Bombay High Court
Rambhau Sukhdeo Sadu Bhagat & ... vs Shreenarayan Surajmal & Others on 2 November, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SPECIAL CIVIL APPLICATION NO.325/1972
1] Sukdeo Sadu Bhagat,
Aged about 47 years,
Cultivator resident of &
Post Andura, Tahsil Balapur,
District Akola.
(Dead through L.Rs.)
1a] Punjaji Sukhdeo Bhagat,
Aged 40 years.
1b] Dashrath Sukhdeo Bhagat,
Aged 30 years.
Both cultivators at and post Andhura,
Taluka Balapur, Dist. Akola.
1c] Tulsabai w/o Nagorao Nanote,
aged 25 years, resident of Sonala,
Post Borgaon Manju, Taluka and
District Akola.
2] Rambhau s/o Sukdeo Wasu,
Aged about 37 years,
Cultivator, resident of Karanja,
Tahsil Balapur, District Akola.
3] Hari s/o Sadu Bhagat,
Aged about 42 years,
Cultivator, resident of
Karanja, Tahsil Balapur,
District Akola.
(Dead through L.Rs.)
3a] Kisan Hari Bhagat,
Aged about 42 years.
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3b] Vishwanath Hari Bhagat,
Aged 35 years.
3c] Vasant Hari Bhagat,
Aged 25 years.
3d] Baliram Hari Bhagat,
Aged 22 years.
a to d All cultivators r/o post Andhura
Taluka Balapur, District Akola.
3e] Shantabai w/o Akaram Golokar,
Post Pathardi, Taluka Talhara,
District Akola.
3f] Rakhmabai w/o Shudhakar Ingle,
R/o Post Hiwarkhed (Ruprao)
Taluka Telhara, Dist. Akola. .....PETITIONERS
...V E R S U S...
1] Shreenarayan s/o Surajmal Agarwal,
Agriculturist, Aged about 52 years.
2] Smt. Shantabai w/o Shrinarayan Agarwal,
Agriculturist, Aged about 44 years.
3] Radheshyam s/o Shrinarayan Agarwal,
Agriculturist, Aged about 27 years.
4] Nandkishore s/o Shrinarayan Agarwal,
Agriculturist, Aged about 21 years.
5] Smt. Shobha w/o Jeevanram Agrawal,
Aged Major, Occ: Household, R/o At Post
Shevani (Malwa), District Hoshangabad (M.P.)
6] Smt. Manibai alais Lalita w/o Omprakash
Singhania, Aged Major, Occupation Household,
R/o At Post Pandharkawada, Tah. Kelapur,
Dist. Yeotmal.
7] Lalitkumar s/o Shrinarayan Agrawal,
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Aged Major, Occupation: Agriculturist,
R/o At Post Andhura, Tah. Balapur,
Dist. Akola. ..Respondents.
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Shri B.N. Mohta, Advocate for respondent Nos.2, 3 and 4.
Shri N.R. Patil, Advocate appointed as Amicus Curiae.
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CORAM : Z.A. HAQ, J.
DATE : 2.11.2017.
ORAL JUDGMENT
1. This Special Civil Application was called out on 4 th October, 2017.
On that date, none appeared for the petitioners. Considering the directions
given by the Hon'ble Supreme Court in the judgment dated 4 th July, 2017 to
dispose the Special Civil Application within six months, the matter was kept on
5th October, 2017. It was not called out on that date. The matter was called
out yesterday (1st November, 2017). Again none appeared for the petitioners.
Shri B.N. Mohta, Advocate appeared for the respondent Nos.2, 3 and 4. Shri
B.N. Mohta, Advocate pointed out that after remand by the Hon'ble Supreme
Court, notices are not issued to the parties. Civil Appeal No.8402/2017 before
the Hon'ble Supreme Court was filed by the present petitioners. The present
petitioners (appellants before the Hon'ble Supreme Court) were represented by
Advocate. Thus, the petitioners are supposed to be aware that the Hon'ble
Supreme Court has remanded the matter to this Court for deciding the Special
Civil Application afresh and the matter is to be disposed within six months from
4th July, 2017. In these facts, I felt that it was not necessary to again send
notice to the petitioners to pursue the Special Civil Application filed by them.
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This Court is not supposed to invite the parties at every stage of the matter and
normally, the notices are issued to the parties, who are not aware about the
pendency of the proceedings, and the purpose of issuance of notice is only to
bring to the knowledge of the parties that the proceedings are filed by some
party against those noticees.
Therefore, I called upon Shri B.N. Mohta, Advocate to argue the
matter and appointed Shri N.R. Patil, Advocate to assist the Court. Accordingly,
order came to be passed on 1st November, 2017. After hearing for some time, I
kept the matter today with a notice on the daily board that the matter is part
heard so that if the petitioners or their Advocate are / is interested, they may
appear.
When the matter is called out today, again there is no appearance
on behalf of the petitioners.
2. Heard Shri B.N. Mohta, Advocate for the respondent Nos.2 to 4.
With the assistance of Shri B.N. Mohta, Advocate and Shri N.R. Patil, Advocate
I have also gone through the documents placed on the record of this Special
Civil Application.
3. The dispute is about 27 acres and 31 gunthas of field Survey No.262
situated at Andhura. The owners of the field filed an application under
Section 100(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha
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Region) Act, 1958 (for short "Tenancy Act") on 6th January, 1968 seeking
declaration that persons, who were shown as non-applicants in that
application, were not tenants in respect of the suit field.
The proceedings under Section 46 and Section 48 of the Tenancy
Act for conferral of statutory ownership of the suit field were pending since
1963 - 1964. By order dated 19 th September, 1968 passed by the Additional
Tahsildar, both the proceedings i.e. proceedings under Section 46 read with
Section 48 of the Tenancy Act and the proceedings under Section 100(2) of the
Tenancy Act were consolidated.
The Additional Tahsildar conducted enquiry, recorded evidence and
by order dated 30th December, 1968 concluded that the non-applicants were
not tenants of the suit field.
4. After the proceedings filed by the land owners under Section 100(2)
of the Tenancy Act were decided, the proceedings under Section 46 and
Section 48 of the Tenancy Act were disposed by order dated 13 th January,
1969 recording that no enquiry under Section 48 of the Tenancy Act was
necessary as it was held that the persons who made claim for conferral of
statutory ownership were not tenants of the suit field.
5. Both the orders passed by the Additional Tahsildar were challenged
in two different appeals. The Special Deputy Collector decided both the
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appeals by common order dated 30th September, 1969. The Special Deputy
Collector allowed the appeals, set aside the order passed by the Additional
Tahsildar holding that the persons claiming statutory right of purchase were
tenants of the suit field and remanded the matter for further enquiry under
Section 46 and Section 48 of the Tenancy Act.
6. The order passed by the Special Deputy Collector was challenged in
two separate revision applications before the Maharashtra Revenue Tribunal.
The challenge before the Tribunal was mainly that the appeals filed before
Special Deputy Collector under Section 107 of the Tenancy Act were not
maintainable. The Tribunal upheld the challenge and recorded that the
appeals were not maintainable and set aside the order passed by the Special
Deputy Collector on 30th September, 1969. This order passed by the
Maharashtra Revenue Tribunal came to be challenged by filing this Special
Civil Application No.325/1972. During the pendency of this Special Civil
Application, the petitioner Nos.1 and 3 died and as applications for bringing
their legal representatives on record were not filed, the Special Civil
Application was dismissed by the judgment dated 17th March, 1975. This
judgment was challenged in Civil Appeal No.1829/1975 which was allowed by
the judgment dated 8th March, 1990. The Hon'ble Supreme Court remanded
the matter to this Court for deciding the Special Civil Application on merits.
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7. After remand, the Special Civil Application was decided by the
judgment dated 11th June, 2001. This Court considered the challenges raised
by the petitioners, which substantially were on the point that the appeals filed
under Section 107 of the Tenancy Act were maintainable, and recorded that
there was no substance in the challenges and the order passed by the
Maharashtra Revenue Tribunal did not suffer from any error. The Special Civil
Application was dismissed. An application seeking review of this judgment
dated 11th June, 2001 was filed which was dismissed on 16 th September, 2003.
The judgment passed in Special Civil Application No.325/1972 was challenged
before the Division Bench of this Court in letters patent appeal which was
dismissed on 21st October, 2004. Against the judgment passed in letters patent
appeal, Special Leave Petition (C) No.7033/2005 was filed which came to be
registered as Civil Appeal No.402/2017 and is decided by the judgment dated
4th July, 2017. The Hon'ble Supreme Court has not interfered with the
conclusions of the Maharashtra Revenue Tribunal that the appeals filed under
Section 107 were not maintainable, however, the Hon'ble Supreme Court has
directed that the legality of the order passed by the Additional Tahsildar can be
directly questioned before this Court in writ jurisdiction and the efficacy of the
application filed by the present petitioners before Collector under Section 46
and Section 48 of the Tenancy Act will have to be examined and accordingly,
directions are given to deal with the lis on merits.
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8. The entire record of the proceedings before the Additional Tahsildar
is not available. The petitioners have not placed on record the copy of
application filed by the respondents under Section 100(2) of the Tenancy Act
and the copies of proceedings under Section 46 and Section 48 of the Tenancy
Act are also not placed on record by the petitioners. In the memorandum of
petition there is no grievance that the Additional Tahsildar has not considered
some relevant evidence or material and / or that the Additional Tahsildar has
misread the evidence on record. In this background, I proceed to examine the
matter in the light of the facts as recorded in the order passed by the Additional
Tahsildar.
9. The petitioners claim that they had been cultivating the suit field as
tenants since 18 to 20 years prior to the filing of the application which means
that according to the petitioners they had been cultivating the field since about
1950. According to the petitioners, they had been cultivating the field on batai
terms as per contract with Ramkisan. Out of three claimants (Sukhdeo,
Rambhau and Hari) only Sukhdeo entered the witness box. In addition,
Waman Maroti was examined on behalf of the claimants. Waman Maroti
supported the claim of the claimants that they were cultivating the field in
question.
10. The Additional Tahsildar has recorded that it was not known
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whether Ramkisan was dead or alive and there was no explanation why the
claimants had not examined Ramkisan when they claimed that they were
cultivating the field in question as per the contract with Ramkisan. The
Additional Tahsildar has obviously drawn an adverse inference against the
petitioners Ramkisan is not examined.
11. The land owners examined Nandkishor who deposed that a partition
between Nandkishor and Ramkisan took place as per the partition deed dated
6th October, 1948 and the suit field came to the share of Shrinarayan
(predecessor of applicant Nos.2 to 7 before Additional Tahsildar). Nandkishor
deposed about an agreement of partnership for cultivation with the
non-applicants. The land owners brought evidence on record that the parties
incurred half expenses each for the agricultural operations and for paying the
land revenue and shared crop or sale proceeds of the crop equally. The land
owners have examined Sitaram, who was working as Munim with Shrinarayan
and Ramkisan. Sitaram has supported the case of the land owners that the
field was cultivated on partnership basis. The Additional Tahsildar has
recorded that there is no reason to disbelieve the evidence of Sitaram.
12. The most important and relevant fact is that the record of rights do
not contain any entry showing that the non-applicants before the Additional
Tahsildar (who claimed to be tenants) were the tenants of the suit field. Only
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crop statements for the years from 1960 - 1961 to 1967 - 1968 show that the
non-applicants were cultivating the suit field, however, the Additional
Tahsildar has not given weightage to these entries as the non-applicants came
out with a case that they were cultivating the suit field since about 1950 and
from 1950 but 1960 the names of the non-applicants did not appear in the crop
statements and names of some other persons were appearing. The Additional
Tahsildar also found that the entries in the crop statements from 1960 - 1961
to 1967 - 1968 cannot be relied upon in view of the evidence produced by the
land owners. The land owners have produced receipts (Takpatti) showing the
sale of crops / agricultural produce. The non-applicants have not explained
how the original receipts were in possession of the land owners. The
production of the receipts by the land owners support their case of cultivation
of the suit field in partnership.
13. The appreciation of evidence by the Additional Tahsildar is proper
and cannot be said to be perverse. After the Hon'ble Supreme Court remanded
the matter by judgment dated 4th July, 2017 for considering the legality of the
order of Additional Tahsildar, the petitioners have not amended the petition to
raise the challenge to the order of Additional Tahsildar on merits. The only
ground of challenge in this Special Civil Application is that the appeals filed
under Section 107 of the Tenancy Act were maintainable. Though there is no
challenge on merits, I have examined it with the assistance of the learned
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Advocate for the respondents and the learned Amicus Curiae.
14. In view of the above, I see no reason to interfere with the order
passed by the Additional Tahsildar concluding that the petitioners are not the
tenants of the suit field.
As the petitioners are not the tenants of the suit field, they will not
be entitled for conferral of statutory ownership as per Section 46 and Section
48 of the Tenancy Act.
The Special Civil Application is dismissed.
As recorded earlier, the petitioners have opted to remain out of the
proceedings and have not assisted the Court. The petitioners shall pay an
amount of Rs.20,000/- (Rs. Twenty Thousand) to Shri N.R. Patil, Advocate
who is appointed as Amicus Curiae and who has assisted the Court in disposing
this old matter. The amount shall be paid to the learned Amicus Curiae by
demand draft and receipt shall be placed on record of this Special Civil
Application till 30th November, 2017.
JUDGE
Tambaskar.
