Bombay High Court

M/S. Mayank Land Pvt. Ltd. Through Its ... vs Madhusudan Janardan Datar (Since ... on 29 August, 2024

Author: Sharmila U. Deshmukh

Bench: Sharmila U. Deshmukh

2024:BHC-AS:34730

                                                                          wp6645-19+26F.doc



                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                    WRIT PETITION NO. 6645 OF 2019
                                                WITH
                                    WRIT PETITION NO.5017 OF 2019

                M/s. Mayank Land Pvt. Ltd.,                           ]
                Through its authorized officer                        ]
                Sachin kashinath Balwad,                              ]
                R/o. Drongiri HSG Complex, Bldg. No.GH-10,            ]
                Plot No.2, Ground Floor, Sector-30,                   ]
                Post Bokadvira Village, Taluka Uran,                  ]
                District Raigad.                                      ] .. Petitioner
                        Versus
                1.        Madhusudan Janardan Datar (Deceased)        ]
                          Through legal heirs                         ]

                1A.       Sangeeta Satish Marathe,                    ]
                          R/o. IMDR Staff Quarters, Ferguson          ]
                          College Campus, Pune.

                1B.       Kalpana Vivekanand Limaye, R/o. C/403,      ]
                          Devi Vihar CHS, Lal Chowki, Kalyan (W),     ]
                          District Thane.                             ]

                1C.       Urmila Anil Pethe,                          ]
                          R/o. Datta Apartment, Phulewadi Road,       ]
                          Kolhapur.

                1D.       Sunita Madhukar Datar,                      ]
                          R/o. 2/8, Sachin Sociey, Mithanagar Road,   ]
                          Mulund (E), Mumbai-81.                      ]

                2.        Shashank Prabhakar Datar,                   ]
                          R/o. Flat No.2, Building No.4, Kumar Park   ]
                          CHS Ltd., Karve Nagar, Pune.                ]

                3.        Kirti Prabhakar Datar @ Kirti Vivek         ]
                          Mulay,R/o. Yoganand Park-1,                 ]
                          Flat No.8, Shikshak Nagar, Paud Road,       ]
                          Kothrud, Pune.                              ]


                sa_mandawgad                      1 of 24
                                                         wp6645-19+26F.doc




4.     Shri Ramchandra Shivram Vaidya,            ]
       R/o. Babasaheb Joshi Marg, Near HDFC Bank, ]
       Motilal Nehru Nagar, Dombivali (E),        ]
       District Thane.                            ]

5.     Shri Laxman Shivram Vaidya,                  ]
       R/o. Vaidya Vaishampayan Bungalow,           ]
       Babasaheb Joshi Marg, Near HDFC              ]
       Bank, Motilal Nehru Road, Dombivali (E),     ]
       District Thane.                              ]

6.     Prabhakar Nathu Shelke,                      ]
       R/o. Kiravali, Taluka Karjat,                ]
       District Raigad.                             ]

7.     The Ld. Tahasildar & A.L.T.,                 ]
       Karjat, District Raigad.                     ]

8.     The Ld. Sub-Divisional Officer,              ]
       Panvel Sub-Division, District Raigad.        ] .. Respondent.


                                  ----------
Mr. R.A.Thorat, Senior Advocate a/w. Mr. Vaibhav Sugdare, Mr.Rishit
Badiani, Mr. Ketan Dave and Mr.Gaurav H. Angal i/by A.S.Dayal and
Associates for the Petitioners in both Petitions.
Mr. Mandar Limaye i/by Mr. Saurabh Oka, for Respondent Nos.1 to 3.
Mr.P.S.Dani, Senior Advocate with Mr.Prashant D. Patil, for Respondent
Nos.4 and 5.
Ms. Priyanka Chavan, AGP for the Respondent Nos.7 and 8-State.
                                  ----------

                         Coram : Sharmila U. Deshmukh, J.
                Reserved on    : 31st July, 2024
                Pronounced on : 29th August, 2024

JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally with

consent of the parties.

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2. Both the Petitions challenge the common judgment and order

dated 2nd November, 2018 passed by the Maharashtra Revenue

Tribunal (MRT) in TNC/APPL/52/B/2012 and TNC/REV/RAG/414/2014.

The Revision Application and the Appeal were disposed of by

common judgment though filed separately and therefore two

Petitions came to be filed.

3. By the impugned common judgment and order, MRT has

adjudicated the Revision Application filed under Section 76 of the

Maharashtra Tenancy and Agricultural Lands Act, 1948 (for short,

"Tenancy Act") challenging the order passed by the Sub Divisional

Officer (SDO) in Tenancy Appeal No.36 of 2011 dated 31 st December,

2012. Appeal No.52/B/2012 was filed challenging the sale permission

granted under Section 43 of the Tenancy Act in favour of the

predecessors-in-title of the Petitioner on 1 st April, 2011. Both

Petitions were heard together with consent, common submissions

were advanced and both Petitions are being disposed of by this

common judgment.

FACTUAL MATRIX:

4. The Petitioner claims to be bonafide purchaser and in

possession of the subject property i.e. land bearing Survey No.2/6 (old

Survey No.44/6) stated to have been purchased by way of a registered

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Agreement dated 27th May, 2011. The Respondent Nos.4 and 5 herein

claiming to be the tenants of the subject land and owners by virtue of

the orders passed under Section 32G of the Tenancy Act, entered into

a registered agreement of sale dated 21 st April, 2011 with the

Respondent No.6 who in turn, executed the registered sale-deed

dated 27th May, 2011 in favour of the Petitioner.

5. On 6th February, 2009, the Respondent Nos.4 and 5 had filed an

Application before the Tahsildar and ALT being Tenancy Case No.42 of

2009 seeking fixation of the purchase price under Section 32G of the

Tenancy Act. It was contended that the subject property was the joint

family property of Janardhan Ramchandra Datar and Vishwanath

Moro Datar. The Respondent Nos.4 and 5's father late Shivram

Shridhar Vaidya was cultivating the property as tenant and after his

death the Respondent Nos.4 and 5 were cultivating and in possession

of the subject property. The name of Late Shivram Vaidya was noted

as protected tenant of the subject property. It was contended that

only the purchase price under Section 32G of the Tenancy Act was not

fixed and after the death of their father, as the Respondent Nos.4 and

5 are cultivating the subject property and are in peaceful and lawful

occupation of the same, the purchase price may be fixed.

6. The Respondent Nos.1 to 3 filed their reply to the said

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Application interalia contending that admittedly the Applicant's father

Shivram Shridhar Vaidya was alleged to be agricultural tenant of

Janaradhan R. Datar and Vishwanath M. Datar and said Shivram

Shridhar Vaidya died on 26th September, 1989. There is nothing on

record to show that Shivram Shridhar Vaidya, the original tenant had

claimed his right to purchase the suit land prior to 1989 or that the

Applicant's father was cultivating the suit land as agricultural tenant

on 1st April, 1957. The Applicant's father was not agricultural tenant of

the suit land and was not entitled to purchase the suit land. The

Application was not maintainable as the Respondent Nos.4 and 5's

father had relinquished his right to purchase the suit land in his

lifetime. That the Respondent Nos.4 and 5's claim was barred by

limitation.

7. RTS Appeal No.294 of 2010 was filed by Respondent Nos.1 to 3

challenging the Mutation Entry No.363 which was certified on 4 th July,

1957 recording that on 10th December, 1953, Shivram Vaidya was

found to be tenant in respect of the Survey Numbers mentioned there

in and his name has been recorded in other rights column of 7/12

extract. The Sub Divisional Officer dismissed the appeal by noting

that there are no proceedings initiated by the Respondent Nos.1 to 3

under Section 70(b) of the Tenancy Act for declaration that

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Respondent Nos.4 and 5 are not tenants of the subject property. The

Mutation Entry No.363 was certified on 10 th December, 1953 and for a

period of almost 57 years, there was no challenge to the mutation

entry. The subject property was in the possession of the Respondent

Nos.4 and 5's father i.e. Shivram Vaidya on 1 st April, 1957 and

therefore under the provisions of Section 32G of the Tenancy Act had

become the deemed purchaser and merely because the purchase

price was not fixed the same does not come in the way of the

ownership rights of the tenant. It further held that on the said date,

the rights of the landlord come to an end.

8. Vide order dated 7th March, 2011 passed in Tenancy Appeal No.

42 of 2009, the Tahsildar and ALT fixed the purchase price of the

subject property under Section 32G of the Tenancy Act. The Tahsildar

noted that the Respondent Nos.1 to 3 did not advance any arguments

despite giving sufficient opportunity. The 7/12 extract from1985-1986

to 2007-2008 and the mutation entries discloses the name of the

Respondent Nos.4 and 5 in the other rights column and as per

Mutation Entry No.363, the name of late Shivram Shridhar Vaidya is

mutated on 10th December, 1953 as tenant. Vide Mutation Entry

No.65, the names of the legal heirs of the Respondent Nos.4 and 5

and others as the legal heirs of Shivram Vaidya has been mutated in

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the revenue records. It was noted that the subsequent mutation

entries shows release deed executed by some of the legal heirs of

Shivram Vaidya in favour of the other legal heirs. It was further held

that there is no evidence brought by the Respondent Nos.1 to 3 on

record to show that they are the legal heirs of the original landlord

and that they are in occupation and possession of the subject

property. The Tahsildhar also noted the findings of the SDO passed in

RTS Appeal No.294 of 2010.

9. As against the judgment and order dated 7th March, 2011

passed in Tenancy Case No.42 of 2009, Tenancy Appeal No.36 of 2011

was filed by the Respondent Nos.1 to 3 under Section 74 of Tenancy

Act and one of the grounds in the Appeal was that the Tahsildar and

ALT had rejected the Application filed by the Respondent Nos.1 to 3 to

cross-examine the Respondent Nos.4 to 5 and that the Respondent

Nos.1 to 3 are required to lead evidence. Tenancy Appeal No.36 of

2011 came to be rejected by the Sub Divisional Officer, holding that

the name of Respondent Nos.4 and 5's father Shivram Vaidya being

the tenant of the suit property was noted in the 7/12 extract by

Mutation Entry No.349 in the year 1953 and thereafter, the names of

the Respondent Nos.4 and 5 have been entered as legal heirs. That

the subject property was in the occupation and possession of the

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Respondent Nos.4 and 5's father-Shivram Vaidya on the tillers' day

and under the statutory provisions of Section 32G, Shivram Vaidya and

subsequently his legal heirs have become the deemed purchasers and

rejected the Appeal by order dated 31st December, 2012.

10. On 1st April, 2011, the Sub Divisional Officer on an Application

filed by the Respondent Nos.4 and 5 under Section 43 of the Tenancy

Act granted permission to sell the subject land which came to be sold

by the registered sale-deed in favour of the Respondent No.6

and thereafter by the Respondent No.6 in favour of the present

Petitioner.

11. In the year 2011, Regular Civil Suit No.27 of 2011 was initiated

by the Respondent Nos.1 and 3 against the statutory authorities and

the Respondent Nos.4 and 5, for a direction to the Tahsildar and ALT

to decide 32G proceedings by recording oral and documentary

evidence of the parties, which came to be dismissed for want of

jurisdiction.

12. Against the judgment and order dated 31st December, 2012

passed in Tenancy Appeal No.36 of 2011, Revision No.414 of 2013

was filed and against the sale permission granted under Section 43 of

the Tenancy Act, Appeal No.52/B/2012 was filed before MRT by the

Respondent Nos.1 to 3.

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13. Vide common judgment and order dated 2 nd November, 2011,

MRT allowed the Revision Application and Appeal and quashed the

judgment and order dated 31st December, 2012 passed by the Sub

Divisional Officer and remanded the Tenancy Suit No.42 of 2009 to

the Tahsildar and ALT for fresh inquiry to establish tenancy.

14. Broadly summarizing the findings of the MRT were as under:

(a) Tahsildar and ALT had erroneously rejected the Application of the Respondent Nos.1 to 3 for permission to lead evidence and the order is perverse being one sided.

(b) It is binding upon the Tahsildar where there is any ambiguity or disagreement with respect to the tenancy to conduct an inquiry under Section 70(b) of the Tenancy Act to assure itself of the legitimacy of claim before fixing the purchase price under Section 32G of the Tenancy Act.

(c) As the claim of tenancy was denied in Section 32G proceedings, the fixation of purchase price without conducting inquiry under Section 70(b), is premature.

(d) Mutation Entry No.363 is not pursuant to an order of the Competent Authority under Section 70(b) and the tenancy is only presumptive. Mutation entry is not enough to prove the tenancy.

(e) The sale agreements entered into by the Respondent Nos.4 and 5 with the Respondent No.6 are void-ab-initio and bad in law.

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SUBMISSIONS:

15. Mr.Thorat, learned Senior Advocate appearing for the Petitioner

has tendered an additional compilation of documents containing the

photocopy of the 7/12 extracts of the subject property which shows

the name of Shivram Vaidya as a tenant for the year 1954-1955. He

submits that the Mutation Entry No.363 was certified in favour of

Shivram Vaidya and subsequently, the legal heirs were mutated vide

Mutation Entry No.1186. He submits that there is no period of

limitation for fixing of purchase price as the provisions of Section 32G

casts the duty upon the Tribunal. Pointing out the reply of

Respondent Nos.1 to 3 in Section 32G proceedings he submits that

they have admitted that Shivram Vaidya was the original tenant. He

would further submit that the Application for leading evidence by the

landlord was rejected and in Appeal memo filed before the MRT

against the final order the ground was taken. He would further submit

that RTS Appeal No.294 of 2010 challenging the Mutation Entry

No.363 has been dismissed and there is a finding that the 7/12 extract

shows the name of the father of the Respondent Nos.4 and 5. He

would further submit that the civil suit filed for direction to the

Tahsildar and ALT to decide the Respondent Nos.4 to 5's application

under Section 32G by recording of oral and documentary evidence has

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been rejected for want of jurisdiction. He would further submit that

the SDO had dismissed the Appeal wherein one of the contentions

raised by the Respondent Nos.1 and 2 were that the Application for

leading evidence has been rejected by the Tahsildar and ALT. He would

further submit that 32M certificate has been issued and subsequently

the permission was granted under Section 43 of the Tenancy Act to

sell the property, which has been purchased by the present Petitioner.

16. He submits that the Respondent Nos.1 to 3 had no locus to

challenge the sale permission unless the order of the Sub Divisional

Officer fixing the purchase price was set aside. He submits that the

procedure is prescribed under Section 72 of the Tenancy Act read with

Rule 17 and that if the Application is made by the tenant then the

same amounts to the statement under Rule 17 of the Rules.

17. He would further submit that the MRT exercises limited

jurisdiction under Section 76 of the Tenancy Act and cannot

re-appreciate evidence. He submits that the finding of MRT that

mutation entry is not enough to prove the tenancy, does not take into

consideration the decision of this Court in the case of L.J.Kriplani vs.

Manik A. Patil [2000 (4) Bom.C.R.366]. Pointing out to the definition

of "agriculture" under Section 2(1) of the Tenancy Act, he submits that

the agriculture would include raising of grass which is the case of the

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Respondent Nos.4 and 5. In support, he relies upon the following

decisions:

(i) L.J.Kriplani vs. Manik A. Patil [2000 (4) Bom.C.R.366];

(ii) Shri Ram Ram Narian Medhi vs. State of Bombay [1959 Supp (1) SCR 489];

(iii) Vithal Malhari Kulkarni vs. Tarabai Anna Patil [2003 (1) Mh.L.J. 342];

(iv) Shri Motilal Girdharilal Sharma and Ors. vs. Shri Dattatray Bandu Jagtap and Ors. [2006 (2) All MR 121];

             (v)     Maruti Jaywant Shinde vs. Shantabai
                     Baburao Gotharne and Ors. [2021 (6) Mh.L.J.
                     351];
             (vi)    Gulabrao Sahebrao Shinde vs. Sayaji
                     Shankar Shinde [2004 (1) Mh.L.J. 873].

18. Per contra, Mr.Limaye, learned counsel appearing for the

Respondent Nos.1 to 3-landlords would submit that in 32G

proceedings, the landlord had specifically stated that the Respondent

Nos.4 to 5's father was not an agricultural tenant and was not entitled

to purchase the suit land. He submits that the revisionary powers

under Section 76 can be exercised if there is an jurisdictional illegality

committed by the Tahsildar. He submits that in the Appeal memo a

specific ground was raised about the failure of giving an opportunity

to the Respondents to lead evidence and thus, MRT has rightly

remanded the matter. He submits that the only evidence which was

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produced was the Mutation Entry No.363 and no rent receipts etc.

were produced. He submits that the Sub Divisional Officer while

dismissing the Appeal has not taken into consideration the evidence

which has brought on record. He submits that the MRT has specifically

held that when the tenancy claim is denied in Section 32G proceedings

without conducting inquiry under Section 70(b) fixation of the

purchase price is a premature act. He submits that the Mutation Entry

No.363 was certified without issuing any notice or conducting any

inquiry. In support, he relies on the decision of the Apex Court in the

case of Rahimatulla Rahiman Sarguru vs.Bapu Hari Mane and Anr.

[(1979) 4 SCC 391].

REASONS AND ANALYSIS:

19. Before the MRT two orders which came to be challenged arose

out of fixing of purchase price under Section 32G proceedings in

favour of the Respondent Nos.4 and 5 and the sale permission

granted under Section 43 of Tenancy Act.

20. Before adverting to the facts of the case, it will be apposite to

have a look at the relevant provisions of Tenancy Act. Section 32 of

the Tenancy Act provides that on the first day of April, 1957, which is

the tillers' day every tenant shall be deemed to have purchased from

his landlord, free of all encumbrances the land held by him as tenant,

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the right being defeasible only in certain contingencies. Section 32G

of the Tenancy Act, provides for the fixation of the price of land to be

paid by the tenants and casts a duty on the Tribunal as soon as may be

after the tillers' day i.e. on 1st April, 1957 to publish a public notice

calling upon the tenants who are deemed to have purchased the land

and to record the statement of willingness. Under Sub Section (4) of

Section 32G, if the tenant is willing to purchase, the Tribunal shall,

after giving an opportunity to the tenant and landlord of being heard

and after holding an inquiry determine the purchase price of such

land.

21. The procedure and jurisdiction of Tribunal, Mamlatdar and

Collector in Appeals and Revision are contained in Chapter VI of

Tenancy Act. Section 68 defines the duties of Tribunal and Sub-

Section (c) of Section 68 empower the Tribunal to decide any dispute

under Section 32 to 32R. Section 70 defines the duties and powers of

the Tribunal and under sub section (b), the Mamlatdar has the power

to decide whether a person is or was at any time in the past a tenant

or protected tenant or a permanent tenant. Section 72 provides for

the procedure to be followed in the inquiries and proceedings and

provides that the Mamlatdar or Tribunal shall exercise the same

powers as Mamlatdar's Court under the Mamlatdar's Courts Act, 1906

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and shall follow the provisions of the said Act.

22. Tenancy Case No.42 of 2009 was filed by the Respondent Nos.4

and 5 seeking fixing of purchase price. In the proceedings under

Section 32G of the Tenancy Act, a question may arise as to whether a

person is a tenant on tillers day and thus a deemed purchaser under

Section 32. This necessarily would lead to an enquiry into the question

as to whether the person is a tenant deemed to have purchased the

land on the Tillers' day.

23. The learned Member of MRT has remanded the matter for

consideration afresh as the Tahsildar and ALT rejected the application

of the Respondent Nos 1 to 3 for direction to the Respondent Nos 4

and 5 to lead evidence and to permit them the right of cross

examination. It was held that the procedure under Section 72 was not

followed and there was no enquiry under Section 70(b) of Tenancy Act

when the claim of the tenant was disputed by the landlord.

24. The order of Tahsildar will have to be examined to ascertain

whether the necessary enquiry has been conducted by Tahsildar

before fixing the purchase price. In the reply filed by the Respondent

Nos.1 to 3, paragraph Nos.3, 4 and 8 assumes significance and reads as

under:

"1) ......

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2) ......

3) That, admittedly, Applicants father Shivram Shridhar Vaidya was alleged to be agricultural tenant of Janardhan R. Datar & Vishwanath M. Datar. and said Shivram Shridhar Vaidya died on 26/09/1989.

4) That, there is nothing on record, which shows that, Shivram Shridhar Vaidya original tenant had claimed his right to purchase the suit land prior to 1989 and Appellant's father was cultivating the land as"

agricultural tenant" on 01/04/1957."

5) ......

6) ......

7) ......

8) That, the Application is as not maintainable as Appellant's father had relinquished his right to purchase the suit land, in his life time."

25. In rest of the application there is general denial of Shivram

Vaidya being the agricultural tenant or that he was entitled to

purchase the land. Upon meaningful reading of the reply,in my view,

the case put forth filed by the Respondent Nos.1 to 3 is that late

Shivram Vaidya was the original tenant and had not claimed his right

to purchase the suit land prior to 1989 and had thus relinquished his

right to purchase the suit land in his lifetime.

26. Coming to the order passed by the Tahsildar and ALT under

Section 32G proceedings, the 7/12 extracts and mutation entries were

considered by the Tahsildar and ALT and in particular the Mutation

Entry No.363 which was certified in the year 1954 recording that

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Shivram Vaidya was the tenant in respect of the subject land. The

Tahsildar has also considered the subsequent mutation entries

recording the name of the Respondent Noss4 and 5 as legal heirs of

Shivram Vaidya. The Tahsildar has further held that the Respondent

Nos.1 to 3 have not produced any evidence to show that they are the

legal heirs of the landlord. The Tahsildar has considered the finding of

the SDO in RTS Appeal No 294 of 2020 which order had sustained the

Mutation Entry No 363.

27. The Tahsildar and ALT considered the revenue records which

established that Shivram Vaidya was cultivating the land on tillers day

and Mutation Entry No.363 which was long standing entry having

presumptive value under Section 157 of the Maharashtra Land

Revenue Code, 1966. The findings of the Tahsildar and ALT indicates

that an inquiry as contemplated under Section 70(b) of the Tenancy

Act has been conducted before arriving at at specific finding that the

Applicants were cultivating the subject land for growing grass and

grazing their cattle and are in cultivation and possession of the

subject land prior to tillers day before fixing the purchase price of the

subject land. The order of the ALT indicates that the ALT has not

merely fixed the purchase price, but has conducted an enquiry into

the aspect of tenancy of predecessor of Respondent Nos.4 and 5 in

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view of the denial to the claim of tenancy.

28. It needs to be noted that Mutation Entry No.363 was challenged

by the Respondent Nos.1 to 3 before the SDO after a gap of almost 57

years which came to be rejected by the Sub Divisional Officer in RTS

Appeal No.294 of 2010. While rejecting the mutation entry, there is a

specific finding by the Sub Divisional Officer that the subject property

was in the possession of Shivram Vaidya on 1 st April, 1957 as tenant

and therefore he has become the deemed purchaser of the subject

land. It further held that merely because the purchase price was not

fixed the same will not create any obstacle in the ownership right of

the tenant. As against the rejection of challenge to the mutation

entry, there was no further challenge and therefore the finding of the

Sub Divisional Officer has attained finality. Consequently, the

mutation entry is sustained.

29. The contention of Mr.Limaye that apart from the mutation entry

there is no rent receipt etc produced on record to show tenancy is

fallacious in light of the decision of the learned Single Judge in the

case of L.J.Kriplani (supra). One of the points for consideration of the

learned Single Judge was whether the finding, that the Respondents

therein were tenants was erroneous based merely on the mutation

entry when the entries have been certified without notice to the

Petitioner therein. The learned Single judge upheld the finding based

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on the mutation entry and had refused to reverse the finding of fact

recorded by the authorities. The said decision is a sufficient answer to

the submission raised by Mr.Limaye.

30. In the inquiry under Section 32G, the Tahsildar and ALT has

examined the documentary evidence produced on record in the form

of 7/12 extract and the mutation entries. In the additional compilation

of documents which has been produced by Mr.Thorat which has not

been disputed by Mr. Limaye, the 7/12 extract of the subject property

for the year 1954-1955 shows the name of Shivram Vaidya. The crop

cultivation column shows that the land was being cultivated for the

purpose of growing grass as the same is shown as pad land. Section

2(2) defines the expression "agriculture" to include the raising of

grass and use of the land held by agriculturist for grazing his cattle. It

is a specific case of the Respondent Nos.4 and 5 in the proceedings

before the Tahsildar and ALT that the subject land was being used for

the purpose of growing grass and for grazing their cattle.

31. The revenue record indicates that in the year 1953 Shivram

Vaidya was cultivating the land and subsequently the names of

Respondent Nos 4 and 5 were entered in the 7/12 extracts. In the

absence of any evidence brought by the Respondent landlords to

show that the subject land was under cultivation or possession of

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their predecessors-in-title on tillers day, the evidence brought on

record by the Respondent Nos.4 and 5 was rightly accepted by the

Tahsildar and ALT.

32. The Sub Divisional Officer has upheld the findings of the

Tahsildar and ALT holding that the name of Shivram Vaidya was

entered into the 7/12 extract in the year 1953 and thereafter, the

name of the Respondent Nos.4 and 5 have been entered in the

revenue records.

33. In the Appeal against the Tenancy Dispute Case No.42 of 2009,

one of the grounds of Appeal was that the Tahsildar and ALT had

rejected the application filed by Respondent Nos.1 to 3 to direct the

Respondent Nos.4 and 5 to lead evidence and to allow the

Respondent Nos.4 and 5 to cross-examine. MRT failed to notice that

against the rejection, no appropriate steps were taken by the

Respondent Nos.1 to 3. Instead the Respondent Nos.1 to 3 filed

Regular Civil Suit No.27 of 2011 for direction to Tahsildar and ALT to

decide the 32G application by recording oral or documentary evidence

of the parties. As the order of Tahsildar and ALT rejecting the

application for leading evidence had attained finality, MRT could not

have held the findings of ALT perverse on that basis.

34. In the present case, the challenge to the Mutation Entry No.363

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itself has failed with a specific finding that the mutation entry has

been certified in the year 1953 as the late Shivram Vaidya was the

tenant of subject property. In the case of Shri Ram Ram Narian Medhi

(supra), the Apex Court has held that the title of the landlord to the

land passes immediately to the tenants of the tillers' day and there is

complete purchase or sale thereof as between the landlord and the

tenant. It further held that the purchase continues to be effective as

from the date of tillers' day until the default to pay the purchase price

is committed and that the title is defeasible only in event of the

tenant failing to appear or making the statement that he is not willing

to purchase the land or committed a default in payment of the price

thereof as determined by the Tribunal.

35. Alongwith the challenge to the Section 32G proceedings,

reversionary powers of MRT were invoked to challenge the sale

permission granted under Section 43 of Tenancy Act. As the

Respondent Nos.4 and 5 were issued Section 32M Certificate, the

Collector had rightly granted the permission to sell the subject

property. Until the order of the Tahsildar and ALT was set out by the

Competent Forum, the landlord had no locus to challenge the sale

permission. Without noticing the same, Learned Member of MRT has

held that the sale agreements entered into are void-ab-initio which is

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unsustainable in the absence of any challenge to the sale agreements.

36. In the case of Vithal Malhari Kulkarni (supra), this Court has

held that as far as the sale permission is concerned, there cannot be

any challenge by a former landlord who has no interest in the

property upon statutory the purchase of the land by his tenant to

intervene in the matter to oppose the grant of permission under

Section 43 of the Tenancy Act. That being so, MRT has clearly erred by

holding that the sale-deed has been rendered void-ab-initio.

37. The reversionary powers to be exercised by the MRT is

circumscribed by the limitations contained in clauses (a) to (c) of Sub

Section (1) of Section 76 of Tenancy Act. Clauses (a) to (c) permits the

revision only on three grounds i.e. the order of Collector was contrary

to law, the Collector failed to determine some material issue of law or

that there was substantial defect in following procedure provided by

this Act, which has resulted in miscarriage of justice. I am unable to

accept the contention of Mr.Limaye that there is jurisdictional

illegality in the order passed by the Tahsildar. For MRT to exercise

reversionary power it was necessary to come to a finding that there

was a substantial procedural defect resulting in miscarriage of justice.

The defect of procedure contemplated is a substantial procedural

defect and the defect must result in miscarriage of justice. There is no

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such finding in the impugned order of MRT and on this ground also

the impugned judgment and order is unsustainable. The decision of

Rahimtulla Rahiman Sadguru (supra) was rendered in different fact

situation as in that case the finding was that the Collector has acted

contrary to law as the finding of the Collector was not based on any

pleading or evidence. The decision is therefore clearly distinguishable.

CONCLUSION:

38. MRT has interfered with the concurrent findings of fact arrived

at by the Tahsildar and ALT and the SDO on the ground that there was

no enquiry under Section 70(b) of Tenancy Act without noticing that

the Tahsildar and ALT had considered the material produced on record

and has rendered specific findings on the protected tenancy of the

Respondent Nos.4 and 5 which satisfies the inquiry contemplated

under Section 70(b). There could not be remand of the matter to the

Tenancy Court for consideration afresh for the reason that the

application for leading evidence was rejected by glossing over the

admitted position that there was no challenge to the order of

Tahsildar rejecting the application in the appropriate forum at the

relevant time. The Respondent Nos.1 to 3 had failed to avail the

appropriate legal remedy and thus the order of the Tahsildar and ALT

upheld by the SDO could not have been disturbed by MRT. There is no