SAKHARAM BHIVA PATIL Vs. RAMCHANDRA BALWANT METHE

JUDGEMENT

(1.) Brief facts and circumstances leading to this petition under Article 227 of the Constitution are as follows :---

(2.) The lands in dispute are two viz., survey No. 220 admeasuring 23 acres 32 gunthas and survey No. 223/3 admeasuring 7 acres 15 gunthas, both situated at village Washi, Taluka Karvir, District Kolhapur (hereinafter referred to as the suit lands). Petitioner herein Sakharam Bhiva Patil was the original owner of the suit lands. Sometime prior to 1948, the suit lands were mortgaged by Sakharam to one Vinayak Vasudeo Kulkarni. The mortgagee Kulkarni leased the suit lands to the respondents herein Ramchandra Balwant Methe and Dattatraya Babaji Chavan. Sakharam, the owner, instituted proceedings under the B.A.D.R. Act and obtained an award thereunder on 23rd September, 1955. The tenants were not parties to the said award proceedings. After obtaining the award, Sakharam took out proceedings in execution of the said award. These proceedings were numbered as B.A.D.R. Darkhast No. 235 of 1955 of the Court of the Civil Judge, Senior Division, Kolhapur. Prayer inter alia in the said execution proceedings was that there were tenants on the suit lands, but since the right, title and interest of the mortgagee had come to an end, actual possession of the suit lands should be awarded to the owner Sakharam without paying any head to the objections of the tenants. The Executing Court called upon the darkhastdar owner to show how he was entitled to warrant for actual possession under Order 21, Rule 35(1) of the Code of Civil Procedure when, on his own case on affidavit, the suit lands were leased to tenants. Record here does not indicate as to what exactly was the say of the owner in that behalf. But the certified copy of the order of the Executing Court shows that ultimately on 25th October, 1955 the Executing Court issued warrant not for actual possession under Order 21, Rule 35(1) of the Code of Civil Procedure but issued a warrant only under Order 21, Rule 35(2) of the said Code. Though there was no order for actual possession, the owner darkhastdar dispossessed the tenants respondents herein from the suit lands and took actual possession thereof on 8th November 1955. Sometime thereafter in July 1956, the tenants made an application, being Tenancy Case No. 124 of 1955-56 under section 29 of the Bombay Tenancy and Agricultural Lands Act (hereinafter the Tenancy Act) for possession of the suit lands. In the said proceedings, Dattatraya Babaji Chavan, one out of the two tenants and the owner Sakharam Bhiva Patil filed a joint purshis on 23rd February ,1960 to the effect that settlement having taken place between the parties, the said proceedings may be disposed of. It was also stated that the applicant gave up his claim for possession. On the same day, the Mamlatdar disposed of the application as withdrawn. On the record we have an undated typed receipt exhibit 37 signed by Dattatraya Babaji Chavan, one out of the two tenants, which recites that claim for possession has been given up and that Rs. 400/- have been received as the price or the value of the crops in the suit lands and the expenses incurred in the tenancy proceedings. It may be stated that the other tenant Ramchandra Balwant Methe is not a party to this receipt or purshis.

(3.) In the year 1969, the State Legislature, by Maharashtra Act No. 49 of 1969, introduced in the Bombay Tenancy and Agricultural Lands Act, 1948, sub-section 1-B to section 32 of the said Act. Under this provision, where a tenant who was in possession on the appointed day (15th June 1955) and who on account of his being dispossessed before the first day of April 1957 otherwise than in the manner and by an order of the Tahsildar as provided in section 29 (emphasis supplied), is not in possession of the land on the said date and the land is in the possession of the landlord or his successor-in-interest on the thirty-first day of July 1969 and the land is not put to a non-agricultural use on or before the last mentioned date, then, the Tahsildar shall, notwithstanding anything contained in the said section 29, either suo motu or on the application of the tenant, hold an inquiry and direct that such land shall be taken from the possession of the landlord or, as the case may be, his successor-in-interest, and shall be restored to the tenant. The said provision further lays down that thereafter, the provisions of section 32 as also sections 32-A to 32-R (both inclusive shall, in so far as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased the land on the date on which the land is restored to him. Under the provision to the said provision, the tenant shall be entitled to restoration of the land only if he undertakes to cultivate the same personally and of so much thereof as together with the other land held by him as tenant shall not exceed the ceiling area. After the enactment aforesaid, the Tahsildar commenced in this case suo motu proceedings under Section 32(1-B) of the Tenancy Act in respect of the suit lands and qua the owner and the tenants thereof. The Tahsildar held that the tenants were in lawful possession of the suit lands on the appointed date 15th June, 1955 but had been dispossessed therefrom before the first day of April, 1957 otherwise than in the manner and by an order of the Tahsildar as provided in section 29 of the Tenancy Act. It was further held that the suit lands were in possession of the landlord on 31st July, 1969. In spite of these findings, the Tahsildar, however, came to the conclusion that since the tenants had made an application under section 29 of the Tenancy Act and had withdrawn the same, they were not entitled to relief in the instant proceedings under the provisions of section 32(1-B) of the said Act. The proceedings were consequently dropped by order dated 20th May, 1972. Appeal against the said order was dismissed on 12th March, 1973. Tenantss revision to the Maharashtra Revenue Tribunal succeeded. The Revenue Tribunal came to the conclusion that the view taken by the two authorities below was not correct; that mere making of an application under section 29 and its subsequent withdrawal cannot deprive the tenants of their rights under section 32(1-B) of the Tenancy Act; and that the tenants being undisputedly dispossessed after the appointed day and before 1st April, 1957, would be entitled to possession of the suit lands. Consistent with these findings, the Revenue Tribunal allowed the revision application, set aside the orders passed by the authorities below and directed possession of the suit lands to be restored to the tenants. It is against this order of the Revenue Tribunal that the owner Sakharam has filed the present petition under Article 227 of the Constitution.