Shri Popat Jagannath Sutar @ ... vs Shri Mohan K. Nikam
2017 Latest Caselaw 7454 Bom

Dinesh Sherla                                                                         226-wp-1766-98



                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE  JURISDICTION
                       WRIT PETITION NO. 1766 OF 1998  

         Shri. Popat Jagannath Sutar @ Mahamuni .. Petitioner                
                vs.
         Shri. Mohan K. Nikam                            .. Respondent
                                                                      
         Mr. P.B. Shah for the Petitioner.
         None for the Respondents                          
                  
                                           CORAM :  M. S. SONAK, J.

                                           DATE     :    22 SEPTEMBER 2017.
         ORAL JUDGMENT :- 
          
         1]     Neither the  respondent present nor represented, despite the 

order made by this Court on 1st September 2017. In fact the order

made by this Court on 1st September 2017 reads thus:

"The learned Counsel for the Petitioner submits that though the Maharashtra Revenue Tribunal in the impugned order has confirmed the order of Tenancy Awal Karkun, Koregaon in the judgment, the Tribunal has recorded a finding that the Respondent is a tenant since 1950 and in possession till date. The learned Counsel submitted that even assuming the case of the Respondent under Section 32(O) of the Bombay Tenancy and Agricultural Lands Act, 1948 of being in possession since 1981 is to be accepted, it was never the case of the Respondent that he was in possession since 1950. He submitted that such observation may be construed by the Respondent as being held as deemed tenant under Section 32(G) of the Act which will take away the further remedy of the Petitioner.

2. Prima-facie, reading of the impugned judgment and order passed by the Tribunal, it appears that though this observation has been made, the ultimate order is confirming the order of Tenancy Awal Karkun, which upheld the right of the Respondent under Section 32(O) of the Act.

3. Since it is informed that the learned Counsel for the Respondent has filed a Leave Note, stand over one week."

 Dinesh Sherla                                                                     226-wp-1766-98



         2]      In this case, the respondent instituted Tenancy Case No. 26 of 

1993 before the Awal Karkoon seeking declaration regards tenancy.

3] The Awal Karkoon by order dated 13th April 1994 declared

that the respondent is the tenant in respect of the suit property from

prior to 1981. The petitioner appealed to Sub-Divisional Officer

(SDO) vide Tenancy Appeal No 30 of 1994. This appeal was allowed

vide SDO's order dated 20th December 1994. The respondent then

instituted a revision application before the Maharashtra Revenue

Tribunal (MRT). The MRT, by judgment and order dated 12 th

November 1997 has set aside the SDO's order and confirmed the

Awal Karkoon's order.

4] Mr. Shah, learned counsel for the petitioner, submits that the

material on record, at the highest suggest that the respondent was

the tenant in respect of the suit property from 1981, but not from 1 st

April 1957. He states that even the Awal Karkoon, in his order dated

13th April 1994 has not recorded any categorical finding that the

respondent was the tenant in respect of the suit property as on 1 st

April 1957. He submits that the MRT, by the impugned order, could

Dinesh Sherla 226-wp-1766-98

therefore, have not recorded a finding that the respondent, was the

tenant in possession of the suit property as on 1st April 1957.

5] From the perusal of Awal Karkoon's order, it does not transpire

that any specific finding has been returned as regards the tenancy of

the respondent from 1st April 1957. The MRT, in its operative portion

of the order, has merely restored/confirmed the Awal Karkoon's

order dated 13th April 1994. However, in the impugned judgment

and order dated 12th November 1997, the MRT has recorded the

following:

"It is an admitted fact that the land is cultivated by the father of the present revision applicant since 1950 and he was also in possession of the land on 1/4/1957 i.e. on the Tiller's Day".

6] There is merit in the contention of Mr. Shah that the MRT

ought not to have recorded such a categorical finding, particularly

when Awal Karkoon has not recorded the same. However, in these

proceedings, it is not possible to say conclusively whether the

respondent was a tenant as on 1 st April 1957 or not. The Awal

Karkoon, in the operative portion of his order dated 13 th April 1994,

has declared that the respondent was the tenant in respect of the

suit property from "from prior to 1981". This is quite ambiguous.

This can mean that the respondent was a tenant in respect of the suit

Dinesh Sherla 226-wp-1766-98

property prior to 1st April 1957 or between 2nd April 1957 and the

year 1981.

7] From perusal of the MRT's order dated 12 th November 1997,

there is reference to revenue receipts between year 1972 and 1975.

However, it is not quite clear as to the basis on which the MRT, has

recorded the aforesaid findings with regard to the respondent's

tenancy as on 1st April 1957.

8] In view of the aforesaid, despite being conscious that this is an

old matter, the matter is required to be remanded to the MRT only

for the purposes of determining whether the declaration of tenancy

in favour of the respondent should relate to the year 1 st April 1957

or post 1st April 1957. Insofar as the declaration that the respondent

is a tenant is concerned, there is really no case to interfere with this

finding.

9] This petition is therefore, disposed of with the following order:

a] The conclusion recorded by the MRT that the

respondent is a tenant in respect of the suit property is

upheld;

 Dinesh Sherla                                                                       226-wp-1766-98



                  b]       However,   the   portion   of   the   impugned   order,   which 

suggests that the respondent was the tenant in possession of

the suit property on 1st April 1957 is set aside. The matter is

remanded to the MRT for deciding whether this finding

should be reiterated or varied. The MRT should issue notice to

the parties and after afford of opportunity of hearing to them

and further, after adverting to the materials on record, decide

this issue.

c] For aforesaid purpose, the petitioner to appear before

the MRT on 6th November 2017 at 11.00 a.m. Since, the

respondents had not appeared, the MRT not to proceed in the

matter without service of notice upon the respondent, who, is

the revision applicant before the MRT. The MRT to endeavour

to dispose of the revision application expeditiously, since, only

a short issue is now involved before the MRT.

10] The Rule is made partly absolute to aforesaid extent only.

There shall however, be no order as to costs.

(M. S. SONAK, J.)