Arun Atmaram Rumade vs Shankar Gopal Bandiwadekar Decd Thru ...
2024 Latest Caselaw 26065 Bom

Bombay High Court

Arun Atmaram Rumade vs Shankar Gopal Bandiwadekar Decd Thru ... on 27 September, 2024

Author: Sharmila U. Deshmukh

Bench: Sharmila U. Deshmukh

2024:BHC-AS:38353

                                                                              wp 135-2021+



                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION

                                      WRIT PETITION NO.135 OF 2021

                Arun Atmaram Rumade                                    ]
                Age : 68 years, Occu.: N/A,                            ]
                Residing at Dadarkar Building, 1st Floor,              ]
                Mumbai - 4000 34                                       ] ... Petitioner.
                       Versus
                Shankar Gopal Bandiwadekar                             ]
                (since deceased through Legal Representative)          ]
                a) Gopal Shankar Bandiwadekar                          ]
                b) Gurunath Shankar Bandiwadekar                       ]
                c) Vishwanath Shankar Bandiwadekar                     ]
                d) Eknath Shankar Bandiwadekar                         ]
                e) Vinayak Shankar Bandiwadekar                        ]
                f) Pushpa Shankar Bandiwadekar                         ]
                   All are Residing at and Post Devgad,
                   Taluka: Devgad, District : Sindhudurg               ] ... Respondents.

                                                  WITH
                                      WRIT PETITION NO.815 OF 2020

                Shankar Gopal Bandiwadekar                             ]
                (since deceased through heirs:                         ]
                a) Gopal Shankar Bandiwadekar                          ]
                   Age:66 years, Occ: Retired                          ]

                b) Gurunath Shankar Bandiwadekar                       ]
                   Age : 64 years, Occ:Retired                         ]

                c) Vishwanath Shankar Bandiwadekar                     ]
                   Age : 62 years, Occ:Retired                         ]

                d) Eknath Shankar Bandiwadekar                         ]
                   Age : 59 years, Occ:Service                         ]

                e) Vinayak Shankar Bandiwadekar                        ]
                   Age : 52 years, Occ:Service                         ]
                f) Pushpa Shankar Bandiwadekar                         ]

                Patil-SR (ch)                    1 of 21
                                                                 wp 135-2021+


      Age : 68 years, Occ:Household                      ]
      All R/o.Post: Devgad, Tal: Devgad,                 ]
      District : Sindhudurg                              ] ... Petitioners.
            Versus
Arun Atmaram Rumade                                      ]
Age : Major,                                             ]
R/o. Dadarkar Building, 1st Floor,                       ]
Room No.4, Tulsiwadi,                                    ]
Mumbai - 4000 34                                         ] ... Respondent.

                                 ----------
Mr. A.S.Khandeparkar, Senior Advocate along with Mr.Rushikesh G. Bhagat,
Mr.Nihir U. Dadhia, Mr.Rohit P. Mahadik, Mr.Vaibhav Kulkarni, Mr.Farhan
Shaikh, Mr. Saurabh Mittal, Ms. Apoorva Khandeparkar i/by Khandeparkar and
Associates for the Petitioner in Writ Petition No.135 of 2021 for the
Respondent.
Mr. Arvind Kundekar, for the Respondents in Writ Petition No.135/2021 and for
Petitioner in Writ Petition No.815/2020.
                                  ----------
                                      Coram : Sharmila U. Deshmukh, J.
                                      Reserved on : August 21, 2024.
                                      Pronounced on : September 27, 2024.

JUDGMENT :

1. Rule. Rule made returnable forthwith and with consent taken up

for final hearing. For sake of convenience, the Tenant is referred to as

Applicant and the landlord as Respondent.

THE CHALLENGE:

2. Both these Writ Petitions are directed against the order dated

2nd August, 2019 passed by the Maharashtra Revenue Tribunal (for

short, "MRT") in Tenancy Revision No 248 of 2017. Writ Petition No.135

Patil-SR (ch) 2 of 21 wp 135-2021+

of 2021 is filed by the Respondent-landlord being aggrieved by the

impugned order granting tenancy status in respect of three suit

properties. Writ Petition No.815 of 2020 is filed by the Applicant-

Tenant, aggrieved by the impugned order to the extent that it rejects

the claim of tenancy in respect of the other seven properties. Common

submissions were advanced in both the petitions as identical issues

arise for consideration and are being disposed of by this common

judgment.

FACTUAL MATRIX :

3. The proceedings arose out of a Tenancy Application No.113 of

1981 filed by the Applicant's father under Section 70(b) of the

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

"Tenancy Act") claiming tenancy in respect of 10 properties i.e. the

Survey Nos.8/13, 13/3, 13/34, 14/1/79, 22/40, 25/58/1, 25/58/3,

25/58/3, 25/58/4, 25/59 and 25/62+58/5. The Tahsildar and ALT

allowed the application vide order dated 29 th March, 1990 against

which appeal preferred by the Respondent before the SDO came to be

dismissed vide order dated 15th April, 1994. The Respondent - Landlord

filed Revision application before MRT which remanded the matter to

the Tahsildar for fresh enquiry. After remand, the Tahsildar allowed the

tenancy application by order dated 11th March, 2008 which was again

Patil-SR (ch) 3 of 21 wp 135-2021+

challenged before SDO who allowed the Appeal by order dated 3 rd

August, 2011. The Applicant Tenant preferred Revision before MRT

which remanded the matter to SDO for fresh consideration vide order

dated 19th June, 2014.

4. The impugned order of MRT arises out of the order of SDO dated

29th August, 2017 passed after remand. The SDO allowed the Tenancy

Appeal in favour of Respondent-landlord against which the Applicant-

Tenants preferred Revision before MRT and by the impugned order

dated 2nd August, 2019, MRT allowed the tenancy claim as under:

"1. Revision No.TNC/REV/SND/248/2017 is partly allowed. The order of Ld.Tahsildar in Remand Case 10/2005 dt.11/3/2008 is modified confining tenancy status to the Applicant to the lands land S.No.25/62+58 (27 gunthas), land S.No.25/59 (5 gunthas) and land S.No.25/58/3 (20 gunthas) which consists of residential house, well and several trees.

2. The order of Ld. Sub-Divisional Officer, Kankavali in Ten.

Appeal No.34/2009 dt.29/8/2017 is set aside."

SUBMISSIONS:

5. Mr. Khandeparkar, learned Senior Advocate appearing for the

Respondent-Landlord would submit that the Applicant sought

declaration under Section 4(1) of the Tenancy Act. He submits that

there was no rent receipt produced by the Applicant nor any evidence

showing the commencement date of tenancy. Drawing attention to the

findings of MRT, he would submit that only on the basis of the

Patil-SR (ch) 4 of 21 wp 135-2021+

possession of the Applicant of the house property and cattle shed,

MRT has granted tenancy status in respect of three properties. He

would take this Court in detail through the evidence recorded by the

Tahsildar in Remand Case No.19 of 2005 and the admissions of the

Applicant that the house property belongs to the Respondent, that

there is no documentary evidence as regards construction of house

No.91, that there is no kabulayat, lawanchiti, etc. in respect of the

lands, that land admeasuring 18 R out of Survey No.25/4, land bearing

4 R out of Survey No.25/58/1 are not agricultural lands, that he does

not have the 7/12 extracts and that the land revenue was handed over

to his father by the Respondent-landlord. He submits that it is clear

from the admission given in the cross-examination that the land

revenue was being paid by the Respondent-landlord through the

original Applicant-tenant. He submits that the MRT has accepted that

money orders received are remitted by the Respondent in respect of

the Government dues. He submits that once the said finding has been

arrived at, there cannot be any declaration of tenancy in respect of any

of the properties. He submits that for the purpose of Section 4(1) of

the Tenancy Act, the Applicant has to be shown in cultivation and

possession of the house property cannot be a ground for declaring the

Applicant as deemed tenant in respect of the said property. He would

Patil-SR (ch) 5 of 21 wp 135-2021+

further point out the 7/12 extract of the property which indicates that

the suit properties are non-cultivable lands and there is no record of

tenancy in the 7/12 extract.

6. He would further submit that the witness - Premanand is

completely unaware of the position which is evident from his cross-

examination and the other witness-Madhukar has not supported the

tenant. In support, he relies upon the decision in the case of Babu Hari

Patil v. Rama Ananda Jadhav [2005 107(2) Bom.L.R.174].

7. Per contra, Mr. Kundekar, learned counsel appearing for the

Applicant-Tenant has taken this Court through the evidence and would

point out the specific deposition of the Applicant that there was oral

tenancy, the property was in cultivation and there were plantations as

also grass was being grown. He would further submit that the

Applicant has deposed that the house property was built in 1940 and

the land revenue was being paid by the Applicant. He would further

point to the certificate issued by the Gram Panchayat that since 1944-

1945, the name of the predecessors of the Applicant has been

recorded as the owner of House No.91. He would further point out that

since 1945, "dast' i.e. the land revenue in respect of the land was being

paid which is evidenced from the receipts annexed at Page Nos.15 to

Patil-SR (ch) 6 of 21 wp 135-2021+

20 of the Petition. He submits that the MRT has accepted that the

plantations were done by the Applicant. He would further point out

that the payment of "dast" shows possession and cultivation and

would further submit that the MRT has held that the Applicant is in

possession of the house and the cattle shed as well as the adjoining

land. He submits that once it is shown that the "dast" was being paid by

the Applicant prior to the year 1945, the MRT ought to have held that

the Applicant is a tenant in respect of 10 properties and was not in

respect of only 3 properties. He submits that the Application was filed

under Section 4 (1) of the Tenancy Act, whereas the decision which has

been relied upon by the learned counsel for the landlord is in respect

of deemed tenancy.

REASONS AND ANALYSIS:

8. It is not necessary for this Court to go into the details of the

earlier litigation as the same are not required to decide the controversy

in issue.

9. Tenancy Application No.113 of 1981 was filed by the father of

present Applicants. It appears that during the pendency of

proceedings, the original Applicant expired and the present Applicants

were brought on record. The Application was filed under Section 70(b)

of Tenancy Act seeking declaration that he is tenant of the suit

Patil-SR (ch) 7 of 21 wp 135-2021+

properties. Sub Section (b) of Section 70 vests jurisdiction in the

Mamlatdar to decide whether a person is, or was at any time in the

past, a tenant or a protected tenant or a permanent tenant. The

expressions "permanent tenant", "protected tenant" and "Tenant" have

been defined in Section 2(10A), (14) and (18) as under:

"2(10A) "permanent tenant" means a person-

(a) who immediately before the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act,1955 (hereinafter called "the Amending Act, 1955")

(i) holds land as mulgenidar or mirasdar; or

(ii) by custom, agreement, or the decree or order of a Court holds the land on lease permanently; or

(b) the commencement or duration of whose tenancy cannot satisfactorily be proved by reason of antiquity;

and includes a tenant whose name or the name of whose predecessor-in-title has been entered into the record of rights or in any public record or in any other revenue record as a permanent tenant immediately before the commencement of Amending Act, 1955;

2(14) "Protected tenant" means person who is recognised to be a protected tenant under Section 4-A.

2(18) "tenant" means a person who holds land on lease and include:

(a) a person who is deemed to be a tenant under section 4.

(b) a person who is protected tenant; and

(c) a person who is permanent tenant.

and the word "landlord" shall be construed accordingly.

Patil-SR (ch) 8 of 21 wp 135-2021+

10. Section 2(18) uses the expression "means and includes" which

suggests that the definition is intended to be exhaustive and would

cover the specified class of tenants mentioned therein. Section 2(18)

takes within its fold a contractual tenant as one class and the deemed

tenant, protected tenant and permanent tenant as other class, which

classes are manifestly distinct and different. The Tenancy Application

pleads that the suit properties are under cultivation of the Applicant

since his forefather in which he is having house and some the suit

properties are used for rice cultivation and "warkas" cultivation. It is

further pleaded that the Applicant had carried out plantations on the

suit properties and the produce from the suit properties is utilised by

the tenant. As his name has not been entered as tenant, the

application is filed and the relief sought was of declaration of tenancy

and correction in the record of right accordingly.

11. The averments in the Application makes it clear that the case

pleaded in the application is of deemed tenancy as contemplated

under Section 4 of Tenancy Act by stating that the Applicant is

cultivating the land belonging to the Respondent coupled with the

absence of averments of contractual tenancy, whether oral or written

and payment of rent by the Applicant to the Landlord.

Patil-SR (ch) 9 of 21 wp 135-2021+

12. At this stage it would be worthwhile to have a look at Section

4(1) of Tenancy Act which reads thus:

"4. Persons to be deemed tenants.- (1) A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not--

(a) a member of the owner's family, or

(b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, or

(c) a mortgagee in possession.

Explanation I.-- A person shall not be deemed to be a tenant under this section if such person has been on an application made by the owner of the land as provided under section 2-A of the Bombay Tenancy Act, 1939, declared by a competent authority not to be a tenant.

Explanation II.-- Where any land is cultivated by a widow or a minor or a person who is subject to physical or mental disability or a serving member of the armed forces through a tenant then notwithstanding anything contained in Explanation I to clause (6) of section 2, such tenant shall be deemed to be a tenant within the meaning of this section.

(2) .......

(3) ......."

13. To fall within the definition of deemed tenant, the person is

required to show lawful cultivation of land belonging to another

person if such land is not cultivated personally by the owner provided

the person does not fall within the excepted class enumerated in

Clauses (a), (b) and (c) of sub-Section (1) of Section 4 of the Tenancy

Act. The requirement therefore is of lawful cultivation of land owned

by other person by a person not falling within the excepted class and

Patil-SR (ch) 10 of 21 wp 135-2021+

the non cultivation of the land by the owner personally.

14. The essence of the Section 4(1) is the lawful cultivation of the

land belonging to another person. In Babu Hari Patil, (supra) learned

Single Judge of this Court had the occasion to deal with Section 4 of

Tenancy Act. After noticing the decision of the Apex Court in Dahya

Lala v. Rasul Mohamed Abdul Rahim [AIR 1963 SC 1320],on the

requirement of Section 4 of Tenancy Act, it was held that an entry in

the tenancy column or a rent note or a rent receipt to support the

claim of a tenant to be a "deemed tenant" under Section 4 is not a pre-

condition and even without these documents a person in lawful

possession must be declared as "deemed tenant". The learned Single

Judge concluded the issue in paragraph 7, as under:

"The law is thus clear that even without there being an entry in the tenancy column on a rent note or a rent receipt in favour of a person, who is in lawful possession, must be declared as "deemed tenant" under Section 4 of the Tenancy Act irrespective of the fact whether or not the authority of such person is derived directly from the owner of the land. All that is required under that section is "lawful" cultivation by a person other than the member of the family of the landlord subject to other conditions specified in that section for claiming a status of the "deemed tenant". In the circumstances I have no hesitation in holding that respondent Nos. 1 to 3 were cultivating the land lawfully and are, therefore, entitled to claim status of "deemed tenant" as contemplated under under Section 4 of the Tenancy Act. In the result writ petition is dismissed. Rule stands discharged. No order as to costs."

15. The decision of Apex Court in Dahya Lala (supra) which was

Patil-SR (ch) 11 of 21 wp 135-2021+

noted by the Learned Single Judge in Babu Hari Patil (supra) has held

that a person who is deemed a tenant by Section 4 of the Tenancy Act,

is manifestly in a class apart from the tenant who holds land on lease

from the owner. Such a person would be invested with the status of a

tenant if three conditions are fulfilled, (a) that he is cultivating the land

lawfully, (b) that the said land belongs to another person and (c) that

he is not within the excepted categories.

16. In light of the clear enunciation of law, the issue arising for

determination is whether there was lawful cultivation of the suit lands

by the Applicant. As noted above, the original Applicant had come with

a case of deemed tenancy by stating that he is cultivating the suit lands

belonging to the landlord. As the original Applicant demised during the

pendency of the proceedings, the evidence was led by the legal heirs

of the original Applicant. In the evidence, the legal heirs have set up a

case of oral tenancy of the year 1914 and has deposed about payment

of rent of Rs.25/- and that no rent receipt was issued due to cordial

relations. He has further deposed that house and cattle shed has been

constructed by his forefathers in the year 1914 with which the

Respondent landlord is not concerned and the house assessment tax in

respect of the structures was paid by the Applicant.

Patil-SR (ch) 12 of 21 wp 135-2021+

17. Pertinently in the cross examination, the Applicant has admitted

that the house property belongs to the landlord. He has further

admitted that there is no document to show construction of the house

or cattle shed. He has further admitted that the land revenue was

handed over to his father. He has further admitted that area

admeasuring 0.18.0 out of Survey No.25/4, 0.04.0 out of survey No

25/58/1 are not agricultural lands.

18. The Applicant examined two witnesses out of which only one

witness Premanand supported the tenant and deposed that the

tenant's forefathers were cultivating the suit property. In the cross

examination the witness stated that he was in Court when he was

called for evidence.

19. Based on the evidence and material produced on record, the

Tahsildar arrived at a finding that tenancy was created in the year 1914

on rent of Rs 25/. It further held that from the year 1914 till the filing

of the application in the year 1981, there is no obstruction to the

tenant's cultivation of the suit property by the landlord and "Dast" was

being paid by the tenant on behalf of the landlord. The Tahsildar on the

basis of these findings declared that the applicants are tenants of the

suit properties since the year 1957.

Patil-SR (ch) 13 of 21 wp 135-2021+

20. The error committed by the Tahsildar is the failure to notice that

no case of contractual tenancy or payment of rent was pleaded in the

application filed by the original Applicant under Section 70(b) of

Tenancy Act and deemed tenancy was claimed under Section 4(1) of

Tenancy Act. During the evidence, the legal heirs of the deceased

Applicant have set out a different case of oral tenancy and payment of

rent of Rs 25/, which is impermissible as the Application by the original

Applicant pleads deemed tenancy.

21. The parameters applicable for determination of a person as

deemed tenant is different than one applicable for contractual

tenancy. A person deemed to be a tenant should be shown to be

lawfully cultivating the land of another person whereas in case of

contractual tenancy, evidence of creation of lease must be produced.

A person deriving the right to cultivate from the landlord would be a

contractual tenant and not a deemed tenant. Even if it is accepted that

the Application sets out a case of oral tenancy, there must be strong

evidence produced on record to establish creation of lease, either oral

or written. In the present case there is no material produced on record

to show creation of contractual tenancy in respect of suit properties on

payment of rent of Rs.25/-.

Patil-SR (ch) 14 of 21 wp 135-2021+

22. The exercise contemplated, in view of the specific case in the

application of deemed tenancy, was to determine whether the

Applicants were lawfully cultivating the land belonging to the landlord

so as to be deemed to be a tenant. Having failed to carry out the said

exercise, the order of the Tahsildar is clearly unsustainable.

23. The SDO in the Appeal proceedings has rightly considered the

record of rights to hold that the record of rights since the year 1950

shows the suit lands being cultivated by the landlord personally and

that the predecessor of the Applicant was member of the landlord's

family. It has further held that there is no noting in the record of rights

prior to 1950 showing the cultivation by the Applicant and there is no

rent receipt or lease agreement.

24. Learned Member of MRT has rightly upheld the finding of SDO as

regards the personal cultivation by Respondent- landlord on the basis

of examination of revenue records which indicates cultivation as Reet

No 1 of "Khudd" i.e. personal cultivation of the landlord. It further held

that the other agricultural properties are uncultivable and mostly

sandy and therefore there could not be cultivation by the Applicant. As

far as payment of "Dast" is concerned, it was held that the same may

not be disputed.

Patil-SR (ch) 15 of 21 wp 135-2021+

25. For the Applicant to claim status of deemed tenancy, the burden

is upon the Applicant to establish that he was lawfully cultivating the

land belonging to the landlord and he does fall within the excepted

category. SDO and MRT has arrived at a specific finding of fact based

on examination of revenue records that the landlord was personally

cultivating the suit lands. No demonstrable error in the finding of fact

has been pointed out by learned Counsel for the Applicant-Tenant. As

there is finding of personal cultivation by the landlord based on the

revenue records, the necessary ingredient of lawful cultivation by the

tenant of the land belonging to another is not established taking away

the benefit of Section 4(1) of Tenancy Act. Another aspect which

creates an obstacle against grant of the application is that the 7/12

extracts produced on record in respect of some of the properties

shows the same as "pad" land and therefore uncultivable. These entries

in the 7/12 extracts have not been disputed by learned counsel for the

Applicant.

26. The only circumstance placed for consideration is payment of

"Dast" by the Applicant in respect of the suit properties. However,

there is a clear admission of the Applicant in the cross examination

that the "Dast" was handed over to his father. The Learned Member of

MRT has also held that the money order receipts are remitted by the

Patil-SR (ch) 16 of 21 wp 135-2021+

landlord in respect of government dues. Even if it is accepted that the

land revenue was being paid by the Applicant, the Learned Member of

MRT has rightly held that payment of "Dast" will not confer declaration

of status of tenant unless lawful possession is established and that

payment will not amount to an acquiescence by the landlord.

27. It is settled by the decision of Babu Hari Patil (supra) that

without their being any entry in the tenancy column or a rent note or a

rent receipt in favour of a person, if it is shown that the person is in

lawful possession, he must be declared as "deemed tenant". Although

Mr. Kundekar would distinguish the judgment on the ground that the

same dealt with "deemed tenant", the case in the tenancy application

is of deemed tenancy and therefore the decision is squarely applicable

to the facts of present case.

28. The Learned Member of MRT has held that there is nothing to

demonstrate lawful cultivation barring houses, cattle shed, residential

premises, Well and abutting area. On the basis of revenue records, the

Learned Member of MRT has held that in Survey No 25/59, there is

cattle shed and in abutting portion i.e. Survey No 25/62 +58/5, there is

cultivation and in portion of Survey No 25/58/3, there is dwelling

house, Well, and plantation belonging to the tenant. The finding in

Patil-SR (ch) 17 of 21 wp 135-2021+

respect of these three properties is based on the possession of the

Applicants. Whilst doing so, the MRT failed to appreciate that firstly to

avail of benefit of Section 4(1), lawful cultivation of land must be

shown. Land has been defined in Section 2(8) as land used for

agricultural purposes and includes sites of farm houses appurtenant to

such land. Thus the land appurtenant to the farm houses must be

shown to be lawfully cultivated by the Applicant. Section 2(5) of the

Tenancy Act, defines the expression "to cultivate" as to till or husband

the land for the purpose of raising or improving agricultural produce,

whether by manual labour or by means of any cattle or machinery, or to

carry on any agricultural operation thereon, and the expression

"uncultivated" shall be construed correspondingly.

29. The possession of the house property cannot be a ground to

grant status of deemed tenant in respect of the agricultural lands.

Pertinently, in the cross examination, the Applicant has given a fatal

admission that the house property is owned by the Respondent-

landlord. He has further admitted that he has no document to prove

the construction of the house or cattle shed. The reliance on the house

property standing in the name of the Applicant and payment of the

house assessment tax levied is misplaced as there is no acquiescence

by the landlord especially considering the admission by the Applicant

Patil-SR (ch) 18 of 21 wp 135-2021+

that the house property is owned by the landlord. The possession of

the house property and cattle shed cannot be construed as lawful

cultivation of the land abutting the house and cattle shed. In

proceedings under Section 70(b) of Tenancy Act, there cannot be a

finding of deemed tenancy in respect of house property and cattle

shed based on possession.

30. Having arrived at a finding that there was no evidence on record

to establish lawful cultivation of the suit lands by the Applicant, the

Learned Member of MRT could not have rendered a finding of deemed

tenancy in respect of three properties based on possession of the

house and cattle shed. To that extent, the order of Learned Member of

MRT deserves interference.

CONCLUSION:

31. In the instant case, the legal heirs of original Applicant have set

out a case of oral tenancy whereas the original Applicant has claimed

status of deemed tenant. There in no evidence to substantiate that the

Applicant was lawfully cultivating the suit lands belonging to the

Respondent-landlord. Even if it is accepted that oral tenancy is claimed,

there is no evidence to prove oral tenancy or payment of rent. The

Learned Member of MRT has exceeded its jurisdiction in granting

Patil-SR (ch) 19 of 21 wp 135-2021+

declaration of tenancy in respect of three properties merely based on

possession of the house property and cattle shed after having

rendered a finding that there is no lawful cultivation by the Applicant.

As the evidence on record did not establish lawful cultivation of suit

land, the possession of Applicant, if any, will amount to possession of

trespasser incapable of protection under Tenancy Act and will not be

entitled to the benefit of Section 4 of Tenancy Act. Under Section 76 of

Tenancy Act, the power can be exercised only where (a) the order is

contrary to law (b) there is failure to determine some material issue of

law or (c) where there was substantial defect in the procedure

followed which has resulted in miscarriage of justice. The Learned

Member of MRT has exceeded its jurisdiction in re-appreciating the

evidence and coming to a finding of tenancy in respect of three

properties which is legally unsustainable and warrants interference

under Article 227 of Constitution of India.

32. In light of the discussion above, the impugned order dated 2 nd

August, 2019 to the extent that it grants tenancy status to the

Applicant in respect of lands bearing Survey No 25/62+58 (27 gunthas),

Survey No.25/59 (5-gunthas) and Survey No.25/58/3 (20- gunthas)

consisting of house, Well and trees is quashed and set aside.

Patil-SR (ch) 20 of 21 wp 135-2021+

33. Consequently, Writ Petition 135 of 2021 succeeds. Rule is made

absolute. Writ Petition No 815 of 2020 is dismissed. Rule stands

discharged.

[Sharmila U. Deshmukh, J.]

Patil-SR (ch) 21 of 21 Signed by: Sachin R. Patil Designation: PS To Honourable Judge Date: 27/09/2024 17:14:39