Jamaluddin Abdula Mukadam vs Shri Allimiya Shaikh Ahmed Bangi
2012 Latest Caselaw 443 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           APPELLATE CIVIL JURISDICTION




                                                                                           
                             WRIT PETITION NO.987 OF 1995
     Jamatul Muslimin Jama Mashid
     Mandiwali represented by




                                                          
     Shri Kasam Mukhadam of Mandavali
     since deceased thro.its present President
     namely
     1. Jamaluddin Abdula Mukadam




                                                         
     2.Noormohamed Kasam Mukadam
     of Mandivali Tal: Dapoli District
     Ratnagiri
                                                   .. Petitioners




                                        
             vs.
      1. Shri Allimiya Shaikh Ahmed Bangi
     2. Shri Abdul Gafoor Ibrahim Mukadam
                        
     both of Mandivali Tal Dapoli
     District Ratnagiri                            .. Respondents
                          ....

Mr.R.M.Nakhwa i/b Mr.A.H.Palekar for Petitioners Ms.Neeta Karnik for Respondent no.1 Mr.Laxmikant Satelkar for Respondent no.2 CORAM : B.P. DHARMADHIKARI, J

DATED : 5.12.2012 ORAL JUDGMENT:

1. The Petition was heard earlier on 19.11.2012 and thereafter today. After hearing respective Counsel as this Court found that the S.D.O-. statutory

authority expected to decide the Appeal as per provisions of section 74 of Bombay Tenancy and Agricultural Act, 1948 (Hereinafter referred to as Tenancy Act) has failed to appreciate the rival contentions and consideration therein is

cryptic. In view of this finding which is reached after hearing, the facts and rival contentions are only briefly mentioned below for the purposes of record.

2. The Petitioners claim that suit land i.e. survey No.85/1 admeasuring 0.34

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Gunthas of village Mandivali Taluka District Sindhudurg in Taluka Dapoli District Ratnagiri has been gifted to them by its owner on 13.9.1985. In terms of

that gift mutation entry at serial No.11 was taken and its name was recorded on

said lands. Present Respondent no.1 claiming to be a tenant challenged that mutation entry in Appeal under section 247 of Maharashtra Land Revenue Code before the S.D.O. Dapoli. The S.D.O. Dapoli found that claim of Respondent

no.1 as tenant was not substantiated and in any case was not relevant as there was no adjudication under section 70 (b) of Tenancy Act. His Appeal was therefore rejected. The said Respondents thereafter on 23.11.1987 filed an application

under section 70b of Tenancy Act before the Tahsildar. The Tahsildar has allowed that application on 29.6.1991 and in those proceedings present Petitioners as also

the original owner were parties. Rival contentions, documents produced have been appreciated and then a finding in favour of Respondent no.1 has been

returned. This was questioned by the Petitioner in Appeal before the S.D.O and their Appeal has been dismissed on 16.11.1991. The said Judgment of S.D.O was further questioned by Petitioners in a Revision under section 76 of Tenancy Act

before the M.R.T. That Revision has been dismissed on 2.12.1994.

3. Learned counsel for the Petitioner has pointed out that because of law as laid down by the Full bench of this Court in 1989 Mh.L.J. 710 (Panpoi

Dharmal Sansthan Dhotarkherda vs Bhagwant S/o Maroti Dhakulkar) Respondent no.1 could have applied under section 70 (b) of tenancy Act within six months of his alleged dispossession. That dispossession as claimed by him in

Civil Suit was in the year 1985. The suit was later on withdrawn. The Appeal preferred by Respondent no.1 tenant in mutation matter was dismissed on 31.1.87. Application under section 70 (b) has not been moved within six months even from said date. It is therefore, urged that initial application by which

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cognizance has been taken by Tahsildar is itself barred by limitation when the said provisions of section 70 (b) read with section 71 are appreciation in the

background of the provisions of Mamlatdar Court's Act and above referred Full

bench.

4. In the alternative, without prejudice it is urged that being the First

Appellate Authority-the SDO was duty bound to atleast refer to the objections raised before him by present Petitioners. Those objections are not even mentioned and mechanically order by Tahsildar has been upheld. This was

further questioned in Revision before the M.R.T.and in Revision specifically the aspect of limitation has been raised in grounds 9 to 11. The Revisional Authority

has also overlooked that aspect. The learned counsel therefore submits that the order passed by the Appellate authority as also the Revisional authority shows

total non application of mind and as there is failure to exercise jurisdiction, the same need to be quashed and set aside. Attention is invited to order dated 8.4.1995 passed by this Court while admitting the Writ Petition to attempt to

show how prima facie necessary findings have been reached and possession of

the Petitioner has been protected.

5. Learned counsel for Respondent no.1 has supported the order of the

Tahsildar. It is urged that filing of a Civil Suit is of no consequence in present matter as question of status of Respondent no.1 needed to be decided only by the tenancy authorities. The adjudication by the S.D.O. in Land Revenue appeal

therefore is irrelevant. Learned counsel further submits that the Suit was withdrawn after intial adjudication by the Tahsildar in favour of Respondent no.1 holding him to be tenant. It is submitted that once the status as tenant is recognised and confirmed, the Respondent no,.1 becomes automatically entitled

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to possession.

6. In so far as the issue of limitation is concerned, learned counsel submits

that the status as tenant has been adjudicated by the Tahsildar for the first time and hence right to claim restoration of possession accrued on that day. It is further contended that the issue of limitation is mixed question of law and facts

and no objection on that ground was raised before the Tahsildar or before the S.D.O. Attention is also invited to Memo of Appeal filed before the S.D.O. for the said purpose. Revision under section 76 is stated to be for limited purpose

and such a mixed questions of law and facts could not have been raised and could not have been gone into in a Revision. The prayer therefore, is to dismiss

the Petition.

7. In brief reply learned counsel for the Petitoner submits that all relevant dates are admitted and are on record. Hence provisions of law relating to limitation only need to be applied and therefore, there is no mixed question of

law and fact involved.

8. Basically two questions fall for determination before this Court. First is about the status of the Respondent no.1. That status is to be settled in accordance

with law. Second question is about the limitation. The aspect of limitation also needs to be answered in the light of facts which crystallized in accordance with law.

9. Admittedly, the Tahsildar has evaluated the rival contentions as also documents and recorded a finding in favour of Respondent No.1 on 29.6.1991. In an Appeal filed under section 74, the Petitioner have raised several grounds.

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     Perusal of ground nos. 1,2       3 and 4 show that the appreciation of some

documents by the Tahsildar was assailed as erroneous. Vide ground no.13.

Representations given by the members of the Muslim community was also

pressed into service. It is therefore, obvious that there was serious challenge to the findings on facts recorded by the Tahsildar.

10. In this background when the judgment delivered on 16.11.1991 by the S.D.O. is looked into, its perusal reveals that after mentioning the preliminary developments, and the statement of Shri Bangi (Respondent no.1) recorded by

the Tahsildar, very briefly the said authority has referred to the contentions of the Appellants. It is also mentioned that various documents produced by the said

Bangi before the lower Court were also challenged. Thereafter it has referred to the arguments of counsel for said Bangi in one para which consist of two

sentences.

11. On an erroneous appreciation of documents, the findings reached by

SDO is that the lower Court has applied its mind before relying on said

documents. Thus, what are those documents, what was the objection raised by the appellant and how and why the said Tahasildar's appreciation is justified has not been discussed. In the last para, which is again of 4 to 5 lines but of a single

sentence, the S.D.O has accepted the findings of the lower Court during its proceedings under section 70 (b) of the Tenancy Act. Therefore, again there is no appreciation of the contentions and objections raised by the Appellants before it.

The order therefore can be safely labelled as unreasoned. Obligation and duty of the Appellate Court has been declared by this Court in its Judgment delivered 1975 Mh.L.J. (Janha Barke vs Rajesh) and in the Judgment reported by the Hon'ble Apex Court in 2001 (3) S.C.C. 179 (Santosh Hazari vs Purshottam

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Tiwari). The impugned Judgment of the S.D.O. dated 16.11.1991 fails to meet said standards. The Petitioner have made similar effort before the revenue

authority and the Revisional Authority has overlooked their challenge

particularly in relation to limitation. As the Appellate Court judgment delivered by the first Appellate Authority is itself not satisfactory and sustainable, it is apparent that the findings of fact that Respondent no.1 is a deemed purchaser is

not final and binding. The said Judgment dated 16.11.1991 delivered by the S.D.O. is therefore, set aside. Consequently, the Judgment and order of the M.R.T. dated 2.12.1994 in Tenancy Revision No.11 of 1992 also falls to ground.

Proceedings in Tenancy Appeal no.11 of 1991 are restored back to the file of S.D.O. Dapoli for its fresh consideration in accordance with law.

12. Parties are directed to appear before the S.D.O. Dapoli on 21.1.2013 and

to abide by his further instructions the matter. The said authority shall hear the parties and pass necessary orders on all aspects within further period of four months.

13. Needless to mention that all rival contentions are open and the said authority is free to apply its mind independently and uninfluenced by the observations made by this Court on any such issue. Needless to mention that

interim orders protecting the possession of Petitioner to continue till the S.D.O. passes suitable final order in the matter.

14. Petition is thus partly allowed and disposed of. No order as to costs. R and P be sent back immediately.

                                                  ( B.P.Dharmadhikari, J )





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