Bombay High Court
Shri. Uttam Vishram Dhoke And Ors vs Shri. Pramod Tukaram Dhoke And Ors on 11 March, 2025
2025:BHC-AS:11425
Megha 14_wp_2395_24 with 15105_2022_fc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2395 OF 2024
1. Pramod Tukaram Dhoke
2. Smt. Pratibha Tukaram Dhoke ...Petitioners
V/s.
1. Vishram Vithal Dhoke since
deceased through legal heirs Sr.
No.2.1 to 5
2. Pradip Vishram Dhoke since
deceased through legal heirs
2.1 Pratibha Pradeep Dhoke
3. Sanjay Vishram Dhoke
4. Vitthal Vishram Dhoke
5. Uttam Vishram Dhoke
6. Dilip Payaji Padelkar
7. Ganesh Rajaram Wadekar
8. Hemalata Hemant Wadekar
9. Alka Ashok Rane
10. Bhiksen Tukaram Dhoke ...Respondents
WITH
WRIT PETITION NO.15105 OF 2022
1. Uttam Vishram Dhoke
2 Pratibha Pradeep Dhoke
3. Sanjay Vishram Dhoke
4. Vitthal Vishram Dhoke ...Petitioners
V/s.
1. Pramod Tukaram Dhoke
2. Smt. Pratibha Tukaram Dhoke
MEGHA
SHREEDHAR
PARAB
3. Dilip Payaji Padelkar
Digitally signed by
MEGHA SHREEDHAR
4. Ganesh Rajaram Wadekar
PARAB
Date: 2025.03.11
19:12:11 +0530 5. Hemalata Hemant Wadekar
6. Alka Ashok Rane
Page No. 1 of 13
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7. Bhiksen Tukaram Dhoke
8.The Maharashtra Revenue
Tribunal, Mumbai.
9. Sub-Divisional Officer, Kankavali
10. Ld. Tahsildar, Devgad, District-
Sindhudurg.
11. The State of Maharashtra. ...Respondents
______________
Mr. Bhushan Walimbe with Ms. Shalu D. Jadhav i/b. Ms. Preeti
Walimbe for the Petitioners in WP/2395/2024 and for Respondent
Nos.1 and 2 in WP/15105/2022.
Mr. Vinayak R. Kumbhar for Petitioners in WP/15105/2022
and for Respondents in WP/2395/2022.
Mr. J.P. Patil, AGP for Respondent Nos.8 to 11-State in
WP/15105/2022.
______________
CORAM: SANDEEP V. MARNE, J.
Judgment reserved on: 24 February 2025.
Judgment pronounced on: 11 March 2025.
Judgment:
1) These are cross Petitions filed by the affected parties
challenging the order dated 20 February 2019 passed by the
President, Maharashtra Revenue Tribunal, Mumbai (MRT).
Writ Petition No.2395 of 2024 is filed by the branch of Tukaram
Dhoke to the extent of denial of share in a tenanted lands
described at Sr. Nos. (B), (C) and (D) of the Plaint. Writ Petition
No.15105 of 2022 is filed by the branch of Vishram Dhoke to the
extent of the Maharashtra Revenue Tribunal (MRT) upholding
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the order of Tehsildar holding that suit properties described at
Sr. No. (A) are joint family tenanted properties. Thus, it is the
contention of the heirs of Vishram Dhoke that all the suit
properties are exclusively owned by Vishram Dhoke and
Tukaram Dhoke does not have any share in the same. Whereas
the branch-Tukaram Dhoke believes that all the suit properties
are joint family properties and that children of Tukaram must
get a share therein.
2) Briefly stated, facts of the case are that Vitthal R. Dhoke
was the head person of the family, whose wife's name was Girija.
Vitthal and Girija had two sons -Tukaram and Vishram and one
daughter Smt. Gopika Payaji Padelkar. There are total four
properties at Village- Jamsande, Taluka-Deogad, District-
Sindhudurg, which are divided into four groups as under:
Property "A"
Sr. No. New S.No. Old S.No. Hissa No. Area
1 52 444 1 0-08-6
2 57 528 6/2 0-05-3
3 34 388 1/7 0-44-0
Property "B"
Sr. No. New S.No. Old S.No. Hissa No. Area
1 34 388 2/6B 0-04-5
0-01-0
2 28 400 1/13B 0-01-5
0-00-5
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Property "C"
Sr. No. New S.No. Old S.No. Hissa No. Area
1 35 387 2/1B 0-16-0
0-09-0
2 35 387 3/D 0-24-5
Property "D"
Sr. No. New S.No. Old S.No. Hissa No. Area
1 27 405 6C 0-00-2
0-00-6
2 28 400 7A 0-52-0
0-08-0
3 28 400 2/8 0-02-0
4 34 388 2/1/2 1-00-0
5 28 405 1/13b 0-01-5
0-00-5
3) Tukaram filed Special Civil Suit No.106 of 1991 seeking
partition of all the four properties A, B, C and D as well as for
injunction. Vishram V. Dhoke was impleaded as Defendant No.1
and his wife Kaushalyabai Vishram Dhoke was impleaded as
Defendant No.2 to the Suit. Sister of Tukaram and Vishram -
Smt. Gopika Payaji Padelkar was impleaded as Defendant No.3
to the Suit. In the Suit, Defendant Nos.1 and 2 filed written
statement inter alia contending that the suit properties are
tenanted properties and the suit cannot be decided in absence of
declaration of tenancy by the competent court.
4) Accordingly, the Trial Court framed Issue No.3 as to
'whether the Defendants prove that suit property is an exclusive
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tenancy property of Defendants?' and passed order dated 4
November 1996 referring Issue No.3 to the Tenancy Court under
Section 85 of the Bombay Tenancy and Agricultural Lands Act,
1948 (Tenancy Act). The reference was registered as Tenancy
Case No. 45 of 1997 before Tehsildar and Agricultural Lands
Tribunal (ALT). The ALT passed order dated 2 June 2012 in the
Reference holding that the suit property 'A' is joint family
tenancy whereas the suit property Nos. 'B' and 'C' are individual
tenanted properties of Vishram Dhoke. The property at Serial
No. 'D-1' was again held to be joint family tenanted property
whereas claim of joint tenancy in respect of property at Sr.Nos.
D-2 to D-5 was rejected holding the same to be individual
tenanted properties of Vishram.
5) Both Tukaram Dhoke and Vishram Dhoke challenged
order dated 2 June 2012 before the Sub-Divisional Officer,
Kankavali (SDO). Tenancy Appeal No.64 of 2012 filed by
Vishram came to be allowed and it was held that suit property
No. 'A' was individual tenanted property of mother-Girijabai
Vitthal Dhoke, who had bequeathed the same to Vishram
through her will. Tenancy Appeal No.63 of 2012 filed by
Tukaram/his heirs in respect of rejection of joint tenancy claim
in respect of suit properties B, C and D was however, rejected.
6) Heirs of Tukaram Dhoke filed Revision Application
Nos.85 of 2016 and 86 of 2016 challenging the two orders dated
17 February 2016 passed by the SDO, before MRT. The MRT has
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allowed Revision Application No.86 of 2016 setting aside the
order of the SDO and confirmed ALT's order dated 2 June 2012
qua suit property 'A'. The Revision Application No.85 of 2016 was
however, dismissed by confirming the orders passed by the SDO
and ALT qua suit property Nos. 'B', 'C', and 'D'. Heirs of
Tukaram are aggrieved by order dated 20 February 2019 qua
rejection of their claim of joint tenancy in respect of suit
properties 'B', 'C' and 'D' and have accordingly filed Writ Petition
No.2395 of 2024. On the other hand, heirs of Vishram Dhoke
aggrieved by the very same order of 20 February 2019, to the
extent it declares suit property No. 'A' to be joint family property.
Both the Petitions are heard and decided together.
7) Mr. Walimbe, the learned counsel appearing for the
Petitioners in Writ Petition No.2395 of 2024 and for contesting
Respondent Nos.1 and 2 in Writ Petition No.15105 of 2022 (heirs
of Tukaram Dhoke) would submit that all the three authorities
have erred in holding Vishram to be individual tenant in respect
of the suit property Nos. 'B', 'C' and 'D'. He would submit that
age of Vishram as on Tiller's day of 1 April 1957 was hardly 15
years and it was inconceivable that he was individually
cultivating the tenanted land for himself. That therefore the
cultivation ought to have been inferred for the benefit of joint
family considering the tender age of Vishram as on the Tiller's
day. He would further submit that the MRT has ultimately
accepted that the mother was cultivating the suit property No. 'A'
for the benefit of the entire joint family and that it is therefore
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inconceivable that there can be two different types of cultivation
viz., joint family cultivation by mother of suit property 'A' and
individual cultivation by Vishram of properties- 'B', 'C' and 'D'.
That therefore cultivation of suit properties 'B', 'C' and 'D' ought
to have been considered as cultivation for the joint family. He
would submit that this is particularly true on account of the age
at which Vishram was on the Tiller's day of 1 April 1957.
8) So far as Writ Petition No.15105 of 2022 is concerned,
Mr. Walimbe would submit that mother-Girijabai was widow as
on the Tiller's day of 1 April 1957 and if her personal cultivation
of suit property 'A' was to be claimed, she would not have been in
a position to purchase the tenanted land at Sr. No. 'A' on account
of her disability under the provisions of Section 32F of the
Tenancy Act and that purchase would have happened only after
her death, by Tukaram and Vishram jointly. Therefore,
Vishram's contention of Girijabai individually cultivating the
suit property 'A' and purchasing the same for herself is
something which is impermissible under Section 32F of the
Tenancy Act. The fact that there was no postponement of right
of purchase of suit property 'A' and the fact that purchase took
place during lifetime of Girijabai are indicators of fact that there
was joint cultivation for family and proviso to Section 32F of the
Tenancy Act kicked in. That therefore ALT and MRT have
rightly held suit property 'A' to be in joint cultivation of the
family. He would accordingly pray for setting aside of order
dated 20 February 2019.
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9) Mr. Kumbhar, the learned counsel appearing for the
Petitioners in Writ Petition No.15105 of 2022 and for Respondent
Nos.1, 2 and 5 in Writ Petition No.2395 of 2024 (heirs of
Vishram) would submit that none of the suit properties were in
the cultivation of joint family. That therefore, the ALT and MRT
have grossly erred in holding that suit property No. 'A' is in the
joint family tenancy. That mother-Girijabai is found to be
personally cultivating the suit property No. 'A' and accordingly
personally purchased the same in her own name and later
executed Will in favour of Vishram in respect thereof. That
therefore Tukaram did not have semblance of right qua suit
property No. 'A'. That in respect of suit property Nos. 'B', 'C' and
'D', there are concurrent findings recorded by all the three
authorities that the same are in individual cultivation and that
the concurrent findings do not warrant interference in exercise of
jurisdiction under Article 227 of the Constitution of India. He
would accordingly pray for setting aside order passed by the MRT
in respect of suit property No. 'A' by holding the same to be of
mother-Girijabai's individual tenanted property and for
dismissal of Writ Petition No.2395 of 2024 by upholding the
order passed by MRT qua properties at Sr. Nos. 'B', 'C' and 'D'.
10) Rival contentions of the parties now fall for my
consideration.
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11) The reference to tenancy court arose due to framing of
Issue No.3 by the Court of Civil Judge, Senior Division in Special
Civil Suit No.106 of 1991, later renumbered as Regular Civil Suit
No.57 of 2000. As observed above, the Suit was originally filed by
Tukaram Dhoke claiming ½ share in all the four suit properties
'A', 'B', 'C' and 'D' by impleading his brother -Vishram and
Vishram's wife- Kaushalyabai as well as sister-Gopika Payaji
Padelkar as Defendants. Defendant Nos. 1 and 2 (Vishram and
Kaushalyabai) filed written statement raising claim of tenancy
in respect of the suit properties and claimed that all the suit
properties were exclusively tenanted properties of Vishram. The
Court of Joint Civil Judge, Senior Division, Ratnagiri framed
Issue No.3 relating to claim of tenancy and directed reference to
the Tenancy Court under Section 85 of the Tenancy Act.
12) ALT accordingly conducted enquiry into the tenancy
claims. So far as properties at Serial No. 'A' are concerned, the
ALT held that after mother Girijabai's death, names of Vishram,
legal heirs of Tukaram and sister-Gopikabai were mutated to
revenue records. ALT also observed that this is the major factor
for holding that the tenancy of Girijabai could not be individual
and the same was for the benefit of the entire family.
13) In my view, Girijabai could not have been held as an
individual tenant in respect of suit property 'A' in view of
provisions of Section 32F of the Tenancy Act. Under Section 32F,
if the tenant is a widow, the right to purchase under Section 32
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of the Tenancy Act can be exercised only by successor in title of
the widow after her death. In short, widow does not have right to
purchase tenanted land under Section 32 of the Tenancy Act and
the deeming fiction under Section 32 gets postponed till the
disability of the widow ceases to exist and the successor in title of
the widow can purchase the land within a period of one year
from the date on which widow's interest in the land ceases to
exist. Mother-Girijabai was admittedly widow on the Tiller's day
of 1 April 1957. She therefore did not have right to purchase the
land under the provisions of Section 32F (1)(b) of the Tenancy
Act and the deeming fiction of Section 32 would have got
postponed during her lifetime. Further under proviso to clause
(b) of sub-section (1) of Section 32F of the Tenancy Act, if the
widow happens to be a member of joint family, the provisions of
Section 32F of the Tenancy Act do not apply if one of the
members of the joint family is outside the categories mentioned
under Section 32F of the Tenancy Act. Thus, where the land is
in cultivation of the joint family, mere presence of widow in the
joint family does not postpone purchase of the land under Section
32 and it is lawful for the joint family to purchase the land even
during lifetime of the widow. The fact that Girijabai purchased
suit property at Serial No. 'A' during her lifetime would
necessarily mean that she has purchased the same by taking
benefit of proviso to Section 32F (1)(b) of the Tenancy Act. If the
claim of Girijabai's personal cultivation is now pressed, the same
would render purchase of the land by Girijabai during her
lifetime ab initio void. If land was indeed purchased by Girijabai
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in her personal capacity, the purchase would take place only by
Vishram and Tukaram after Girijabai's death. Thus, in either of
the contingencies, Girijabai can never become individual
purchaser of suit property at Serial No. 'A'. In my view, therefore
the findings recorded by the ALT and MRT regarding joint family
tenancy in respect of the suit properties at Serial No. 'A' cannot
really be found fault with.
14) So far as suit property Nos. 'B', 'C' and 'D' are concerned,
there appears to be fundamental error in the understanding of
order passed by the ALT by both the parties especially about
property at Serial No. 'D'. ALT has dealt with the five properties
described under head "D" and has held that property at 'D1' is a
joint family tenancy property. The ALT has held that the
property at Serial No. D(1), Survey No.27 (old Survey No.405)
Hissa No.6C was tenanted property of Vitthal and there is house
No.816 located thereat. Therefore, the property at Serial No.D(1)
is held to be in joint tenancy of the entire family. The property at
Serial No.D(2) is held to be not in the joint family tenancy.
Property at Serial No. D(3) is held to be Vishram's individual
tenancy property. No specific finding is recorded with regard to
property at Serial No.D(4). Property at Serial No. D(5) is held to
be individual tenancy property of Vishram.
15) It must be observed that these are concurrent findings
recorded by the ALT, SDO and MRT with regard to properties at
Serial Nos. 'B', 'C' and 'D'. In exercise of jurisdiction under
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Article 227 of the Constitution of India, it would be
impermissible for this Court to interfere in the said concurrent
findings recorded by the three authorities by re-appreciating the
evidence on record. It is not that all suit properties Nos. 'B', 'C'
and 'D' are held to be individual tenancies of Vishram. The suit
property at Serial No. D(1) is held to be joint family tenancy
property. No material is produced on record for this Court to
interfere in the concurrent findings recorded by ALT, SDO and
MRT.
16) Mr. Walimbe has strenuously contended that the suit
properties at Serial Nos. 'B', 'C' and 'D' also ought to have been
held to be joint family tenancy properties considering the age of
Vishram at the time of Tiller's day of 1 April 1957. He would
contend that Vishram was of tender age of 15 years as on 1 April
1957 and it was impossible for him individually and personally to
cultivate suit property Nos. 'B', 'C' and 'D' as on 1 April 1957.
However, the assertion of Mr. Walimbe that Vishram was 15
years of age as on 1 April 1957 is belied by contents of the Plaint
in Special Civil Suit No.106 of 1991. In the Plaint filed in that
Suit in the year 1991, age of Vishram is described as 58 years
and age of Tukaram is described as 56 years. If Vishram was 58
years old in 1991, he would be at least 24 years old in 1957.
Therefore, the whole theory of minority of Vishram now sought
to be urged directly before this Court is factually wrong. If age of
Vishram was indeed 15 years as on 1 April 1957, he would have
been 48/49 years of age in the year 1991. However, Tukaram
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himself described age of Vishram in the Suit No.106 of 1991 to be
58 years. The contention of alleged minority of Vishram on the
Tiller's day is thus totally baseless and is raised only to be
rejected. Even otherwise, the Tenancy Act does recognise
tenancy rights of even minor persons and the same merely gets
postponed till attaining the age of majority. Merely because
tenant is minor as on the Tiller's day of 1 April 1957, the same
neither extinguishes tenancy nor raises automatic presumption
of joint family cultivation. In any case, it is not necessary to delve
deeper into this aspect as the very claim of heirs of Tukaram
about minority of Vishram as on Tiller's day of 1 April 1957 is
found to be factually incorrect.
17) I therefore do not find any valid reason to interfere in the
concurrent findings recorded by the ALT, SDO and MRT qua suit
property Nos. 'B', 'C' and 'D'. Resultantly, the challenge raised by
both the sides to the orders passed by the MRT must fail.
18) Resultantly, Writ Petition Nos.2395 of 2024 and 15105 of
2022 are dismissed without any orders as to costs.
[SANDEEP V. MARNE, J.]
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