Bombay High Court
Abhaykumar Lalchand Shah vs Smt. Chandabai W/O Late Ganesh ... on 21 November, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.6396 of 2014
Abhaykumar Lalchand Shah,
Aged about 67 years,
Occupation - Cultivation and Business,
R/o Balapur, Tq. Balapur, Dist. Akola. ... Petitioner
Versus
1. Smt. Chandabai w/o late Ganesh
Jafarabadi,
Aged about 55 years,
R/o Balapur, Tq. Balapur,
Dist. Akola.
2. Vandana w/o Nilesh Kholapure,
Aged about 32 years,
Occupation - Household Work,
R/o Pensionpura, Mahavir Chowk,
Paratwada, Tq. Achalpur,
Dist. Amravati.
3. Sunanda w/o Sachin Baretiya,
Aged about 28 years,
Occupation - Household Work,
R/o Near Ngar Parishad,
Hanuman Temple,
Washim, Tq. and Dist. Washim.
4. Shrawan s/o Ganesh Jafarabadi,
Aged about 25 years,
Occupation - Business.
5. Balchan s/o Ganesh Jafarabai,
Aged about 22 years,
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Occupation - Cultivation.
Nos.4 and 5 R/o Balapur,
Tq. Balapur, Dist. Akola.
6. Chotu s/o Nathuji Jafarabadi,
Adult, Occupation - Not Known,
R/o Balapur, Tq. Balapur,
Dist. Akola. ... Respondents
Shri M.G. Sarda, Advocate for Petitioner.
Shri Sameer Sohoni, Advocate for Respondents.
Coram : R.K. Deshpande, J.
Dated : 21st November, 2016
Oral Judgment :
1. Rule, made returnable forthwith. Heard finally by consent of
the learned counsels appearing for the parties.
2. In the proceedings for issuance of purchase certificate under
Sections 46 and 48 of the Maharashtra Tenancy and Agricultural lands
(Vidarbha Region) Act, 1958, the question involved was whether the
father of the respondents, viz. Natthu Gangaram, was the tenant in
respect of the land admeasuring 10 H and 10 R of Survey No.25 of
Mouza Kalbai, Tah. Balapur, Dist. Akola. According to the
petitioner-landlord, he was in possession of only 4 H and 20 R of land,
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which was a cultivable land, whereas the case of the respondents is
that there was a tenancy in respect of 10 H and 10 R of land.
3. Section 8 of the Maharashtra Tenancy and Agricultural Lands
(Vidarbha Region) Act, 1958 deals with the record of right of ordinary
tenants, and it is reproduced below :
"8. Record of right of ordinary tenants.--(1) As soon as may
be after this Act comes into force the Tahsildar shall cause a list
of persons, oehter than occupancy tenants, and protected lessee,
who are deemed to be tenants under sub-section (1) of
Section 6 to be prepared for entry in the Record of Rights in
accordance with the provisions of Chapter IX of the Code.
(2) After such list is prepared it shall be published in the
prescribed manner and if no application is made by the
landlord or the tenant or any other person interested within a
period of six months of the date of such publication disputing
the correctness or omission of any entry, such list shall be final.
(3) If an application is made to the Tahsildar by the landlord
or the tenant or any other person interested in the prescribed
manner within the aforesaid period, disputing the correctness
or omission of such entry, the Tahsildar shall decide the dispute
in accordance with the provisions of sub-section (2) of
Section 100 of this Act and such decision subject to appeal or
revision under this Act shall, notwithstanding Section 106 of
the Code, be final.
(4) In deciding the question referred to in sub-section (3), the
Tahsildar shall, notwithstanding anything contained in
Section 92 of the Indian Evidence Act, 1872 (I of 1872), or in
Section 49 of the Indian Registration Act, 1908 (XVI of 1908)
or in any other law for the time being in force, have power to
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inquire into and determine the real nature of the transaction
and shall be at liberty, not-withstanding anything contained in
any law as aforesaid, to admit evidence of any oral agreement
or a statement or unregistered document with a view to such
determination."
In accordance with sub-section (1) of Section 8 of the said Act, a list of
the tenants other than the occupancy tenants and protected lessees
was required to be prepared and published in the prescribed manner.
4.
The dispute is in respect of publication of such list.
According to the petitioner-landlord, no such list was published and
the respondents have not produced anything on record to show the
publication of such list showing Natthu Gangaram as a tenant of 10 H
and 10 R of land of Survey No.25. The publication of list should be a
matter of record maintained by the concerned Department and,
therefore, it was obligatory on the part of the Tahsildar to make such
an enquiry and find out whether there was a publication made, as
required by Section 8 of the said Act. Unless such issue is adjudicated,
the purchase certificate cannot be issued, holding that Natthu
Gangaram was the tenant in respect of 10 H and 10 R of land of
Survey No.25. No such exercise is carried out and, therefore, the
matter is required to be remitted back to the Tahsildar for fresh
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enquiry.
5. In the result, the petition is allowed. The order passed by the
Maharashtra Revenue Tribunal, Nagpur on 30-7-2014 in Revision
No.TEN-/B-4/2013 along with the orders passed by the authorities
below, including that of the Tahsildar, are hereby quashed and set
aside. The matter is remitted back to the Tahsildar to carry out fresh
enquiry in the light of the observations made by this Court and to
decide it afresh. The parties to appear before the Tahsildar on
19-12-2016. The Tahsildar to complete the enquiry and pass an
appropriate order within a period of six months thereafter.
6. At this stage, Shri Sarda, the learned counsel for the
petitioner-landlord, submits that the petitioner is in possession of
uncultivable portion of Survey No.25, whereas this fact is disputed by
Shri Sohoni, the learned counsel for the respondents, who also claims
that the respondents are in possession of the entire portion of the land.
In view of this, the parties are directed to maintain status
quo. The status quo shall also relate to further alienation or transfer
of property or possession thereof by any of the parties.
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7. Rule is made absolute in above terms. No order as to costs.
JUDGE.
Lanjewar
