PANDHARINATH RAMBHAU KAVITKE Vs. SHAIKH HAMAJA SHAIKH HUSEN

JUDGEMENT

(1.) THIS writ petition under Article 227 of Constitution of India is directed against the judgment passed by M. R. T. , Pune dated 12-8-1986.

(2.) BRIEFLY stated, the petitioner was the tenant in respect of agricultural land bearing Survey No. 563/2+3 situated at Indapur, District Pune. The petitioner was inducted as a tenant in the suit land prior to 1953 by the original owner Shaikh Jamal Shaikh Mohiddin and Shaikh Amil Ahmeaja Shaikh Hussain. Shaikh Amir A. Shaikh Hussain is the respondent herein. It is common ground that the petitioner was cultivating the suit land as a tenant on the tillers day i. e. 1-4-1957. By virtue of the provisions of B. T. and A. L. Act, the petitioner, being deemed tenant, became deemed purchaser in respect of the suit land. It is the case of the respondent that partition was effected by the landlords inter se some time on 30-12-1957. In the said partition, it is stated that the suit lands came to the share of the respondent herein. It is relevant to point out at this stage that respondent is a Muslim by religion. In the circumstances, he cannot be said to have a pre-existing right in the suit land. That the respondent is the grand son of the original owner. Interestingly, no share has been given to the respondents father, which circumstance is inexplicable. Moreover the partition deed does not indicate that the partition was by metes and bounds. In any case the partition has been effected after the tillers day on 30-12-1957. His claim of being an exclusive owner of the suit land is based on the alleged partition effected on 30-12-1957. These facts are necessary to be high lighted as it is the case of the respondent that he was minor on the tillers day and as such the petitioner could not have become deemed purchaser on account of his disability. For the present it is suffice to note that on 6-1-1961 the respondent made an application for certificate under section 88-C of the Act for exempting the suit land from the application of the relevant provisions of Act which would entitle the petitioner tenant to be declared as deemed purchaser. However, the said application was dismissed for default. Later on, the respondent appears to have applied for restoration of the said application for certificate under section 88-C of the Act, which request was granted and the application stood restored. However, the T. A. K. , Indapur, after hearing the parties, by his order dated 28-6-1963 was pleased to reject the application for issuance of certificate under section 88-C of the Act. That in the meantime A. L. T. and Mamlatdar, initiated proceedings under section 32-G of the Act for fixing the purchase price of the suit land. The said authority by order dated 15-7-1963, after due enquiry and after notice to the respondent herein, fixed the purchase price in respect of the suit land at Rs. 3607/ -. That the respondent did not challenge the said order passed in section 32-G proceedings as late as till May 1983, namely, after almost 20 years. Instead, the respondent preferred an appeal only against the decision of T. A. K. , Indapur dated 28-6-1963 rejecting the application for issuance of certificate under section 88-C of the Act. The appellate authority was pleased to remand the said matter for further enquiry with regard to the prayer for certificate under section 88-C. That pending the aforesaid remand the revenue authorities acting on the order passed by the tenancy authority under section 32-G of the Act dated 15-7-1963 recorded mutation entry in 7 x 12 extract regarding the fixation of the purchase price in favour of the petitioner herein on 11-11-1966. That subsequent to the aforesaid steps taken by the authorities, the Tahasildar by order dated 27-2-1968 was pleased to grant certificate in favour of the respondent under section 88-C of the Act. Against the said order the petitioner preferred Tenancy Appeal No. 243 of 1968, which was allowed and the matter came to be remanded to the Tahasildar for further enquiry regarding section 88-C certificate to be issued in favour of the respondent. The respondent aggrieved by the said remand filed writ petition before this Court being Writ Petition No. 468 of 1969, which was however, rejected on 8-8-1977. This Court, specifically directed that application for issuance of the certificate under section 88-C to proceed before the Tahasildar, Indapur. Admittedly, the respondent till this stage never challenged the order passed by the Tenancy authority under section 32-G of the Act fixing the purchase price in favour of the petitioner in respect of the suit land. It is pertinent to note that pursuant to the order passed by the Tenancy authority fixing the purchase price in respect of the suit land the petitioner paid the purchase price, consequent to which a certificate came to be issued in favour of the petitioner under section 32-M of the Act and mutation entry in that behalf was also recorded. The effect of issuance of section 32-M certificate is that is it a conclusive evidence of purchase of the suit land by the petitioner.

(3.) NOTWITHSTANDING the aforesaid position, the respondent, for the first time in May 1983, almost after 20 years, filed an appeal before the Assistant Collector, Baramati challenging the order passed by the Tenancy authority under section 32-G of the Act dated 15-7-1963. In the said appeal the petitioner specifically raised preliminary objection that the appeal was barred by limitation as it was preferred after 20 years and that too without any explanation regarding the delay. The appellate authority has noticed the said contention raised on behalf of the petitioner. Nevertheless, has not discussed the said aspect at all in its order. In other words, the Assistant Collector without considering the preliminary objection regarding the maintainability of the appeal on the ground of limitation proceeded to decide the matter on merits and allowed the appeal in favour of the respondent on merits. It is contended that there is no formal order regarding condoning the delay. Moreover the order passed by the Appellate Court does not indicates that any application was filed by the respondent for condonation of delay in filing the appeal. The petitioner has taken strong exception to the said approach of the Appellate Court contending that unless the delay was condoned the Appellate Court had no jurisdiction to decide the matter on merits. On merits, the Appellate Court was of the view that since the respondent was minor on the tillers day, by virtue of section 32-F of the Act, the tillers day stood postponed. The Appellate Court further held that since the application for exemption under section 88-C filed by the respondent was pending, the Tenancy Court had no jurisdiction to proceed with 32-G proceedings. The Appellate Court, by order dated 28-2-1985, allowed the said appeal and was pleased to set aside the order passed by the Tenancy Court dated 15-7-1963 under section 32-G of the Act fixing purchase price in respect of the suit land and instead remanded the matter to the Tahasildar, Indapur for taking further steps in the matter. Being aggrieved, the petitioner preferred revision application before the M. R. T. , Pune. In the said revision application, the petitioner specifically contended that the Appellate Court acted without jurisdiction in deciding the appeal on merits although the same was hopelessly barred by limitation. Even the Tribunal has not adjudicated the said contentions as can be seen from the body of the judgment, and instead, proceeded to decide the matter on merits. The Tribunal held that since the application for exemption under section 88-C was pending, the Tenancy Court was in error in finally deciding the proceedings under section 32-G of the Act. Accordingly, the revision application filed by the petitioner was also dismissed by order of Tribunal dated 12-8-1986.