Bombay High Court
Kishan Girijappa Thombre Through ... vs Kerba Khandu Thombre And Others on 16 February, 2021
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2306 OF 2019
KISHAN GIRIJAPPA THOMBRE (DIED) THROUGH LRS.
KHELBA KISHAN THOMBRE (DIED) THROUGH LRS
KASHIBAI W/O KHELBA THOMBRE AND OTHERS
VERSUS
KERBA KHANDU THOMBRE AND OTHERS
...
Advocate for Petitioners : Mr. Humbe Vilas M.
AGP for Respondents-State : Mr. S P Deshmukh
Advocate for Respondent nos.2,3 & 8: Mr. Doke K.R.
...
CORAM : V.K. JADHAV, J.
Dated : February 16, 2021
...
PER COURT :-
1. Heard fnally with consent of the parties at
admission stage.
2. Present writ petition is directed against the
judgment and order dated 3.8.2018 passed by the
Maharashtra Revenue Tribunal, Aurangabad thereby the
revision application fled by the petitioners has been
dismissed with the observations that the order under
challenge has been implemented and L.Rs. of Khelba
Kishan Thombre has not been taken on record.
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3. Learned counsel submits that Kisan Girjappa
Thombre (forefather of petitioner) had fled an
application for restoration of the suit land from the
original owner before the Tenancy Tahsildar, Bhoom on
the grounds that though original owner had taken
possession of the suit land for their personal cultivation,
they had contravened the conditions. Learned Tenancy
Tahsildar, Bhoom had rejected the said application on
13.10.1971. Being aggrieved by the same, Kisan
Thombre had fled an appeal before the Deputy Collector
(LR), Osmanabad challenging the said order and by
order dated 31.1.1979 appeal was allowed by the Deputy
Collector (LR), Osmanabad with the fndings that Kisan
Thombre (forefather of the petitioner) is a tenant and
entitled for restoration of the possession. Being
aggrieved by the same, original owner had fled the
revision application before the Maharashtra Revenue
Tribunal, Aurangabad and the Maharashtra Revenue
Tribunal, Aurangabad by judgment and order dated
15.12.1980 partly allowed the said revision application
and thereby remanded the matter back to Deputy
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Collector (LR), Osmanabad with the directions to hear
the application dated 01.03.1978 by giving an
opportunity to both sides.
4. Learned counsel for the petitioner further submits
that in the said application fled by Kisan Thombre for
restoration of the possession of the suit land, Khandu
Mahalu Thombre (forefather of the respondents) was
party before the Court below. After the decision of
Maharashtra Revenue Tribunal, the Deputy Collector
(LR), Osmanabad has decided the appeal by judgment
and order dated 27.2.1991 thereby the possession of
Kisan Thombre (forefather of the petitioners) came to be
restored with the directions to the Tenancy Tahsildar,
Bhoom to handover the possession of the suit land to
the tenants i.e. Kisan Girajappa Thombre. Learned
counsel submits that in view of the said order,
possession of the suit land was handed over to Kisan
Thombre on 6.7.1991 and to that effect the panchnama
was also drawn.
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5. Learned counsel submits that Kerba Khandu
Thombre and others have fled an application for
seeking possession to the extent of half portion of the
suit land before the Tenancy Tahsildar, Bhoom on
14.12.1993. By order dated 23.11.1995, Tenancy
Tahsildar Bhoom, rejected the said application by
holding that the application submitted by said Keraba
Thombre and others is not in consonance with the
provisions of law. They have failed to prove that they are
the tenants of the suit land and on the other hand
record shows that Kisan Thombre is the protected
tenant of the suit land.
6. Learned counsel submits that being aggrieved by
the same, said Kerba Thombre (respondents herein)
have preferred an appeal before the Deputy Collector
(LR), Osmanabad against the decision dated 23.11.1995
delivered by the Tenancy Tahsildar, Bhoom. By order
dated 30.10.1996 the appellate authority has allowed
the appeal and set aside the order passed by the
Tenancy Tahsildar dated 23.11.1995. Being aggrieved by
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the same, Kisan Thombre (forefather of the petitioner)
has fled the revision proceedings before the
Maharashtra Revenue Tribunal, Aurangabad and by
order dated 13.12.2000 the Maharashtra Revenue
Tribunal, Aurangabad has partly allowed the said
revision, quashed and set aside the impugned order
dated 30.10.1996 passed by the Deputy Collector (LR),
Osmanabad and remanded the matter to the Deputy
Collector (LR), Osmanabad with the observations that
there is no supporting evidence about inheritance of
family lineage, their joint family is not clear and to that
effect there is no clear evidence. By order dated
31.3.2006 the Deputy Collector (LR), Osmanabad has
allowed the appeal fled by the respondents herein by
quashing and setting aside the order dated 23.11.1995
passed by the Tenancy Tahsildar, Bhoom and remanded
the matter back to the Tahsildar, Bhoom for fresh
inquiry to record the fnding on family lineage, blood
relations between Kisan and Keraba and about their
joint family.
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7. Learned counsel further submits that, after
remand, by order dated 2.6.2011 the Tenancy Tahsildar,
Bhoom has rejected the said application fled by the
respondents herein for possession of the suit land.
Learned counsel submits that the Tenancy Tahsildar,
Bhoom has conducted proper inquiry in the matter and
on the basis of the supporting evidence lead by the
parties, held that there are no blood relations, there is
no joint family and Kisan Girajappa Thombre alone is in
possession of the suit land as tenant. It has been also
directed to issue protected tenancy certifcate pertaining
to the suit land to the petitioner by depositing certain
amount. Learned counsel submits that after death of
Kisan Thombre, petitioners legal heirs are taken on
record. Thus, in view of the Tahsildar's order dated
2.6.2011 Tenancy certifcate under section 38(6) of the
Hyderabad Tenancy and Agricultural Lands Act, 1950
(hereinafter for short referred to as 'the Act') came to be
issued. The petitioners have also deposited Rs.540/-
through Challan in the Bank on 22.6.2011.
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8. Learned counsel submits that the respondents
herein have fled an appeal before the Deputy Collector
(LR), Osmanabad against the said order dated 2.6.2011
passed by the Tahsildar Tenancy, Bhoom. By order
dated 16.10.2012 the Deputy Collector (LR), Osmanabad
has allowed the appeal partly, quashed and set aside the
order dated 2.6.2011 passed by the Tenancy Tahsildar,
Bhoom and remanded the matter back for detail inquiry
about blood relations between the parties. After remand,
by order dated 12.9.2014, the Tenancy Tahsildar, Bhoom
has allowed the application fled by the respondents and
directed the petitioners herein to handover half portion
of the suit land to the respondents. Learned counsel
submits that, being aggrieved by the same, Kisan
Thombre has preferred the revision application before
the Maharashtra Revenue Tribunal, Aurangabad. By
judgment and order dated 3.8.2018 the Maharashtra
Revenue Tribunal, Aurangabad has dismissed the
revision application on the ground that the legal heirs of
Khelba Thombre were not brought on record and the
impugned judgment has already been implemented.
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Writ Petition is preferred against the judgment and
order dated 3.8.2018 passed by the Maharashtra
Revenue Tribunal, Aurangabad.
9. Learned counsel submits that the original owners
failed to cultivate the land for ten years and, therefore,
the petitioners application for restoration of the
possession was allowed and possession of the suit land
was handed over to them on 7.6.1991. Since then, the
petitioners are in possession of the suit land. Learned
counsel submits that the Tenancy Tahsildar, Bhoom by
its judgment and order dated 2.6.2011 held that the
petitioners are legal heirs of Kisan and, therefore, they
are entitled for Tenancy certifcate of the suit land and
accordingly, granted tenancy certifcate under section 38
(6) of the Act on 24.6.2011. Learned counsel submits
that respondents application dated 14.12.1993 for
possession of half share in the suit land itself is not
maintainable. Learned counsel submits that twice the
matter was reached upto the Maharashtra Revenue
Tribunal, Aurangabad and remanded the matter back to
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the case, wherein the authorities have repeatedly held
that the petitioners have produced evidence on record to
indicate that they alone are the tenants of the suit land.
Learned counsel submits that the order dated
16.10.2012 passed by the Deputy Collector (LR),
Osmanabad remanding the matter third time without
considering the evidence on record itself is not legal,
proper and liable to be quashed and set aside.
10. Learned counsel for the petitioners, in order to
substantiate his contentions placed reliance on following
judgments :-
i. B.S.Mahabala (Dead) through legal
representatives Vs. Gopala Krishna and
another reported in (2017) 12 Supreme Court
Cases 685.
ii. Shri Lhousakhotuo Vimero s/o
Lhounei-o Vs. The State of Nagaland and
others in Writ Petition No.(C). No.30(K) of
2016 dated 24.4.2017.
11. Learned counsel appearing for respondent nos. 2,3
and 8 submits that writ petition itself is not
maintainable, as it is fled against the judgment and
order dated 3.8.2018 passed by the learned Member,
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Maharashtra Revenue Tribunal Aurangabad in Revision
application No.65/B/12/Osmanabad by which the
Maharashtra Revenue Tribunal had declared the
revision as infructuous on the ground that the order
dated 16.10.2012 passed by the the Deputy Collector
(LR), Osmanabad, which is under challenge is already
executed and implemented. Learned counsel submits
that the revision petition before the Maharashtra
Revenue Tribunal, Aurangabad was against the order of
the Deputy Collector (LR), Osmanabad dated 16.10.2012
by which the learned Deputy Collector (LR) remanded
the matter back to the learned Tenancy Tahsildar,
Bhoom. By order dated 12.9.2014 the learned Tenancy
Tahsildar, Bhoom had decided the matter in favour of
the respondent nos. 2,3 and 8.
12. Learned counsel submits that being aggrieved by
the same, the petitioners have preferred an appeal
before the learned Deputy Collector (LR), Osmanabad
against the said order passed by the Tenancy Tahsildar,
Bhoom dated 12.9.2014. Copy of the appeal memo in
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fle No.2015/सापू/भुसुधार/कावी-01 (Exh.R-1) fled by the
petitioners before the learned Deputy Collector (LR)
Osmanabad is marked at Exh.R-1.
13. Learned counsel submits that in addition to the
same, original landlord had also fled an appeal before
the learned Deputy Collector (LR), Osmanabad
challenging the judgment and order of Tenancy
Tahsildar dated 12.9.2014 by fling separate appeal.
Learned counsel submits that the petitioners have also
fled petition against the dead person i.e. respondent
no.1, who was already died. Petitioners have not
deliberately implemented Caveator no.3-Arjun Kerba
Thombre, as party respondent.
14. I have also heard the learned AGP for the
respondent-State.
15. I have carefully considered the submissions
advanced by the learned counsel for the respective
parties. With their able assistance, I have perused the
pleadings, grounds taken in the petition, annexures
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thereto and the reply fled by the concerned
respondents.
16. It appears that deceased respondent no.1 Kerba
Khandu Thombre and others had fled an application
dated 14.12.1993 for seeking possession of the suit land
to the extent of half portion before the Tenancy
Tahsildar, Bhoom. By order dated 23.11.1995 the
Tenancy Tahsildar, Bhoom has rejected the said
application. Being aggrieved by the same, the
respondents have preferred an appeal before the Deputy
Collector (LR), Osmanabad. By order dated 30.10.1996,
the Deputy Collector (LR), Osmanabad has allowed the
appeal and quashed and set aside the order passed by
the Tenancy Tahsildar, Bhoom dated 23.11.1995
rejecting thereby the application fled by deceased
respondent no.1 Kerba and others dated 14.12.1993.
Being aggrieved by the same, deceased Kisan Girajappa
Thombre (forefather of the petitioners) has preferred the
revision before the Maharashtra Revenue Tribunal,
Aurangabad challenging the said order passed by the
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Deputy Collector (LR), Osmanabad. By order dated
13.12.2000 the Maharashtra Revenue Tribunal,
Aurangabad has quashed and set aside the order dated
30.10.1996 passed by the Deputy Collector (LR),
Osmanabad and remanded the matter to Deputy
Collector (LR), Osmanabad.
17. It further appears that by order dated 31.3.2006
Deputy Collector (LR), Osmanabad has allowed the
appeal fled by the respondents, quashed and set aside
the order dated 23.11.1995 passed by the Tenancy
Tahsildar, Bhoom and remanded the matter to the
Tenancy Tahsildar, Bhoom for fresh inquiry.
18. It further appears that after remand of the said
case, the Tenancy Tahsildar, Bhoom by its judgment and
order dated 2.6.2011 has conducted inquiry into the
matter and rejected the application dated 14.12.1993
fled by deceased respondent no.1 Kerba Khandu
Thombre and others.
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19. Being aggrieved by the same, respondents herein
have fled an appeal before the Deputy Collector (LR),
Osmanabad against said order dated 2.6.2011 passed by
the Tenancy Tahsildar, Bhoom. By judgment and order
dated 16.10.2012 the Deputy Collector (LR), Osmanabad
has allowed the appeal partly, quashed and set aside the
order dated 2.6.2011 passed by the Tenancy Tahsildar,
Bhoom and remanded the matter for detail inquiry
about blood relations between the parties. After remand,
by order dated 12.9.2014 the Tenancy Tahsildar, Bhoom
has again decided the case, allowed the application fled
by deceased respondent no.1 Kerba Thombre and others
and directed the petitioners herein to hand over the
possession to the extent of half portion of the suit land.
20. It appears that being aggrieved by the same,
deceased petitioner Kishan Girajappa Thombre has
preferred the revision application challenging the said
order passed by the Deputy Collector (LR), Osmanabad
dated 16.10.2012. By impugned judgment and order
dated 3.8.2018 the Maharashtra Revenue Tribunal,
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Aurangabad has dismissed the revision application on
two grounds that the impugned judgment has already
been implemented and legal heirs of Khelba Kisan
Thombre were not brought on record.
21. It is clear that by order dated 12.09.2014 the
learned Tenancy Tahsildar, Bhoom had decided the
matter in favour of the present respondent nos.2,3 and
8 and being aggrieved by the same, petitioners herein
have preferred an appeal before the Deputy Collector
(LR), Osmanabad against the judgment and order of the
learned Tenancy Tahsildar, Bhoom dated 12.9.2014.
However, deceased Kisan Girajappa Thombre preferred
the revision application challenging the order dated
16.10.2012 passed by the Deputy Collector (LR),
Osmanabad thereby remanding the matter back to the
Tenancy Tahsildar, Bhoom for detail inquiry about blood
relations between the parties. It is clear that in terms of
the said order of remand, the Tenancy Tahsildar, Bhoom
has conducted inquiry and by order dated 12.9.2014
decided the matter in favour of respondent nos.2,3 and
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8 herein and directed the petitioners herein to hand over
half portion of the suit land to the respondents. It
appears that, after remand of the matter by the Deputy
Collector (LR), Osmanabad, by order dated 16.10.2012,
present petitioners have participated in the proceedings
before the Tenancy Tahsildar, Bhoom and even
challenged the order passed by the Tahsildar, Bhoom
dated 12.9.2014 by fling a substantive appeal before the
Deputy Collector (LR) Osmanabad in fle
No.2015/सापू/भुसुधार/कावी-01 (Exh.R-1).
22. In view of the above, the Maharashtra Revenue
Tribunal, Aurangabad has rightly dismissed the revision
by observing that the order of remand passed by the
Deputy Collector (LR), Osmanabad dated 16.10.2012
came to be implemented. In view of the same, I fnd no
substance in this writ petition. The petitioner can
pursue their appeal, if it is pending before the Deputy
Collector (LR), Osmanabad, as referred above and in
case, if it is decided, then, further course of action is
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open for the petitioners by preferring the revision etc.
Hence, I proceed to pass the following order.
ORDER
Writ Petition is hereby dismissed.
( V.K. JADHAV, J. )
...
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