GANGUBAI Vs. MAHADU

JUDGEMENT

(1.) The petitioner deceased Gangubai is the original landlady. Petitioner Nos.1 to 3 are the legal heirs of deceased Gangubai landlady and also purchased the land in dispute from deceased Gangubai in the year 1973. Respondent Nos.1A to 1C are the legal heirs of the original tenant Mahadu and respondent Santoba @ Santra, who is the brother of deceased tenant. According to the petitioners, deceased Gangubai was having 63 acres and 16 gunthas of land in toto and out of the said total holding of 63 acres and 16 gunthas of land, the tenancy authorities declared the land survey Nos.19 and 20 of village Dastapur to the extent of 21 acres in favour of one Tenanat, Krushna S/o Chimnak of village Dastapur on 25.05.1957. According to the petitioners, the said declaration was made in favour of Tenant Krushna under Section 38-E and after completing the required procedure, a certificate under Section 38-E (6) was issued to the declared tenant. Even by effecting panchnama dated 05.10.1971, the possession of the said land was also delivered to the said tenant. According to the petitioners, the tenancy record of village Dastapur shows the name of Krushna as a declared owner under Section 38-E treating the deceased Gangubai as a land owner. According to the petitioners, however, again the tenancy authority declared the name of respondent Mahadu s/o Gangaram as a declared tenant treating deceased Gangubai as a original owner in respect of the land survey No.30-B and 36-KH of village Pathra Taluka and District Parbhani to the extent of 13 acres, 3 gunthas.

(2.) The learned counsel for the petitioners submits that the impugned judgment passed by the Deputy Collector, Land Reform, Parbhani dated 18.07.1989 and the judgment passed by the learned designated Member, Maharashtra Revenue Tribunal, Aurangabad, dated 03.11.1992 are contrary to the provisions of the law and the available record. The learned counsel submits that both the courts below have failed to consider the relevant record of the declaration under Section 38-E in favour of Tenant Krushna. The learned counsel submits that total holding of landlady deceased Gangubai was 63 acres and after deducting the declared land under Section 38-E to the extent of 21 acres, out of the land Survey Nos.19 and 20 of village Dastapur in favour of Krushna of village Dastapur on 25.05.1957, the land remained with landlady deceased Gangubai is less than two family holdings and hence second declaration is not sustainable in the eyes of law. The learned counsel submits that initially by judgment and order dated 28.02.1983, the Deputy Collector, Land Reform, Parbhani has allowed the appeal filed by the petitioners and thereby quashed and set aside the declaration made under Section 38-G of the Hyderabad Tenancy Act, 1950 in respect of the suit land survey No.36KH of village Pathra in favour of the present respondents. By judgment and order dated 16.01.1986 in revision file 115/B/63/P, the learned designated Member of Maharashtra Revenue Tribunal, Aurangabad has remanded the matter to the Deputy Collector, Land Reform, Parbhani with the observations and by the specific directions. The learned designated Member while remanding the matter to the Deputy Collector, Land Reform, Parbhani has specifically observed that there was no proper inquiry about the earlier declaration remaining intact and the final holding available at the time of notification under Section 38-G of the Hyderabad Tenancy Act, 1950.

(3.) The learned counsel for the respondents submits that after the remand, the learned Deputy Collector, Land Reform gone through all the papers on record and re-examined the case papers. The learned Deputy Collector has seen the certified copy of the final list dated 07.05.1971 of the declaration of Shri. Krushna resident of Dastapur, however, the learned Deputy Collector has further noted that no order of final declaration appears and it also does not show the date of the final declaration. The learned Deputy Collector, therefore, held that the said declaration is void and cannot be taken into consideration. The learned Deputy Collector has also examined the documents pertaining to the final holding of deceased Gangubai and as per certified copy of Lavni Patraks in Namuna No.6 of village Pathra and Dastapur and at the time of notification under Section 38-G of the Hyderabad Tenancy Act, 1950, recorded the finding about the availability of the total land admeassuring 63 acres and 16 gunthas. The learned Deputy Collector therefore held that out of the above holding, only 13 acres and 13 gunthas land has been declared under Section 38-G to deceased Mahadu and Santoba S/o Gangaram and the same is in accordance with the provisions of the Act of Hyderabad Tenancy Act, 1950 and the rules made thereunder. The learned Deputy Collector has recorded that the holding of deceased Gangubai was more than two family holdings of the land, after this declaration under Section 38-G.