeat the rights of the Petitioners and Respondent Nos.2 and 3. In this suit, Respondent No. l, after entering appearance, filed written statement on 5th October 1366, and inter alia, contended that he was cultivating the suit land as tenant inducted by the Mirashi Tenant for last 30 years and for which reason, he has become deemed purchaser and the owner thereof on 1st April 1357. Interestingly, no particulars or details of tenancy have been given in the written statement, (Even the basic fact as to the person (name) who had inducted him as tenant in the suit land is not disclosed in the written statement) except stating that he was inducted by the original Mirashi Tenant in the suit land. Besides, in the earlier suit filed against the Mirashi Tenant, no reference was made to the fact that they (Mirashi Tenant) have had inducted the Respondent No. l as tenant in the suit land. As plea of tenancy was raised, the Civil Court, by virtue of mandate of Section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act") framed issue of tenancy and referred the same to the tenancy authority for its decision. Following issue was framed by the Civil Court and referred to the Tenancy authority, namely:

" Does Defendant prove that he was a tenant in the suit land since last 30 years and that he has become its owner since 1st' April 1957?"

The said reference was considered by the Tenancy Awal Karkoon, Satara, being Tenancy Court Reference No. 3/1967. The Respondent No. l in support of his plea of tenancy and claim of lawful possession in the suit land for last 30 years essentially relied on the oral evidence of the neighbouring land occupants and owners. Indeed, reliance was placed on revenue receipts, Exhibits 9D to 9M, indicating that Dattu Sakharam Bhoi had paid land revenue in respect of the suit land from 1959 to 1963. It appears that Respondents Nos.2 and 3 did not examine any witness before the tenancy authority. On analysing the evidence, which had come on record, the tenancy authority by judgment and order dated 30th October .1971 proceeded to answer the issue referred for its consideration in favour of the Respondent No. l herein/defendant. That decision was taken in appeal by the Petitioners herein before the Deputy Collector, being Tenancy Appeal No. 20 of 1975, which was, however, rejected by order dated 28th February 1977. Against that decision, the matter was carried in revision by the Petitioners before the M.R.T., Bench at Pune which has been dismissed upholding the concurrent view taken by the authorities below. These decisions are subject matter of challenge before this Court.

3. Before I proceed to consider the rival submissions, it is apposite to advert to the manner in which the matter has been examined by the first authority. The first authority proceeded to consider as to, whether the plaintiffs Nos.3 and 4/Petitioners herein were in possession of the suit land as tenants of plaintiffs Nos.l and 2/Respondents Nos.2 and 3 herein. It then went on to observe that there was no occasion for Respondents Nos.2 and 3 to induct the Petitioners in the suit land, as the Respondents Nos. 2 and 3 were themselves not in possession of the suit land at the relevant period, when they claim to have inducted the Petitioners as tenants. It is essentially on this finding, it proceeded to hold that it was not possible to accept the theory propounded by the Petitioners that they were (sic) as tenants in the suit land by Respondents Nos.2 and 3. The authority thereafter proceeded to examine the evidence, which would justify the possession of the suit land with the Respondent No. 1/Defendant. It has mainly relied on the oral evidence adduced on behalf of the Respondent No. 1/Defendant, which suggests that the Respondent No. l was cultivating the suit land for last 25 to 30 years. No documentary evidence has been adduced by Respondent No. 1/Defendant in the first place to show that he was inducted in the suit land by the original Mirashi Tenant or his representative prior to 23rd June 1938 when the land came to be auctioned in terms of the Court order and that auction sale has been confirmed by the Court. Besides, no documentary evidence has been adduced to suggest that the Plaintiffs Nos.l and 2 had inducted the Respondent Not I/Defendant in the suit land as tenant although plea was taken that agreement of lease between Kale and Defendant to share two-thirds crop was entered into. The only documentary evidence that was relied on behalf of the Respondent No. 1/Defendant in that sense is the land revenue receipts in favour of Dattu Sakharam Bhoi indicating that (sic) was paid by him from 1959 to 1963. The other documentary evidence, if at all can be said to be relevant, is that the name of Respondent No. 1/Defendant was entered into the record of rights as tenant on 20-12-1965. No rent receipts were produced either issued by the original owner or, for that matter, by the Respondents Nos. 2 and 3. Inspite of this, the tenancy authority proceeded to answer the issue under reference in favour of Respondent No. 1/Defendant. That is done on the reasoning that as there is no evidence forthcoming that the plaintiffs were in lawful possession of the suit land and as it is a matter of record that original Mirashi Tenant and. his representative were not cultivating the suit land personally, it necessarily follows that Respondent No. 1/defendant is lawfully cultivating the suit land for all this period and, therefore, entitled to be declared as deemed purchaser.

4. The appellate authority has dismissed the appeal merely accepting the said opinion recorded by the tenancy authority. The decision of the appellate authority in that sense is quite brief, if not cryptic. The revisional authority once again adopted the approach as was taken by the tenancy authority and went on to observe that, as there was no manifest error, it was not a case to interfere in exercise of revisional jurisdiction.

5. Before this Court, the first submission canvassed on behalf of the Petitioners is that it was unnecessary to frame issue of tenancy in the fact situation of the present case. It was contended that as no details were given in the written statement to indicate that the plea of tenancy is a genuine plea, in such a case, it is not obligatory on the Court to frame issue of tenancy and make reference which is only intended to prolong the proceedings. To buttress this submission, reliance was placed on the decisions of our High Court reported in 1981 Mh.L.J. 321 in the case of Pulmati Shyamlal Mishra and Anr. v. Ramkrishna Gangaprasad" Bajpai and Ors. 1983 Mh.L.J. in the case of Maruti Sambha Surve v. Parshuram Krishna Koratkar and Anr.; and A.I.R. 1982 Bom. 491 in the case of Nilesh Construction Company and Anr. v. Mrs. Gangubai and Ors. It was next contended that in any case the decisions of the authorities below though concurrent cannot be sustained because the authorities have committed manifest error in examining the matter. It is argued that the approach adopted by the authorities to examine the point in issue is unsustainable. The issue that was required to be examined by the authorities was: whether the Respondent No. 1/Defendant proves that he was a tenant in the suit land during the period claimed by him. That issue ought to be answered in the affirmative only if the Respondent No. 1/Defendant was to discharge his onus and prove the fact asserted by him. The nature of evidence adduced by the Respondent No. I/Defendant by no standard can be said to be appropriate to answer the issue in favour of. Respondent No. 1/Defendant. On the other hand, the authorities first examined the possibility of whether it is possible to assume that the plaintiffs were in possession of the suit land. That was first answered against the plaintiffs and then the authority proceeded to hold that it necessarily follows that the Respondent No. 1/Defendant was in lawful cultivation of the suit land. This approach has been criticised on behalf of the Petitioners as impermissible. Whereas, the evidence adduced by the Respondent No. 1/Defendant by itself does not prove the issue in favour of the Defendant and that aspect has been glossed over by the authorities below.

6. On the other hand, Mr. Mandlik For the Respondent, submits that no interference is warranted at the hands of this Court in exercise of writ jurisdiction, as it is not open for this Court to reverse the findings of fact recorded by the authorities below merely because some other view is possible on the evidence which is adduced by the authorities. Learned Counsel has supported the conclusion reached by the authorities below. According to him, on analysing the entire evidence and the chronology of events in proper perspective, no other conclusion can be reached but to hold that the Respondent No. 1/Defendant was in possession of the suit land on 1st April 1957 by virtue of which he has become deemed purchaser thereof. He submits that the question whether it is mandatory to make reference of the issue of tenancy is finally answered in the later judgment of Division Bench of our High Court in the case of Bhagwanrao s/o Jijaba Auti v. Ganpatrao s/o Mugaji Raut and Anr..

7. Having considered the rival submissions, insofar as the first contention raised on behalf of the Petitioners is concerned, the same can be straightaway answered against the Petitioners in the light of the exposition in the case of Bhagwantrao (supra). In para 28 of this decision, after considering all the authorities on the point, the Division Bench of our High Court has observed that in a suit for permanent . injunction, if the plaintiff or the defendant raises the question of tenancy, the Court will have to consider that question and since the Civil Court has no jurisdiction to deal with that question, it will have first to be referred to the Tenancy Court and after receiving the decision of the Tenancy Court alone will it be possible for the Civil Court to decide whether to grant or not to grant permanent injunction. As the abovesaid,decision is of the Division Bench, it is unnecessary for me to dilate on the other decisions pressed into service on behalf of the Petitioners. Accordingly, the first contention raised on behalf of the Petitioners will have to be rejected.

8. However, there is substance in the argument canvassed oh behalf of the Petitioners that the authorities below have committed manifest error in adjudicating the issue referred to it for consideration. As mentioned earlier, the authorities below first considered the question whether it can be said that the plaintiffs were in lawful cultivation and possession of the suit lands and answered the same against the plaintiffs and having answered that, then proceeded to observe that it necessarily follows that the Respondent No. 1/Defendant was in occupation of the suit land on 1st April 1957. This approach is wholly impermissible. The issue that was required to be considered was not whether the plaintiffs were in occupation of the suit land, as claimed by them. That is a matter which ought to and Will be decided by the Civil Court, where the proceedings between the parties are pending. The issue that was referred to the tenancy court by the Civil Court for its consideration was: whether the defendant proves that he was tenant in the suit land since last 30 years and that he has become owner since 1st April 1957. What was required to be considered is whether there was any positive evidence to suggest that the defendant was inducted in the suit land by the original Mirashi Tenant or his legal representative prior to 23rd June 1938. I may plainly answer this fact against the defendant, for no documentary evidence has been produced on record to support this position. Whereas, the only stand taken in the written statement is that the original Mirashi Tenant has inducted the defendant in the suit land. The date of 23rd June 1936 assumes some relevance, because on this date, the auction sale in respect of the right, title and interest of the original Mirashi Tenant in the suit land came to be confirmed by the Court - as a consequence of which all subsisting right, title and interest in the suit land held and possessed by the Mirashi Tenant devolved on the original Respondent No. 2 Chintaman Kale who had purchased the suit land in the said auction being the highest bidder. The only evidence which at best can be pressed into service on behalf of the defendant is the oral evidence of the neighbouring land owners. Even accepting the oral evidence as it is, they have deposed that the Respondent No. 1/Defendant was cultivating the suit land the last 25 to 30 years. Their evidence was; recorded before the tenancy authority in the year 1967-68. Even accepting that version as it is, it was not sufficient to . positively conclude that the Respondent No. l was inducted in the suit land as tenant prior to 23rd June 1938 by the original Mirashi Tenant or his legal representative. If it is so, the only other possibility is that the Respondent No. 1/Defendant came to be inducted after 23rd June 1938, assuming that he was in possession of the suit land on 1st April 1957. That possesion will be of no avail. In any case, there is ho documentary evidence to support the position that the , Respondent No. 1/Defendant was inducted pursuant to some lease deed or Kabulayat entered in his favour prior to 1957. Such document has not been placed before the Court. No rent receipt has been produced befora the Court purportedly issued by the legitimate owner of the suit land. Merely because the Respondent No. 1 Defendant is in long possession of the suit land, that by itself does not mean that he was in lawful cultivation thereof. It is only when a person can be said to be in lawful possession and cultivation of the suit land, would he be entitled to assert that he is tenant and has become deemed purchaser by virtue of expansive provisions of section 4 read with section 32 of the Act and not otherwise Mere possession by itself is not sufficient to claim that right. The only evidence pressed into service by the Defendant/Respondent No. l is the oral evidence. Even if the oral evidence adduced by the defendant was to be accepted as it is, that would not indicate that Respondent No. 1/Defendant was inducted in the suit land by legitimate owner or person entitled to let out the suit land in favour of the defendant. If the initial entry of the defendant is not authorised; long possession of the suit land by the Defendant will be of no avail. It may be recalled that in the previous suit filed against the representative of the Mirashi Tenant, no plea was taken that they (Mirashi Tenant) have had inducted the Respondent No. l as tenant in the suit land. They could not have done so after 23rd June 1938.

9. The documentary evidence that is pressed into service on behalf of the defendant to assert that he was in possession of the suit land is land revenue receipt, Exhibit 9D to 9M, which indicate that Dattu Sakharam Bhoi had paid land revenue in respect of suit land from 1959 to 1963. The fact that the land revenue was paid by Dattu Sakharam Bhoi after 1958 will not create any right, title or interest in favour of Dattu Sakharam Bhoi, which was vanquished after the auction sale was confirmed by the appropriate Court. The only other documentary evidence that has been relied upon by the defendant to show his possession is the entry in the record of right as tenant on 28th December 1965. Once again, entries in the record of right no doubt would raise presumption, but that is a rebuttable presumption. Besides, the said entry would only indicate that he was shown as tenant on 20th December 1965 and not before 1st April 1957, which is the relevant date for our consideration.

10. The tenancy authority has drawn adverse inference against plaintiffs Nos.l and 2/Respondents. Mas.2 and 3 herein to hold that they did not challenge the testimony of the Respondent No. 1/Defendant as they did not enter the witness box. The question of necessity of Respondents. Nos. 1 and 2/plaintiffs entering witness box would arise only when the defendant/Respondent No. l had discharged the initial onus on him to prove the fact that he was in lawful possession of the suit land as tenant for last 30 years and prior to 1st April 1957. That, in my opinion, cannot be said to have been discharged only on the basis of oral evidence, for there is no legal evidence to support the position that the initial induction of Respondent No. 1/defendant in the suit land as tenant was lawful and authorised. As mentioned earlier, if the Respondent No. 1/Defendant has entered into the suit land and started cultivating after 23rd June 1938, assuming that he was inducted by Dattu Sakharam Bhoi, that will make no difference because Dattu Sakharam Bhoi had no authority to induct Respondent No. 1/Defendant in the suit land as tenant after 23rd June 1938.

11. Perhaps, realising this position, it was Contended on behalf of the Respondent No. 1/Defendant that even after the auction sale, the plaintiff Kale had entered into an agreement of lease with him and agreed to take two-thirds crop share. However, no documentary evidence has been produced to support this position except the bare words of the Respondent No. 1/Defendant. Viewed in this perspective, the authorities below on the nature of evidence produced before it ought to have answered the issue under reference against Respondent No. 1/Defendant. However, the authorities instead adopted manifestly wrong approach by first inquiring into the fact as to whether the plaintiff can be said to be in possession of the suit land and having answered that against the plaintiff proceeded to hold that it necessarily follows that Respondent No. 1/Defendant was in possession of the suit land on 1st April 1957. It is not a question of mere possession. The possession ought to be lawful possession. That evidence is completely lacking, rather not adduced by the Respondent No. 1/Defendant at all.

12. To get over this position, it was argued on behalf of Respondent No. l/Defendqnt that the exercise undertaken by this Court is nothing but reappreciating the evidence on record to take a different view than the one taken by the authorities below on the basis of same evidence. In the first place, I have found that the approach adopted by the authorities below is manifestly wrong, rather impermissible. The approach ought to have been firstly to investigate as to whether the evidence as has been adduced by the defendant can be said to be adequate to hold that the defendant has proved that he was in lawful cultivation of the suit land as claimed by him for the last 30 years (prior to 23rd June 1938) and in any case on or prior to 1st April 1957. If the authorities below were to investigate the matter in that manner, the conclusion which I have reached is inevitable.

13. Accordingly, this petition ought to succeed and the same is, therefore, allowed. All the three impugned orders passed by the authorities below are set aside and the reference made by the Civil Court is answered against the Respondent No. 1/Defendant, For the reasons mentioned hereinbefore. No order as to costs.