Shri. Narayan Company Sansthan, ... vs The Sub-Divisional Officer, ...
2017 Latest Caselaw 3961 Bom

 WP 3129.16.odt                               1
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                      WRIT PETITION NO.3129 OF 2016


 Shri Narayan Company Sansthan,
 Jarud, Tahsil-Warud, Dist. Amravati,
 A Public Trust, Registered under
 Bombay Public Trust Act, 1950.
 Through : it's sole Trustee, Shri
 Priyadarshan Pratapsinha Deshmukh,
 R/o. Jarud, Tahsil-Warud,
 District-Amravati.                   ..                            PETITIONER


                               .. VERSUS ..


 1]     The Sub-Divisional Officer, Morshi,
        District-Amravati.

 2]     The Maharashtra Revenue Tribunal,
        Nagpur, Commissioner's Office,
        Civil Lines, Nagpur.

 3]     Legal heirs of original tenant, late
        Shri Natthuji Bangali Patbhaje (Dead).

        (a)    Bhujang s/o Natthuji Patbhaje,,
        (b)    Dadarao s/o Natthuji Patbhaje,
        (c)    Vasant s/o Natthuji Patbhaje,
        (d)    Dinkar s/o Natthuji Patbhaje.

 4]     Legal heirs of original tenant late
        Shri Mahadeorao Lahanuji Pote (Dead)
        By L.Rs.

        (a) Girdhar Mahadeorao Pote (Dead)
            By L.Rs.

               (i) Sushilabai wd/o Girdhar Pote (Deceased).
               (ii) Pravin s/o Girdhar Pote,



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  WP 3129.16.odt                             2
               (iii) Nitin s/o Girdhar Pote.

        (b) Gopal Mahadeorao Pote (Dead) By L.Rs.

               (i)     Smt. Parwatibai wd/o Gopal Pote,
               (ii)    Liladhar s/o Gopal Pote,
               (iii)   Prashant s/o Gopal Pote,
               (iv)    Ku. Malabai d/o Gopal Pote.

 5]     Nagorao s/o Ganpatrao Udapure (Major),
        Everyone's Occupation-Agriculturist,
        No.3 (a) to 3 (d), 4 (a) (i) to (iii),
        4 (b) (i) to (iv) and No.5, All R/o. Jarud,
        Tahsil-Warud, District-Amravati...          RESPONDENTS


                               ..........
 Shri K.N. Dadhe, Advocate for petitioner,
 Shri A.M. Balpande, AGP for respondent nos.1 and 2,
 Shri P.A. Abhyankar, Advocate for respondent nos.3 (a) to
 3(d), 4(a)(ii) to (iii) and 4 (b)(i) to (iv).
                               ..........


                               CORAM : KUM. INDIRA JAIN, J.

DATED : JULY 04, 2017.

ORAL JUDGMENT

Rule. Rule made returnable forthwith. Heard finally

with the consent of the learned counsel for parties.

2] The challenge in petition is to the judgment and

order dated 29.12.2015 passed in Tenancy Revision

No.REV/TNC/AMR-113/2013 by the Maharashtra Revenue

Tribunal, Nagpur setting aside the order dated 12.8.2013

passed by the Sub-Divisional Officer, Morshi granting

exemption certificate to petitioner under Section 129 (b) of

the Bombay Tenancy and Agricultural Lands (Vidarbha

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

Act').

3] The facts giving rise to the petition may be stated

in nutshell as under :

(i) Petitioner is a registered public trust.

The trust owns agricultural lands. Respondent no.3(a) to

3(d), 4(a)(i) to (iii), 4(b)(i) to (iv) and 5 are in possession of

some of the agricultural lands owned by the trust. Trust

moved an application under Section 120 of the Tenancy Act

for grant of exemption certificate. Respondent no.1 allowed

the application and vide order dated 12.8.2013 granted

exemption certificate to the trust.

(ii) The order passed by Sub-Divisional

Officer was carried in revision before the Tribunal. Two

contentions were raised, (i) application ought to have been

rejected on the principle of res-judicata, as earlier

application was already disposed of and (ii) a power of

attorney examined on behalf of trust was not a competent

witness. Tribunal negatived the objection raised on principle

of res-judicata and allowed the revision holding that power

of attorney examined on behalf of trust was not a competent

witness. The matter came to be remanded to respondent

no.1 for deciding the same afresh on merits. It is this order

which is the subject matter of present writ petition.

4] Heard Shri K.N. Dadhe, learned counsel for

petitioner, Shri A.M. Balpande, learned AGP for respondent

nos.1 & 2 and Shri P.A. Abhyankar, learned counsel for

respondent nos.3(a) to 3(d), 4 (a)(ii) to (iii) and 4 (b) (i) to

(iv).

5] Learned counsel for petitioner placed reliance on

the decision of this court in Sagar Bhagwat and

another .vs. Kiran w/o Ishkumar Leekha and another,

[2016 (6) Mh.L.J. 368] and submitted that power of

attorney holder examined by trust was competent to give

evidence. The submission is that power of attorney was

executed by the sole trustee on 16.4.2009 authorising the

power of attorney to look after the management and

accounts of the trust and also to carry on all the activities on

behalf of trust including to appear in the court of law to give

evidence and file affidavit. Learned counsel submitted that

from the evidence of power of attorney, it is apparent that

there is no challenge in cross-examination. He submits that

pleadings regarding power of attorney were also not refuted

and there was no reason for the Tribunal to interfere with the

findings recorded by respondent no.1. Learned counsel

submits that interference by the Tribunal was unwarranted

and the order passed by the Tribunal needs to be set aside

in writ jurisdiction.

6] The moot question in the present case is : whether

the solitary witness examined on behalf of the trust before

respondent no.1 was a competent witness. Section 85 of

the Indian Evidence Act, 1872 relates to presumption as to

powers-of-attorney. It reads thus :

85. Presumption as to powers-of- attorney.- The Court shall presume that every document purporting to be a powers-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, [Indian] Consul or Vice-Consul, or representative of the [Central Government] was so executed and authenticated.

7] On careful reading of Section 85 of the Evidence

Act, it is clear that presumption to power of attorney duly

executed as mentioned in Section 85 arises and the power

of attorney is a competent witness but such presumption is

rebuttable and other party is entitled to disprove such

presumption. In the case on hand, it can be seen from copy

of power of attorney that the sole trustee Mr. Priyadarshan

Deshmukh authorised his younger brother Harshavardhan

Deshmukh to look after and manage the affairs of trust.

Clause (iii) of Power of Attorney authorises power of attorney

to sign, verify pleadings, plaints, written statements,

applications, declarations, affidavit, to engage advocate(s)

and fix their fees, to appear in the court of law and to give

evidence etc. There is no whisper in the entire power of

attorney that he had personal knowledge of income of trust,

expenses incurred by trust and activities of the trust.

8] From the affidavit, in lieu of evidence submitted by

power of attorney, it can be seen that no where he states

that he had personal knowledge of activities of trust or had

taken any step indicative of the fact that he had personal

knowledge. In the absence of pleadings and evidence to the

effect that power of attorney had personal knowledge,

Tribunal observed that he cannot be said to be a competent

witness and in that background remanded the matter for

decision afresh.

9] Upon going through the order, this court does not

find any illegality or perversity in the order passed by the

Tribunal and as such no interference is warranted in writ

jurisdiction.

10] Writ Petition No.3129/2016 stands dismissed.

Rule is discharged. No costs.

(Kum. Indira Jain, J.) Gulande, PA