Bombay High Court
Sahebrao Dhondiba Gaikwad Since Decd. ... vs Smt. Sunanda Suhas Ghungurde Alias ... on 3 November, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:46614
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4681 OF 2023
1. Sahebrao Dhondiba Gaikwad (since
deceased through LRs)
1(a) Saraswati Vitthal Shinde
1(b) Narmadabai Baban Baravkar
1(c) Babai Parshuram Baravkar
1(d) Chabubai Vitthal Mhetre
SANTOSH
SUBHASH 1(e) Godabai Balu Raut
KULKARNI 1(f) Changdeo Sahebrao Gaikwad
Digitally signed by
SANTOSH SUBHASH
1(g) Namdev Sahebrao Gaikwad
KULKARNI
Date: 2025.11.03 1(h) Dnyandev Sahebrao Gaikwad
19:09:04 +0530
1(i) Rahibai Sahebrao Gaikwad
2. Vishnu Dhondiba Gaikwad ...Petitioners
Versus
Smt. Sunanda Suhas Ghungurde ...Respondent
Mr. Prafulla Shah, a/w Gunjan Shah, for the Petitioners.
Mr. Prathamesh Bhargude, a/w Sumit Sonare, for the
Respondent.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 25th AUGUST, 2025.
PRONOUNCED ON: 3rd NOVEMBER, 2025
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
2. The petitioners take exception to a judgment and order
dated 16th March, 2022 passed by the Member, Maharashtra
Revenue Tribunal, Pune, (MRT) in Revision No.T/R/P/1/2005,
whereby the revision preferred by the respondent came to be
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allowed by setting aside the orders passed by the SDO in T&C
Appeal No.2 of 2003 dated 8 th March, 2004 and the order dated
5th September, 2002 passed by the Agricultural Land Tribunal
(ALT) in Tenancy Application No.39 of 1990.
3. Damodar was the original holder of agricultural lands,
including Gat No.547/1 admeasuring 16 H. 13 R. Dhondiba
Balku Gaikwad (Mali), the predecessor-in-title of the petitioners,
was in cultivation of the said land as a tenant, on the Tillers'
day. Though a proceeding for fixing the purchase price of the
said land under Section 32G of the Maharashtra Tenancy and
Agricultural Lands Act, 1948 ("MT&AL Act") was filed, yet, in
view of the transfer of the land by the original holder in favour of
his son Sudhir before 1st April, 1957 the Tillers' day got
postponed.
4. After attaining majority, Sudhir filed an application under
Section 29(2) and 31(3) of the MT&AL Act asserting that, Sudhir
bona fide required the land for cultivating personally.
5. On 14th April, 1972, the ALT passed an order purportedly
on the basis of the settlement arrived at between the parties
thereby directing delivery of possession of certain portions of
the lands, including the land bearing Survey No.547/1, to the
landlord Sudhir for his personal cultivation. Pursuant thereto,
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possession of 4 Acre land out of Survey No.547/1 was given to
Sudhir and predecessor-in-tile of the petitioners retained 27.33
Acre of land as a tenant thereof. Subsequently on 31 st January,
1973, an order under Section 32G of the MT&AL Act was passed
in respect of the said 27.33 Acre land.
6. The tenants claimed that under few months of the delivery
of 4 Acre land for his personal cultivation, Sudhir transferred
the subject land in favour of his sister Sunanda, the respondent
herein. Some lands were also transferred in the name of
Damodar, the father of Sudhir. The said transfer was evidenced
by the mutation entry effected on the basis of the application
submitted by the landlord Sudhir, vide ME No.622. The tenant,
thus, filed Tenancy Application No.39 of 1990 under Section 39
of the MT&AL Act for restoration of possession of the subject
land on account of the failure on the part of the landlord to
cultivate the land in accordance with the provisions contained
in Section 37 of the MT&AL Act.
7. By an order dated 5th September, 2022, ALT allowed the
said application and directed the respondent to hand over the
possession thereof. An appeal preferred there-against, being
Tenancy Appeal No.2 of 2003, was also dismissed by the SDO.
The respondent filed a Revision before the MRT. Initially, it was
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dismissed for want of prosecution on 15 th December, 2017. By a
subsequent order dated 16th December, 2021, the revision
application came to be restored to the file of the MRT.
8. By the impugned order dated 16th March, 2022, the
learned Member, MRT, was persuaded to allow the revision
application by setting aside the order of the Tahsildar to deliver
the possession of the subject land; which was confirmed by the
Appellate Authority in the Tenancy Appeal No.2 of 2003.
9. Being aggrieved, the tenants have invoked the writ
jurisdiction.
10. I have heard Mr. Prafulla Shah, the learned Counsel for
the petitioners, and Mr. Bhargude, the learned Counsel for the
respondent, at some length. The learned Counsel for the
parties took the Court through the pleadings and the material
on record.
11. Mr. Shah, the learned Counsel for the petitioners,
submitted that the Tribunal was clearly in error in interfering
with the concurrent findings of fact recorded by the ALT and the
SDO in a revision, the scope of which is extremely limited. The
Tribunal has transgressed the limits of revisional jurisdiction.
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12. Secondly, in the face of the material to show that Sudhir
had transferred the subject land in favour of his sister Sunanda
by submitting an application before the Revenue Authority, and
that was the course which was adopted in transferring the land
bearing Gat No.547/1 by Damodar in favour of Sudhir, the
Tribunal was not at all justified in holding that mere mutation of
the name of Sunanda to the record of rights of the subject land
did not constitute transfer within the meaning of Section 37 of
the MT&AL Act. The evidence on record clearly indicated that
Sudhir had not used the subject land for the purpose of
personal cultivation. The said question being a question of fact,
the Tribunal could not have lightly interfered with the findings
recorded by the ALT and the Appellate Authority.
13. Mr. Shah submitted that though the order of delivery of
possession of the subject land to Sudhir was passed on the
basis of the compromise arrived at between the parties, yet, it
was incumbent upon the landlord to personally cultivate the
subject land and failure to do so would entail the consequences
provided under Section 37 of the MT&AL Act. In the absence of
any evidence of personal cultivation by Sudhir, the landlord,
and the mutation of the subject land in the name of the
respondent, the Authorities were justified in directing the
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delivery of the possession of the subject land to the tenants and
the Tribunal was in grave error in interfering with the said
order.
14. In contrast to this, Mr. Bhargude, the learned Counsel for
the respondent, would support the impugned order. It was
submitted that the fact that the parties had amicably resolved
the dispute and pursuant to the Consent Terms arrived at
between the parties, the order of delivery of possession of 4 Acre
land in favour of the landlord was passed, cannot be lost sight
of. It is not open for the tenants to again turn around and seek
the possession of the land which came to be allotted to the
landlord under the Consent Terms. At any rate, according to
Mr. Bhargude, the material on record indicates that Sudhir has
been cultivating the subject land personally within the meaning
of the term, "to cultivate personally" defined under Section 2(6)
(iii) of the MT&AL Act.
15. Mr. Bhargude laid emphasis on the fact that the
respondent Sunanda was a family member of the landlord
Sudhir. The mere fact that the name of Sunanda, the then
unmarried sister of the landlord, was mutated to the record of
rights of the subject land, does not necessarily imply that there
was a transfer of interest in the subject land in favour of
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Sunanda. On the contrary, the tenants have conceded during
the course of their cross-examination that their principal
grievance was that the landlord should get the land cultivated
from the petitioners instead of the third parties. Attention of the
Court was invited to the manner in which Sahebrao, the
deceased petitioner No.1, fared in the cross-examination.
16. Mr. Bhargude would further urge that, the orders passed
by the ALT and the Appellate Authority were perverse in the
sense that those authorities had gone behind the compromise
decree and questioned the transfer of the land by late Damodar
in favour of Sudhir and by drawing an analogy in the matter of
the mutation of the name of the respondent, unjustifiably drew
an inference of transfer. Lastly, it was urged that the
application for restoration of possession was clearly barred by
limitation.
17. To begin with, few uncontroverted facts. It is not in dispute
that Sudhir had filed an application for recovery of possession of
the land bearing Gat No.547/1 under Section 31(3) of the
MT&AL Act on the ground that he bona fide required the said
land for personal cultivation. In the said proceeding, the
landlord and tenants arrived at a settlement. The ALT had
recorded that the landlord and tenants have made mutual
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settlement in respect of the subject lands and, thus, the ALT
agreed with the said settlement and directed the delivery of
possession of the land to the landlord in accordance with the
terms of the settlement. It is not in dispute that, in the year
1972, the landlord Sudhir gave an application to mutate the
subject land in the name of Sunanda, his then unmarried sister,
and vide ME No.622 the subject land came to be mutated in the
name of the respondent.
18. In the backdrop of these uncontroverted fact, the ALT as
well as SDO have drawn an inference that the mutation of the
name of the respondent to the record of rights of the subject
land constitutes the transfer of the land and, resultantly, failure
to use the subject land by the landlord for the purpose for
which the possession of the subject land was obtained from the
tenant. In contrast, the Tribunal has proceeded on the premise
that the authorities were in error in not considering the
admissions in the cross-examination of Sahebrao that, in fact,
Sudhir was cultivating the subject land by hired labour and it
was the grievance of the tenants that the landlord should
cultivate the subject land through the tenants instead of taking
the services of the hired labour. Thus, the fact that there was
failure to cultivate the land personally was not proved.
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Secondly, in the view of the Tribunal the mere mutation of the
name of the Sunanda to the record of rights of the subject land,
who, then being an unmarried sister, was a member of the
family of the landlord, would not amount to transfer in the
absence of any instrument. Lastly, the period of 12 years from
the certification of Mutation Entry No.622 elapsed in the year
1984 and there was delay of six years in filing the application
under Section 39 of the MT&AL Act and, in the circumstances of
the case, the said delay was inordinate.
19. Section 37 of the MT&AL Act reads as under:
"Section 37. Landlord to restore possession if he fails to
cultivate within one year
(1) If after the landlord takes possession of the land after the
termination of the tenancy [under section 31], [33B or section 34
of this Act as it stood immediately before the commencement of
the Amending Act, 1956] he fails to use it for any of the
purposes specified in the notice given under [section 31], [33B or
section 34 of this Act as it stood immediately before the
commencement of the Amending Act, 1956] within one year from
the date on which he took possession or ceases to use it at any
time for any of the aforesaid purposes within twelve years from
the date on which he took such possession, the landlord shall
forthwith restore possession of the land to the tenant whose
tenancy was terminated by him, unless he has obtained from
the tenant his refusal in writing to accept the tenancy on the
same terms and conditions or has offered in writing to give
possession of the land to the tenant on the same terms and
conditions and the tenant has failed to accept the offer within
three months of the receipt thereof.
(2) After the tenant has recovered possession under sub-
section (1) he shall, subject to the provisions of this Act, hold
such land on the same terms and conditions on which he held it
at the time his tenancy was terminated.
(3) If the landlord has failed to restore possession of the land
to the tenant as provided in sub-section (1) he shall be liable to
pay such compensation to the tenant as may be determined by
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the Mamlatdar for the loss suffered by the tenant on account of
eviction.
[(4) The provisions of this section shall not apply to a landlord
who becomes a serving member of the armed forces; and on that
account, fails to use the land, or ceases to use it, for any of the
purposes specified in the notice referred to in sub-section (1)
and within the period specified in that sub-section]."
20. A bare perusal of the afore-extracted section would
indicate that the landlord who takes possession of the land after
the termination of the tenancy under Sections 31, 33B or 34 as
it stood before the commencement of the Amendment Act, 1956,
is enjoined to use the land for the purpose for which he
obtained the possession of the land within one year from the
date on which he took possession thereof. And also not to cease
the user thereof for the said purpose within 12 years from the
date on which he took such possession. If the landlord either
fails to put the land to use, within one year, or ceases to use the
land for the said purpose, at any time within 12 years, he is
duty bound to restore possession of the land to the tenant,
whose tenancy was terminated by him.
21. Upon failure of the landlord to restore possession of the
land to the tenant, Section 39 of the MT&AL Act provides the
machinery for enforcement of the said right. It empowers the
tenant to make an application before the ALT for an order to
restore the possession of such land. Section 39 reads as under:
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"Section 39. Application for recovery of possession by tenant
If at any time the tenant makes an application to the
Mamlatdar and satisfies him that the landlord has failed to
comply within a reasonable time with the provisions of section
37, the tenant shall be entitled on a direction by the Mamlatdar
to obtain immediate possession of the land and to such
compensation as may be awarded by the Mamlatdar for any loss
caused to the tenant by eviction and by failure on the part of
the landlord to restore or give possession of the land to him as
required by section 37."
22. On a plain reading of Section 39, it appears that the
legislature has consciously not provided any period of limitation
for making an application for restoration of possession. On the
contrary, the provision enables a tenant to make such an
application, "at any time". A useful reference, in this context,
can be made to a judgment of the learned Single Judge in the
case of Anna Tatoba Todkar or Herle vs. Bhau Balu Makane 1,
wherein it was enunciated that, no limitation is prescribed by
Section 39 for making an application for restoration of
possession and, on the other hand, the legislature has
deliberately used the word "at any time" to enable the tenant to
recover possession from the landlord who has wrongly deprived
him of possession of the land ostensibly on the ground of bona
fide personal cultivation.
23. In view of the aforesaid legal position, the learned Member,
MRT, was not justified in interfering with the order passed by
1 2003(2) Mh.L.J. 300.
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the ALT and affirmed by the SDO on the ground that there was
delay of six years in filing the application for restoration of
possession of the subject land. The principle of reasonable time
limit of three years, where no such time limit was prescribed by
the legislature, could not have been imported to the facts of the
case at hand, as under Section 39 of the MT&AL Act, an
application for restoration of possession can be made, "at any
time". It is imperative to note that, it is only for the enforcement
of the obligation under Section 37 to restore possession, an
enabling provision is made under Section 39 of the MT&AL Act
to apply to the Mamlatdar to order the restoration of the
possession and thereby enforce the obligation of the landlord.
24. Reliance placed by Mr. Bhargude on the judgment in the
case of Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim 2
does not appear to be well founded. In the said case, the
Supreme Court enunciated that the suo moto power under
Section 84C of the MT&AL Act were required to be exercised by
the Mamlatdar within a reasonable time. The said principle, for
the reasons stated above, would not govern the facts of the case
at hand.
2 (1997) 6 Supreme Court Cases 71.
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25. The learned Member, MRT was, in the considered view of
the Court, however, justified in taking the view that the
Authorities below had committed an error in law in not taking
into account the evidence especially the admissions in the
cross-examination that Sudhir, the landlord, had been
cultivating the subject land. In an application for restoration of
possession of the land under Section 39 of the MT&AL Act, it
has to be established that there is failure on the part of the
landlord either in commencing the use of the land for the
purpose for which its possession was obtained, within one year
thereof, or cessation of the user of the land, at any time within
12 years. The non-user or cessation of user, as the case may
be, constitutes the jurisdictional fact, on proof of which only the
ALT can pass an order of restoration of possession.
26. In the case at hand, as noted above, the application under
Section 31(3) filed by the landlord was allowed on the basis of
the settlement arrived at between the parties. Possession of an
area admeasuring 4 Acre only was directed to be delivered to the
landlord and the tenant was allowed to retain 27.33 Acre area of
the land. This backdrop deserves to be kept in view while
appreciating the case of cessation of user of the subject land by
the landlord.
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27. Evidently, the cessation of user was sought to be
established primarily on the basis of ME No.622 under which
the subject land came to be mutated in the name of the
respondent, who is the sister of Sudhir. In this backdrop, the
manner in which Sahebrao, the deceased petitioner No.1, fared
in the cross-examination assumes significance. Sahebrao
conceded that apart from ME No.622 there was no evidence to
substantiate the case that there was failure on the part of
Sudhir to personally cultivate the subject land. Sunanda is the
sister of Sudhir. He had not known where Sunanda resides. He
had not seen Sunanda in the village. Sudhir was in actual
cultivation of the subject land. Sudhir gets the subject land
cultivated from labourers. It was the principal grievance of the
applicants-tenants that Sudhir should get the land cultivated
from the petitioners instead of the hired labourers.
28. In the face of the aforesaid evidence, the ALT and SDO
were clearly in error in returning the finding that there was
cessation of user of the subject land for the purpose for which
possession of the subject land was obtained by Sudhir, only on
the basis of the entry in the record of rights of the subject land.
Under the provisions of Section 2(6) of the MT&AL Act, "to
cultivate personally" means to cultivate land on one's own
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account, inter alia, (iii) under the personal supervision of
oneself or any member of one's family, by hired labour or by
servants on wages payable in cash or kind but not in crop
share. The explanation to provides that in case of a joint family
the land shall be deemed to be cultivated personally if it is
cultivated by any member of such family.
29. The conspectus of aforesaid consideration is that the ALT
and SDO had failed to satisfy themselves that the jurisdictional
fact of cessation of user of the subject land by Sudhir was
established. Resultantly, the order of restoration of possession
without proof of jurisdictional fact, was clearly contrary to law.
The learned Member, MRT, was, thus, within his rights in
interfering with the orders passed by the Authorities below
which appeared to be contrary to law. Resultantly, this Court
does not find any justifiable reason to interfere with the
impugned order.
30. Hence, the following order:
:ORDER:
(i) The petition stands dismissed.
(ii) Rule discharged.
(iii) No order as to costs.
[N. J. JAMADAR, J.]
