Bombay High Court
Suraj S/O Vijayrao Pote vs Ramkrushna S/O Pandurang ... on 8 October, 2021
Bench: Avinash G. Gharote
20.wp.699.2018.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.699/2018
Suraj s/o Vijayrao Pote
Vs.
Ramkrushna s/o Pandurang Waghmare and others
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. P. R. Agrawal, Advocate for petitioner.
Ms. T. Khan, AGP for respondent No.5
CORAM : AVINASH G. GHAROTE, J.
DATED : 08/10/2021
1] Heard learned counsel for the petitioner and learned
AGP for respondent No.5. None for the respondent Nos.1 to 4
though served.
2] It is the contention of Mr. Agrawal, learned counsel for
the petitioner that Vatsalabai grandmother of the petitioner was in
cultivating possession of the land bearing Survey Nos.10/3 and 81/1
which are now Gat No.31, Admeasuring 2 Hectare 34 R. situated at
Mouza Adula Bazar, Tahsil Daryapur, and on her demise the
petitioner has come into possession of the said land. There were
proceedings initiated by Vatsalabai, during her life time claiming that
she was a tenant of the above lands and therefore, had a statutory
right to purchase the same under the provisions of the Bombay
20.wp.699.2018.odt
Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, which
application came to be allowed by the Tenancy Tahsildar, Daryapur
by order dated 10.06.1988. An appeal there against, being allowed
by the Appellate Authority by an order dated 13.02.1989. A revision
thereof was filed before the Maharashtra Revenue Tribunal, Nagpur
which set aside the order in appeal and remanded the matter back to
the Tahsildar for a fresh enquiry by an order dated 01.04.1999,
which proceedings are still pending.
3] In the meantime, due to demise of Vatsalabai, the
petitioner claiming to be her legal heir, had applied for mutation of
his name in the revenue records, which was so mutated.
4] The petitioner thereafter, claiming obstruction to his
possession to the land of Gat No.31 had filed RCS No.119 of 2017
and sought declaration of ownership in respect of the land of Gat
No.31 and protection of his possession. An application under Order
39 Rule 1 and 2 also came to be filed therein which came to be
rejected by the learned Trial Court by an order dated 06.05.2017.
Misc. Civil Appeal No. 27 of 2017 challenging the same also came to
be dismissed by the Judgment 24.10.2017, which concurrent finding
is being challenged in the present petition.
20.wp.699.2018.odt
5] Mr. Agrawal, learned counsel for the petitioner submits
that since Vatsalabai was in cultivating possession of the suit land,
upon her demise, the petitioner being her grandson came into
possession of the property and was cultivating the same. The name of
the petitioner according to him, was duly entered into the 7/12
extract which demonstrated his possession. To supplement this,
affidavits of the owners of the adjacent fields were also filed. He,
therefore, submits that the Court below were not correct in holding
that the petitioner was not in cultivating possession of the suit field.
6] The Tenancy Court in R.T.C. No.59(14)/Adula
Bazar-2/87-88, by its order dated 10.06.1988, had found that
Vatsalabai was in cultivating possession of the suit field, while
answering issue No.3. and had further directed that Vatsalabai had
acquired a statutory right of purchase. In pursuance to this order, it is
stated that the purchase price stood paid on 18.07.1988. The appeal
by the original owner of the property, namely, Kamlabai Waghmare
being tenancy appeal No.3/59(14)/87-88 Adula Bazar was allowed
by the Sub Divisional Officer by an order dated 13.02.1989. Revision
before the Maharashtra Revenue Tribunal categorically records in the
order dated 01.04.1999 that the finding regarding Vatsalabai being in
possession was flawed, and unreliable inasmuch as the Tahsildar had
recorded the finding on the basis of a xerox copy of an alleged lease
20.wp.699.2018.odt
deed. Thus, the very fact, of Vatsalabai being in possession of the
land in question, has been doubted by the Maharashtra Revenue
Tribunal. Though the Maharashtra Revenue Tribunal, Nagpur by the
order dated 01.04.1999 remanded the matter back nothing has
transpired thereafter. It was therefore necessary for the petitioner, to
have placed on record documents evincing the cultivating possession
of Vatsalabai since 1988-89, however, the Courts below have
concurrently found that no such documents were filed. The only
document, which formed the basis of the plea of the petitioner being
in cultivating possession was the mutation entry in the revenue
record of his name which has been disbelieved by the learned Trial
Court on the ground that before making the same, the procedure
under Sections 149 and 150 of the Maharashtra Land Revenue Code
which requires the conduct of an enquiry before making such an entry
has not been followed. Insofar as the statements of the adjacent
owners relied upon by the petitioner, the Trial Court found that there
are equal number of affidavits of the neighbouring owners filed by
the other side too, in which case, both of them, would not be reliable.
In such a situation, in absence of anything else, in my considered
opinion, the learned Trial Court rightly held that the
plaintiff/petitioner had failed to demonstrate his cultivating
possession upon the land of Gat No.31. It is inconceivable, that there
20.wp.699.2018.odt
would be no revenue record regarding the so called possession of
Vatsalabai, who claimed to be in possession from 1987 onwards. The
absence of such a record therefore, had rightly been found by the
learned Trial Court, not inspiring confidence regarding plea raised by
the petitioner of being in cultivation. The Appellate Court has also
considered the absence of the documents, and also absence of the
entry of crops statements in the 7/12 extracts vis-a-vis the petitioner
to hold that the claim of the petitioner to be in possession was not
prima facie demonstrated.
7] In this view of the matter, I do not find any infirmity in
the order passed by the learned Trial Court, as well as the judgment of
the Appellate Court.
8] The writ petition is without any merits and accordingly
dismissed. No costs.
9] It is made clear that the suit shall be decided by the Trial
Court on its own merits as the observations above are only on a prima
facie basis.
(AVINASH G. GHAROTE, J)
Sarkate.
