Maruti Jaywant Shinde vs Smt. Shantabai Baburao Gotharne ...
2021 Latest Caselaw 6786 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                             WRIT PETITION (ST). NO. 4146 OF 2020

             Maruti Jaywant Shinde
             Age 67 years, Occ. Agriculturist,
             R/o. Sudwadi, Tal. Maval, Dist. Pune                        .... Petitioner
                    v/s.
             1. Smt. Shantabai Baburao Gotharne
             Age. Adult, Occ. Not known,
             R/o. Sudwadi, Tal. Maval, Dist. Pune

             2. Shri. Ashok Baburao Gotharne
             Age. Adult, Occ. Not known.
             R/o. Sudwadi, Tal. Maval, Dist. Pune

             3. Shri. Chandrashekhar Baburao Gotharne
             Age. Adult. Occ. Not known.
             R/o. Sudwadi, Tal. Maval, Dist. Pune

             4. Shri. Uday Ramchandra Kulkarni
             Age. Adult, Occ. Not known.
             R/o. Sadumbare, Tal. Maval, Dist. Pune.

             5. Tahesildar of Vadgaon-Maval                              .... Respondents

                                            -------------------

              Mr. Manoj Patil a/w. Ashish Pawar & J.R.Jadhav for the
              Petitioner.
              Mr. Ajinkya Badar a/w. Suraj Desai for the Respondent Nos.1,
              2 and 3.
              Mrs. M.S.Bane, AGP for the State




             ::: Uploaded on - 03/05/2021                         ::: Downloaded on - 09/09/2021 03:51:24 :::
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                                   CORAM : ANUJA PRABHUDESSAI, J.

RESERVED ON : DECEMBER 09, 2020.

PRONOUNCED ON: 28th APRIL, 2021.

JUDGMENT :-

1. Rule. With consent rule is made returnable forthwith.

2. This petition takes exception to the Judgment and

Order dated 31st December, 2019 passed by the Maharashtra

Revenue Tribunal (MRT), Pune in Revision Application NO.

P/I/1/2017. By the impugned judgment, the MRT has set aside

the order dated 30/01/2015 passed by learned Tahsildar, Maval

in Tenancy Case No.32-G/SR/52/2013, and order dated

18.12.2016 passed by learned Sub Divisional Officer in

Tenancy Appeal SR/142/2015 and consequently dismissed the

proceedings filed by the Petitioner under Section 32G of

Maharashtra Tenancy and Agricultural Lands Act, 1948

(hereinafter referred to as 'the Act').

3. The dispute in the present case is in respect of an

agricultural land under Survey No. 70/1 (New Gat No.199)

Village, Sudawadi, Maval, Pune. It is not in dispute that the

said land was owned by Vitthal Ganesh Kulkarni. The said

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land was in possession of Bhika Dhondu Mahar, the grand

father of the Petitioner, as a tenant. The Petitioner claims that

his father Jaywant Bhika Mahar continued to be in possession

of the said land as on the Tillers day and as such became

deemed purchaser under the provisions of the Act.

4. It is the grievance of the Petitioner that the owners of the

land illegally sold the said tenanted land to Respondent No.1

by Sale Deed dated 29th May, 1964. On the basis of the said

sale deed, the name of the Respondent No.1 came to be

recorded in Survey Records under Mutation Entry No.1003.

The Petitioner therefore filed proceedings under Section 32G

r/w. Section 64 and 84(b) being Tenancy Case No. 74 of 2006

and sought a declaration that the said sale deed 29.5.1964 is

illegal, and further sought fixation of the purchase price in

respect of the tenanted land.

5. The Respondents resisted the claim of the Petitioner

mainly on the ground that Bhika Mahar was lawfully

dispossessed and the original owner was put in possession of

the land prior to the Tillers day. The Respondents claim that

the original owner continued to be in possession of the land till

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the date of execution of the sale deed and since then

Respondent No.1 continues to be in possession of the said

land.

6. In the previous round of litigation, by order dated

19.12.2007, learned Tahsildar had allowed the Tenancy Case

and declared that the sale deed executed in favour of the

Respondent No.1 is contrary to the provisions of Section 64 of

the Tenancy Act and is therefore invalid. Learned Tahsildar

directed to record the name of the owner in the Survey Record

and gave liberty to the Petitioner to initiate fresh proceedings

under Section 32G. In Appeal, being Tenancy Appeal No. 14

of 2008, learned SDO by judgment dated 8th August, 2013 set

aside the order of the Tahsildar and remanded the matter with

directions to adjudicate the issue of possession.

7. Accordingly, learned Tahsildar heard the parties on the

issue of possession. Relying upon mutation entry No.742 and

the entries in the survey records, learned Tahsildar recorded a

finding that Jaywant Bhika Mahar, the father of the Petitioner,

was in possession of the subject land as on the Tillers day.

Learned Tahsildar further observed that the owner had not

obtained possession of the land within the statutory period of

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two years. Hence, by order dated 30 th January, 2015, learned

Tahsildar allowed the application filed by the Petitioner under

Section 32G and declared the Petitioner to be deemed

purchaser of the subject land and fixed the purchase price at

Rs.8810/-. Adjudication under Section 32G is culminated in

the issuance of Certificate under Section 32M of the Act.

8. This order was challenged before the learned SDO in

Tenancy Appeal No. 142 of 2015. Upon hearing the

respective parties, learned SDO held that Bhika Dhondu Mahar

was a protected tenant. Learned SDO observed that though the

mutation entry no.702 refers to order dated 7/1/1955 whereby

possession of the land was ordered to be handed over to the

original owner, the Respondent had not adduced any evidence

to prove that the said order was implemented within a period

of two years. Learned SDO held that the mutation entries

No.742 and 743 clearly demonstrate that the father of the

Petitioner was in physical possession of the subject land as on

the Tillers Day. Based on these findings, by order dated

18/12/2016, learned SDO dismissed the appeal.

9. This order of SDO came to be challenged before the

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MRT in Revision Application No. P/I/1/2017, filed under

Section 76 of the Act. The MRT relied upon Mutation Entry

No.702 to hold that the original tenant was dispossessed by

lawful means and that his name was deleted from the survey

records w.e.f. 26/11/1986. The MRT observed that there is an

overwriting of the name of Jaywant Bhika Mahar, in the

cultivator's column for the year 1956-57 of 7/12 extract.

Relying upon the mutation entry no.702 and the subsequent

entries in cultivators column of 7/12 extract, the MRT

concluded that the owner was in continuous possession of the

land till the date the land was transferred in favour of

Respondent No.1 by sale deed dated 29/05/1964. The MRT

held that the Petitioner has failed to prove that he was in

possession of the land as on the Tillers day and based on these

findings the MRT set aside concurrent findings recorded by the

Tahsildar and the SDO and consequently dismissed the 32G

proceedings filed by the Petitioner. This order is under

challenge in this petition filed under Article 227 of the

Constitution of India.

10. Shri Manoj Patil, learned counsel for the Petitioner

submits that the Tahsildar and the SDO have recorded a clear

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and categorical finding that the father of the Petitioner was in

possession of the subject land on the Tillers day. This finding

is based on the mutation entry no.742 and 743 . Learned

Counsel has relied upon the decision of this Court in Abdul

Rajtak Adbul Rehman Mulla vs. Ibrahim Yusuf Lande 2006

(1) Bom.C.L. 214 to contend that the revisional jurisdiction of

the MRT is restricted to the three grounds enumerated in

clauses (a), (b) and (c) of Section 76 of the BTAL Act. He

submits that the MRT has exceeded its jurisdiction in

interfering with the concurrent finding of facts recorded by the

authorities below.

11. Per contra, Mr. Ajinkya Badar, learned counsel for

Respondent Nos.1 to 3 submits that Mutation Entry no. 702

and the entries in 7x12 extract amply prove that the original

tenant Bhika Mahar @ Shinde, the grandfather of the

Petitioner was dispossessed by due process of law prior to the

Tillers Day. The Petitioners did not seek recovery of

possession within the statutory period. He submits that the

mutation entry No. 742 is an erroneous entry made after the

Tillers day. He submits that the Respondent No.1 has

purchased the property in the year 1964 and that Mutation

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entry No.1003 has been recorded in the name of Respondent

No.1 in survey records. He submits that the RespondentNo.1is

in possession of the land since the date of purchase. He

contends that the Petitioner has failed to prove the tenancy

claim and hence MRT was well within its powers to interfere

with the findings, which though concurrent are perverse

findings.

12. I have perused the records and considered the

submissions advanced by the learned Counsel for the

respective parties. The only question which falls for

consideration in the present petition is whether the MRT has

exceeded its revisional jurisdiction under Section 76 of the

Act.

13. Before adverting to the question raised in the Petition, it

would be appropriate to consider the scope and extent of the

revisional jurisdiction and statutory provisions pertaining to

the revisional jurisdiction of the MRT under the Act. In

Hindustan Petroleum Corporation Limited v/s. Dilbahar

Singh (2014) 9 SCC, the Constitution Bench of the Hon'ble

Supreme Court, while considering the scope of the revisional

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jurisdiction of the High Court under various Rent Control and

other legislations has highlighted the limited nature of the

revisional jurisdiction and drawn distinction between appellate

and revisional jurisdiction as under :-

"25 ...Conceptually, revisional jurisdiction is a part of appellate jurisdiction, but it is not vice versa. Both, appellate jurisdiction and revisional jurisdiction are creatures of statues. No party to the proceeding has an inherent right of appeal or revision. An appeal is continuation of suit or original proceeding, as the case may be. The power of the appellate court is co-extensive with that of the trial court. Ordinarily, appellate jurisdiction involves rehearing on facts and law but such jurisdiction may be limited by the statute itself that provides for appellate jurisdiction. On the other hand, revisional jurisdiction, though, is a part of appellate jurisdiction but ordinarily it cannot be equated with that of a full fledged appeal. In other words, revision is not continuation of suit or of original proceeding.

When the aid of revisional court is invoked on the revisional side, it can interfere within the permissible parameters provided in the statute. It goes without saying that if a revision is provided against an order/appellate authority the decision of the revisional court is the operative decision in law. In our view, as regards the extent of appellate

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or revisional jurisdiction, much would, however, depend on the language employed by the statute conferring appellate jurisdiction and revisional jurisdiction."

14. Having considered the scope of the revisional powers in

general, it would now be relevant to refer to Section 76 of the

Act, which defines the contours of revisional jurisdiction of the

MRT. Section 76 reads as under :-

" 76. Revision.

(1) Not withstanding anything contained in the Bombay Revenue Tribunal Act, 1939, an application for revision may be made to the Maharashtra Revenue Tribunal constituted under the said Act against any order of the Collector on the following grounds only;

(a) that the order of the Collector was contrary to law;

(b) that the Collector failed to determine some material issue of law; or

(c) that there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice.

(2) In deciding applications under the section the Maharashtra Revenue Tribunal shall follow the procedure which may be

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prescribed by rules made under this Act after consultation with the Maharashtra Revisional Tribunal."

15. A plain reading of this provision indicates that the scope

of interference in revisional jurisdiction is restricted to the

grounds specified in the three clauses of sub section 1 of

Section 76. As it has been held by the Apex Court in

Rahimatulla Rahiman Sarguru vs. Bapu Hari Mane & Ors.

(1979) 4 SCC 391, the powers of Revision entrusted to the

Maharashtra Revenue Tribunal under Section 76 of the

Bombay Tenancy and Agricultural Lands Act, 1948, are

practically identical with the Second Appellate powers of the

High Court Under Section 100 Civil Procedure Code before it

was amended by Act 104 of 1976.

16. In Shamrao Maruti Patil & Ors. Vs. Shantabai

Dattatraya Salokhe, 1995 (1) Mh.L.J. 668, this Court, while

considering the scope of revisional powers, under Section 76

of the Act has observed that :-

" 9.... It is well-settled that if a decision is based on evidence, however, unsatisfactory the judgment may be, it does not cease to be question

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of fact and unless the Tribunal finds that there was no evidence for the finding of fact, the mere insufficiency of evidence or defect in the appreciation of evidence will not convert a question of fact into a question of law. Whether the proof of a particular fact is satisfactory or not is for the fact finding authority to determine. Adequacy of evidence or sufficiency of evidence cannot be a question of law and the Tribunal, in exercise of its revisional jurisdiction, cannot re- appreciate the evidence and give a fresh conclusion of its own unless it holds that the finding of the Appellate Authority is perverse.

The scope and power of revision under section 76 of the Act came up for consideration before the Supreme Court in Baldevji v. State of Gujarat, (sic Rahimatulla Rahiman Sarguru (1979) 4 SCC 391 supra) wherein it was held that the powers of revision entrusted to the Maharashtra Revenue Tribunal under section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, are practically identical with the second appellate powers of the High Court under section 100 of the Civil Procedure Code before it was amended by Act 104 of 1976. The scope and ambit of section 100 of the Code of Civil Procedure is not mere res integra. As observed by the Supreme Court in Ramachandra v. Ramalingam, the exercise of power under section 100 of the Code of Civil

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Procedure is confined to cases where the High Court is satisfied that the decision is contrary to law or some usage having the force of law, or that the decision has failed to determine some material issue of law or usage having the force of law, or if there is a substantial error or defect in the procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits. Only in such cases, the High Court can interfere with the conclusions of the lower appellate Court. It was made clear that the error or defect in the procedure referred to in section 100 of the Code of Civil Procedure clearly and unambiguously indicates an error or defect connected with, or relating to the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. From the above observations of the Supreme Court, it is clear that the power of the Tribunal under section 76 of the Act is a limited one and can be exercised on any of the grounds mentioned in the three clauses of sub-section (1) thereof. "

17. Similarly, in Dattatraya Yamaji Bhutkar & Ors. Vs.

Vaijinath Madhav and Ors. 1998 (3) Bom.C.R.286 and

Abdul Rajtak (supra), this Court has reiterated that the

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provision under Section 76 restricts the power of the Tribunal

to reverse findings of facts, except on the grounds enumerated

in clauses (a), (b) and (c). It is held that findings of fact on the

basis of evidence are to be returned only by the trial Court or

by the Appellate Court. The Tribunal under Section 76 of the

Act has the jurisdiction to examine the findings of fact, if the

same are based on no evidence or are found to be perverse.

So long as there is some material on record and findings of

facts have been arrived at thereon, the Tribunal would have no

jurisdiction to upset the concurrent findings of fact.

18. In the instant case, it is not in dispute that the subject

land was owned by Vithal Ganesh Kulkarni. Bhika Mahar @

Shinde, the grandfather of the Petitioner was a protected tenant

in respect of the said land. The cultivators column in 7 x 12

extract indicates that the said land was cultivated by Bhika

Dhondu Mahar till the year 1954-55. Mutation Entry No.702

effected on 13.6.1955 records that possession of the subject

land was taken from Bhika Dhondu Mahar @ Shinde and

handed over to Vithal Ganesh Kulkarni based on the order

dated 7.1.1955 passed by the ld. Mamlatdar, Maval, in

Tenancy Case No.3/55 and a possession receipt in that regard

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was prepared and taken on record. The Respondents have

relied upon this entry to contend that the original owner was in

possession of the subject land as on the Tillers day.

19. In this regard, it is pertinent to note that the survey

records, particularly the entry in "Kul - Khand" ( Cultivators

column ) for the year 1955-56, which was recorded subsequent

to purported dispossession, does not support the claim of the

respondent, but clearly indicates that during this period i.e.

1955-56 Jaywant Mahar, son of Bhika Mahar continue to

cultivate the land as a tenant thereof and appropriate the

produce with the owner. This entry which was effected during

the lifetime of Bhika Mahar, reveals that Jaywant Mahar was

in possession of the land as on the Tillers day. The entry in the

Cultivators column for the year 1956-57 also records the name

of Jaywant Mahar, whereas entries for the period subsequent to

the Tillers day records the word "Khud" (Self). These entries

also reinforce the claim of the Petitioner that Jaywant Mahar

continued to be in lawful cultivation of the land.

20. It is also relevant to note that Mutation Entry No.742

dated 19.05.1957 records that Jaywant Bhika Mahar was in

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actual occupation and possession of the land prior to 1956-57.

Mutation Entry No.743 further indicates that the Circle Officer

had confirmed that the occupation and possession of the land

was with Jaywant Mahar and hence cancelled the said

mutation entry applied by the owner for deletion of the name

of Jaywant Mahar. These mutation entries, which have not

been challenged, also support the claim of the Petitioner that

his father continued to be in lawful cultivation of the land on

the Tillers day and hence, deemed to have purchased the

subject land.

21. The Respondent, even after the remand order, did not

adduce any evidence to rebut the presumption and/or to prove

that the owner had taken possession of the land from Jaywant

Bhika Mahar. Hence, on the basis of these mutation entries

and the entries in Cultivators column, learned Tahsildar and

SDO have held that Jaywant Bhika Mahar was in possession of

the land on the Tillers day. These authorities have thus

recorded a clear and cogent finding that the Petitioner was a

deemed purchaser of the land in terms of Section 32 of the Act.

22. The MRT has interfered with the finding of fact

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recorded by these Authorities on the basis of Mutation Entry

No.702. While arriving at a conclusion that Bhika Mahar was

dispossessed by lawful means and that the original owner was

put in possession of the land, the MRT has ignored

subsequent Mutation Entries No.742 and 743 which, as

observed by the both the Authorities below clearly indicate that

Jaywant Mahar was in possession of the land prior to 1956-57.

The MRT has also discarded the entry in the Cultivators

Column for the year 1956-57 on the ground that there is over

writing in the name of Jaywant Mahar and on an assumption

that the word "khud" (self) in Cultivators column for the

subsequent years refers to the owner. It is to be noted that the

MRT has ignored the fact that the entry in the Cultivators

column for the previous year 1955-56 which was recorded

subsequent to purported dispossession, was in the name of

Jaywant Mahar and that there was no material on record to

indicate that Jaywant Mahar was dispossessed by lawful

means.

23. It is to be noted that the question whether the father of

the Petitioner was in possession of the land on the Tillers day

is a question of fact. Both the authorities below have recorded

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a finding that the father of the petitioner was in possession of

the land on Tillers day and acquired the status of deemed

tenant by operation of law. These findings are based on

evidence on record and cannot be construed as perverse

findings. Consequently, the MRT had no jurisdiction to

interfere with the concurrent findings recorded by fact finding

authorities even if it was possible to have a different view. As

noted above, the scope of revisional jurisdiction is

circumscribed by the rigors of Section 76 of the Act and as

such the Revisional Authority could have interfered with the

findings only within the permissible parameters. Evidently,

while purporting to exercise revisional jurisdiction, the MRT

instead of restricting itself to the three grounds specified in

Section 76(1) of the Act, acted as a fact finding/Appellate

Authority and ventured into re-appreciating the evidence and

substituting the finding of fact by its own finding. The MRT

has therefore far exceeded the jurisdiction conferred on it by

Section 76 of the Act. Hence the impugned order cannot be

sustained.

24. Under the circumstances, the Petition is allowed. The

impugned order dated 31st December, 2019 passed by the MRT

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in Revision Application No.P/I/1/2017 is quashed and set

aside. The decision of the learned SDO, Maval-Mulshi, Pune

in Tenancy Appeal/SR/142/2015 as well as the decision of

learned Tahasildar @ Maval in Tenancy Case

No.32-G/SR/52/2013 is restored. Rule is made absolute in

above terms. There shall be no order as to costs.

(ANUJA PRABHUDESSAI, J.)