Shri Vishram S/O Daulat Gawande ... vs Shri Shriram Sansthan Batwadi ...
2016 Latest Caselaw 2619 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     




                                                  
                              NAGPUR BENCH, NAGPUR.




                                                 
     WRIT PETITION NO.5562 OF 2014



     1) Shri Vishram s/o Daulat Gawande,          |




                                      
         Aged about 60 years,                     |- (Deleted)
         Occupation - Labourer,
                              ig                  |
         (since dead) through his L.Rs.

         1-A) Vishwanath Vishram Gawande,         (Amended as per 
                            
              Aged about 54 years,                 Court's Order dt.
              Occupation - Agriculturist.          08-06-2016)

         1-B) Shrikrishna Vishram Gawande,
              Aged about 40 years, 
      


              Occupation - Agriculturist, 
   



              
              Both R/o Batwadi, Tq- Balapur,
              District - Akola.





         1-C) Sau. Mankarnabai Devendra Teke,
              (daughter), Aged about 57 years, 
              Occupation - Housewife, 
              R/o At & Post : Sasti, Tq. Patur,
              District Akola.





         1-D) Sau. Gokarnabai Parasram Ghogare,
              (daughter), Aged about 55 years, 
              Occupation - Housewife, 
              R/o At & Post : Deulgaon, Tq. Patur,
              District - Akola.

         1-E) Sau. Devkabai Tukaram Shelke,
              (daughter), Aged about 35 years, 
              Occupation - Housewife, 
              R/o At & Post : Chinchpur, 



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                Tq. Khamgaon, District - Buldhana.




                                                            
     2) Shri Rajabhau s/o Vishram Gawande,
         Aged about 38 years, 
         Occupation - Cultivator,




                                                           
         Both resident of Batwadi, Tahsil-
         Balapur, District - Akola.                                  ....       PETITIONERS




                                              
                           VERSUS
                             
     Shri Shriram Sansthan Batwadi Vishvashta
     Sanstha, through trustees :
                            
     1) Kamlakar Hiraman Akare, 
          President.
      


     2) Ramrao Kisanrao Mhaisne, 
          Secretary.
   



          Both resident of Tamsashi Batwadi,
          Tahsil - Balapur, District - Akola.





     3) Maharashtra Revenue Tribunal 
          (Administrative) Nagpur Bench, 
          Secretariat Building, Nagpur.                              ....       RESPONDENTS





     ______________________________________________________________
                  Shri R.L. Khapre, Advocate for the petitioners,
           Shri S.D. Chopde, Advocate for the respondent Nos.1 and 2,
                Mrs. H.N. Prabhu, A.G.P. for the respondent No.3.
      ______________________________________________________________


                                   CORAM : Z.A. HAQ, J.

DATED : 8 JUNE, 2016 th

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CIVIL APPLICATION NO. 903/2016.

For the reasons stated in the application and as it is not

opposed inasmuch as reply is not filed, the applicants are permitted to

come on record as petitioners. The civil application is disposed

accordingly.

ORAL JUDGMENT :

1. Heard Shri R.L. Khapre, Advocate for the petitioners, Shri

S.D. Chopde, Advocate for the respondent Nos.1 and 2 and Mrs.

H.N. Prabhu, Assistant Government Pleader for the respondent No.3.

2. Rule. Rule made returnable forthwith.

3. The respondent Nos.1 and 2 (landlord) filed proceedings

under Section 120 of the Maharashtra Tenancy and Agricultural Lands

(Vidarbha Region) Act, 1958 (hereinafter referred to as "the Tenancy

Act, 1958") contending that the petitioners were in unauthorised

occupation of the suit field and therefore, they are liable to be evicted

summarily. The Sub-Divisional Officer, by the order dated

07-05-2008, allowed the application filed by the respondent Nos.1 and

2 and directed the petitioners to handover possession of the suit field

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to the respondent Nos.1 and 2. The petitioners challenged the order

passed by the Sub-Divisional Officer in revision which is dismissed by

the Maharashtra Revenue Tribunal, by the order dated 03-02-2014.

The petitioners being aggrieved in the matter, filed this writ petition.

4. Shri R.L. Khapre, Advocate for the petitioners has

submitted that the Sub-Divisional Officer and Maharashtra Revenue

Tribunal have not given opportunity to the petitioners to lead

evidence, to prove that the possession of the petitioners over the suit

field is not unauthorised. It is submitted that the proceedings under

Section 120 of the Tenancy Act, 1958 are quasi-judicial proceedings

and while conducting an enquiry under Section 120 of the Tenancy

Act, 1958, the Sub-Divisional Officer was under an obligation to fix the

matter for recording of evidence of the petitioners and this having not

been done, the order passed by the Sub-Divisional Officer is

unsustainable. To support the submission, reliance is placed on the

judgment given by the Full Bench of this Court in the case of

Kashiram Shriram Dobale vs. Maharashtra Revenue Tribunal,

Nagpur and another reported in 1970 Mh.L.J. 462. It is submitted

that the Maharashtra Revenue Tribunal has also not considered this

aspect and therefore, the order passed by it is required to be set aside.

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5. Shri S.D. Chopde, Advocate for the respondent Nos.1 and

2 and Mrs. H.N. Prabhu, Assistant Government Pleader for the

respondent No.3 have submitted that sufficient opportunity was given

to the petitioners, however, they have not availed the opportunity and

have not led any evidence. It is pointed out that the matter was

pending before the Sub-Divisional Officer for about seven years and

the petitioners were negligent in attending the matter which is

reflected from the order-sheets of the proceedings. It is submitted that

the matter was closed for orders on 21-08-2007 and the order was

pronounced on 07-05-2008. The learned Advocate for the respondent

Nos.1 and 2 has argued that if the petitioners bonafide wanted to lead

evidence to prove their contentions, they could have filed an

application requesting for permission to lead evidence, however, the

petitioners did not adopt this course. It is argued that if the

submission made on behalf of the petitioners is accepted at this stage,

the respondent Nos.1 and 2 will be seriously prejudiced and will be

deprived of possession of the suit field though they are prosecuting the

matter for last fifteen years and the petitioners are unauthorisedly in

occupation of the suit field. It is prayed that the petition be dismissed

with costs.

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6. With the assistance of the learned Advocates for the

petitioners and the respondent Nos.1 and 2 and the learned Assistant

Government Pleader for the respondent No.3, I have examined the

documents filed on the record of the petition and the original record

produced by the learned Assistant Government Pleader at the time of

hearing. The submission made on behalf of the respondent Nos.1 and

2 that there are no bonafides on the part of the petitioners in

prosecuting the matter, is required to be accepted. The case of the

petitioners is that they filed application before the Sub-Divisional

Officer seeking permission to record evidence, saying that the matter is

not fixed for recording their evidence. The proceedings were closed on

21-08-2007 and kept on 10-09-2007 for orders, however, the order

was not pronounced on 10-09-2007 and the proceedings continued to

pend till 07-05-2008 on which date the order is pronounced by the

Sub-Divisional Officer. If at all the petitioners bonafide wanted to lead

evidence, they could have filed application during this period

requesting the Sub-Divisional Officer to fix the matter for recording the

evidence of the petitioners. The conduct of the petitioners shows that

there are no bonafides on their part and they were interested in

protracting the matter. In view of the findings recorded by me, the

judgment given in the case of Kashiram Shriram Dobale does not

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assist the petitioners.

7. On merits of the matter, it is undisputed that the suit field

belongs to the respondent No.1-Public Trust and exemption certificate

under Section 129 (b) of the Tenancy Act, 1958 was issued by the

competent authority in 1962-63. It is undisputed that Daulat Gawande

(father of the petitioner No.1) was the original tenant and he died

much prior to the filing of the application under Section 120 of the

Tenancy Act, 1958. In view of the proposition laid down in the

judgment given in the case of Shriram Mandir Sansthan @ Shri Ram

Sansthan Pusda vs. Vatsalabai and others reported in 1999 (1)

Mh.L.J. 321, the petitioners cannot claim that they have inherited the

tenancy rights in respect of the suit field. The petitioners have not

placed any material on record to show that they are in possession of

the suit field as tenants in individual capacity. The Sub-Divisional

Officer and the Maharashtra Revenue Tribunal have concurrently

recorded the finding that the possession of the petitioners over the suit

field is only through Daulat Gawande, after his death. The finding

recorded by the Sub-Divisional Officer and the Maharashtra Revenue

Tribunal are based on proper appreciation of material and evidence on

the record and cannot be said to be illegal or perverse. The orders

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passed by the Sub-Divisional Officer and the Maharashtra Revenue

Tribunal are proper and do not require interference by this Court in

the extra-ordinary jurisdiction.

8. The petition is dismissed with costs quantified at

Rs.10,000/- (Rupees Ten Thousand) to be paid by the petitioners to

the respondent No.1-Trust within two months.

JUDGE

adgokar