Bombay High Court
Dnyanu Rau Mane (Decd.) By Lh. ... vs Krishnarao Yadu Mane on 28 November, 2016
Bench: R.P. Sondurbaldota
Dusane 1/8 wp4164.1998
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4164 OF 1998
Shri. Dnyanu Rau Mane
since deceased and now survived
by his legal heir, viz.
Shri Bahiru Dnyanu Mane,
Residing at Rahimatpur,
Tal. Koregaon, Dist. Satara .... Petitioner
(Ori. Opponent)
Vs.
Shri. Krishnurao Yadu Mane
Residing at Rahimatpur,
Tal. Koregaon, Dist. Satara .... Respondent
(Ori. Applicant)
Mr. Uday Warunjikar, Advocate for the Petitioner.
Mr. R.A. Thorat, Senior Advocate a/w Mr. Pradeep J. Thorat for
the Respondent.
Coram : Smt. R.P. SondurBaldota, J.
Date : 28th November, 2016
JUDGMENT :
1 This petition challenges the judgment and order dtd.
16th March, 1998, by which the Maharashtra Revenue Tribunal,
Pune allowed the revision application filed by the respondent and
set aside the order of Sub Divisional Officer, Koregaon in the
tenancy appeal.
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2 The respondent is the owner of the land in question i.e.
Survey No.328.8, admeasuring 13 R, situate at Village
Rahimatpur, Taluka Koregaon, Dist. Satara. As per the revenue
record, the father of the petitioner was the ordinary tenant in
respect of the land in question during the period 1952-1953 to
1954-1955, as such continued till 15th June, 1955. Since then the
respondent has been in possession of the property and cultivating
the same.
3 On 9th July, 1979, the petitioner filed Application No.4
of 1979 to the Tahsildar under Section 32 (1B) of the Bombay
Tenancy And Agricultural Lands Act ( the "Tenancy Act" for short).
The application was styled as "reminder". The petitioner claimed
in the application that his father was forcibly dis-possessed from
the land in question in the year 1956-1957. As a result, on the
Tiller's day i.e. on 1st April, 1957, the petitioner's father was not in
possession of the land in question, though he was the tenant. The
petitioner's father died in the year 1969. In the same year, as soon
as Section 32 (1B) was introduced into the Tenancy Act, the
petitioner made an application for restoration of possession of the
land in question, by taking it from the respondent. That
application is not available on record. However, according to the
petitioner, notices of the original application had been issued on
20th May, 1971 and 21st July, 1971. The issuance of those notices,
according to him indicate that the original application had been
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made in the year 1969. Later due to non-availability of his original
application, the reminder filed by him in the year 1979 came to be
registered as an application.
4 The Tahsildar, Koregaon by his short order dtd. 19 th
August, 1980, dismissed the application holding that the father of
the petitioner was not in possession of the land in question in the
year 1955-1956. His possession was there only until 15 th June,1955.
As such the application as filed under Section 32 (1B) was not
maintainable.
5 Being aggrieved by the order, the petitioner preferred
an appeal to the Sub Divisional Officer, which appeal was allowed
by the order dtd. 30th October, 1987 and the matter remanded to
the Tahsildar for fresh hearing. The Sub Divisional Officer in his
order found that reliance by the Tahsildar upon mutation entries
alone to decide the application was not proper.
6 On remand, the Tahsildar, Koregaon heard the
application by giving due opportunity to the parties to lead
evidence thereon. By his order dtd. 19 th January, 1991, the
Tahsildar dismissed the application with a finding that the father
of the petitioner was in possession as a tenant of the land in
question till 15th June, 1955. As such on the Tiller's day i.e. on 1 st
April, 1957, he was not in possession. The Revenue records
showed that father of the petitioner was the tenant in respect of
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the land in question during the period 1952-1953 to 1954-1955. He
had been treated as an ordinary tenant. His tenancy came to an
end on 15th June, 1955. Since then the land in question has been in
possession and cultivation of the respondent. The Tahsildar also
noted that the petitioner had not produced any evidence of actual
possession and cultivation of the land in question by the father of
the petitioner, after 15th June, 1955. Therefore, the petitioner was
not entitled for restoration of possession under Section 32(1B) of
the Tenancy Act. The father of the petitioner had himself made no
complaint of forcible dis-possession against the respondent.
7 The petitioner then once again preferred appeal to the
Sub-Divisional Officer being TNC/Appeal No.6 of 1991. By the
order dtd. 28th October, 1991, the appeal was allowed and the
petitioner was declared as the tenant of the land in question and
possession was directed to be given to him. The appellate Court
held for the first time that the proceedings under Section 32(1B)
had been initiated by the father of the petitioner although the
alleged original application was not available on record. It then
referred to 7/12 extract which shows that the father of the
petitioner was the ordinary tenant for the period 1951 to 1955. In
fact this has been admitted by the respondent in his evidence as
noted by the Appellate Court. Thereafter the appellate court held
that there was no evidence of relinquishment of the tenancy rights
by the father of the petitioner. It dis-believed the mutation entries
stating reason that the mutation had been recorded without any
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order of the competent officer and that while mutating the record,
a cause of action for the mutation, it's propriety and the grounds
for mutation are required to be stated in the body of the mutation.
The appellate authority opined that when a tenant desires to
surrender his tenancy rights, he is required to make an application
to the Tahsildar and after verification of the genuineness of the
application and recording the statements of the tenant as well as
the landlord an order of surrender of the tenancy is made. No
such procedure was seen to have been followed. It therefore, held
that there was in fact no cause for mutating the mutation entry
relied upon by the respondent.
8 Being aggrieved by the order of the appellate authority,
the respondent approached Maharashtra Revenue Tribunal, Pune
by way of a revision application, which revision application has
been allowed by the order impugned in the petition. The Revenue
Tribunal firstly noted that the father of the petitioner was
cultivating the land as a tenant during the period 1951-1955. But
undisputedly since the year 1955, the respondent has been
personally cultivating the land. There is no record to show the
date of dispossession of father of the petitioner. The petitioner has
not led his own evidence in the proceedings. Therefore, neither
the date of dispossession of the father nor the date of his death of
his father has been brought on record. This becomes relevant in
view of the fact that there are no sue motu proceedings initiated by
the Revenue Authorities. Further after dispossession in the year
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1955, when the application for restoration is filed, as late as in the
year 1969, the application ought to have contained some
explanation for the delay. In the long period of 24 years, since the
date of alleged forcible dispossession, neither father of the
petitioner nor the petitioner ever applied to the Revenue
Authorities for restoration. So far as the mutation entry is
concerned, the Tribunal noted that the same was certified on 23rd
November, 1955 in which father of the petitioner was shown as the
tenant, but the subsequent mutation entry No.10792 disclosed that
the father of the petitioner was not in possession of the land in
question and his rights had come to an end. This mutation entry
was certified on 29th February, 1956. By virtue of the two mutation
entries, the Tribunal held that the possession of the land had been
restored to the landlord. These mutation entries have not been
challenged at any point of time. Therefore, mutation entries
cannot be disbelieved. The third reason stated by the Tribunal is
that father of the petitioner never tried to seek any declaration
under Section 70B or the declaration of tenancy in the Tenancy
Court after the mutation entries were made against him. Also there
was no evidence of forcible dispossession by the landlord
produced. On the other hand the 7/12 extracts of the relevant
period shows that at that time, the respondent in fact was a minor
and his guardian was his mother. The respondent attained
majority on 5th January, 1962. Therefore, the dispossession by a
minor under the guardianship of his widowed mother could not be
disbelieved. Lastly the Tribunal observed that it was necessary for
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the father of the petitioner to seek possession of the land by
making application to the competent Revenue Authority within a
period of two years from dispossession.
9 In my considered opinion, each reason stated by the
Revenue Tribunal for reversing the order of the appellate authority
is justified in law. The petitioner alleged forcible dispossession of
his father in the year 1956. He has, however, not deposed in his
own application. The only evidence led was that of an occupant of
the adjoining land. All that this witness stated was that until 5-6
years after the year 1951-1952, father of the petitioner had been
cultivating the land in question. He did not speak of forcible
dispossession of the father of the petitioner. On this background,
when one considers the undisputed fact of the respondent being a
minor at the relevant time, under the guardianship of his widowed
mother and having attained majority, about six years after the
alleged incident of dispossession, it would be difficult to believe
that father of the petitioner was forcibly dispossessed from the
land in question. This is apart from the fact that there are no
details of the alleged act of forcible dispossession stated either in
the application or in the evidence produced by the petitioner.
10 Mr. Warunjikar, the learned advocate for the petitioner
has relies upon decision of the Apex Court in Savaliram Gotiram
Teli (deceased) by heirs and LRs vs. Madhukar Yeshwant Patankar
and Others, reported in (1996) 11 Supreme Court Cases, page 28 to
submit that Section 32(1B) cannot be rendered inapplicable on the
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ground that the tenant during his lifetime, after dispossession, had
not taken steps to get restoration of possession under Section 29 of
the Tenancy Act within two years of dispossession. Section 32(1B)
of the Tenancy Act operates on it's own and includes within it the
non-obstante clause meaning thereby overriding the provisions of
Section 29 of the Act. Even if this argument is to be accepted and
the observation of the Tribunal , on failure on the part of the father
of the petitioner seeking restoration of possession is to be ignored,
the fact remains that there is no evidence before the court of
forcible dispossession by the respondent. Mr. Warunjikar next
argues that surrender of tenancy by the father cannot be held to
bind the petitioner and for that purpose seeks to rely upon the
decision of Single Judge of this Court in Shankar M. Pawar
(deceased) others vs. Anusayabai alias Ambabai w/o Punja Avhad
Another, reported in (2002) 5 Maharashtra Law Journal, page
328. The decision cited can be distinguished on facts. In the
proceedings before the learned Single Judge, a brother of the
petitioner had allegedly surrendered possession of the agricultural
land and that surrender was held to be not binding on the other
brothers. The allegation with which the petitioner has come to the
court is not of surrender of tenancy but of forcible dispossession.
11 For all the reasons stated above, the petition is
dismissed.
(Smt. R.P. SondurBaldota, J)
