Bombay High Court
Kaluram Purshopttam Sheth vs Pandurang Lala Marchande & Anr on 15 September, 2017
Bench: M.S. Sonak
223-wp-200-1997
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.200 OF 1997
Kaluram Purshottam Sheth
(Since deceased through Lrs.)
1A. Rajan K. Sheth ..Petitioner
V/s.
Mr.Pandurang Lala Marchande
(Since deceased through Lrs.)
1a) Dagdu Pandurang Marchande & Ors. ..Respondents
----
Mr.S.S. Patwardhan for the Petitioner.
Mr.A.P. Ranade for Respondent No.1A & 1C.
----
CORAM : M. S. SONAK, J.
DATE : 15th SEPTEMBER 2017
ORAL JUDGMENT :
1. Heard Mr.S.S. Patwardhan for the petitioner and
Mr.A.P. Ranade holding for Mr.Karandikar for the respondent.
2. The challenge in this petition is to the following
judgments and orders :-
(a) Judgment and order dated 31 st January 1987
made by the Tahasildar in Tenancy case No.8 of 1996;
(b) Judgment and order dated 29th March 1993 made
by the SDO in Tenancy Appeal No.5 of 1992; and
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(c) Judgment and order dated 29th February 1996
made by the Maharashtra Revenue Tribunal (MRT) in
Tenancy Appeal No.113 of 1993.
3. By the judgment and order dated 31 st January 1987,
Tahasildar has allowed the respondent's (tenants) application under
Section 32G of the Maharashtra Tenancy and Agriculture Lands Act,
1948 (Tenancy Act). The judgments and orders dated 29 th March
1993 and 29th February 1996 dismissed the petitioners (landlords)
Appeal and Revision against Tahsildar's judgment and order dated
31st January 1987. This means that concurrently, three authorities,
have held against the petitioner-landlord.
4. Mr.Patwardhan, the learned counsel for the petitioner
however raises the following two points in support of this petition :-
(a) Mr.Patwardhan submits that all the three authorities
have failed to consider the scope and merit of document
dated 11th May 1957, which establishes two things :-
(i) Firstly that the respondent was only a
naukar (servant) and not a tenant;
(ii) In any case the respondent came in
possession on 11th May 1957 and not on 01 st April
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1957 which is 'a tillers day'. He submits that the
non-consideration of such relevant and vital
material constitutes perversity and on this ground
the impugned judgments and orders are liable to
be set aside.
(b) Mr.Patwardhan submits that MRTP has completely
erred in holding that once certificate is issued under Section
32M of the Tenancy Act, the same is completely conclusive
and the issue as to whether the order under Section 32G of
the Tenancy Act was rightly made or not can never been gone
into. He submits that the certificate under Section 32M of the
Tenancy Act is always subject to the order made under
Section 32G of the Tenancy Act. If the said order is found to
be vulnerable, then, relief cannot be denied on that ground
and in the meantime a certificate under Section 32M has
already been issued.
5. Mr.Ranade, the learned counsel for the respondents
submits that the document dated 11 th May 1957 has been duly
considered by the authorities. He submits that in this case, the
respondents had applied for declaration of tenancy and such
declaration was in fact granted by the Competent Authority. Such
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order granting declaration has attained finality and therefore, at the
stage of determination of purchase price under Section 32G of the
Tenancy Act, the issue as to whether the respondents were indeed
tenants or not could not have been gone into. Mr.Ranade submits
that the principle of res judicata was clearly attracted and there is
absolutely no case made out to interfere with the impugned
judgments and orders.
6. In this case, the record indicates that the respondents
on 27th November 1969 had applied for declaration as tenants under
Section 70(b) of the Tenancy Act. The Tahasildar, who is Competent
Authority in such matters, in fact allowed the application and
declared the respondents as tenants. The petitioner challenged the
Tahasildar's orders before the SDO and the matter was remanded to
the Tahsildar. On remand, the Tahasildar, by order dated 08 th July
1974 once again declared the respondents as tenant in respect of the
suit property. This order was never challenged by the petitioner and
consequently has attained finality.
7. In the year 1986, the respondents instituted
proceedings under Section 32G of the Tenancy Act for
determination of purchase price. These proceedings were allowed
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and the purchase price was determined. The petitioners appealed to
the SDO, which appeal was dismissed. The petitioners instituted
Revision before the MRT under Section 76 of the Tenancy Act,
which Revision was allowed and the matter was remanded to the
SDO for reconsideration. Upon reconsideration the SDO once again
dismissed the petitioners appeal, primarily relying upon the
circumstance that the Tahasildar's orders dated 08th July 1974
declaring the respondent as tenant had attained finality. Against
SDO's order dated 29th March 1993, the petitioner instituted tenancy
Revision Application No.113 of 1993 before the MRT. The MRT by
impugned judgment and order dated 29 th February 1996 has since
dismissed the Revision Petition of the petitioner.
8. In this case, the authorities have rightly held that the
declaration dated 08th July 1974 issued by the Tahasildar in favour
of the respondent has attained finality. In proceedings under 32G of
the Tenancy Act, it was really, not open to the petitioners to re-
agitate this issue. The MRT has rightly relied upon the decision in
Mohanlal Goenka V/s. Benoy Kishna Mukherjee & Ors.1 In this,
the Hon'ble Supreme Court has held that principles of resjudicata
apply even at different stages of the same proceedings. In the facts
1 AIR 53 Supreme Court 65
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of the present case principles of resjudicata were clearly attracted.
The declaration dated 08th July 1974 issued by the Tahasildar in
favour of the respondents had attained finality by way of challenge
by the petitioners. In the second round of proceedings instituted for
the determination of purchase price on the basis of the declaration
already granted, there was no question of the authorities revisiting
the issue of tenancy of the respondents. Such attempt on the part of
the petitioners, was barred under the principles of resjudicata.
9. Thus construed, there was no legal infirmity on the part
of the SDO in not discussing the document dated 11 th May 1957. In
any case, the MRT, has considered the effect of the document dated
11th May 1957 but ruled that the same makes no dent to the earlier
declaration. In this case, three authorities, have held against the
petitioner and the petitioner has not been able to make out any case
of mis-direction of law or perversity and in regard of any findings of
facts.
10. Insofar as second contention of Mr.Patwardhan is
concerned, although, in principle, there is prima-facie merit in the
submission made, the question, really does not arise. Despite the
observation as regards conclusiveness, the MRT, in this case, has
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considered the other grounds raised by the petitioner and ruled that
there was no infirmity in the orders made by the Tahasildar and
SDO. Thus, this is not a case where the MRT has refused to
consider the grounds raised by the petitioner only on the ground
that the certificate under Section 32M is conclusive and debarred
any challenge to the order made under Section 32G of the Tenancy
Act.
11. For the aforesaid reasons, this petition is dismissed.
There shall however be no order as to costs.
(M. S. SONAK, J.)
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