Bombay High Court
Abdul Aziz Sheikh Mehboob And ... vs Shurnrushi Sansthan, Ansingh ... on 16 March, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1305 OF 2017
1) Abdul Aziz Sheikh Mehboob,
Age 42 years, Occ. - Agriculturist,
R/o Ward No.5, Near Jumma Mazjid
Ansingh, Tq. and District Washim.
2) Ratanbee Sheikh Mehboob,
Age 70 years, Occ. - Agriculturist,
R/o Ward No.5, Near Jumma Mazjid,
Ansingh, Tq. and District Washim.
3) Milanbee Abdul Subhan,
Age 48 years, Occ. - Agriculturist,
R/o Waranga Fata, Tahsil - Kalamnuri,
R/o District - Hingoli.
4) Bivi Mohammad Sultan,
Aged - Major, Occ.- Agriculturist,
5) Kharunabee Abdul Gani,
Age 40 years, Occ. - Agriculturist,
6) Abdul Latif Mohammad Sultan,
Age 36 years, Occ. - Agriculturist,
7) Abdul Karim Mohammad Sultan,
Age 32 years, Occ.- Agriculturist,
8) Elhaibi Mohammad Sultan,
Age 30 years, Occ. - Agriculturist
All (4) to (8) R/o Ward No.5, Near
Jumma Mazjid, Ansingh, District-Washim. .... PETITIONERS
VERSUS
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1) Shurnrushi Sanstha,
Ansing, Tahsil & District Washim,
through its Trustees.
1A) Bhagirath Kisanlal Sarda,
Age - Major, Tahsil and District
Washim.
2) Govind Sadashiv Shukla,
Age 75 years, Occ. - Agriculturist,
R/o Udapur, Ansing, Tahsil and
District Washim.
3) Asgar Khan Akbar Khan,
though its L.Rs. (ori. Defendants)
a) Najmunnissa Asgar Khan,
Age - Major,
b) Asad Khan Asgar Khan,
Age - Major,
c) Alamkhan Asgar Khan,
Age - Major,
d) Rahman Khan Asgar Khan,
Age - Major,
e) Nazar Khan Asgar Khan,
Age - Major,
5) Bismillah Bee w/o Asgar Khan,
Aged 65 years, Occ. - Agriculturist,
6) Khairunnisa Nasir Khan,
Aged 45 years, Occ. - Agriculturist,
7) Mehrunnisa Sheikh Farid,
Aged 42 years, Occ. - Agriculturist,
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8) Sheikh Aziz Sheikh Mehboob,
Aged 45 years, Occ.- Agriculturist,
9) Mohammad Sultan Sheikh Sandal,
Aged 65 years, Occ.- Agriculturist,
All R/o Ansing, Tahsil and District
Washim. .... RESPONDENTS
______________________________________________________________
Shri S.R. Deshpande, Advocate for the petitioners,
Shri R.L. Khapre, Advocate for the respondent Nos.1, 1A and 2.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 16
MARCH, 2017.
th
ORAL JUDGMENT :
Heard Shri S.R. Deshpande, Advocate for the petitioners
and Shri R.L. Khapre, Advocate for the respondent Nos.1, 1A and 2/
original plaintiffs.
The respondent Nos.3(a) to 3 (e), 5,6,7,8 and 9 are the
original defendants and according to the learned Advocates for the
respective parties, they will not be affected by the order which is to be
passed in this petition.
2. Rule. Rule made returnable forthwith.
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3. The plaintiffs filed civil suit praying for decree for
possession of agricultural lands. In this civil suit an issue arose for
consideration whether the defendant No.1-Sheikh Maheboob Sheikh
Sandal is tenant over the suit land. This issue was referred to the
Tahsildar for adjudication as required by Sections 124 and 125 of the
Maharashtra Tenancy and Agricultural Lands (Vidarbha Region) Act,
1958 (hereinafter referred to as the "Tenancy Act, 1958"). During the
pendency of the proceedings before the Tenancy Tahsildar, defendant
No.1-Sheikh Mehboob Sheikh Sandal and the defendant No.2-Sheikh
Sultan Sheikh Sandal died and their legal representatives were brought
on record. By the order passed on 30-07-2004, the Tenancy Tahsildar
held that Sheikh Maheboob Sheikh Sandal or Sheikh Sultan Sheikh
Sandal were not the tenants as per the provisions of the Tenancy Act,
1958. This order was challenged by the legal representatives of the
defendant No.1- Sheikh Maheboob Sheikh Sandal before the Sub-
Divisional Officer in appeal which was dismissed by the order passed
on 23-10-2007. The legal representatives of the defendant No.1-
Sheikh Maheboob Sheikh Sandal and the legal representatives of
Sheikh Sultan filed revision application under Section 111 of the
Tenancy Act, 1958 before the Maharashtra Revenue Tribunal which is
dismissed by the impugned order.
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The Maharashtra Revenue Tribunal has concluded that the
legal representatives of the defendant No.1- Sheikh Maheboob Sheikh
Sandal and the legal representatives of Sheikh Sultan Sheikh Sandal
cannot claim the tenancy rights over the suit lands, the tenancy not
being inheritable as the exemption certificate under Section 129(b) of
the Tenancy Act, 1958 is granted in favour of the owner (Public Trust).
4. The learned Advocate for the petitioners has submitted
that the Maharashtra Revenue Tribunal has committed an error by
holding that the legal representatives of the defendant No.1-Sheikh
Maheboob Sheikh Sandal and the legal representatives of defendant
No.2-Sheikh Sultan Sheikh Sandal cannot claim the tenancy rights over
the lands in question because of grant of exemption certificate under
Section 129(b) of the Tenancy Act, 1958 in favour of the owner
(Public Trust), overlooking the provisions of Section 37 of the Tenancy
Act 1958, which protects the rights and privileges of the tenants. It is
submitted that the provisions of Section 2(32) and provisions of
Section 6 of the Tenancy Act, 1958 are also not considered by the
Maharashtra Revenue Tribunal. I find substance in the submissions
made on behalf of the petitioners.
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5. The learned Advocate for the respondent Nos.1, 1A, 2
submitted that the findings recorded by the Maharashtra Revenue
Tribunal relying on the provisions of Section 129(b) and Section 54 of
the Tenancy Act, 1958 cannot be faulted with. The learned Advocate
for the petitioners has rightly submitted that as the point relying on
the provisions of Section 129(b) of the Tenancy Act, 1958 was not
raised by the owner (Public Trust), there was no occasion for the
petitioners to point out the claim of the petitioners relying on the
provisions of Section 2(32), Section 6 and Section 37 of the Tenancy
Act, 1958. In my view, the Maharashtra Revenue Tribunal has
committed an error in holding that the petitioners cannot be said to be
tenants over the suit field, without considering the provisions of
Section 2(32), Section 6 and Section 37 of the Tenancy Act, 1958.
6. In view of the above, I find that the impugned order is
required to be set aside and the matter has to be remanded to the
Maharashtra Revenue Tribunal for deciding the revision filed by the
petitioners afresh.
Hence, the following order :
(i) The impugned order is set aside.
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(ii) The matter is remitted to the Maharashtra Revenue
Tribunal, Nagpur for deciding the revision filed by the
petitioners afresh.
(iii) The petitioners and the respondent Nos.1, 1A and 2 shall
appear before the Maharashtra Revenue Tribunal, Nagpur
on 26-04-2017 at 11-00 a.m. and abide by the further
orders/instructions in the matter.
(iv) The Maharashtra Revenue Tribunal, Nagpur shall consider
the issuance of notice to the other parties.
(v) The Maharashtra Revenue Tribunal, Nagpur shall dispose
the revision application within six months.
Rule made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
adgokar
