[Cites 19, Cited by 0]
Bombay High Court
Suresh Madhukar Palshikar vs Shri. Kisan Bhimaji Khopade on 7 May, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:21761
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Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8642 OF 2013
SHABNOOR
Kisan Bhimaji Khopade ... Petitioner
AYUB
PATHAN V/s.
Digitally signed
by SHABNOOR
Madhukar Shankar Palshikar,
AYUB PATHAN
Date: 2026.05.07 Since deceased through his LRs. & Ors. ... Respondents
13:43:17 +0530
WITH
CIVIL APPLICATION NO. 61 OF 2021
IN
WRIT PETITION NO.8642 OF 2013
Kisan Bhimaji Khopade ... Applicant
V/s.
Madhukar Shankar Palshikar,
Since deceased through his LRs. & Ors. ... Respondents
WITH
INTERIM APPLICATION NO. 239 OF 2026
IN
WRIT PETITION NO.8642 OF 2013
Suresh Madhukar Palshikar ... Applicant
V/s.
Kisan Bhimaji Khopade ... Respondents
Mr. P. B. Shah with Mr. Kayval P Shah, for the
Petitioner.
Mr. Prathamesh Bhargude a/w Sumit Sonare, for
Respondents.
CORAM : AMIT BORKAR, J.
RESERVED ON : MAY 6, 2026
PRONOUNCED ON : MAY 7, 2026
1
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JUDGMENT:
1. By the present Writ Petition instituted under Articles 226 and
227 of the Constitution of India, the Petitioner has called in
question the legality, correctness, and propriety of the Judgment
and Order dated 29 April 2013 passed by the learned Member,
Maharashtra Revenue Tribunal, Pune in Revision Application No.
TNC/REV/149/2007/P.
2. The facts giving rise to the present Petition, in brief, are that
the father of Respondent No.1, namely late Shankar Bala Palshikar,
was admittedly the owner of the agricultural land situated at
Village Shiravali, Taluka Bhor, District Pune, bearing Gat No.132,
admeasuring 2 Hectares and 40.7 R along with Potkharab land
admeasuring 0 Hectare and 66.5 R. According to the Petitioner, the
said Shankar Bala Palshikar had inducted Bhimaji Khopade, who
was the father of the present Petitioner, as a permanent tenant in
respect of the said agricultural land and had created tenancy rights
in his favour for cultivation thereof. It is the specific case of the
Petitioner that the father of the Petitioner had been cultivating the
subject land continuously and uninterruptedly as a tenant for a
period exceeding 35 years and, after his demise, the Petitioner
succeeded to the tenancy rights and continued to cultivate the land
in the same capacity. It is further the case of the Petitioner that
Khand/rent in respect of the subject land was being regularly paid
to Respondent No.1. However, due to cordial and longstanding
relations between the parties, no formal receipts acknowledging
such payment came to be issued by the Respondents and,
correspondingly, no insistence for issuance of such receipts was
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made by the Petitioner.
3. The Petitioner has further averred that late Shankar Bala
Palshikar as well as the Respondents were residing at Bhor and
were engaged in service for earning their livelihood and, therefore,
were never personally cultivating the subject agricultural land.
According to the Petitioner, even after the demise of late Shankar
Bala Palshikar, the Respondents neither visited the subject land nor
undertook any agricultural operations thereon. The Petitioner
asserts that he continued to remit 6 Man of rice towards
Khand/rent to the Respondents. It is further contended that the
Respondents were not possessing any agricultural implements,
cattle or other necessary means ordinarily required for agricultural
cultivation, which circumstance, according to the Petitioner, clearly
probabilises the case that the Respondents themselves were not
cultivating the suit land personally.
4. In the aforesaid background, the Petitioner instituted
Tenancy Case No.2 of 2003 before the learned Tahsildar, Bhor
seeking a declaration that he was a permanent tenant in respect of
the subject land. The said proceedings came to be contested by
Respondent No.1 by filing his say and opposing the claim of
tenancy raised by the Petitioner. During the course of the
proceedings, both sides adduced oral as well as documentary
evidence in support of their respective contentions.
5. Upon appreciation of the oral and documentary evidence
available on record and after considering the rival submissions
advanced on behalf of the parties, the learned Tahsildar, Bhor was
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pleased to allow the application preferred by the Petitioner and
declared the Petitioner to be a permanent tenant under Section
70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948.
Being aggrieved by the said decision, Respondent Nos.1 and 2
preferred an Appeal under Section 74 of the said Act before the
learned Sub Divisional Officer, Bhor Sub Division, Pune
challenging the findings recorded by the learned Tahsildar.
6. The said Appeal was resisted by the present Petitioner by
supporting the findings recorded by the learned Tahsildar. The
learned Sub Divisional Officer, after hearing the parties and upon
re appreciation of the material placed on record, was pleased to
dismiss the Appeal and confirmed the findings as recorded by the
learned Tahsildar holding in favour of the Petitioner.
7. Being dissatisfied with the concurrent findings recorded by
both the authorities below, Respondent Nos.1 and 2 preferred a
Revision Application under Section 76 of the Bombay Tenancy and
Agricultural Lands Act before the Maharashtra Revenue Tribunal,
Pune. The learned Member of the Tribunal, by the impugned
Judgment and Order dated 29 April 2013, allowed the said
Revision Application and set aside the concurrent findings
recorded by the learned Tahsildar and the learned Sub Divisional
Officer. The legality and correctness of the said Judgment and
Order passed by the learned Tribunal is the subject matter of
challenge in the present Writ Petition at the instance of the
Petitioner.
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8. Mr. P. B. Shah, learned Advocate appearing on behalf of the
Petitioner, submits that the learned Member of the Maharashtra
Revenue Tribunal committed a serious error in observing that the
witnesses examined on behalf of the Petitioner were not
agriculturists owning adjacent lands in the village. It is submitted
that the learned Member failed to properly appreciate the evidence
of witness Ramchandra Yashwant Mandhare, who is admittedly
the owner of land adjoining the subject property. According to the
learned counsel, the said witness has categorically deposed that
the Respondents, being owners of the land, were residing at Bhor
and were not personally cultivating the suit property, whereas the
Petitioner was cultivating the same as a tenant and was paying
Khand/rent in the form of rice. The witness has further stated that
he had personally witnessed the transportation and delivery of rice
bags to the Respondents towards payment of Khand/rent. He has
also specifically deposed that the Respondents had never cultivated
the subject land personally. It is submitted that the learned
Member failed to consider the aforesaid material evidence in its
proper perspective and discarded the same without assigning
cogent reasons, thereby demonstrating complete non application
of mind to the evidence available on record. Learned counsel
therefore submits that the impugned Judgment and Order deserves
to be quashed and set aside and the concurrent findings recorded
by the learned Tahsildar, Bhor, as confirmed by the learned Sub
Divisional Officer, deserve to be restored. It is further submitted
that the revenue record itself reflects the name of the Petitioner in
the capacity of tenant in respect of the subject land and also
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establishes that the aforesaid witness is owner of the adjoining
land from the same Gat number.
9. The learned Advocate for the Petitioner further submits that
the learned Member failed to take into consideration an earlier
Judgment and Order passed by the learned Tahsildar in
proceedings initiated at the instance of the father of Respondent
No.1, wherein a categorical finding was recorded that the
Petitioner had been cultivating the subject land for a period of
about 25 years prior to the passing of the said order. According to
the learned counsel, the said finding constituted a material
circumstance having direct bearing upon the controversy involved
in the present proceedings. However, despite the same forming
part of the record, the learned Member completely overlooked the
said material piece of evidence while exercising revisional
jurisdiction.
10. It is further submitted that in the year 1995-96, the learned
Tahsildar, Bhor had passed an order directing that the name of the
present Petitioner be entered in the 7/12 extract as a tenant in
respect of the subject land. According to the learned counsel, the
said order was never challenged by the Respondents before any
competent forum and, therefore, the same attained finality. It is
submitted that the learned Member failed to appreciate the legal
effect and evidentiary value of the said unchallenged order while
adjudicating the Revision Application.
11. In support of the aforesaid submissions, the learned
Advocate for the Petitioner has placed reliance upon the following
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decisions, namely, Babu Hari Patil and Another vs. Rama Ananda
Jadhav, reported in 2005 (1) All MR 329; Dharma Radhya Vartha
and Others vs. Ramesh Vrijlal Shah and Another, reported in 2005
(3) Mah LJ 352; Rukhamanbai vs. Shivram and Others, reported in
(1981) 4 SCC 262; Jagan alias Jagannath Umaji vs. Gokuldas
Hiralal Tewari, reported in 1987 (Supp) SCC 566; Jagannath Vithu
Jadhav (since deceased) through Legal Representatives and Others
vs. State of Maharashtra and Others, reported in 2013 (2) Mah LJ
285; and Dahya Lala vs. Rasull Mahomed Abdul Rahim, reported
in AIR 1964 SC 1320. On the basis of the aforesaid decisions, it is
prayed that the present Writ Petition be allowed by quashing and
setting aside the Judgment and Order dated 29 April 2013 passed
by the learned Member, Maharashtra Revenue Tribunal, Pune.
12. Per contra, Mr. Bhargude, learned Advocate appearing on
behalf of the Respondents, has opposed the Petition and submits
that the Petitioner has absolutely no concern whatsoever with the
suit property. According to the Respondents, the Petitioner is
neither a tenant nor in lawful possession of the subject land as
alleged by him for the past 35 years. It is submitted that the
Respondents have consistently taken such stand before all the
authorities below, including in their statement before the learned
Tahsildar. Learned counsel further submits that even in the
Memorandum of Revision Application filed before the Maharashtra
Revenue Tribunal, the Respondents had specifically contended that
the Petitioner had no right, title or interest in the suit property and
was not in possession thereof in any lawful capacity.
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13. The Respondents further submit that the present Petitioner
had filed proceedings under Rule 31 of the Maharashtra Land
Revenue Record of Rights and Registers (Preparation and
Maintenance) Rules, 1971. According to the Respondents, the said
proceedings were initiated in collusion with the revenue
authorities, who allegedly guided the Petitioner to seek mutation
of his name in the Vahiwat column of the revenue record. It is
submitted that two Vahiwat cases came to be filed by the Petitioner
under Rule 31 of the said Rules. Learned counsel contends that
proceedings under Rule 31 are of a limited nature and no such
application for recording cultivation in the manner sought by the
Petitioner was maintainable thereunder. It is further submitted that
no notice whatsoever was served upon the present Respondents in
the said proceedings. Although the order passed under Rule 31
records that notice was issued and statement was recorded, it is
the specific case of the Respondents that no such notice was ever
served and no such statement was recorded. According to the
Respondents, even the Petitioner in his cross-examination has
admitted circumstances supporting the said contention. It is thus
submitted that, in collusion with the revenue authorities, an order
dated 15 February 1996 came to be passed directing entry of the
Petitioner's name in the cultivation column for the agricultural
year 1995-96. The said order further directed that the following
entry be recorded in the relevant column: "खोपडे यांचे वहि वाट सदरी
सन १९९५-९६ कहिरता नाव दाखल करावे . हिरत सदरी [ - ] अशी नोंद करावी."
14. It is further submitted on behalf of the Respondents that
during the aforesaid proceedings under Rule 31, a Panchanama
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came to be prepared recording that the Petitioner had been
cultivating the suit land for a period of 20 to 25 years. According
to the Respondents, no such finding regarding long-standing
cultivation or tenancy could legally have been recorded in
proceedings contemplated under Rule 31 of the said Rules. It is
therefore contended that the very entry reflecting the Petitioner's
name in the 7/12 extract is illegal and without jurisdiction.
Learned counsel submits that a mere revenue entry effected
pursuant to Rule 31 proceedings would neither confer tenancy
rights upon the Petitioner under Section 70(b) of the Bombay
Tenancy and Agricultural Lands Act nor establish that he had been
cultivating the suit property for the last 35 years. It is submitted
that the mutation entries appearing in the revenue record for the
years 1995, 1996, 1997 and 1998 indicate that two separate
Vahiwat cases had been initiated. Thereafter, on 13 April 1999, the
Petitioner filed proceedings seeking declaration of tenancy under
Section 70(b). According to the Respondents, taking advantage of
the mutation entry in the 7/12 extract, the Petitioner thereafter
entered into possession of the suit property. It is further submitted
that the learned Tahsildar improperly relied upon the order passed
under Rule 31 while deciding the tenancy proceedings. Learned
counsel has drawn attention to the cross-examination of Madhukar
Shankar Palshikar, wherein it was stated that the Petitioner was
shown in cultivation in the 7/12 extract for the year 1995-96, and
submits that the learned Tahsildar erroneously treated the same as
an admission of tenancy and consequently allowed the application
under Section 70(b).
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15. Learned counsel for the Respondents further submits that
Section 2(18) of the Bombay Tenancy and Agricultural Lands Act
contemplates different categories of tenancy, namely contractual
tenancy, deemed tenancy under Section 4, protected tenancy and
permanent tenancy. According to the Respondents, the stand taken
by the Petitioner regarding the nature of tenancy has undergone
substantial change at different stages of the proceedings. It is
submitted that in the present Petition the Petitioner claims to be a
permanent tenant, whereas before the learned Tahsildar his case
was based upon contractual tenancy. It is further contended that
during the course of arguments before this Court, an attempt has
been made to canvass a plea of deemed tenancy under Section 4 of
the Bombay Tenancy and Agricultural Lands Act, 1948.
16. It is submitted that such mutually inconsistent and shifting
pleas regarding tenancy are impermissible in law. Reliance in this
regard has been placed upon the judgment in Dwarkanath's case,
wherein it has been held that once a plea of contractual tenancy
fails, a subsequent plea of deemed tenancy cannot thereafter be
permitted to be raised. Learned counsel further submits that the
learned Sub Divisional Officer failed even to frame proper points
for determination while deciding the Appeal. According to the
Respondents, the Petitioner had contended before the learned Sub
Divisional Officer that he was cultivating the suit land and had also
produced documents purporting to be rent receipts. However, this
stand is inconsistent with the case originally pleaded before the
learned Tahsildar, wherein the Petitioner had asserted that after
the demise of Shankar Palshikar he was paying rent to Madhukar
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Palshikar and, since cordial relations existed between the parties,
no rent receipts were issued to him.
17. It is further submitted that there are material contradictions
not only regarding the nature of tenancy claimed by the Petitioner,
namely whether contractual, permanent or deemed, but also
regarding the alleged issuance of rent receipts. According to the
Respondents, the Maharashtra Revenue Tribunal has rightly
observed that except for oral testimony of an interested witness,
there exists no documentary evidence supporting the claim of the
Petitioner. It is submitted that there are no continuous revenue
entries evidencing possession of the Petitioner as tenant for the last
35 years and there is also no documentary evidence establishing
continuous payment of rent to the Respondents during the said
period.
18. Learned counsel for the Respondents submits that the
Petitioner is nothing but a trespasser upon the suit property and
that the oral testimony led on behalf of the Petitioner stands
materially shaken in cross examination. It is submitted that the
witness examined by the Petitioner is an interested witness who
admitted in his cross examination that he had witnessed and
assisted in transportation of rice only on one occasion. It is further
pointed out that in the course of cross examination, appearing at
pages 32 to 35B of the record, the said witness admitted that
except for one Palshikarbai he did not know the other members of
the Palshikar family and had never entered their house and had
merely gone up to the door thereof. According to the Respondents,
such admissions substantially weaken the credibility of the witness
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relied upon by the Petitioner.
19. Learned counsel for the Respondents has further placed
reliance upon the decision of the Supreme Court in the case of
Hanumant Nimbals to contend that the burden squarely lies upon
the person claiming tenancy to establish lawful possession. It is
submitted that lawful possession can ordinarily be inferred where
there exists an agreement with the landlord and where the
landlord has inducted the tenant into possession for beneficial
enjoyment of the land upon payment of rent, premium or land
revenue. It is further submitted that continued acquiescence by the
landlord by accepting rent would also constitute a relevant
circumstance. According to the Respondents, in the present case
there is neither any agreement nor any payment of land revenue
nor any rent receipts establishing tenancy, and therefore the claim
of the Petitioner that he has been cultivating the suit property for
the past 35 years remains wholly unsubstantiated.
20. So far as the reliance placed by the Petitioner upon the
decision in Babu Hari Patil and Another vs. Rama Ananda Jadhav,
reported in 2005 (1) All MR 329 is concerned, learned counsel for
the Respondents submits that the facts of the said case are entirely
distinguishable. It is submitted that paragraphs 5 and 6 of the said
judgment clearly disclose that there was sufficient evidence
available on record establishing cultivation by the tenants for a
period exceeding eight years. Further, paragraph 5.2 of the said
judgment records existence of an agreement for sale executed
between the landlord and the tenant in respect of the suit property.
According to the Respondents, no such circumstances exist in the
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present case. It is further submitted that the reliance placed upon
the decision in Dahya Lala vs. Rasul Mahomed, reported in AIR
1964 SC 1320 is equally misplaced, since the said decision dealt
with the status of a person inducted into possession by a
mortgagee and arose in a completely different factual context.
21. Insofar as the judgment in Dharma Radhya Vartha and
Others vs. Ramesh Shah is concerned, learned counsel submits that
the said decision also arose out of entirely different facts and
circumstances. Attention is invited to paragraph 11 of the said
judgment to contend that in the said case there was clear material
on record establishing cultivation of the lands by the petitioners
therein for more than 50 years including cultivation of Kharif and
paddy crops. It is submitted that the controversy involved in the
said matter pertained to the issue whether cultivation of paddy
land for preparation of RAB manure constituted incidental
agricultural activity and whether such activity formed an integral
part of agricultural operations. Learned counsel submits that
paragraph 14 of the said judgment clearly records that possession
of the tenants over the suit lands was never disputed therein.
According to the Respondents, the ratio of the said judgment
therefore has no application to the facts of the present case. It is
further submitted that the observations in Rukhamanbai vs.
Shivram, reported in (1981) 4 SCC 262, particularly paragraphs
17 and 3 thereof, are merely reiterative of the principles laid down
in Dahya Lala's case.
22. Learned counsel for the Respondents lastly relied upon the
decision in Jagannath Vithu Jadhav vs. State of Maharashtra,
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reported in 2013 (5) LJ Soft 107, and submits that even the said
judgment is clearly distinguishable on facts. According to the
Respondents, in the said case there existed continuous revenue
entries evidencing cultivation by the tenants till institution of the
proceedings, whereas no such consistent material exists in the
present matter. It is therefore submitted that the Petitioner has
failed to establish any lawful tenancy rights and is merely a
trespasser upon the suit property. Learned counsel accordingly
submits that the Maharashtra Revenue Tribunal has rightly
interfered with the orders passed by the authorities below and,
therefore, the present Writ Petition deserves to be dismissed with
costs.
REASONS AND ANALYSIS:
23. I have given my anxious consideration to the rival
submissions and to the entire material placed on record.
24. The first submission advanced on behalf of the Petitioner
proceeds on the oral testimony of Ramchandra Yashwant
Mandhare, who according to the Petitioner is an adjoining
agriculturist having land adjacent to the suit property. There
cannot be any dispute that the said witness is owner of
neighbouring agricultural land and, therefore, in ordinary
circumstances, he may be presumed to have knowledge regarding
cultivation activities taking plac. The witness has supported the
case of the Petitioner by stating that the Respondents were residing
at Bhor and were not personally cultivating the subject land and
that the Petitioner was cultivating the same while sending Khand
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in the form of rice to the Respondents. The witness has further
attempted to support the continuity of such arrangement by
stating that he had personally seen the rice bags being sent to the
Respondents. At first blush, such evidence appears to lend support
to the case of the Petitioner. However, when the evidence is
carefully scrutinised in the backdrop of the entire record, this
Court is unable to accept the submission in the manner as
canvassed by the Petitioner.
25. It is well settled that oral evidence in tenancy matters cannot
be appreciated in a detached manner. More particularly, where a
claim of tenancy extending over several decades is asserted, the
Court is expected to examine whether the oral version is supported
by surrounding circumstances, contemporaneous conduct and
reliable material on record. The witness in the present case is not
an official witness nor a public authority maintaining statutory
record. He is a individual from the same locality and his testimony,
though admissible, is required to be tested with due caution.
Merely because the witness owns adjoining land does not elevate
his statement to conclusive proof of tenancy. His evidence has to
withstand the test of cross examination. When the cross
examination of the said witness is examined, certain deficiencies
become apparent. The witness has not stated that he continuously
witnessed payment of rent or Khand over a period of 35 years. On
the contrary, his statement indicates that he had occasion to
witness transportation of rice on one particular instance. Such
circumstance may show some relationship or transaction between
the parties, but by itself it does not establish a tenancy for more
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than three decades. In agricultural tenancy matters, especially
under the provisions of the Bombay Tenancy and Agricultural
Lands Act, the Court is required to ascertain lawful and continuous
cultivation possessing the character of tenancy. A solitary instance
of sending rice cannot substitute the requirement of continuous
proof.
26. Further, the witness admittedly had limited acquaintance
with the affairs of the Respondents' family. His own cross-
examination shows that except for knowing one member of the
family, he had no close interaction with the other members and
had never even entered their residence. This circumstance may not
destroy his testimony, but it certainly affects the weight to be
attached to his assertions regarding tenancy arrangements
between the parties. In cases of this nature, where the claim
relates back to a period extending several decades, the Court
expects some degree of certainty in the testimony. The evidence of
the witness in the present case remains general and does not
satisfactorily establish the basis under which the Petitioner was
allegedly cultivating the land.
27. This Court also cannot lose sight of the fact that the tenancy
claimed by the Petitioner itself has undergone change at different
stages of the proceedings. At one stage, the case is projected as one
of contractual tenancy. At another stage, the plea of permanent
tenancy is raised. During arguments, reliance is also placed upon
the concept of deemed tenancy under Section 4 of the Tenancy
Act. In such circumstances, the oral evidence of a local witness
assumes lesser evidentiary value unless supported by foundational
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facts. The Tribunal was therefore justified in examining the
testimony cautiously.
28. In the overall circumstances, though the testimony of
Ramchandra Yashwant Mandhare may furnish some indication
regarding possession by the Petitioner, the same cannot be treated
as conclusive proof sufficient to dislodge the findings recorded by
the Maharashtra Revenue Tribunal. The Tribunal has appreciated
the evidence in the context of the entire material on record and
has found absence of satisfactory proof regarding tenancy. This
Court does not find such appreciation to be either perverse or
wholly unreasonable so as to warrant interference in exercise of
supervisory jurisdiction.
29. Much emphasis was laid by the learned counsel appearing
for the Petitioner on the order passed in the year 1995-96 whereby
the name of the Petitioner came to be entered in the cultivation
column of the 7/12 extract in respect of the suit land. According to
the Petitioner, since the said order was never challenged by the
Respondents before any superior authority, the same attained
finality and, therefore, the authorities below as well as this Court
are bound to proceed on the footing that the Petitioner was
recognised as tenant in possession of the land. It is required to be
noted that the entry in the cultivation column came to be effected
pursuant to proceedings under Rule 31 of the Maharashtra Land
Revenue Record of Rights and Registers Rules. Such proceedings
are essentially revenue proceedings meant for recording and
maintaining entries relating to possession and cultivation for fiscal
purposes. The jurisdiction exercised in such proceedings is of a
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limited character. The authority conducting inquiry under Rule 31
does not exercise the same adjudicatory powers as are vested in
the tenancy authorities under Section 70(b) of the Bombay
Tenancy and Agricultural Lands Act. Therefore, merely because an
entry was directed to be recorded in favour of the Petitioner, it
cannot automatically follow that the Petitioner thereby acquired or
established substantive tenancy rights in the eye of law.
30. The distinction between a revenue entry and declaration of
tenancy is of considerable importance. A 7/12 extract is
maintained for fiscal administration and revenue collection. Such
entries may indicate possession or cultivation at a particular point
of time. They may constitute one piece of corroborative evidence.
But it is equally settled that mutation entries neither create title
nor conclusively establish tenancy rights. The tenancy rights under
the Bombay Tenancy and Agricultural Lands Act can be recognised
only upon satisfaction of the statutory requirements contemplated
under the said enactment. Therefore, the Petitioner cannot be
permitted to treat the Rule 31 order as if it were a final declaration
under Section 70(b) of the Tenancy Act.
31. The Respondents have specifically contended that the Rule
31 proceedings themselves were irregular and beyond jurisdiction.
According to them, no proper notice was served and no valid
inquiry regarding tenancy could legally have been undertaken in
such proceedings. Though this Court does not propose to reopen
the Rule 31 proceedings in the present petition, the objection
raised by the Respondents does indicate the limited nature of the
said proceedings. Even assuming that the order attained finality
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for revenue purposes, the same still cannot be elevated to the
status of conclusive proof establishing deemed tenancy. Finality of
a revenue entry and final adjudication of tenancy are two different
concepts.
32. The record further indicates that the Petitioner has
attempted to build almost the entire case upon the basis of the said
entry. Such approach, in my view, is legally impermissible. Revenue
entries may support a pre-existing lawful claim if independent
evidence otherwise establishes the tenancy. However, the entry
itself cannot become the source of the tenancy claim. The Tribunal,
therefore, rightly held that the entry in the 7/12 extract could not
by itself conclude the issue in favour of the Petitioner.
33. The more serious infirmity in the Petitioner's case, however,
lies in the continuously changing nature of the pleadings and legal
foundation of the claim. This aspect goes to the root of the matter
and substantially affects the credibility of the Petitioner's case. The
judgment in Dwarakanath Vishram Ghurye has clearly explained
the distinction between contractual tenancy and deemed tenancy
under Section 4 of the Tenancy Act. The said judgment recognises
that the ingredients constituting the two categories are materially
different and that a person who specifically pleads one kind of
tenancy cannot ordinarily, after failure of that plea, shift to another
category without proper pleadings and foundational facts. In the
present case, the stand of the Petitioner has not remained
consistent from the inception of the proceedings. Before the
learned Tahsildar, the case projected was substantially one of
contractual tenancy. In the writ petition, the Petitioner claims
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status as a permanent tenant. During the course of arguments,
reliance was heavily placed upon Section 4 of the Tenancy Act and
the concept of deemed tenancy. This is not a loose use of words by
a illiterate litigant. Each category of tenancy carries different legal
ingredients, different consequences and different evidentiary
requirements. A contractual tenancy presupposes consensual
induction by the landlord and existence of jural relationship. A
deemed tenancy under Section 4 is a statutory fiction operating
even in absence of contractual relationship provided lawful
cultivation is established. Permanent tenancy again stands on a
separate footing altogether. The Act cannot permit a litigant to
move from one legal foundation to another depending upon the
weakness noticed in the earlier stand. Judicial proceedings must
proceed on definite pleadings so that the opposite side knows the
exact case required to be met. If the Petitioner was asserting
contractual tenancy, the Respondents were entitled to contest the
existence of agreement, payment of rent and induction into
possession. If the case was one of deemed tenancy, the focus would
shift to lawful cultivation and ingredients under Section 4. By
constantly shifting the nature of tenancy, the foundation of the
Petitioner's case becomes uncertain.
34. The learned counsel for the Petitioner attempted to
overcome these difficulties by placing reliance upon the decisions
in Babu Hari Patil and Dharma Radhya Vartha. The principles laid
down in the said judgments are well settled and cannot be
disputed. Those judgments recognise that in proceedings under
Section 4 of the Tenancy Act, absence of rent receipts, tenancy
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entries or formal agreements is not fatal if lawful cultivation is
otherwise established. The Courts have repeatedly held that old
fashioned notions of landlord tenant relationship cannot be
imported while construing beneficial provisions relating to deemed
tenancy. However, the difficulty in the present matter is not
regarding the legal proposition but regarding proof of facts
necessary for applying the proposition. In Babu Hari Patil, the
Court found sufficient material demonstrating lawful cultivation
and continuous possession. In Dharma Radhya Vartha, the
cultivation activities were part of recognised agricultural practice
in the Konkan region and possession itself was not disputed. Those
decisions turned upon factual foundations which enabled the
Court to invoke the beneficial provisions of Section 4. In the
present case, the evidence does not attain that degree of
continuity. The Petitioner has not produced a documentary chain
showing lawful cultivation over the entire claimed period of 35
years. There is no satisfactory arrangement. The oral evidence
remains limited and partly inconsistent. The Rule 31 entry merely
reflects one stage of revenue recording and cannot substitute
substantive proof. Therefore, though the legal principles in the
aforesaid judgments are correct, the factual matrix before this
Court does not permit automatic application of those principles in
favour of the Petitioner.
35. The Respondents have also rightly pointed out material
contradictions in the Petitioner's stand regarding payment of rent.
At one stage, the Petitioner states that rent was continuously paid
in the form of rice and that no receipts were issued because cordial
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relations existed between the parties. At another stage, reliance is
sought to be placed upon documents suggestive of rent
transactions and cultivation. These inconsistencies touch the core
of the tenancy claim. Where a person asserts continuous tenancy
for more than three decades, some degree of consistency is
expected in the evidence regarding payment of rent and nature of
possession.
36. The Court is conscious that agricultural tenancy disputes
often arise from rural backgrounds where documentation may not
always be available. Nevertheless, complete absence of reliable
documentary support coupled with inconsistent oral assertions
materially weakens the case. Long-standing tenancy rights carrying
legal consequences cannot be declared solely on the basis of oral
assertions, one supporting witness and disputed revenue entry. The
burden to establish tenancy squarely rested upon the Petitioner. In
the facts of the present case, that burden has not been
satisfactorily discharged.
37. The distinction between lawful cultivation and permissive or
doubtful occupation, as highlighted by the Respondents, also
deserves acceptance. The judgments in Dahya Lala and subsequent
decisions recognise that lawful cultivation may exist even in
absence of contractual tenancy. However, lawful cultivation still
remains a jurisdictional fact which must be established. Such
lawful possession cannot be presumed because the claimant asserts
it or because his name appears in a disputed cultivation entry. The
Court must find satisfactory material indicating that the
occupation possessed legal character recognised by the Tenancy
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Act.
38. In the present matter, there is no convincing proof showing
continuous payment of rent for 35 years. There is no documentary
chain demonstrating recognised tenancy. There is also no material
indicating that the Respondents ever accepted the Petitioner as
tenant in the statutory sense. The oral evidence led by the
Petitioner falls short of bridging these deficiencies. The witnesses
merely indicate some cultivation activity or occasional dealings,
but they do not establish lawful tenancy in the manner required
under law.
39. I also find considerable substance in the submission
advanced on behalf of the Respondents that proceedings under
Rule 31 could not have been treated as substitute for proper
adjudication under the Bombay Tenancy and Agricultural Lands
Act. The Petitioner appears to have relied upon the Rule 31
proceedings as if they settled the issue of tenancy. Such approach
is legally unsustainable. A summary revenue inquiry cannot
replace an adjudicatory determination contemplated under Section
70(b), where the authority is required to carefully examine the
nature of possession, cultivation, relationship between the parties
and existence of statutory tenancy.
40. Viewed cumulatively, the foundation of the Petitioner's claim
appears uncertain from the beginning. If the Petitioner was truly a
permanent tenant cultivating the land for decades, one would
expect more reliable material reflecting such relationship. Instead,
what emerges from the record is a combination of disputed
possession, isolated oral assertions, revenue entry of limited value
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and inconsistent legal stands taken at different stages. Such
material may create suspicion or possibility regarding cultivation,
but it falls short of the standard required for declaration of tenancy
rights under the Tenancy Act. In these circumstances, the view
taken by the Maharashtra Revenue Tribunal cannot be said to be
either perverse or contrary to law warranting interference under
Articles 226 and 227 of the Constitution of India.
41. In view of the foregoing discussion, and upon overall
assessment of the material submissions, evidence on record, and
the findings arrived at hereinabove, the following order is passed:
(i) The Writ Petition stands dismissed;
(ii) The Judgment and Order dated 29 April 2013 passed
by the learned Member, Maharashtra Revenue Tribunal, Pune
in Revision Application No. TNC/REV/149/2007/P is hereby
upheld and confirmed;
(iii) Rule stands discharged;
(iv) In the facts and circumstances of the case, there shall
be no order as to costs;
(v) Pending Interim Application(s), if any, do not survive
and the same stand disposed of accordingly.
42. Since the petitioner has been protected by way of ad-interim
relief for a number of y ears, said protection, despite opposition of
the respondents, shall continue to operate for a period of six weeks
from today.
(AMIT BORKAR, J.)
