Bombay High Court
4 Waman vs 2 The Maharashtra Revenue ... on 22 December, 2010
Bench: S. S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 2324 OF 1990
WITH
CIVIL APPLICATION NO. 16647 OF 2010
IN
WRIT PETITION NO. 2324 OF 1990
1 Smt. Jijabai w/o Punjaji
Age 68 years, Occ. Agriculture,
R/o. Babulgaon,
Tq. and District Parbhani
2 Vithal s/o Rakhmaji Khandare,
Age 44 years, occ. And
R/o. As above
3 Trimbak s/o Limbaji Kute,
(Died through L.Rs.)
3-a Smt. Gayabai w/o Trimbak Kute,
Age 68 yeas, Occ. Agri.
R/o. Pimpala,
Tq. and district Parbhani
3-b Balasaheb s/o Trimbak Kute,
Age 45 years, occ. Agri.
R/o. As above
3-c Parasram s/o Trimbak Kute,
Age 40 years, Occ. Agri.
R/o. As above
3-d Sou. Ashamati w/o Laxman Abdagire
Age 37 years, occ. Household,
R/o. As above.
4 Waman s/o Limbaji Kute,
Age 39 years, Occ. and
R/o. As above ...Petitioners
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2
Versus
1 Sakharam s/o Punjaji Punjari,
(Died through L.Rs.)
1-a Smt. Ansabai w/o Punjaji Punjari,
Age 50 years, Occ. Household,
R/o. Jabalpur, Tq. and
District Parbhani
1-b Pandurang s/o Sakharam Punjari,
Age 35 years, Occ. Agriculture,
R/o. As above
1-c Srikrishna s/o Sakharam Punjari,
Age 32 yeas, Occ. Agriculture,
R/o. As above
1-d Digambar s/o Sakharam Punjari,
Age 28 yeas, Occ. Agriculture,
R/o. As above
1-e Smt. Sumanbai w/o Deorao
Age 26 years,
R/o. As above
2 The Maharashtra Revenue Tribunal,
Aurangabad ...Respondents
.....
Mr. M.M. Patil Beedkar, advocate for the petitioners
Mr. M.V. Ghatge advocate h/f Mr. V.B. Ghatge, for respondents 1a to
1e
Mrs. V.A. Shinde, A.G.P. for respondent No.2
.....
CORAM: S. S. SHINDE, J.
DATE OF RESERVATION
OF JUDGMENT : 08 .12.2010
DATE OF PRONOUNCEMENT
OF JUDGMENT : 22.12.2010
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JUDGMENT:-
1 Heard learned counsel appearing for the respective parties.
2 This writ petition is filed challenging the judgment and order
passed by the Deputy Collector, L.Rs. Parbhani dated 24.11.1987 in
case No. 87/TNC/A/98-C/49 and the judgment and order dated
6.4.1990 passed by learned Member, Maharashtra Revenue Tribunal
at Aurangabad in Case No. 89/B/89-P.
3 The brief facts, as disclosed in the writ petition, are as under;-
The respondent herein who claims to be the tenant of the suit
land, filed an application before the Additonal Tahsildar, Parbhani on
16.7.1985 stating therein that the petitioner No.1 is land owner, who
gave land in dispute to the respondent Sakharam and his elder brother
Tukaram for cultivation on Munafa basis, in the year 1954. It is further
stated that Tukaram being elder brother and Karta of the family, his
name is entered into cultivation column. It was further claimed that
there was joint family and they were cultivating the suit land at the time
of enforcement of Hyderabad Tenancy and Agricultural Lands Act,
1950 (hereinafter for the sake of brevity referred to as the "said Act")
and therefore, they have acquired the status of tenants. It is further
case of the respondent that the petitioner No.1 land lady executed a
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sale dated 30.1.1965 with him and in her affidavit she admitted his
tenancy. The proceedings were filed under Section 38-A of the said
Act. It is further case of the respondent that the partition between him
and his brother took place in the year 1965 and the suit land was
allotted to his share. In the year 1971, he was implicated in a murder
case and convicted for life imprisonment. During which, his son was
cultivating the suit land. However, he was dispossessed in July, 1982
by the petitioner Nos. 2 to 4 who are purchasers of the suit land. The
fact of execution of sale deed and dispossession was known to him
when he was released from jail in the year 1985. Therefore, he prayed
that the sale deed dated 26.2.1975 and 29.8.1979 be declared as null
and void under Section 98-C of the said Act.
The petitioner Nos. 2 to 4 filed their written statement
contending therein that the petitioner No.1 never leased out the suit
land to the respondent or his elder brother Tukaram in 1954. Their
family was not joint family in the year 1954. They denied the tenancy
of respondent and his brother. It is further stated that the respondent
No.1 had concealed the real fact regarding the pendency of civil
litigation. The petitioner No.1 Jijabai filed civil suit for declaration of
ownership and injunction. The suit bearing R.C.S. No. 87 of 1974
which was decreed by learned Civil Judge Junior Division, Parbhani on
26.9.1975. After execution of sale deed in favour of the petitioner Nos.
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2 to 4 by petitioner No.1, the respondent Sakharam filed R.C.S. No.
170 of 1979 (Sakharam vs. Jijabai and others) for specific
performance of contract and perpetual injunction in respect of suit
land. The learned C.J.J.D. granted injunction against the petitioners
but the same subsequently came to be vacated by the learned District
Judge, Parbhani on 9.3.1982 in an appeal filed by the petitioners. It is
further stated that the claims of respondents have been negatived by
the Civil Court. It was further stated that the Additional Tahsildar, Sailu
after holding enquiry by decision dated 16.4.1987 rejected the
application of respondent No.1 holding that the respondent No.1 is not
tenant of suit land nor he has any locus standi to file the application.
The Additonal Tahsildar, Sailu had rejected the application of
the respondents and ordered that the applicant is not tenant of the suit
land and therefore, the respondent No.1 has no locus to file such
application and accordingly the Additional Tahsildar directed to close
the file.
4 Being aggrieved and dissatisfied with the said order, the
respondent No.1 herein filed case No. 87/TNC/A/98-C/49 before the
Deputy Collector, Land Reforms, Parbhani and the said authority by
his judgment and order dated 24.11.1987 held that the sale transaction
between the petitioner No.1 with the petitioner Nos. 2 to 4 herein as
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null and void and also their possession on the suit land is declared as
unauthorized one. The appellants can file separate suit under Section
98 of Tenancy Act for possession of the suit land since the respondent
Nos. 2 to 4 are not entitled to remain in possession of the suit land.
Accordingly the appeal filed by respondent No.1 came to be allowed.
5 Being aggrieved by the judgment and order of the Deputy
Collector, Land Reforms, Parbhani dated 24.11.1987, in appeal No.
87/TNC/A/98-C/49, the petitioners herein filed case No. 89/B/89-P
before the Maharashtra Revenue Tribunal, Aurangabad. the Tribunal
confirmed the judgment and order passed by the Deputy Collector,
Parbhani and thereby dismissing the revision petition filed by the
petitioners herein. Hence, this writ petition.
6 The learned Counsel for the petitioners submitted that unless
the tenancy of Sakharam and his brother Tukaram is established
under the said Act, the application u/s 98(C) cannot be decided.
However, while reversing the judgment of Tahsildar, both the Courts
below i.e. Dy. Collector & M.R.T. wrongly proceeded assuming that
Sakharam was the tenant. Therefore the decisions of those courts
below suffer from incorrect and perverse findings which can be
corrected in this writ petition. It is further submitted that in absence of
any agreement of tenancy on record or any declaration or certificate of
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tenancy on record under the said Act, and also in absence of
necessary details regarding nature of tenancy, term of tenancy,
agreement if any, etc. given by Sakharam in his application, the
applicant Sakharam or his brother Tukaram cannot be accepted as
tenant.
7. It is further submitted by the learned Counsel for the petitioners
that the petitioners had specifically denied and disputed the claim of
the applicant Sakharam as a tenant of disputed land, then enquiry
under Section 8 of the said Act ought to have been conducted before
deciding any application under Section 98(C) of the said Act. It is
further submitted that the Courts below failed to appreciate that
according to Sakharam when Babu Dhondiba (i.e. maternal cousin of
applicants Sakharam) had given up his share by accepting the amount
and Sakharam became only tenant, then how it can be said that the
land in dispute is the joint family tenancy of Tukaram and Sakharam,
because the maternal cousin Babu Dhondiba cannot be the family
member of Sakharam and Tukaram. Thus, unless the question of
tenancy as to who were the tenants and the nature of tenancy, the
finding of the Court below cannot be held to be legal and proper.
8. The learned Counsel for the petitioners submitted that in
absence of ownership certificate u/s 38(6)(a) of the said Act, which is
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the conclusive evidence of sale as against the land holder and all
persons interested therein, Sakharam or Tukaram cannot be held to
be tenant purchasers of the land in dispute. Even according to
applicant out of Rs.2500/- an amount of Rs.2000/- was paid, thus the
sale was not completed. Hence, there was no question of any
declaration of sale deed executed by land lady in favour of present
petitioners No.2 to 4 to be invalid u/s 50(B) of the said Act.
9.
The Counsel for the petitioner would submit that in absence of
any conclusive proof on record regarding tenancy, such as certificate
of protected tenant or declaration regarding status as protected or
ordinary tenant by Tahsildar u/s 8 of the said Act, the plea of tenancy
of Sakharam cannot be accepted merely on the basis of revenue
entries in the cultivation column. Therefore, the courts below
committed an error of law by deciding the proceedings under
assumption that Sakharam was the tenant of the land in dispute which
is absolutely in correct.
10. It is further submitted that Tukaram was interested person being
elder brother of Sakharam as well as the affidavit of land lady cannot
be said to be a public document as observed by courts below and as
such relying on those affidavits in the earlier proceedings u/s 38(A),
the courts below have rendered the perverse findings in absence of
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concrete document of tenancy of Sakharam on record. The
proceedings u/s 38(A) of the said Act were not completed nor
certificate of ownership was issued to Sakharam or Tukaram as per
section 38(6)(a) of the said Act, hence, application u/s 98(C) was not
tenable.
11. Learned counsel for the petitioners further submitted that merely
on the basis of entries in cultivation column of revenue record for some
period in the name of Tukaram, Babu Dhondiba or in the name of
Sakharam coupled with their affidavit of interested persons such as
Tukaram in the proceedings u/s 38(A) cannot establish that Sakharam
was tenant of land in dispute. He would submit that in absence of any
declaration under the said Act by the competent authority, no inference
can be drawn that Tukaram was cultivating the land being a Karta of
the joint family of Sakharam. The presumption of joint family is not
available under the tenancy Act unless it is proved. There is no finding
regarding the status of Babu Dhondiba and his nature of cultivation.
Therefore, no inference can be drawn that Sakharam is a tenant.
12. It is submitted that in this writ petition, the petitioners have filed
separate application under Order 41, Rule 27 of the Code of Civil
Procedure for production of documents such as certified copy of plaint
in RCS No.170/1979, the certified copy of issues in said suit, certified
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copy of letter dated 14.12.2000 from Tahsildar, Parbhani to learned
C.J.S.D., Parbhani and certified copy of order dated 2.7.2001.
It is submitted on behalf of the petitioners that said RCS No.
170/1979 was filed by Sakharam against the present petitioners for
specific performance of contract and for cancellation of sale deed in
respect of present land in dispute. In the said suit the learned C.J.J.D.,
Parbhani had referred the issue of tenancy of Sakharam, Tukaram to
the tenancy court u/s 99(A) of the said Act. Accordingly, the Additinal
Tahsildar, Parbhani by his letter dated 14.12.2000 (Exh.78 in the said
suit) has given his findings on issue No.1 that Tukaram was not in
possession of land in Survey No.29 area 10 Acres 2 Gunthas in the
year, 1954 being Munafedar. Similarly, on issue No.2, the finding
given is that Tukaram or his brother are not declared tenants. It is also
mentioned therein that, the entries in 7/12 extract cannot establish
tenancy. Though, the said suit was abated, but the findings of
Tahsildar on issue Nos.1 and 2 as supra operates as res judicata
unless those are set aside by competent authority. He would submit
that in the interest of justice, it is necessary to allow the production of
said documents and consider them while deciding this petition. It is
submitted that the petitioners were not having knowledge and could
notice from the bundle of papers from house of deceased Trimbak
Kute which they handed over to their advocate at the time of final
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hearing, and therefore, the said application needs to be considered
sympathetically in the interest of justice.
13 Learned counsel for the petitioners in support of his contention
submitted that in absence of relationship of landlord and tenant
between the petitioners and the respondent No.1, the status of the
respondent as tenant under the provisions of said Act was not
established. He further submitted that unless the said relationship is
established the provisions laid down under Section 98 of the Act
cannot be resorted to by respondent No.1. In support of his contention
he placed reliance on the judgment in the case of Radhu Gokul
Gawali and others Vs. Mohan Kishan Gawali and others, reported
in 2007(6) Mh.L.J. 117 and submitted that both the Deputy Collector
as well as the M.R.T. have not considered the points of limitation for
filing application under Section 98-A of the said Act. He further
submitted that as per the said judgment, reasonable time for filing the
said application can be for three years from the date of cause of action
arose for filing the said application.
The petitioners in support of the said application under Order 41
Rule 27 of C.P.C. Are relying on the judgment of the Hon'ble Supreme
court in the case Shyam Gopal Bindar and others Vs. Land
Acquisition Officer and another, reported in 2010 (4) Mh.L.J. 187
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and would submit that the writ petition be allowed.
14. On the other hand, the learned Counsel for the respondents
argued that the tenancy is assumed by the Courts below as the Courts
have relied upon the revenue entries and agreement submitted to
Tahsildar / Tribunal in which the landlady has accepted tenancy and
agreed to sale the land. The same is not challenged by the landlady
and neither she has stepped in the witness box to deny the same. The
tenancy is well established and hence accepted by the Courts below.
15. The Counsel for respondents would further submit that the law
does not require any agreement in a written form. The point of
agreement or declaration or certificate of tenancy was not pleaded by
the petitioners and hence, the same cannot be agitated now. At the
same time, the rights of the tenant are not extinguished unless tenancy
is terminated as per law. Non issuance of declaration or certificate
does not forfeit right to purchase under proviso to Section 38(6)(d) of
the said Act. There is sufficient evidence on record to accept tenancy.
16. He further submitted that the argument of enquiry under Section
8 of the said Act is not pleaded and the same is also misconceived.
The Tahsildar himself is an authority under Section 8 as well as
Section 98 and hence, it cannot be said that a separate enquiry u/s 8
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is required as the authority is one and the same and exercises
concurrent jurisdiction. It is submitted that the argument regarding
Babu Dhondiba's share was not pleaded and hence there was no
opportunity to the respondents to answer and meet the same. At the
same time, the adjustment is inter-se between the tenant and landlady
who has not raised any grievance till this date.
17. The Counsel for the respondents submitted that the ownership
certificate's point was never pleaded and hence cannot be raised now.
Anyhow, the right to purchase as well as the tenants' right otherwise
available under law are intact unless tenancy is terminated as per
procedure of law. Section 50(B) of the said Act is wrongly read and
hence it is a misconceived argument. The proviso u/s 38(6)(d)
protects right to purchase of respondents. He submitted that it is
wrong to say that only revenue entries were considered for
adjudicating tenancy as the courts had relied upon the agreement
between tenants and landlady and further took notice of the fact that
landlady has not challenged the same which is sufficient to
substantiate the claim of respondents. The Counsel for the
respondents submitted that the evidence cannot be re-appreciated in
writ proceedings when possible view is taken.
18. The Counsel for respondents submitted that it is incorrect to say
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that Tukaram is interested person and document was not a public
document. This cannot be a ground to discard his evidence which is
not shaken otherwise, particularly when the landlady has not
supported the defence and no re-appreciation is permissible now.
Notarized document submitted to Tahsildar / Tribunal becomes a
public document, being public record of private document as per
Section 74(2) of Indian Evidence Act. It is further submitted that the
argument regarding completion of Section 38(A) proceedings and
grant of ownership certificate was not particularly pleaded. However,
the same were not completed as criminal prosecution was lodged
against Sakharam and his son and they were in jail. However, the
same does not forfeit their right to purchase neither their right as
tenants.
19. It is further argued that the entries taken in the cultivation
column are not the only material in favour of the respondents. There is
agreement, affidavit and coupled with the fact that they were not
challenged by landlady, they are sufficient to prove the tenancy. The
status of Tukaram as Karta of joint family is very well recognized by
entries in revenue record. The Counsel for respondents submitted that
the other arguments of the petitioners were not pleaded. The act of
the landlady and tenants stands on higher pedestal and cannot be
ignored. The declaration could not be sought due to criminal
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prosecution and imprisonment. Babu's status has not been challenged
by specific pleadings and hence there was no occasion to answer the
same. That was mutual adjustment and can be challenged by
landlady only, who has not challenged it.
20. The Counsel for respondents submitted that the amendment
and production of additional documents sought is belated and
malafide. The same was moved when the matter was partly heard
and the parties were aware of the same which can be seen from the
orders below where Tahsildar has recorded that petitioners were
present. The amendments are sought to fill in the lacunae which were
brought to the notice of the Court during the argument before earlier
court.
It is submitted that the order of the Tahsildar cannot be applied
as res judicata because the proceedings were not finally adjudicated
and no rights were finally determined as the proceedings abated. The
pleadings of 1979 suit were not taken which were very well available
and within the knowledge of the petitioners. The findings of Tahsildar
are in nature of interim findings and same are given in concurrent
jurisdiction and consistent with the findings under 98(c) proceedings.
Hence, they do not conclude anything as the same are set aside by
the appellate authority under law i.e. Deputy Collector and confirmed
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by M.R.T. in Revision. In view of this, the findings subsequently given
by Tahsildar are beyond the jurisdiction and illegal. No separate
challenge is required to the said findings as the proceedings are
abated and the substantial challenge to the said findings were made
before appellate authority under 98(c) proceedings. He submitted that
therefore, the said findings cannot operate as res judicata.
21. Lastly, learned counsel for the respondents would submit that
the petitioners have not demonstrated any perversity and illegality in
the impugned judgments and hence, interference under writ
jurisdiction is not permissible. The tenant has lodged proceedings
immediately after he was released from Jail and the earlier
proceedings have not been adjudicated finally, hence, the same does
not create any hurdle in the present proceedings. He submitted that
the tenant has brought on record the revenue entries, agreement,
affidavit of landlady which is not challenged and hence, the courts
below have taken a possible view after appreciating the evidence and
it is not desirable to interfere in the same even if other view is possible.
22 Learned counsel for the respondents submit that the Deputy
Collector and the M.R.T. has recorded concurrent findings that the
respondent No.1 is tenant. The said finding is on the basis of evidence
brought on record. There is concurrent findings recorded by both the
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forums, therefore, this court may not interfere with it in the writ
jurisdiction. The counsel submitted that there is limited scope while
entertaining writ jurisdiction. In support of his contention, counsel
placed reliance on the following judgments.
i) Yeshwant Sakhalkar Vs. Hirabat Kamat, reported in (2004) 6
SCC 71
ii)
Roshan Deen Vs Preeti Lal, reported in AIR 2002 SC 33,
iii) Nagendra Vs. Commissioner, reported in AIR 1958 SC 398
iv) Babulal Vs. Dropadabai, reported in 2010 (5) Mh.L.J. 845.
The learned counsel for the respondents further submitted that
to establish the relationship as tenant and landlord, it is not necessary
to have registered document or lease deed, even oral agreement is
sufficient, if it is convincingly proved. He relied upon the reported
judgment of this Court in the case of Ramji Dhondji Dhumal and
Ors. Vs. Mahadu Jalbaji Dhumal and Ors, reported in 2009(4)
Bom. C.R. 678. Learned counsel further submitted that if two
remedies availed and one abandoned, even then application under
Section 98 of the said Act can be entertained. In support of his
contention, he placed reliance on the reported judgment of this court in
the case of Vitthal s/o Baba (since deceased through L.Rs.)
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Shevantabai w/o Vithal Andhare and others Vs. Ahmed Khan s/o
Nanhe Khan and others, reported in 2004 (1) Mh.L.J. 81. Learned
counsel further submitted that for filing application under Section 98 of
the said Act, limitation is not applicable. In support of his contention,
he placed reliance on the reported judgment in the case of Eknath
Raghoba and Ors. Vs. Somla Lalu Lamani through L.Rs. and
others, reported in 1992 Mh.L.J. 541. Learned counsel further
submitted that even if it is assumed that the law of limitation is
applicable for filing application under Section 98 of the said Act
reasonable explanation is offered by respondent No.1 since he was
undergoing sentence in jail. In support of his contention, he placed
reliance on the reported judgment of this Court in the case of Vitthal
s/o Baba (supra). Learned counsel further placed reliance on the
judgment in the case of Sham Rajendra Agrawal Vs. Ghanshyam
Hajarilal Sharma and Anr. reported in 2007(4) Bom. C.R. 330 and
contended that the principle of res-judicata is not applicable unless the
matter is heard and finally decided. The counsel further placed
reliance in the case of Bondar Singh and others Vs. Nihal Singh
and others, reported in AIR 2003 SC 1905 and submitted that if
there are no pleadings, no evidence can be considered in that regard.
Counsel further placed reliance in case of Bhaurao s/o Vithal and
other Vs. Godawaribai w/o Madhukarrao Giri and another,
reported in 1984 (1) Bom.C.R. 103 and submitted that even if the
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consideration is not paid, the tenancy rights remain intact. It is further
submitted that tenancy cannot be terminated unless by procedure laid
down in law, is followed. For this he placed reliance on the judgment in
the case of Rangnath Vs. Daulat Rao and Ors. Reported in 1975
BCT (0) 43. It is further submitted that Tenancy cannot be
surrendered without following due procedure of law. In support of his
contention, counsel placed reliance on the judgment in the case of
Datta Manika Dhobi since deceased through his L.rs. Namdeo s/o
Datta and others Vs. Dattatraya @ Dattopant s/o Ganpatrao
Kulkarni and another, reported in 2003(3) Mh.L.J. 393. Therefore,
learned counsel for the respondents relying on the written arguments,
oral submissions, judgment cited submitted that this petition is devoid
of any merits and the same be dismissed.
At this stage, Mr. Beedkar, learned counsel for the petitioners, in
his alternate submission, prayed for remand of the matter to the
concerned authority.
23 I have heard learned counsel for the petitioner and the learned
counsel for the respondents at great length. This matter was heard for
admission on 8.8.1990, when this court issued Rule and granted
interim stay in terms of prayer clause "C". It further appears that this
matter was taken up for final hearing on 9.9.2008. The matter was
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adjourned to 22.9.2008, since none was present for the petitioners
and interim relief granted in terms of prayer clause "C' was vacated.
On the adjourned dated i.e. on 22.9.2008, the petition was dismissed
for want prosecution. On 3.7.2009 this Court restored the petition on
an application filed by the petitioner. By order dated 5.8.2009, the
legal heirs of deceased respondent No.1 were allowed to be brought
on record. On 6.8.2010 the petition was directed to be listed for final
hearing on 13.8.2010. Interim relief was continued. Thereafter the
matter was listed from time to time and on 30.9.2010 this Court
allowed the civil application filed by the petitioner and held that the
parties to maintain status quo in relation to possession and
proceedings before the learned Collector, Parbhani till the next date.
The said interim order was continued from time to time. The matter
was again heard on 25.10.2010, when this court passed the following
order.
"1) Heard.
2) In RCS No. 170 of 1979 (Sakharam Vs. Jijabai), pending
before the learned CJJD, at Parbhani, Issue No.1 was
formulated and referred for adjudication to the Tenancy
authorities, precisely to the learned Tahsildar, Parbhani.
The said issue is answered against the plaintiff
(Sakharam) in the said case by communication dated
14.12.2000. The learned counsel for the writ petitioner
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has tendered a Photostat copy of such communication.
3) before this court there is no document of RCS No. 170 of
1979, its outcome or the evidence adduced by both the
parties.
4) The learned Counsel for the petitioner desire to tender
documents, to follow procedure, serve copy of application
to other side by taking out appropriate proceedings. Such
exercise to be carried within two weeks.
5) S.O. to 22nd November, 2010.
6) Interim relief of status quo concerning the possession to
remain in force till 22nd November, 2010."
Thereafter, the matter was listed from time to time and was
heard finally on 7.12.2010 and on 8.12.2010 hearing was completed
and the matter was reserved for judgment.
24 Civil application No. 16647 of 2010 is filed by the petitioners
herein for amendment in the writ petition to add para 7-A to 7-G stated
in the application so also prayed for exhibiting the documents at Exh.
D to Exhibit G. The perusal of annexures to the said application, would
show that the deceased respondent Sakharam Punjaji did file suit
being R.C.S. No. 170 of 1979 for specific performance of contract to
the effect that the defendant No.1 should execute the registered sale
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deed in favour of plaintiff in respect of land survey No.29 admeasuring
10 acres 2 gunthas situated at village Pimpala, Tq and district
Parbhani. It further appears that in the said suit, following issues were
framed:-
1. Does the plaintiff proves that defendant No.1 delivered
the suit land in the possession of plaintiff and one
Tukaram for the purpose of cultivation in the year 1954 on
the basis of the Munafa basis?
2 Does the plaintiff proved that he and his brother were
declared as the tenants of suit land and that right from
1954 to 1979 the suit land was and it is still in his
possession and cultivation in the capacity as a tenant?
While answering issue No.1, The Additonal Tahsildar, opined
that in Pahani Patrak of 1954-55, and Khasra Patrak on 1955, the
name of Tukaram is mentioned. There is no any proof that the land
was given to Tukaram in 1954 on Munafa basis. Therefore, Tukaram
was not in possession of the suit land as Munafedar. While answering
issue No.2, the Tahsildar has opined that there is no entry in Revenue
record about the tenancy of the respondents there is no any tenancy
certificate in their favour. They have not paid any tenancy price and
the applicant Tukaram and his brother are not declared as tenants.
On perusal of Khasra Pahni Patrak of 1955, the name of the applicant
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is not recorded and therefore, the applicant cannot be said as tenants
of the suit property. However, in 7x12 extract of 1956, there is entry of
cultivation, however, in the column of ownership of 7x12 there is no
name of applicant. The Tahsildar opined that merely on the basis of
7x12 extract, the tenancy cannot be proved and therefore, the
applicant or his brother are not tenants of the suit property.
25 The respondents herein have filed reply to the civil application
No. 16647 of 2010 and vehemently opposed the prayer made in the
said application on the ground that the amendment sought is belated
and even then the Tahsildar has passed the order as back as in the
year 2000 and there is no explanation as to why the said amendment
was not brought on record for such a long period. There are also other
grounds taken in the reply to oppose the application. It is also stated
that many new facts have been stated in the application and therefore,
the respondents have no opportunity to answer those new grounds
taken in the application and also documents brought on record.
26 When this petition was heard on 25.10.2010, this court observed
in the order that the learned counsel for the petitioners if desire to
tender documents, to follow procedure, serve copy of application to
other side by taking out appropriate proceedings and such exercise is
to be carried out within two weeks. The matter was adjourned to
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enable the counsel for the petitioners to file application. Learned
counsel for the petitioners has placed reliance on the reported
judgment of the Hon'ble Supreme Court in the case of Shyam Gopal
Bindal and others Vs. Land Acquisition Officer and another,
reported in 2010(4) Mh.L.J. 187 and submitted that the production of
additional documents on record is required to be allowed since these
documents are having crucial and direct bearing on the merits of the
claim put by the petitioners. In my opinion, though the application is
filed belatedly for production of documents on record, on perusal of
farad sheet, it clearly appears that the matter pertains to year 1990-91,
is taken up for final hearing for the first time in the year 2008. The
reference by the Civil Court about the tenancy issue made to the
Additonal Tahsildar, Sailu was answered by the Additonal Tahsildar in
the year 2000 i.e. during the pendency of the writ petition. Therefore,
in my opinion, it would be in the interest of justice to allow the
production of said documents on record. It is true that certain
contentions raised by the petitioners in the said application for
producing the documents on record are taken for the first time and
also some of the documents have came into existence after this writ
petition is filed. Therefore, respondents had no opportunity to reply the
said contention or the documents. On careful perusal of the judgment
and order passed by the Tahsildar, the Deputy Collector and the
Maharashtra Revenue Tribunal, it clearly reveal that all these three
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forums have not taken into consideration three important points. First
is of limitation for filing application, which will go to the root of the
matter, secondly, both the forums i.e. Deputy Collector and the M.R.T.
have not convincingly held that there exists relationship between the
petitioner No.1 and the L.Rs. of deceased respondent No.1 as landlord
and the tenant, as contemplated under the provision of said Act and
thirdly what is the effect of outcome of R.C.S. No. 87 of 1974 filed by
the petitioner No.1 and R.C.S. No. 170 of 1979 filed by the respondent
Sakharam, in the Civil Court on pending proceedings.
27 On careful perusal of the judgment and order passed by the
Deputy Collector, Parbhani as well as the Maharashtra Revenue
Tribunal, Aurangabad it clearly appears that both the Forums have not
considered the submissions of the petitioners about filing of R.C.S. No.
170 of 1979 by Sakharam against the present petitioners. When this
point was argued by the petitioners before both the forums, it was
incumbent on the authorities to adjudicate the said point and express
its opinion either way. It further appears that all the three forums have
also not considered the impact of another suit filed by the petitioner
No.1 before the Civil Court. All the three forums have not analyzed
each document separately filed before it and given its clear findings
about the relationship between the parties, as landlord and tenant, as
contemplated under the said Act.
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28 Upon perusal of the judgment and order passed by the
Additional Tahsildar, Sailu it appears that the said judgment and order
is cryptic and is without analyzing documents. Therefore, on careful
perusal of the order passed by the Additonal Tahsildar on an
application filed by respondent No.1 herein, it clearly appears that the
Additonal Tahsildar, Sailu has not properly applied his mind while
answering all contentions raised by respondent No.1 in his application
under Section 98-C of the said Act. The Deputy Collector, who was
appellate authority was expected to go into the details of the
contentions raised by both the parties including adverting to each
document separately and then render the decision, however, said
exercise is not done. The petitioners herein did raise the contentions
about filing of civil suit by the petitioner No.1 Jijabai and also filing of
suit by Sakharam before the competent Civil Court. The appellate
authority was duty bound to refer to these points raised by the
petitioners herein about the civil proceedings. As held by this court in
the case of Sandu alias Jamaluddin Madarbhai and Anr (supra), it
was incumbent on the appellate authority to convincingly record about
the relationship of landlord and tenant between the petitioner No.1 and
the respondent No.1. However, it appears from perusal of the order
passed by the Additional Tahsildar and even by the appellate
authority, that they have not gone to the root of the matter for
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analyzing each documents to find out the status of respondent No.1 as
tenant under the provisions of the said Act. As per the aforesaid
judgment of this court, unless that relationship is established, the
provisions laid down under Section 98 of the said Act cannot be
resorted to by the tenant. The authorities below have not properly
exercised the jurisdiction vested in him and by cryptic order rejected
the application of respondent No.1. The appellate authority if wanted to
take different view that the Additonal Tahsildar should have addressed
to the issue of limitation of filing application under Section 98A of the
said Act, to record the clear and categorical findings about relationship
between the petitioner No.1 and the respondent No.1 i.e. whether the
respondent No.1 is tenant and petitioner No.1 is landlord. Thirdly, the
appellate court was bound to say something about the proceedings
filed by the parties before the civil court about the same suit property.
29 Therefore, in my opinion, upon careful perusal of the judgment
and order passed by the authorities below and also upon perusal of
the pleadings in the writ petition, annexures thereto, submission in the
civil application for production of documents on record and reply filed
by the respondents and the written submissions filed on their behalf as
also the reply filed to the civil application for production of certain
documents on record, the position emerges that unless all three orders
are set aside and the Additonal Tahsildar is directed to consider the
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application of the respondent No.1 herein afresh by giving opportunity
to the parties to put forth their case including the contentions raised in
the civil application and reply filed thereto, there will be no proper
justice to either of the parties. Therefore, matter deserves to be
remanded back to the Additonal Tahsildar, Sailu.
30 Though the various contentions are raised by the counsel
appearing for the respective parties, this Court feels it appropriate not
to go into the merits of the matter, since the matter is required to be
remanded back to the Additonal Tahsildar, Sailu for fresh adjudication
and any findings given on merits by this Court would affect the merits
of the matter. Therefore, to sum up, the Additonal Tahsildar has not
properly adjudicated the application filed by the respondent No.1 and
appreciated the rival contentions thereof and rather by cryptic order
has rejected the application. The appellate authority i.e. Deputy
Collector has not gone into the details on the vital contentions raised
by the parties about the limitation of filing application under Section 98
of the said Act and has not given clear findings of relationship between
the petitioner No.1 and the respondent No.1 as landlord and tenant.
Thirdly, without discussing anything about the Civil Suit filed by the
respective parties about the same suit property, the revisional authority
has mechanically made endorsement on judgment and order passed
by the appellate authority, this reaches only to the conclusion that the
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authorities below have not properly dealt with all aspects of the matter
raised by the both the parties. It is also relevant to note that both the
parties should get proper opportunity to put forth their case in respect
of additional documents.
31 Therefore, in my opinion, the proper course, which would meet
the ends of justice is to set aside the judgment and orders passed by
all three forums below i.e. Additonal Tahsildar, Sailu, Deputy Collector,
Parbhani and Maharashtra Revenue Tribunal, Aurangabad and
remand the matter back to the Additional Tahsildar, Sailu for fresh
adjudication. Accordingly the judgment and order passed by the
Additional Tahsildar, Sailu, Deputy Collector, Parbhani and the
Maharashtra Revenue Tribunal, Aurangabad are quashed and set
aside. The application filed by respondent No.1 Sakharam Punjaji
Punjari (since deceased) through his L.Rs. i.e. file No. 85/TNC/98
KSR/33 is restored to its original position. The Additional Tahsildar,
Sailu, to hear the said application by giving full opportunity to the
parties and finally dispose of the said application within six months
from today. It will be open for the parties to take all available grounds
and produce necessary documents on record before the Additonal
Tahsildar, Sailu. The Additional Tahsildar, Sailu is directed to give full
opportunity of hearing to the parties and then decide the application in
the light of provision of Hyderabad Tenancy and Agricultural Lands
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Act 1950 and the judgment on the subject cited by the parties before
him and give clear cut findings on the issues raised.
32 Till application is decided by the Additional Tahsildar, the interim
order passed by this Court that the parties to maintain status quo in
relation to possession of the suit property, would remain in operation.
33 The petition is allowed to the above extent and stands disposed
of. Rule made absolute to the above extent. Civil application is
accordingly disposed of.
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