VIJAYKUMAR Vs. RAMKRISHNA CHAMPAT EKHAR

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of Indian Constitution takes exception to the order, dated 17th November, 1990, passed by the Maharashtra Revenue Tribunal, Nagpur, in Revision Application No. Ten. A. 185/88.

(2.) BRIEFLY stated, petitioner is the landlord in respect of suit field bearing Survey No. 1/2, area 2. 33 acres of Mouza-Mund (Narayan), Taluka-Nandgaon (Khandeshwar), District-Amravati. The respondents 1 and 2 are the successors of Champat, who claimed to be cultivating the suit field as a tenant. The petitioner was born on 19th February, 1956. The petitioner became absolute owner in respect of the suit field by virtue of a registered Partition-Deed effected between the family members on 29th June, 1959. At the relevant time, the petitioner was admittedly a minor and attained majority only on 19th February, 1974. Before the petitioner had attained majority, suo motu proceedings were initiated by the Tahsildar, and the Tahsildar, after due enquiry, by his order dated 6th March, 1970, held that Champat Bali Ikhar cannot be conferred ownership rights in respect of the suit field. It is not in dispute that this decision has attained finality. After the petitioner attained majority, an application under section 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act was filed on behalf of the petitioner on 19th February, 1975 for terminating the tenancy in respect of the suit field and for possession thereof for personal cultivation. The Tahsildar, after conducting an enquiry on the said application, by order, dated 28th October, 1986, concluded that the suit land was required by the petitioner for bona fide cultivation. In the said proceedings, a preliminary objection with regard to application under section 38 being barred by limitation was raised on behalf of the respondents, which was turned down and the finding was recorded that the application, as presented, was well within time. This order was taken up in appeal at the instance of the respondents. The Appellate Court, by order, dated 30th September, 1987, dismissed the appeal preferred by the respondents. In other words, the aforesaid view taken by the Tahsildar attained finality. Later on, the Tahsildar proceeded with the application under section 38 of the Act and by order, dated 21st December, 1987, allowed the application and ordered that the possession of the suit field be handed over to the petitioner. The Tahsildar took into account various revenue records and the statement on record which would indicate that Narayan Abu Bari and Champat Bali Ikhar were cultivating the suit field as joint tenants from the year 1952-53. The Tahsildar, however, held that there was on evidence on record to arrive at a positive finding that Champat Bal Ikhar was cultivating the suit field in the capacity of a protected tenant under the said Act. The Tahsildar also referred to the earlier decision, dated 6th March, 1970, which had attained finality and was binding on the parties, in which it was held that the partition effected in the present case was a valid partition and the petitioner, therefore, was a legal owner/land holder of the field in question. Consistent with the aforesaid finding, the Tahsildar allowed the application and ordered that the possession of the suit land be made over to the petitioner. This order was taken up in appeal at the instance of the respondents 1 and 2 before the Sub-Divisional Officer, Amravati. The Sub-Divisional Officer, by order, dated 16th August, 1988, confirmed the finding recorded by the Tahsildar and accordingly dismissed the appeal. Against the said concurrent finding of fact, the respondents preferred a revision application before the Maharashtra Revenue Tribunal, Nagpur. The tribunal in the first place, interfered with the concurrent finding of facts recorded by the two courts below that the said Champat Ikhar was not the protected tenant in respect of suit land and was, therefore, not entitled to seek protection within the meaning of sub-section (7) of section 38 of the Act. While reversing this finding, the tribunal has adverted to the order passed by the Tahsildar, which records that the said Champat Ikhar was cultivating the suit land as a protected tenant since 1951-52. It would be appropriate to reproduce the said order, dated 26th July, 1971, which weighed with the tribunal to record a finding that Champat Ikhar was cultivating the suit land as tenant since 1951-52. The said order reads thus :-

(3.) THE learned Counsel for the petitioner points out that in so far as the first conclusion reached by the Tribunal that the said Champat Ikhar was cultivating the suit land as tenant since 1951-52, and not from the year 1968-69, is concerned, the same is wholly erroneous and contrary to the record. It is contended that the two courts below have considered the relevant records and arrived at a finding of fact which was supported by record, it was not open to the Tribunal to take a different view in the matter merely by referring to the order, dated 26th July, 1971, passed by the Special Tahsildar. According to the petitioner, the Special Tahsildar in the said order has not examined any material to support the conclusion reached in the said order, which is evident from the order reproduced above. On the other hand, it is contended that in the present case, two courts below have considered the entire materials including statements of the parties, to record a finding that Champat Ikhar was not cultivating the suit land as protected tenant and, therefore, was not entitled to claim benefit under sub-section (7) of section 38 of the Act. In so far as the second aspect, which weighed with the Tribunal is concerned, it is contended on behalf of the petitioner that having regard to the order passed by the Tenancy Authority on 6th March, 1970, which attained finality and was binding on the parties, it was not open to the Tribunal to hold that application presented by the petitioner under section 38 (7) was not maintainable. It is submitted that the Full Bench decision of this Court cannot be pressed into service having regard to the aforesaid position.