BAYAJI CHANDRU PATIL Vs. SADASHIV DATTATRAYA KULKARNI

JUDGEMENT

(1.) Though in this petition under Article 227 of the Constitution there can be said to be a point of law arising for my determination, I am of the view, after hearing the submissions of the respective Advocates on the merits, that this is not a fit case for my interference in my discretionary jurisdiction under the said Article, my reasons in that behalf being as under :---

(2.) In respect of two agricultural lands survey No. 1089/C admeasuring 0 acre 32 gunthas and survey no. 117/C admeasuring 1 acre 7 gunthas originally owned by one Narayan Kulkarni, the said Narayan applied for and ultimately obtained as long back as in July 1959 an exemption certificate under section 88-C of the Bombay Tenancy and Agricultural Lands Act. It may be relevant to note that one of the conditions for such a certificate is that the landlords annual income must be less than Rs, 1,500/- and another condition is that his holding must be less than an economic holding. Narayan having fulfilled these conditions, exemption certificate was awarded to him in respect of the two lands aforesaid. However and unfortunately, as destiny would have it, within almost a month of obtaining such a certificate, Narayan expired. But prior to his demise, Narayan had executed a will in favour of his own brothers son Sadashiv, the present respondent. It may also be mentioned that in the absence of any heir Narayan, Sadashiv, apart from being a legatee, could also be an heir or at least one of the heirs of Narayan, as he was, as indicated, Narayans brothers son. Sadashiv terminated the petitioners tenancy under section 33-B of the Tenancy Act. This was followed by an application under section 33-B of the Tenancy Act for possession. In 1964, the trial authority dismissed the said application. Sadashivs appear against the same failed. The Revenue Tribunal, however, allowed Sadashivs revision application therefrom, held the application under section 33-B maintainable and remanded the matter to the trial Court for hearing on merits. After remand, the trial Court went into the merits of the claim, found Sadashivs claim to be reasonable and bona fide, also found that Sadashiv fulfilled the requisites for possession and consequently his claim was decreed to the extent of only half share which came to approximately 39 1/2 gunthas. This was as long back as in the year 1971. The petitioner-tenants appeal against the said decision was allowed on the ground that Sadashiv being a legatee, had no right to apply under section 33-B of the Tenancy Act. The Appellate Court, however, held that Sadashiv did establish that he bona fide required the land for personal cultivation and that he has no means of income except the rent of the leased lands. This Appellate decision was challenged by Sadashiv before the Revenue Tribunal. The Revenue Tribunal came to the conclusion that it already having once decided that Sadashivs application was maintainable and having remanded the matter for decision on the merits of the said application and the said remand order not having been challenged by the petitioner-tenant, it was not now open tot he petitioner-tenant to go behind the remand order, re-open the question once decided and seek to have Sadashivs application dismissed on the ground that it was not maintainable. On the merits the Tribunal held that both the trial Court as also the Appellate Court had come to a concurrent finding to the effect that Sadashiv had established his bona fides and that he was entitled to be restores possession of the land as ordered by the trail Court. It is against this decision of the Tribunal that the present petition has been filed.

(3.) The petitioner is represented by his learned Advocate Mr. M.A. Rane. The respondent is represented by his learned Advocate Mr. N.D. Homabalkar. It was contended by Mr. Rane, the learned Advocate for the petitioner, that the Tribunal was wrong in law in coming to the conclusion that the earlier order of remand passed by it prevented the Tribunal from once again going into the question of maintainability of Sadashivs application under section 33-B of the Tenancy Act. He contended that conflict on the aforesaid question has now stood resolved by virtue of a Division Bench ruling of this Court in the case of (Ratanlal v. Bajirao Ganpat) 1975 Maharashtra Law Journal 65. Mr. Hombalkar, the learned Advocate for the respondent, however, contended that though the view taken by the Tribunal may not be in accord with the ratio of the aforesaid Division Bench ruling, the view taken by the Tribunal was nevertheless at the time when it was taken a possible view of the matter and if the Tribunal has, at that stage, taken one of the possible views of the matter, there cannot be said to be an error of law apparent on the face of the record so as to justify interference.