BHIMRAO HANMANT PATIL Vs. NAGANATH SANTOBA BUBANE

JUDGEMENT

(1.) THIS writ petition under Article 227 of Constitution of India against the judgment and order of M. R. T. Pune dated 29-4-1987 in Revision No. 3/83 (Ten B. 125/83 ).

(2.) THE petitioners and respondent No. 2 are the heirs of original defendant Bhimrao. Respondent No. 1 is the original landlord in respect of agricultural land bearing Survey No. 42 admeasuring 14 acres 29 gunthas situated at village Talegaon, North Solapur taluka. The said Bhimrao was cultivating the suit land as tenant since prior to 1-4-1957, therefore, suo motu proceedings were initiated by A. L. T. in the year 1961 under section 32-G of the B. T. and A. L. Act. In the said proceedings the said Bhimrao, predecessor in title of the petitioners, was declared to be the tenant and having become deemed purchaser in respect of the suit lands being tenant in possession on tillers day. The ALT by its order dated 30-12-1961 fixed the purchase price in respect of the suit land. The respondent No. 1 took exception to the said order by filing Appeal No. 125 of 1966, which appeal was filed almost after 5 years from the date on which the A. L. T. had determined the purchase price in respect of the suit land. In the said appeal the respondent No. 1 inter alia, contended that in the proceedings under section 32-G ought not to have been decided during the pendency of the disposal of his application for possession of the suit land under section 14 read with 25 of the Act for possession of the suit land on the ground of default. The respondent No. 1 also contended that original tenant was holding agricultural land in excess of ceiling area and as such was not entitled to be declared as deemed purchaser of the land which was held in excess of the ceiling area. The S. D. O. , who heard the appeal, by his order held that the application filed by the respondent No. 1 was barred by limitation. In so far as the ground of default is concerned, the Appeal Court held that A. L. T. rightly dismissed the said application under section 14 of the Act. The Appellate Court further held that the respondent No. 1 had failed to lead any evidence to show that tenant was holding land in excess of the ceiling area. The appeal came to be dismissed by the S. D. O. , by order dated 13-5-1968. Against the said decision the respondent No. 1 took up the matter in revision before the Tribunal. The only point which was agitated before the Tribunal on behalf of the respondent No. 1 was regarding the excess holding of the tenant Bhimrao. The Tribunal took into account certain documents which were filed in evidence in regular Civil Suit No. 76 of 1961, filed by Bhimraos brother against Bhimrao for partition, and therefore by order dated 8-10-1970 ordered fresh enquiry by remanding the same to the A. L. T. After the said remand the A. L. T. held that the land was cultivated by Bhimrao on behalf of entire joint family consisting of his father, brothers and sons and the tenancy was vested in the joint family. According to the A. L. T. the holding of the joint family was 45 acres 21 gunthas which was in excess of ceiling area of 48 acres. The A. L. T. accordingly declared that Bhimrao was not entitled to purchase the suit land as deemed purchaser. After the said decision of the A. L. T. the original tenant Bhimrao died. The petitioner Nos. 2 and 3 herein carried the matter in appeal before the S. D. O. Solapur. The said appeal was however dismissed by the S. D. O. and the conclusion reached by A. L. T. that tenant was not entitled to purchase the suit land came to be confirmed. The petitioners herein thereafter filed revision before the Tribunal. In the said Revision No. 5 of 1975, the Tribunal, after examining the rival contentions, conclusively held that tenancy was created in favour of Bhimrao in his individual capacity and not being the Manager of the joint family. The Tribunal held that tenancy held by the members of the joint family must be presumed to be individual unless contrary is proved. The Tribunal also recorded a very specific finding that on examining the plaint of brother of Bhimrao in the Civil Court praying for partition of the joint family properties, the suit lands were not included in the subject matter of the said suit. In other words, according to the Tribunal, taking any view of the matter, the suit lands were held by the Bhimrao in his individual capacity. The Tribunal also concluded that having regard to the total holding of the joint family the share of the Bhimrao in the said property which is only 1/3rd and as such his holding excluding the suit land come to only 14 acres 7 gunthas. Accordingly, the Tribunal concluded that the said Bhimrao is entitled to be declared as deemed purchaser of the suit lands and after recorded the said findings the Tribunal remanded the matter to the A. L. T. for the limited purpose of fixing the purchase price in respect of the suit lands. It is relevant to point out that the said decision of the Tribunal has not been challenged by the respondent No. 1 and the same has attained finality. In other words, the proceedings before the A. L. T. were remanded only for the limited purpose of fixing the purchase price and not to adjudicating on the right of Bhimrao to be declared as deemed purchaser as the said issue was finally concluded by the finding recorded by the Tribunal which remained unchallenged.

(3.) AFTER the remand the A. L. T. considered the rival contentions and was pleased to fix the purchase price in respect of the suit land to the extent of 9 acres and 23 gunthas out of total 14 acres and 29 gunthas and further held that the sale of 5 acres and three gunthas as ineffective. It appears that A. L. T. declared that purchase has become ineffective in respect of 5 acres and 3 gunthas of land on the basis that same would be in excess of the ceiling holding of Bhimrao. Being aggrieved by the said decision both the petitioners as well as the respondent No. 1 preferred separate appeals before the S. D. O. The petitioner challenged the conclusion recorded by the A. L. T. that purchase in respect of land admeasuring 5 acres 3 gunthas had become ineffective. On the other hand, the respondent No. 1 challenged the judgment of the A. L. T. only with regard to the determining the purchase price in respect of 9 acres and 23 gunthas of the suit land. The S. D. O. , however by order dated 31-3-1978 proceeded to decide only the appeal preferred by the petitioners herein. In other words, the S. D. O. did not pass any order on the appeal preferred by the respondent No. 1. Naturally, the respondent No. 1, being aggrieved preferred revision before the M. R. T. at Pune. The Tribunal by order dated 25-3-1981 was pleased to allow the revision application and remanded the matter to S. D. O. to decide both the appeals being Appeal No. 56 of 1977 and 1/1978 for being decided on merits after giving opportunity to both the parties.