Bombay High Court
Rajakhan M.Pinjari vs Abdul Kadar Babulal Mulla ... on 21 September, 2017
Bench: M.S. Sonak
202.WP.154.95.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 154 OF 1995
Shri Rajekhan Mira Pinjari ... Petitioner
V/s.
1. Shri Abdul Kadar Babalal Mulla
(deceased) & Ors. ... Respondents
Mr. N.J. Patil for the Petitioner.
Mr. S.M. Kamble for Respondent No.1 (deceased).
CORAM : M.S. SONAK, J.
DATE : 21st SEPTEMBER, 2017.
ORAL JUDGMENT :
1 Heard Mr. Patil for the petitioner. Advocate Mr.
Kamble states that whilst he had instructions to appear on behalf of
original respondent No.1 and after the demise of respondent No.1,
he has no instructions to appear on behalf of the legal
representatives of respondent No.1. Accordingly, Mr. Kamble
requests that this be recorded and he seeks leave not to appear for
legal representatives of respondent No.1 in this matter.
2 This Petition challenges judgment and order dated
23.11.1990 made by the Maharashtra Revenue Tribunal (MRT)
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allowing the Revision Application No.MRT.KP.98/1986 instituted by
original respondent No.1 (Mulla). By the impugned judgment and
order dated 23.11.1990, the M.R.T. has set aside the orders dated
08.12.1983 and 28.02.1986 made by the Tahsildar and the S.D.O.,
which orders, were in favour of the petitioner herein.
3 Mr. Patil, the learned counsel for the petitioner,
submits that the material on record overwhelmingly establishes that
the petitioner, is tenant in respect of the suit property. He submits
that petitioner is tenant in possession of the suit property on the
Tillers day i.e. 01.04.1957. He submits that therefore, on and from
the said date, it is the petitioner who became the deemed purchaser
in respect of the entire suit property.
4 The impugned judgment and order made by the M.R.T.
has the effect of validating sale deed dated 14.08.1967, by which,
the landlord Mali has sold a portion of the suit property i.e. about 2
acres in favour of Mulla. Mr. Patil submits that this is clearly
impermissible because, by the year 1967, the petitioner had already
become deemed purchaser in respect of entire suit property
admeasuring approximately 3 acres.
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5 Mr. Patil further submits that in this case, no
permission as contemplated under Section 64 of the Maharashtra
Tenancy and Agricultural Lands Act, 1948 (Tenancy Act), has been
produced by Mulla. He submits that both the Tahsildar as well as
the S.D.O. have categorically recorded findings of fact that no such
permission was ever produced by Mulla. He submits that the S.D.O.
is entirely right in observing that some letter from the Tahsildar can
never be regarded as order of the Tahsildar, granting permission to
the landlord Mali to effect sale of 2 acres of the suit property in
favour of Mulla. He submits that M.R.T. was not at all justified to
interfering with the concurrent findings of the fact recorded by the
Tahsildar and the S.D.O.
6 Mr. Patil further submits that there is absolutely no
evidence on record to establish that Mulla was the tenant in respect
of any portion of the suit property. He submits that Mulla's name
came to be recorded in the Survey records only post 1962. He
submits that the petitioner was already tenant on the Tillers day i.e.
01.04.1957 and consequently, had become deemed purchaser in
respect of the entire suit property admeasuring approximately 3
acres. In the absence of any evidence to the effect that Mulla was
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also the tenant of the suit property or any portion of the suit
property, any sale deed in favour of Mulla was null and void and
was rightly declared as null and void by the Tahsildar and
confirmed by the S.D.O. He submits that the M.R.T., exceeded its
jurisdiction in validating the sale deed. He submits that the
impugned judgment and order made by the M.R.T. is in the excess
of jurisdiction and the findings recorded therein are vitiated by
perversity and, therefore, the impugned judgment and order made
by the M.R.T. may be set aside.
7 I have considered the submissions made by Mr. Patil
and perused the record as well as the judgments and orders made
by the Tahsildar, the S.D.O. and the M.R.T. in this matter.
8 In this case, the suit property bearing Survey
No.311/1B admeasuring approximately 3 acres, was earlier owned
by one K.Y. Mane. In Court auction proceedings, the suit property,
was purchased by Balku Sambhu Mali (Mali). It is the case of the
petitioner that the petitioner or his predecessor-in-title was inducted
as tenant in respect of entire suit property by K.Y. Mane.
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9 Mulla's case is that he was the tenant in respect of 2
acres and 5 gunthas, forming a part of the suit property. Mulla's
case is that in the year 1962, Mali, had in fact agreed to sell this
portion of suit property to him since, he was also the tenant of this
portion and his name was duly entered in the revenue records in
respect of this portion. Mulla's case is that Mulla applied to the
Tahsildar for permission and such permission was in fact granted by
order dated 17.02.1964 by the Tahsildar. In pursuance of such
permission, two sale deeds were executed on 14.08.1967. In terms
of the first sale deed, which was in fact witnessed by the petitioner
(Pinjari), portion of the suit property admeasuring 2 acres and 5
gunthas was sold by Mali to Mulla. By the second sale deed, Mali
sold the balance portion of about 1 acre in favour of the petitioner.
On this second sale deed, Mulla, has actually signed as a witness. In
these circumstances, it is the case of Mulla that there is absolutely
no infirmity in the sale deed dated 14.08.1967 by which, Mulla
purchased approximately 2 acres from out of the suit property.
10 In this case, the record indicates that the petitioner
never applied for any declaration as to tenancy in respect of the
entire suit property. However, the petitioner, did apply for
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determination of purchase price in respect of the entire suit property
in terms of Section 32G of the Tenancy Act. Before the Tahsildar,
enquiry was made in terms of Section 32G of the Tenancy Act.
However, the purchase, was declared as ineffective. Thereafter,
further proceedings commenced under Section 32P of the Tenancy
Act. In these proceedings, the petitioner stated that he had
purchased 1 acre from out of the suit property for Rs.400/-. The
statement of the petitioner, was quite consistent with the sale deed
dated 14.08.1967 by which, the petitioner had indeed purchased 1
acre from out of the suit property. This is the very sale deed, on
which, Mulla has signed as a witness. The petitioner, also instituted
a Revision before the Collector under Section 76A of the Tenancy
Act, questioning the adverse order under Section 32G. This
revision, however, failed. To that extent, the order made in the
proceedings under Section 32G attained finality. However, liberty
was granted to the petitioner to take out proceedings under Section
84C of the Tenancy Act, since, it was the case of the petitioner that
the alienation by the landlord Mali in favour of Mulla was in
contravention of the provision of Tenancy Act. The impugned
orders have been made in these proceedings under Section 84C of
the Tenancy Act.
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11 The Tahsildar by his order dated 08.12.1983 has held
that since no permission was obtained by Mali or Mulla before the
sale deed dated 14.08.1967 was executed, such sale deed is invalid
under Section 84C. Mulla appealed to the S.D.O., who, by
judgment and order dated 28.02.1986 has dismissed the Appeal.
The S.D.O. has observed that Mulla has neither produced any
evidence that there was permission for the sale from the Tahsildar
nor he produced any evidence to establish that he was indeed the
tenant of any portion of the suit property. Appeal Court has,
however, admitted that Mulla produced order No.32-O/K, Sangaon
57/64 dated 17.02.1964. The Appeal Court has also observed that
in the order under Section 32-O it is clearly mentioned that tenancy
of Mulla commences from 1962-63. The Appeal Court further states
that since the tenancy of the petitioner (Pinjari) had commenced
prior to 01.04.1957, on the said date, the petitioners became
entitled to purchase the entire suit property.
12 Upon perusing the records in this matter, the following
emerges :-
a) The Tahsildar and the S.D.O. are not quite right in saying
that Mali and Mulla produced no evidence with regard to
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the permission for sale dated 14.08.1967. Even the Appeal
Court, has recorded that Mulla produced order No.32-O/K
Sangaon 57/64 dated 17.02.1964 on record. This order, is
very much a part of the record. In this order, it is recorded
that the landlord Mali has admitted the tenancy of Mulla,
though, w.e.f. 1962-63. Further, both Mali as well as
Mulla stated that the land is a sugarcane land. The
Tahsildar in his order dated 17.02.1964 has recorded that
even the RTS entries support this position. On this basis,
Tahsildar has recorded that the provisions of 32 to 32-R do
not apply sugarcane land and for this reason enquiry is
dropped;
b) The record also indicates that on 14.08.1967 itself, two
sale deeds were executed by the landlord Mali. The first
sale deed conveys a portion of the suit property
admeasuring approximately 2 acres in favour of Mulla for
consideration of Rs.800/-. There is evidence on record,
and which position was not even disputed by Mr. Patil,
learned counsel for the petitioner, that at the time when
this sale deed was executed, the petitioner (Pinjari) was
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very much present and in that sense, has witnessed the
execution of this sale deed. The second sale deed which
was executed by landlord Mali on the same date conveys
the balance portion of the suit property admeasuring about
1 acre in favour of the petitioner (Pinjari). On this sale
deed Mulla has actually signed as a witness.
13 From the perusal of the order dated 17.02.1964, there is
really no reason to interfere with the finding recorded by the M.R.T.
that the sale deed effected by Mali in favour of Mulla was with
permission under the Tenancy Act. At this stage, it cannot be said
that the finding is vitiated by perversity. The Tahsildar, appears to
have dealt with the matter quite casually. The S.D.O., admits that
the order dated 17.02.1964 had been produced on record by Mulla
but failed to take into consideration this order. In such
circumstances, there is no case to interfere with the findings
recorded by the M.R.T. on this issue.
14 That apart the two sale deeds came to be executed on
one and the same date i.e. 14.08.1967. The sale deeds were
executed in the presence of both Pinjari as well as Mulla by the
landlord Mali. The first sale deed conveys about 2 acres from out of
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the suit property in favour of Mulla. The second sale deed conveys
the balance 1 acre from out of the suit property in favour of Pinjari.
15 The aforesaid indicates that there was no serious
dispute about the status of tenancy of both Mulla as well as Pinjari.
Mulla, it appears, was the tenant in respect of the portion of 2 acres
which was ultimately sold to him by Mali and Pinjari was the tenant
in respect of the balance portion of 1 acre which has been ultimately
sold to Pinjari. If this was not the position, there was no reason as
to why Pinjari would have consented to the conveyance of only 1
acre of the suit property to him and that too by permitting Mulla to
be one of the witnesses to such a transaction. Pinjari, in all
probabilities, would have refused to accept the conveyance for any
portion of the suit property but insisted that he will execute the
conveyance only if the entire suit property was being conveyed to
him.
16 There is yet another circumstance which has been
noted by the M.R.T. The petitioner (Pinjari) took out proceedings
under Section 32G seeking determination of purchase price in
respect of the entire property. The purchase was, however, declared
to be ineffective. The petitioner's Revision Petition also did not
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meet with any success. To that extent, therefore, the order by which
the purchase proceedings in favour of the petitioner came to be
declared ineffective has attained finality. Merely because some
liberty was granted to make application under Section 84C of the
said Act by itself, cannot, wipe out the effect of the declaration by
the Tahsildar that the purchase proceedings in respect of the entire
property initiated by the petitioner (Pinjari) had become ineffective.
The Tahsildar's order, was confirmed in Revisional jurisdiction.
Thus, construed, there is really no reason to interfere with the
impugned judgment and order made by the M.R.T.
17 For the aforesaid reasons, this Petition is dismissed.
There shall be no order as to costs. Interim order, if any, stands
vacated.
(M.S. SONAK, J.)
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