Bombay High Court
Prabhakar Trimbak Kulkarni Died ... vs Laxman Ramji Shelke Died Through Lrs ... on 3 September, 2025
2025:BHC-AUG:23570
1
10513.2022WP+.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10513 OF 2022
1. Laxman Ramji Shelke
(Deceased) Through L.Rs.
A. Bhau Laxman Shelke
Age : 77 years, Occ : Agriculture,
Through G.P.A. holder
Nitin S/o Bhaurao Shelke
Age : 46 years, Occ : Agri.,
R/o Bota, Tq. Sangamner,
Dist. Ahmednagar.
..PETITIONER
VERSUS
1. Murlidhar Baburao Shelke
Age : Major, Occ : Agriculture,
R/o Bota, Tq. Sangamner,
Dist. Ahmednagar.
2. Shridhar Narayan Kulkarni
(Died) Through L.Rs.
A) Sanjay Shridhar Kulkarni
Age : Major, Occ : Agri.,
R/o Priti Sanam, 1321,
Kasba Peth, Pune,
Tq. & Dist. Pune.
B) Smt. Asawari Ramesh Dekhne
Age : Major, Occ : Household,
R/o Priti Sangam, 1321,
Kasba Peth, Pune,
Tq. & Dist. Pune.
C) Snehalata Shridhar Kulkarni
Age : Major, Occ : Household,
R/o Priti Sangam, 1321,
Kasba Peth, Pune,
Tq. & Dist. Pune.
2
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D) Amey Shridhar Joshi
Age : Major, Occ : Service,
R/o Priti Sangam, 1321,
Kasba Peth, Pune
Tq. & Dist. Pune.
3. Mukund Digambar Kulkarni
Age : Major, Occ : Agri.,
R/o A-802, Sai Regency, Bhoir Nagar,
Mulund (East), Mumbai - 400 081.
4. Ramabai Vishnu Kulkarni
Age : Major, Occ : Household,
R/o Bota, Tq. Sangamner,
Dist. Ahmednagar
5. Amit Vijay Kulkarni
Age : Major, Occ : Agriculture,
R/o Bota, Tq. Sangamner,
Dist. Ahmednagar.
6. Vishwas Vishnu Kulkarni
Age : Major, Occ : Agriculture,
R/o Bota, Tq. Sagamner,
Dist. Ahmednagar.
7. Ranjana Babanrao Punde
Age : Major, Occ : Agriculture,
R/o Chande, Tq. Karjat,
Dist. Ahmednagar.
8. Prabhakar Trimbak Kulkarni
(Deceased), Through L.Rs.
A. Mahesh Prabhakar Kulkarni
Age : Major, Occ : Agri.,
R/o 4, Swanam Apartment,
Chintamani Colony, Rajiv Nagar,
Tq. & Dist. Nashik.
9. Sudhakar Trimbak Kulkarni
(Deceased) Through L.Rs.
3
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A. Vaibhav Sudhakar Kulkarni
(Died) Through L.Rs.
9A-1. Suvarna Vaibhav Kulkarni
Age : 50 years, Occ : Service,
9A-2. Smruddhi Vaibhav Kulkarni
Age : 26 years, Occ : Service,
9A-3. Vaishnavi Vaibhav Kulkarni
Age : 22 years, Occ : Service,
All L.Rs. are resident of
Flat No.5, Plot No.4,
Suyash Corner, Malhar Chowk,
success vihar, Opposite to Jawahar Nagar,
Police Station, Aurangabad,
Maharashtra.
10. Waman Narayan Kulkarni
Age : Major, Occ : Agri.,
R/o Narayanbag, Bhivandi Road,
Kalyan,
Tq. & Dist. Thane
(Respondent No.10 deleted as per
Court's order dated 14.11.2022).
11. Smt. Rakhamabai Vishnu Kulkarni
Age : Major, Occ : Agri.,
R/o Bota, Tq. Sangamner,
Dist. Ahmednagar.
..RESPONDENTS
WITH
WRIT PETITION NO. 11968 OF 2022
1. Prabhakar Trimbak Kulkarni
(Died), Through L.Rs.
1-A. Mahesh Prabhakar Kulkarni
Age : 46 years, Occ : Business,
R/o 4, Swanam Apartment,
Chintamani Colony, Rajiv Nagar,
Tq. & Dist. Nashik.
4
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2. Sudhakar Trimbak Kulkarni
(Died) Through L.Rs.
2-A. Vaibhav Sudhakar Kulkarni
(Died) Through L.Rs.
2-A-1.Smt. Suvarna Vaibhav Kulkarni
Age : 50 years, Occ : Household,
2-A-2.Smruddhi Vaibhav Kulkarni
Age : 26 years, Occ : Service,
2-A-3.Vaishnavi Vaibhav Kulkarni
Age : 22 years, Occ : Student,
Applicant Nos.2-A-1 to 2-A-3
are R/o Flat No.5, Plot No.4,
Suyash Corner, Malhar Chowk,
Aurangabad
3. Digambar Yeshwant Kulkarni
(Died) Through L.Rs.
3-A. Mukund Digambar Kulkarni
Age : 66 years, Occ : Business,
R/o A-802, Sai Regency, Bhoir Nagar,
Mulund (East), Mumbai - 400 081.
4. Vishwas Vishnu Kulkarni
Age : 56 years, Occ : Agriculture,
R/o Bota, Tq. Sangamner,
Dist. Ahmednagar.
..PETITIONERS
VERSUS
1. Laxman Ramji Shelke
(Died) Through L.Rs.
Bhau Laxman Shelke
Age : 77 years, Occ : Agriculture,
Through G.P.A. holder
Nitin S/o Bhaurao Shelke
Age : 46 years, Occ : Agri.,
R/o Bota, Tq. Sangamner,
Dist. Ahmednagar.
5
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2. Shridhar Narayan Kulkarni
(Died) Through L.Rs.
2-A) Sanjay Shridhar Kulkarni
(Died)
2-B) Smt. Asawari Ramesh Dekhne
Age : Major, Occ : Household,
R/o Priti Sangam, 1321,
Kasba Peth, Pune,
Tq. & Dist. Pune.
2-C) Snehalata Shridhar Kulkarni
Age : Major, Occ : Household,
R/o Priti Sangam, 1321,
Kasba Peth, Pune,
Tq. & Dist. Pune.
2-D) Amay Shridhar Joshi
Age : Major, Occ : Service,
R/o Priti Sangam, 1321,
Kasba Peth, Pune
Tq. & Dist. Pune.
3. Waman Narayan Kulkarni
(Died) Through his L.Rs.
Vasumatibai Waman Kulkarni
(Died Issueless)
(The petitioners and respondent
nos.2, 5 and 6 are the only L.Rs.
which is already on record)
4. Ramabai Vishnu Kulkarni
Age : Major, Occ : Household,
R/o Bota, Tq. Sangamner,
Dist. Ahmednagar
5. Vijay Vishnu Kulkarni
(Died) Through his L.Rs.
6
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Amit Vijay Kulkarni
Age : Major, Occ : Agriculture,
R/o Bota, Tq. Sangamner,
Dist. Ahmednagar.
6. Ranjana Babanrao Punde
Age : Major, Occ : Agriculture,
R/o Chande, Tq. Karjat,
Dist. Ahmednagar.
7. Murlidhar Baburao Shelke
Age : Major, Occ : Agriculture,
R/o Bota, Tq. Sangamner,
Dist. Ahmednagar.
..RESPONDENTS
...
Mr. D.G. Nagode, Advocate for petitioners in WP
No.11968/2022
Mr. V.D. Sapkal, Senior Advocate a/w Mr. Yash A. Jadhav i/b
Mr. S.R. Sapkal, Advocate for petitioners in WP
No.10513/2022
Mr. S.S. Jadhavar, Advocate for respondent no.7 in WP
No.11968/2022
Mr.S.S. Jadhavar, Advocate for respondent no.1 in WP
No.10513/2022
Mr. D.G. Nagode, Advocate for Respondent Nos.3, 6, 8(A),
9/A/1 to 9/A/3 in WP No.10513/2022.
...
CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 23rd JUNE, 2025
PRONOUNCED ON: 3rd SEPTEMBER, 2025
JUDGMENT :
In the body of the judgment, the status of parties
as petitioner and respondents is mentioned as per cause title
of Writ Petition No.10513/2022.
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2. The controversy in the present petitions pertains
to tenancy over agricultural lands situated at village Bota,
Tq.Sangamner, Dist. Ahmednagar, the details whereof are as
under :-
Sr. Old Number New Area
No. Number
1. 339/2 to 5 186 19R
2. 346/5A 181 09R
3. 345/3 221 12R
4. 341/23/3/5 197 2H 14R pot
kharaba 6 R
5. 340/1 to 6 196 20R
6. 340/12 to 18 191 29R
7. 339/12 & 13 182 22R
8. 339/9 and 10 184 13R
9. 338/8C/12/14 213 09R
10. 343/6 203 56R
3. The aforesaid lands are hereinafter referred to as
"the suit lands". One Shridhar Narayan Kulkarni, the pre-
decessor of respondent nos.2 to 11 was admittedly owner of
the suit lands. The name of respondent no.1 was recorded as
tenant of the suit lands. Respondent No.1 had filed an
application before the Avval Karkun, Sangamner, stating that
he was surrendering the tenancy of the suit lands since he had
other agricultural lands and it was not possible and
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convenient for him to cultivate the suit lands. The said
application was filed on 28.07.1956. Respondent No.1
recorded his deposition before the Avval Karkun on
08.08.1956 reiterating the averments made in the application
for surrender and confirmed that he was surrendering the
tenancy over the suit lands. It will be pertinent to mention
that as per the deposition of respondent no.1, he was 18 years
old at the relevant time.
4. The Avval Karkun passed order dated 08.08.1956
on the said application, recording that respondent
no.1/applicant had filed the proceeding in order to surrender
his tenancy rights over suit lands and that during the course of
his deposition, he has stated that he was surrendering the
tenancy rights since he was unable to cultivate the same. The
Avval Karkun recorded his satisfaction that the surrender was
voluntary and accordingly, directed deletion of name of
respondent no.1 from record of rights. The record discloses
that vide mutation entry no.2877, the name of respondent
no.1 was deleted from the record of rights in view of the said
order dated 08.08.1956 passed by the Avval Karkun.
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5. Thereafter, an entry is recorded on 15.02.1962
vide Mutation Entry No.3449 stating that since respondent
no.1 had surrendered his tenancy rights over the suit lands,
question of issuance of sale certificate in his favour under the
Maharashtra Tenancy and Agricultural Lands Act, 1948
(hereinafter referred to as "the M.T.A.L. Act") does not arise.
The record also indicates that Mutation Entry No.2974 was
recorded on 21.01.1958 mentioning that respondent no.1 had
cultivated the suit lands as tenant of the respondent/landlord
(Kulkarnis) in the year 1957-58 and, therefore, his name was
required to be recorded as tenant. The present petitioner is a
family member of respondent no.1.
6. The petitioner and respondent no.1 belong to
different branches in the same family. The petitioner had filed
an application dated 06.01.1964 before Avval Karkun,
Sangamner, inter alia, contending that suit lands were jointly
cultivated by him and respondent no.1 for years together and
that although the name of respondent no.1 was recorded
alone as a tenant, as a matter of fact, the tenancy rights were
vested with the entire joint family in which the petitioner and
respondent no.1 had half share each. The Avval Karkun
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allowed the said application vide order dated 20.06.1964.
Perusal of the order will demonstrate that before allowing the
application vide order dated 20.06.1964, the Avval Karkun
had recorded statements of the petitioner, respondent no.1
and the land owner.
7. Respondent No.10 - landlord (Waman Narayan
Kulkarni) had filed suit for recovery of possession of some of
the suit lands owned by him against the petitioner and
respondent no.1, being Regular Civil Suit No.332/1975.
Likewise, respondent no.2 - landlord (Shridhar) had also filed
similar suit with respect to suit lands owned by him, being
Regular Civil Suit No.333/1975. In both these suits the
contention of the plaintiffs (respondent nos.2 and 10) was
that the suit lands were let to deceased Baburao, father of
respondent no.1 (Murlidhar) as a tenant in the year 1950 and
that after the demise of his father-Baburao, respondent no.1
continued to cultivate the lands as tenant. It is then contended
that respondent no.1 had surrendered the tenancy with
respect to the suit lands by filing proceeding bearing Tenancy
Case No.115/1956, which was allowed vide order dated
08.08.1956 passed by the Avval Karkun, Sangamner. It was
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further contended that the petitioner, who was arrayed as
defendant no.2 in the said suit had no concern whatsoever
with the suit lands although he was claiming the suit
properties to be properties of the Joint Hindu Family held in
tenancy rights. Perusal of the judgments in the said suits will
demonstrate that the petitioner had filed written statements in
the said suits. Respondent No.1 had filed a pursis adopting the
written statements filed by the petitioner as his written
statements. Perusal of the judgments will indicate that it was
stated in the written statements that the petitioner and
respondent no.1 were members of Joint Hindu Family and
that the suit lands were under cultivation of their forefathers
as tenants and in the partition of Hindu Family, suit properties
fell to the share of branch of petitioner (defendant no.1 in the
said suit). It was further stated in the written statements that
from the date on which the lands fell to the share of branch of
petitioner, he had become tenant of the suit lands and that the
plaintiffs had no right to terminate the tenancy of the
petitioner (defendant no.1). It was also stated that alleged
surrender of tenancy by respondent no.1 (defendant no.2 in
said suit) was not binding on the petitioner (defendant no.1 in
the said suit).
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8. The said suits came to be decreed vide judgment
and decree dated 09.06.1999. The decree of possession was
passed against the petitioner and respondent no.1 directing
them to deliver possession of the suit lands to the plaintiffs
(respondent nos.2 and 10 herein). The learned Civil Court had
however directed that the decree for possession would take
effect subject to adjudication of tenancy disputes between the
parties which was pending while the suit was decided. It will
also be pertinent to state that the learned Civil Court has
recorded a finding that the petitioner had failed to
substantiate his contention of occupying the suit lands as
tenant. The present petitioner preferred two separate appeals
challenging the said judgments and decrees passed by the
learned Civil Court. Both these appeals, registered as Regular
Civil Appeal No.839/2000 and 840/2000 came to be
dismissed vide judgment and decree dated 17.06.2006 passed
by the learned Additional District Judge, Sangamner. It will be
pertinent to mention that respondent no.1 did not challenge
the decree for possession. The petitioner has thereafter filed
Second Appeal No.911/2006 and Second Appeal
No.912/2006 against the said concurrent decrees for
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possession. Both these second appeals are admitted by this
Court, vide orders dated 23.08.2010 and 19.10.2010 and are
pending for adjudication. This Court has also granted stay to
execution of the decree for possession on the condition that
the petitioner shall not alienate or create third party interest
over the suit lands.
9. It will be pertinent to state that respondent no.1
and the petitioner had jointly filed a proceeding under Section
32G of the M.T.A.L. Act before the Tahsildar, Sangamner
seeking issuance of sale certificate. The said application which
was filed on 18.11.1975 came to be rejected vide order dated
05.06.1978. The Tahsildar has placed reliance on order dated
14.10.1974 passed on application filed by petitioner in a
proceeding under Section 33C of the M.T.A.L. Act for addition
of his name as party. The said application was rejected holding
that there was no evidence to establish claim of tenancy of
petitioner. As regards respondent no.1, the application was
rejected on the ground that earlier proceeding under Section
32G was already closed vide order dated 10.10.1962. Perusal
of the order dated 14.10.1974 will indicate that the learned
Additional Tahsildar has observed that as per recor d as on
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01.04.1962, which is the relevant date for deciding an
application under Section 33C, respondent no.1 alone was
cultivating the suit lands and that the petitioner, who sought
inclusion of his name in the proceeding had no concern with
the said lands as per the record, and therefore, his name could
not be included in the proceeding. Accordingly, application for
inclusion of the name filed by the petitioner in the said
proceeding was rejected by the learned Additional Tahsildar.
10. The petitioner filed an appeal challenging the
order dated 02.06.1978 passed by the Additional Tahsildar
rejecting the application for issuance of sale certificate. The
said Appeal came to be rejected vide order dated 31.03.1980.
It will be pertinent to mention that there was typographical
error in mentioning the name of the petitioner. Instead of
mentioning the name of petitioner "Laxman Ramji Shinde",
name is mentioned as "Murlidhar Ramji Shinde". It is
necessary to state that respondent no.1 did not file appeal
challenging the order dated 02.06.1978.
11. The petitioner thereafter filed revision before the
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Maharashtra Revenue Tribunal challenging the order dated
02.06.1978 passed by the Tenancy Tahsildar, which was in
turn confirmed by the Deputy Collector, vide order dated
31.03.1980. The said revision was allowed by the learned
Maharashtra Revenue Tribunal, vide judgment and order
dated 28.02.1985. The orders dated 02.06.1978 and
31.03.1980 passed by the learned Tenancy Tahsildar and
Deputy Collector were quashed and the matter was remanded
to the learned Additional Tahsildar to decide Section 32G
application afresh by giving opportunity of hearing the parties.
The issue of jointness of tenancy of the petitioner and
respondent no.1 was also directed to be decided.
12. The learned Tenancy Tahsildar took up the case
for fresh consideration in view of the aforesaid order of
remand passed by the learned Maharashtra Revenue Tribunal
(hereinafter referred to as "MRT"). After remand of the matter,
the learned Tahsildar decided the same vide order dated
11.03.1999 rejecting the application on the ground that
respondent no.1 had surrendered the tenancy on 08.08.1956,
as held by the Avval Karkun in the proceeding for surrender
filed by respondent no.1. The present petitioner again filed
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Appeal challenging the said order dated 11.03.1999. The said
Appeal was allowed by the Sub-Divisional Officer vide order
dated 24.04.2000. The Sub-Divisional Officer quashed and set
aside the order dated 11.03.1999 passed by the Tenancy
Tahsildar and remanded the matter for fresh adjudication.
13. After remand of the matter, the learned Tenancy
Tahsildar decided the application vide order dated
28.03.2018. The application filed by the petitioner was
allowed. The learned Tenancy Tahsildar determined the
purchase price of the suit lands at Rs.34,588/- and directed
the petitioner to deposit the said amount within a period of
three months. Further directions were issued to issue sale
certificate in favour of the petitioner under Section 32M of the
M.T.A.L. Act. It will be pertinent to state that the said order is
passed in favour of the petitioner alone.
14. Respondents - land owners challenged the said
order dated 28.03.2018 passed by the learned Tenancy
Tahsildar by filing an Appeal before the Sub-Divisional Officer,
being Tenancy Appeal No.142/2018. The said Appeal came to
be dismissed vide order dated 19.01.2019.
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15. It will be necessary to state that in this appeal,
respondent no.1 raised a contention that the petitioner was
not a tenant of the suit lands and that the tenancy rights are
vested with him. He questioned the findings recorded by the
Tenancy Tahsildar in favour of the petitioner and decision to
issue sale certificate in the name of the petitioner alone. The
Sub-Divisional Officer has held that surrender of tenancy in
the year 1956 was never acted upon. He has also recorded a
finding that the name of respondent no.1 in the said appeal
i.e. present petitioner was also recorded in the revenue record
as tenant. The Sub-Divisional Officer has held that on Tillers
Day, the father of the petitioner was in possession of the suit
lands as tenant. As regards the objection raised by respondent
no.1, the learned Sub-Divisional Officer has recorded that in
the earlier round of litigation findings were recorded against
respondent no.1, which did not challenge. It is held that if
respondent no.1 was aggrieved by any findings or order
passed earlier, he ought to have challenge the same. It is
observed that respondent no.1 had surrendered his tenancy in
Tenancy Case No.115/1956 and order dated 08.08.1956
accepting the surrender was passed by the Competent
Authority. It is also observed that pursuant to the said order
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relevant entries of mutation were also recorded deleting the
name of respondent no.1. In view of such findings, the order
dated 28.03.2018 passed by the Tenancy Tahsildar directing
the issuance of sale certificate in the name of petitioner alone
was upheld and the Appeal was dismissed.
16. Being aggrieved by the said order, respondent
no.1 preferred a Revision bearing Case No.41/B/2019/AN.
The Revision Application came to be rejected on the ground
that respondent no.1 had not filed Appeal challenging the
order dated 28.03.2018 passed by the Tenancy Tahsildar, and
therefore, Revision at his behest in order to challenge order
dated 19.01.2019 passed by the Sub-Divisional Officer in
Appeal preferred by landlord was not maintainable. The
learned Maharashtra Revenue Tribunal has also made certain
observations with respect to conduct of respondent no.1 in not
challenging decrees passed in the suits for possession filed by
the landlords.
17. It will be pertinent to mention that the landlords
had also preferred a Revision bearing Case No.34/B/2019/AN
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challenging the order dated 28.03.2018 passed by the Tenancy
Tahsildar directing issuance of sale certificate in favour of the
petitioner and the order dated 19.01.2019 passed by the Sub-
Divisional Officer dismissing the Appeal preferred by the
landlords. While Revision Application was pending the present
petitioner and respondent/landlord entered into out of Court
settlement. The land in question was acquired by National
Highways Authority. Petitioner and respondent/landlord
entered into settlement for apportionment of amount of
compensation awarded. The parties filed joint compromise
pursis dated 28.01.2020 before the Maharashtra Revenue
Tribunal. An application for deletion of name of respondent
no.1 was also filed on 28.01.2020. The learned Tribunal
allowed the application for deletion of name of respondent
no.1 and disposed of the Revision in terms of compromise
arrived at between the petitioner and respondent/landlord.
18. Respondent No.1 thereafter preferred a petition
before this Court, being Writ Petition No.3401/2020
challenging the order dated 23.01.2020 passed by the learned
Maharashtra Revenue Tribunal in Revision Case
No.41/B/2019/AN preferred by him, which was dismissed as
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not maintainable vide order dated 23.01.2020. This Court has
disposed of the said petition vide order dated 28.02.2020 with
liberty to respondent no.1 to avail of statutory remedy in
accordance with law. While disposing of the petition, it is
observed that since the Revision was dismissed as not
maintainable, the observations on merits of the matter made
by the learned Maharashtra Revenue Tribunal should be
ignored while deciding the matter afresh.
19. Respondent No.1 had also preferred a Petition,
being Writ Petition No.3534/2020, challenging the order
dated 28.01.2020 passed by the Maharashtra Revenue
Tribunal permitting deletion of name of respondent no.1 in
Revision Case No.34/B/2019/AN and disposing of the same in
terms of the compromise arrived between the petitioner and
respondent/landlord. The said petition is admitted vide order
dated 04.03.2020, however, this Court has refused to grant
any interim relief to respondent no.1 (petitioner in the said
petition).
20. In this backdrop, respondent no.1 preferred
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Tenancy Appeal No.66/2020 before the Sub-Divisional Officer
in order to challenge the order dated 28.03.2018 passed by
the Tenancy Tahsildar directing issuance of sale certificate in
favour of the present petitioner. Since there was delay, an
application for condonation of delay was also filed. The
application for condonation of delay was allowed. The said
Appeal came to be allowed vide order dated 20.07.2021. The
order dated 28.03.2018 came to be quashed. It is held that
respondent no.1 alone is the tenant of the properties in
question and accordingly, the directions were issued to the
Tenancy Tahsildar to calculate appropriate sale consideration
from him and to issue sale certificate under Section 32M of
the M.T.A.L. Act in his favour. While allowing the appeal, the
learned Sub-Divisional Officer has observed that as on
01.04.1957, name of respondent no.1 and prior to that name
of his father alone were reflected in the revenue record as
tenants. The Sub-Divisional Officer has observed that the
alleged surrender of tenancy on 08.08.1956 is not in
accordance with law and further that the said surrender was
never acted upon since possession was never delivered. It is
held that the present petitioner or his predecessors were never
in occupation of the suit lands as tenants.
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21. The present petitioner and respondents/landlords
(petitioners in Writ Petition No.11968/2024) thereafter
preferred two separate Revision Applications bearing Case
Nos.44/B/2021/AN and 47/B/2021/AN respectively,
challenging the order dated 20.07.2021 passed by the Sub-
Divisional Officer in Tenancy Appeal No.66/2020. The learned
Maharashtra Revenue Tribunal has dismissed the said Revision
Applications vide common judgment dated 26.08.2022. The
learned Maharashtra Revenue Tribunal has observed that the
surrender of tenancy on 08.08.1956 is not a valid surrender
since the order accepting surrender is passed by a Avval
Karkun and not by the Mamlatdar. It is further observed that
despite the order of surrender dated 08.08.1956, the name of
respondent no.1 appeared in the revenue records till the year
1981-82. On this basis, it is held that the surrender was never
acted upon. The learned Tribunal has held that earlier name
of Babu Bhagwanta Shelke, the father of respondent no.1 was
recorded as protected tenant and after his demise on
07.04.1952, name of respondent no.1 was recorded as tenant,
being legal heirs of the original tenant deceased Babu. The
learned Tribunal has also observed that after the order dated
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08.08.1956 regarding surrender of tenancy was passed, the
landlord did not file any application for delivery of possession,
and therefore, the surrender was not valid and effective on
this ground as well. As regards the present petitioner, it is
observed that the entries in the record did not indicate
possession of the petitioner or his predecessors as on
01.04.1957 i.e. the Tillers Day. It is also observed that there is
no pleading that petitioner and respondent no.1 are family
members. The learned Tribunal has further held that the
landlord had all the while accepted respondent no.1 alone as
a tenant. In view of the aforesaid findings, the learned
Maharashtra Revenue Tribunal has confirmed the order dated
20.07.2021 passed by the Sub-Divisional Officer in Tenancy
Appeal No.66/2020 and has dismissed the Revision
Applications accordingly. The present petitions are filed
challenging the said orders dated 20.07.2021 passed by the
Sub-Divisional Officer and dated 26.08.2022 passed by the
learned Maharashtra Revenue Tribunal.
22. Mr. V.D. Sapkal, learned Senior Advocate for the
petitioner in Writ Petition No.10513/2022 contends that the
Appeal preferred by respondent no.1 was not maintainable.
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He draws attention to the order dated 28.03.2018 passed by
the Tenancy Tahsildar in favour of the petitioner and by
drawing attention to the said order, learned Senior Advocate
states that a positive finding was recorded by the Tenancy
Tahsildar that the petitioner was holding the suit lands as
tenant and accordingly, specific order for issuing sale
certificate in favour of the petitioner was passed. Mr. Sapkal
contends that although, the landlord had filed Appeal
challenging the said order, respondent no.1 who was also
party to the said proceeding did not file any Appeal. He
contends that respondent no.1 had accepted the said order.
The learned Senior Advocate further contends that the
respondent/landlord had filed Appeal challenging the order
dated 28.03.2018 and the said Appeal was dismissed by the
Sub-Divisional Officer on 19.01.2019. The learned Senior
Advocate contends that the Sub-Divisional Officer has
confirmed the order directing issuance of sale certificate in
favour of the petitioner alone. Drawing attention to the said
order, it is contended that respondent no.1 had raised
contention with respect to merits of this case in Appeal filed
by the respondent/landlord, however, the Appellate Authority
maintained the order for issuance of sale certificate in the
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name of the petitioner alone. The learned Senior Advocate
further contends that this order was further challenged by the
respondent/landlord by filing revision, which came to be
disposed of by way of compromise. The learned Senior
Advocate further contends that the order dated 28.03.2018
has merged with the appellate order dated 19.01.2019 passed
by the Sub-Divisional Officer. The contention of the learned
Senior Advocate is that after the order dated 28.03.2018 had
merged with the appellate order dated 19.01.2019,
respondent no.1 filed Appeal challenging the said order dated
28.03.2018 before the same appellate authority i.e. Sub-
Divisional Officer. He contends that the Sub-Divisional Officer
has erred in setting aside the order dated 28.03.2018 ignoring
the fact that the said order had merged with appellate order
dated 19.01.2019 passed by the same appellate authority i.e.
the Sub-Divisional Officer. In view of the above, three
contentions are raised by the learned Senior Advocate, (i) the
order dated 28.03.2018 did not exist in law since it had
merged with the subsequent order dated 19.01.2019; (ii) the
Sub-Divisional Officer could not have passed the order for
issuance of sale certificate in favour of respondent no.1 in
view of earlier order passed by the same authority directing
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issuance of sale certificate in favour of the petitioner and
(iii) Appeal preferred by respondent no.1 was liable to be
dismissed as the same was barred by principle of resjudicata.
It is also contended that the appeal was barred by limitation
and was liable to be dismissed as such. He contends that
respondent no.1 had not even file an application for
condonation of delay and in the absence of any application or
order condoning the delay, the order passed by the Sub-
Divisional Office is liable to be quashed as the Sub-Divisional
Officer, acting as appellate authority, could have invoke
jurisdiction to entertain the appeal on merits only after
condoning the delay.
23. At the outset, Mr. Jadhavar points out to order
passed on application for condonation of delay by the learned
Sub-Divisional Officer, copy whereof is filed on record with
reply affidavit. As regards merits, Mr. Jadhavar, learned
Advocate for the respondent contends that the order dated
08.08.1956, which is foundation of the case of the petitioner,
is nullity in the eyes of law. He contends that surrender of
tenancy is complete only upon possession of the tenanted
property being delivered to the landlord. It is his contention
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that the record clearly reveals that possession of the suit lands
was never delivered, and therefore, the alleged surrender had
never taken effect. He further contends that the order of
surrender is not passed by following mandatory provisions of
Tenancy Act. He contends that the Avval Karkun did not
follow the prescribed procedure as per Section 15 of the Act. It
is contended that a surrender of tenancy, in order to be valid
must be in writing; it must be verified by Mamlatdar;
Mamlatdar must satisfied that the surrender is voluntary and
consequences of such surrender are understood by the tenant
and finally the Mamlatdar must endorse his satisfaction with
respect to the aforesaid on the document of surrender. He
argues that although the order dated 08.08.1956 records that
the surrender is voluntary, it does not record that the
consequences of surrender were understood by the tenant.
The objection of Mr. Jadhavar is that the order is passed by
Avval Karkun, who is not a Mamlatdar. He, therefore,
contends that the alleged surrender is void, ab-initio and
non est. He further contends that surrender of tenancy is
never complete unless it is coupled with possession. It is his
contention that the landlord never applied for resumption of
possession and as such the tenancy continued. Another
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contention is that foundation of the case of the petitioner is
that he was a joint tenant of the land with respondent no.1,
and therefore, there is absolutely no question of issuance of
sale certificate in favour of petitioner alone. It must be stated
that the said contention is raised in the alternative, without
prejudice to the main contention that respondent no.1 alone is
the tenant of subject properties. As regards the issue of
resjudicata, contention of the learned Advocate is that the
earlier orders are with respect to the dispute between the
landlord and the tenant and the issue in the earlier round of
litigation was whether the tenancy is surrendered or not. He
contends that the issue as to whether petitioner or respondent
no.1 was the tenant or that they were joint tenants did not fall
for consideration and as such, the issue as regards who
amongst the petitioner or the respondent no.1 is the tenant
was not directly and substantially in issue in the earlier round
of litigation. The learned advocate therefore, contends that
the contention with respect to resjudicata raised by the
learned Senior Advocate for the petitioner needs to be
rejected.
24. In view of the arguments made above, the issues
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that are fall for consideration in the present petitions, are as
under :-
(i) What is the effect of order dated 08.08.1956 passed by
Avval Karkun recording surrender of tenancy ?
(ii) Whether, petitioner and respondent no.1 were joint
tenants of the properties in question ?, Whether, respondent
no.1 alone was the tenant of the suit lands ?, whether the suit
lands were allotted to the branch of petitioner in partition
between branches of petitioner and respondent no.1 ?
(iii) Whether, order dated 20.07.2021 passed by the Sub-
Divisional Officer allowing the appeal preferred by respondent
no.1 whereby the order dated 28.03.2018 passed by the
Tenancy Tahsildar for issuance of sale certificate of petitioner
barred by resjudicata in view of the earlier order dated
19.01.2019 passed by the Sub-Divisional Officer dismissing
the appeal preferred by respondent/ landlord challenging
order dated 28.03.2018 ?
(iv) Whether, the order dated 28.03.2018 passed by the
Tenancy Tahsildar directing issuance of sale certificate in
favour of the petitioner to the exclusion of respondent no.1
merged with order dated 19.01.2020 passed by the Sub-
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Divisional Officer in appeal preferred by landlord and order
dated 23.01.2020 passed by the Maharashtra Revenue
Tribunal in Revision preferred by respondent no.1 ?
POINT NO.(i) :-
25. The order dated 08.08.1956 is passed on
application filed by respondent no.1 for surrender of tenancy.
Respondent no.1 has not disputed that such application was
filed. Perusal of the application dated 28.07.1956 will
demonstrate that respondent no.1 states that he had vacated
the possession over the suit property held in tenancy rights on
his own accord since he had ownership over vast stretch of
agricultural lands. The record also reveals that the evidence of
respondent no.1 was recorded in which he reiterated that he
was unable to cultivate the suit lands and was, therefore,
surrendering tenancy rights with respect to the suit property.
The deposition is recorded on 08.08.1956. The order
accepting surrender is passed on 08.08.1956. Avval Karkun
has recorded that the surrender was voluntary and that
respondent no.1 categorically stated that he was not in
position to cultivate the suit lands.
26. It does not appear from reading of the order and
on perusal of the record that the consequences of surrender
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were explained by the authority to respondent no.1. It also
does not appear that the authority has made an endorsement
on the document of surrender that the consequences of
surrender were understood by the tenant. It is thus clear that
the surrender is not in accordance with the mandate of
Section 15 of the Act. Such a surrender has been held to be
void by the Hon'ble Supreme Court of India in the matter of
Ramchandra Keshav Adke (Dead) by Lrs v. Govind Joti
Chavare and others reported in AIR 1975 SC 915. It is held
that provision of Section 15 are mandatory and failure to
comply with the same renders the surrender non est. As
regards the requirement of recording that the tenant
understood the consequences of surrender, this Court has in
the matter of Keshav Ganesh Bedekar Vs. Gopinath Krishna
Salunke reported in (2003) 3 All M.R. 585 (Bom.) held that
surrender of tenancy should not only be the voluntary but it
should also be established that the tenant understood the
consequences of such surrender. This Court has held that
unless record shows that the tenant understood the
consequences of surrender and such satisfaction is endorsed
on the deed of surrender, surrender cannot be said to be valid
or legal surrender.
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27. It must also be stated that the order dated
08.08.1956 does not direct respondent no.1 to deliver
possession of the suit lands to the respondent/landlord. There
is statement in the application that respondent no.1/tenant
had already surrendered possession. The words "rkck Lo[kq'khus
lksMyk vkgs-" imply that respondent no.1 stated that he had
already given up or surrendered the possession of the suit
lands. However, perusal of the evidence, which is recorded on
08.08.1956, will demonstrate that respondent no.1 stated that
he was surrendering the tenancy rights over the suit property.
The deposition of respondent no.1 is silent on the aspect of
delivery of possession. The order dated 08.08.1956 does not
direct the tenant to deliver possession of the suit lands to
respondent/landlord. The order simply records that
respondent no.1 - tenant had voluntarily surrendered his
tenancy and is completely silent on the aspect of possession. It
is also matter of record that respondent/landlord also did not
file any application for resumption of possession in view of
surrender of tenancy rights by respondent no.1-tenant. In this
regard, learned Advocate for respondent no.1 has placed
reliance on the judgment of this Court in the matter of
Bhikubai Bhima Gaidhane Vs. Khandu Daji Pagar and another
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reported in AIR 1973 Bom. 101, wherein it is held as under :-
"7. ..... Under Section 15 a tenant may terminate
the tenancy in respect of any land at any time by
surrendering his interest therein in favour of the
landlord. Such surrender shall be in writing and
verified before the Mamlatdar in a prescribed manner,
where a tenant surrenders his tenancy the landlord
shall be entitled to retain the land so surrendered.
Mamlatdar also in this connection shall hold an
inquiry and decide whether the landlord is entitled to
retain the whole or any portion of the land so
surrendered and specify the extent and price in that
behalf. The landlord also should get an order for
getting possession under Section 29(2). The landlord
shall obtain possession of any land held by a tenant
only under an order of the Mamlatdar. For obtaining
such an order he shall make an application in the
prescribed form and within a period of two years from
the date on which he becomes entitled to obtain
possession of the land. Now, the legislature by
enacting these provisions has safeguarded the interest
of the tenants who may be ousted by an unscrupulous
landlord. But the landlord in the instant case says that
because the tenant has made a statement before the
Agricultural Lands Tribunal that he was no more a
tenant and that he was no more in possession, it
should be treated as good as his giving up his tenant's
rights. That certainly cannot be accepted.
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8. Undoubtedly the record shows that the
respondent was tenant of the land from the years
1952-53 to 1964-65. No wonder therefore that the
Agricultural Lands Tribunal had started proceedings
under Section 32-G. Because of the statement of the
respondent-tenant the Agricultural Lands Tribunal
dropped the proceedings. Now the statement of the
respondent merely shows that he had surrendered his
tenancy and that he has given up his possession.
However, his statement will not stop the operation of
a social legislation which is for the benefit of tenants
and which is to safeguard their interests. Even if,
therefore the respondent-tenant says that he had
surrendered his possession, things ought to have
taken place according to law. Termination of tenancy
by virtue of surrender should be in accordance with
Section 15. Possession by a landlord should be in
accordance with Section 29. It cannot be in any other
way. It cannot certainly be merely as a result of the
statement of a tenant in S. 32-G proceedings. It,
therefore, cannot be said that the alleged statement of
the tenant in the instant case leads only to one
inference and that is that he ceased to be a tenant and
that he ceased to be in possession of the land."
28. It will also be profitable to refer to the judgment
in the matter of Madhao Tatya Sonar Vs. The Maharashtra
Revenue Tribunal at Nagpur and others reported in AIR 1971
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Bom. 106, wherein while dealing with pari materia provisions
of the Bombay Tenancy and Agricultural Lands (Vidarbha
Region) Act,1958, this Court has held as under :-
"28. Thus, a consideration of the provisions of Section
20 and Section 36(1) and (2) and of the several
authorities to which we have referred above leads to
the following conclusion:
(i) That Section 36(2) of the Bombay Tenancy and
Agricultural Lands (Vidarbha Region) Act, 1958, is
plenary and controls Section 20. Thus, without an
order of possession of the Tahsildar, a tenant does not
cease to be a tenant even though he has handed over
possession of the land he held as a tenant and even
though the surrender is verified under the proviso to
Section 20 read with Rule 11.
(ii) That the consent or willingness of the tenant to
surrender is irrelevant and does not affect the
operation of the above rule.
(iii) That an order for possession need not necessarily
be passed upon a separate application under Section
36. It is sufficient if such an order is passed at the
time when the surrender comes up for verification
under Section 20."
. Sections 20 and 36 of the M.T.A.L. (Vidarbha
Region) Act are pari materia with Sections 16 and 29
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respectively of the M.T.A.L. Act.
29. It is consistent view of this Court and the Hon'ble
Supreme Court that if a surrender is not strictly in accordance
with Section 15, the surrender is non est. It is expressly held
that not only should the surrender be voluntary but it must
also be established that the authority had arrived at
satisfaction that the tenant understood the consequences of
surrender. This satisfaction should be endorsed on the
document of surrender itself. In the present case, although the
order dated 08.08.1956 records that the surrender is
voluntary, it does not record that respondent no.1/tenant has
understood the consequences of surrender. Such an
endorsement by Avval Karkun is not found on the record of
the case. In that view of the matter, order dated 08.08.1956
does not result in valid surrender in accordance with law.
30. Perusal of the aforesaid observations will
demonstrate that surrender of tenancy is not complete unless
landlord takes possession of the agricultural land pursuant to
an order passed by the Tenancy Tahsildar for delivery of
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possession. The delivery of possession must be pursuant to an
order passed by the Competent Authority for delivery of
possession. There must be an order for delivery of possession
in the order passed for surrender of tenancy under Section 15
or a separate order under Section 29. Thus, surrender of
tenancy is complete only when a tenant delivers possession of
the property to the landlord pursuant to an order passed by
the Mamlatdar. Delivery of possession by tenant without an
order does not result in surrender of tenancy in view of the
aforesaid decisions of this Court.
31. In the case at hand, there is no order directing
delivery of possession. The order dated 08.08.1956 admittedly
does not direct delivery of possession. Moreover, the record
unerringly demonstrates that respondent no.1 continued to be
in possession of the suit lands even after 08.08.1956 i.e. date
on which the order of surrender of tenancy was passed. It is
therefore explicitly clear that the surrender has not come into
effect in view of the fact that respondent no.1 continued to be
in possession of the suit lands.
10513.2022WP+.odt
POINT NO.(ii):-
32. As regards joint tenancy, it must be stated that the
case of the petitioner was that he and respondent no.1 had
joint tenants, since the lands were cultivated by their common
ancestors as tenants. However, in the written statements filed
in suit for possession by the landlords, being Regular Civil Suit
No.332/1975 and 333/1975, the petitioner came up with a
stand in written statement that in the partition in the family,
these tenanted lands were allotted to his share. Respondent
No.1 also filed pursis adopting the same written statements. It
must be reiterated that the application under Section 32G is a
joint application wherein both claimed tenancy over the suit
lands. The stand taken in this application was not altered even
after filing of written statement in the said suits. It must also
be stated that after the matter was remanded by the MRT in
the first round of litigation vide order dated 28.02.1985
directing the ALT to decide the issue of jointness of tenancy of
the petitioner and respondent no.1, the ALT recorded finding
that respondent no.10 alone was tenant and he had
surrendered the tenancy on 08.08.1956. Accordingly, the
application was rejected, vide order dated 11.03.1999. This
order was challenged by the petitioner by filing appeal before
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the Sub-Divisional Officer. Appeal came to be decided vide
order dated 24.04.2000. The Sub-Divisional Officer has
recorded that the tenancy rights were vested jointly with
petitioner and respondent no.1. As regards surrender, it is
observed that the surrender does not become effective unless
possession is delivered. The learned Sub-Divisional Officer has
therefore remanded the matter to ALT to decide Section 32G
application afresh. Perusal of findings will clearly demonstrate
that the learned Sub-Divisional Officer held that petitioner
and respondent no.1, both were tenants of the suit lands. The
matter was remanded to decide as to whether the
respondent/landlord or the tenants i.e. petitioner and
respondent no.1 were in possession of the suit lands after
08.08.1956 i.e. date of surrender. Thus, the Sub-Divisional
Officer had remanded the matter back to the Tenancy
Tahsildar after holding that petitioner and respondent no.1
were joint tenants of the suit lands. It will be pertinent to
mention that neither the petitioner nor respondent no.1, who
now claim tenancy rights to the exclusion of the other have
not challenged this order. Initially, respondent no.1 was not
even interested in contesting the proceedings as is apparent
from the record. The petitioner, who was prosecuting the
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proceedings participated in the proceeding after remand with
the finding that the tenancy was joint tenancy of petitioner
and respondent no.1. Thus, this order of remand is binding on
both parties. It will also be pertinent to mention that the case
of the petitioner that the suit lands had fallen to his share in
partition between the family as is raised in the civil suits filed
by the respondent/landlord is not accepted by the learned
Trial Court and also by the First Appellate court. The Second
Appeals are also not admitted by framing question regarding
exclusive tenancy rights of the petitioner.
33. After remand of the matter, the ALT decided the
application vide order dated 28.03.2018. Perusal of issues
framed by ALT will demonstrate that the issues were framed
as to whether the petitioner was in occupation of the lands as
a tenant and whether he was entitled to purchase the lands
under Section 32G. The learned ALT has observed that the
record indicated possession of petitioner and respondent no.1.
The learned ALT has also recorded that the Sub-Divisional
Officer had held in Tenancy Appeal No.2/1999 that the
surrender dated 08.08.1956 was merely a paper event and the
surrender was never acted upon. It is thereafter observed that
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as on the Tillers Date, name of the father of the applicant was
recorded in the revenue record as tenant. It is further held
that in the earlier round of litigation, decision in respect of
tenancy of respondent no.1 alone was taken, and therefore,
right of applicant to purchase the lands was not closed. In
view of the aforesaid, the ALT directed issuance of sale
certificate in favour of the petitioner alone. The finding
recorded by the ALT is contrary to finding recorded by the
Sub-Divisional Officer while remanding the matter. The Sub-
Divisional Officer has categorically held that petitioner and
respondent no.1 were joint tenants. However, the ALT has
held that the petitioner alone was the tenant. The finding is
clearly unsustainable, being contrary to the order passed by
the Appellate Authority while remanding the matter. The ALT
has also not considered the contents of application filed by
petitioner on 06.01.1964 claiming joint tenancy rights with
respondent no.1 and the order passed thereon directing name
of the petitioner to be added as joint tenant with respondent
no.1.
34. However, respondent no.1 did not challenge the
said order earlier. The said order was challenged by the
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landlord. Appeal preferred by the landlords came to be
dismissed by the Sub-Divisional Officer, vide order dated
19.01.2019. Perusal of the order passed by the Appellate
Authority will demonstrate that respondent no.1 had raised
objection that the sale certificate could not be ordered to be
issued in favour of the petitioner alone. Although, the
respondent no.1 did not file any Appeal, these contentions
were raised orally during the course of arguments. The
learned Sub-Divisional Officer has held that respondent no.1
had surrendered the tenancy rights recorded in order dated
08.08.1956. The learned Sub-Divisional Officer has observed
that in view of order dated 08.08.1956 tenancy rights of
respondent no.1 stood terminated and the petitioner alone
was entitled to sale certificate.
35. These findings by the learned ALT which are in
turn confirmed by Sub-Divisional Officer are contrary to the
order of remand passed by the Sub-Divisional Officer. It is well
settled that findings recorded by the Appellate Authority while
remanding the matter before the Court or Authority of first
instance, are binding on both the parties as also the
authorities who decide the matter between the party are also
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not supposed to take contrary view other than the view taken
in order of remand which is accepted by both sides. The order
dated 28.03.2018 passed by the Tenancy Tahsildar as also
order dated 19.01.2019 passed by the Sub-Divisional Officer
are therefore clearly unsustainable in view of earlier order of
remand. Once, it is held by the Appellate Authority that
petitioner and respondent no.1 are joint tenants, the ALT
which is a subordinate authority as also the Sub-Divisional
Officer while entertaining the subsequent appeal could not
have recorded any contrary findings than the findings
recorded by the same Authority while remanding the matter.
The findings are also unsustainable in view of clear pleading
of petitioner in the application filed under Section 32G
regarding joint tenancy with respondent no.1, as also in the
application dated 06.01.1964 filed by him for recording his
name as a tenant with respondent no.1.
36. As stated above, the revision filed by respondent
no.1 challenging the order dated 19.01.2019 passed by the
Sub-Divisional Officer was rejected on the ground of
maintainability and in the petition filed by respondent no.1
liberty was granted to take recourse to appropriate legal
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remedies. In view of the liberty granted, respondent no.1 filed
an appeal. This Appeal came to be allowed vide impugned
order dated 20.07.2021 in which it is held that respondent
no.1 alone is the tenant of the suit lands and is entitled to
purchase the suit lands under Section 32G of the Act. This
order dated 20.07.2021 is also contrary to the order of
remand passed by the Sub-Divisional Officer dated
24.04.2000. As stated above, the order of remand holding that
petitioner and respondent no.1 were joint tenants is binding
on parties. It is further well settled that findings which are
confirmed and accepted in an order of remand cannot be
altered subsequently when the matter is decided afresh
pursuant to order of remand. The Sub-Divisional Officer has
clearly erred in recording findings about exclusive tenancy
rights of respondent no.1 contrary to the order of remand
dated 24.04.2000. The Sub-Divisional Officer has also not
taken into consideration the pleadings in 32G application filed
by petitioner and respondent no.1, wherein respondent no.1
clearly admitted jointness of tenancy with petitioner. The
finding in the order of remand dated 24.04.2000 is not
assailed by any party. In the subsequent round of litigation,
said finding was binding and no finding could be recorded by
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any judicial authority contrary to the finding recorded in the
order of remand. It must therefore be held that petitioner and
respondent no.1 were holding the lands as joint tenants.
Neither the petitioner nor respondent no.1 can claim that he
alone is the tenant of the suit lands to the exclusion of the
other.
37. As regards the revision filed before the MRT, the
revision came to be dismissed. The learned MRT has also not
taken into consideration the express admissions in pleading of
respondent no.1 regarding jointness of tenancy. The pleadings
in 32G application are the foundation of claim of petitioner
and respondent no.1 is bound by his pleading, which the
learned MRT has completely ignored. The learned MRT has
also not taken into consideration the fact that pursuant to an
application dated 06.01.1964, order dated 20.06.1964 was
passed by Avval Karkun directing recording of the name of
petitioner as tenant along with respondent no.1. This order is
also binding on respondent no.1. It also needs to be
mentioned that the findings in the remand order passed by the
Sub-Divisional Officer regarding joint tenancy cannot be
disturbed by the MRT since respondent no.1 had not
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challenged the said findings recorded in the remand order.
POINT NO.(iii):-
38. The contention of the learned Senior Advocate for
the petitioner is that the order dated 28.03.2018 directing
issuance of sale certificate in favour of the petitioner was
confirmed by the Sub-Divisional Officer vide order dated
19.01.2019 in Appeal preferred by the respondent/landlord.
He contends that in view of this order dated 19.01.2019
passed in Appeal, the Sub-Divisional Officer could not have
directed issuance of sale certificate in favour of respondent
no.1 vide order dated 20.07.2021. His contention is that the
earlier order dated 19.01.2019 will operate as resjudicata. He
contends that the Sub-Divisional Officer while allowing the
Appeal preferred by respondent no.1 has committed serious
error of law in not following the principle of resjudicata and
as a consequence of this, two self contradictory orders with
respect to the same dispute are passed by the same authority.
The learned Senior Advocate contends that whereas vide
order dated 19.01.2019 passed by the Sub-Divisional Officer
sale certificate is ordered to be issued in favour of the
petitioner, by the subsequent order sale certificate with respect
to the same lands is ordered to be issued in favour of
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respondent no.1. He further contends that order dated
28.03.2018 has already merged with the appellate order dated
19.01.2019, and therefore, the order dated 28.03.2018 could
not have been challenged by respondent no.1 by filing
separate appeal since the order dated 28.03.2018 had lost its
existence due to merger with appellate order dated
19.01.2019.
39. Perusal of the first order of remand passed by
Maharashtra Revenue Tribunal dated 28.02.1985 will
demonstrate that two points were directed to be decided by
the learned MRT, first relating to subsistence of tenancy and
second relating to inter se rights of the petitioner and
respondent no.1 as tenants. Vide order dated 28.03.2018, the
Tenancy Tahsildar has held that landlord-tenant relationship
existed between petitioner and respondent and directed
issuance of sale certificate in favour of petitioner. It is held
that respondent no.1 had surrendered his tenancy rights.
Thus, there are two points which are decided vide order dated
28.03.2018.
40. The Appeal filed by respondent/landlord was first
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in point of time and the same is dismissed vide order dated
19.01.2019. The point which fell for consideration in this
appeal was as to whether the landlord and tenant relationship
existed between the parties and whether tenants were entitled
for issuance of sale certificate in their favour. So far as, the
subsequent appeal prepared by respondent no.1 is concerned,
the issue therein was with respect to inter se dispute between
the petitioner and respondent no.1, both of whom claimed to
be tenants. In the Appeal preferred by landlord, the point
directly and substantially in issue was relating to right of
tenant to get sale certificate and appeal preferred by
respondent no.1, the point directly and substantially in issue
in the subsequent application filed by respondent no.1 was as
to whether the petitioner or respondent no.1 was the tenant.
41. In view of the above, the subsequent appeal
preferred by respondent no.1 will not be barred by resjudicata
since the point directly and substantially in issue in both the
appeals is different.
POINT NO. (iv) :-
42. As regards merger also the same principle will
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apply. The order dated 28.03.2018 merged with the order
dated 19.01.2019 preferred by respondent/landlord to the
extent of adjudication of relationship of landlord and tenant.
The landlord contended that the relationship was not in
existence at all. The landlord was not concerned with inter se
dispute between the two tenants. His contention was that
tenancy does not subsist at all. The order passed by the
Tahsildar has merged with the appellate order passed by the
Sub-Divisional Officer in this regard. The said order will not
have the effect of foreclosing right of respondent no.1 on
merits with respect to claim of tenancy rights inter se between
him and the petitioner. Appeal preferred by respondent no.1
was therefore maintainable.
43. Vide order dated 28.03.2018, the Tahsildar has
held that the petitioner was entitled for a sale certificate in his
name. Two parties can be said to be aggrieved by the said
order, one respondents/landlords and second respondent
no.1/co-tenant. The doctrine of merger will not have an effect
of foreclosing of rights of co-tenant to challenge the order
passed by the Mamlatdar only because the challenge by the
landlord had failed and the order by Tahsildar in that sense
10513.2022WP+.odt
and to that extent had merged with the order of appellate
authority i.e. Sub-Divisional Officer. The Appeal preferred by
respondent no.1 was maintainable.
44. In view of the findings recorded above, in the
considered opinion of this Court, the petition needs to be
partly allowed as under :-
ORDER
(i) Writ Petition No.10513/2022 is partly allowed.
(ii) The order dated 26.08.2022 passed by the Maharashtra
Revenue Tribunal, Aurangabad in Revision No.44/B/2021/AN
and Revision No.47/B/2021AN and order dated 20.07.2021
passed by the Sub-Divisional Officer, Sangamner Division,
Sangamner in Tenancy Appeal No.66/2020 are quashed and
set aside.
(iii) The order dated 28.03.2018 passed by the Tahsildar and
Agricultural Tenancy Tribunal, Sangamner in Tenancy Case
No.3/2017 of village Bota, Tq. Sangamner is modified by
holding that petitioner and respondent no.1 are jointly
entitled to purchase the suit properties for consideration
specified in the said orders and directing issuance of sale
certificate in joint name of petitioner and respondent no.1.
10513.2022WP+.odt
(iv) The petitioner and respondent no.1 have equal share in
the said lands.
45. Civil Applications, if any, stand disposed of.
WRIT PETITION NO. 11968 OF 2022 :-
For the reasons mentioned above, Writ Petition stands
dismissed. Civil Applications, if any, stand disposed of.
[ROHIT W. JOSHI, J.]
sga/2025
