KASHINATH BHASKAR DATAR Vs. KHANDU KONDIBA BAGADE

JUDGEMENT

(1.) THE Petitioner is hereby assailing the correctness, propriety and legality of the judgment and order passed by Member of the M. R. T. in the matter of Revision Application No. MRT. P. XII-7/84 (TEN. B. 298/84) Pune dated 9/3/1988 whereby the learned Member of M. R. T. set aside the judgment and order passed by S. D. O. Haveli, Sub-Division Pune bearing No. TNC. 81/82.

(2.) THE present petitioner Kashinath Datar had filed a suit against the respondents ancestors in the Civil Court for an injunction. THE Civil Court made a reference to Tehsildar and ALT, Haveli requesting the said Court to hold the enquiry and record the finding whether Khandu Bagade and other heirs were in possession of the suit lands as tenants. THE Tehsildar and A. L. T. made the enquiry for the purposes of deciding the said issue which was quoted by him as :- Whether the defendants prove that they are the tenants of the suit properties? THE Tehsildar and A. L. T. recorded the said finding in favour of the said Khandu Bagade and against the present Petitioner by passing a judgment in that context. THE same was challenged by the present petitioner Kashinath Datar by submitting the appeal bearing Tenancy Appeal No. 81/81. THE S. D. O, Haveli, Sub Division, Pune set aside the judgment and order passed by Tehsildar and A. L. T. , Haveli by passing the judgment and order. THE said judgment and order was challenged by the present heirs of Khandu Bagade by filing the revision application. THE learned Member of the M. R. T. set aside the judgment and order passed by the S. D. O. Haveli, Division Pune.

(3.) BY making such observations and pointing out the portions from the records, the learned Member of the M. R. T. held that Datars contention that Bagades are trespassers is a loud talk without substance and without lawful base. BY pointing out this, he expressed his opinion :- I am of the opinion that the landlords have attempted to grab the land of the tenants on the eve of enforcement of the Tenancy Act as the notice and deleting the names of the applicants from the record is on the eve of enactment. The learned Member further went on observing:- The learned advocate of Datars family named above has certainly thought of dislodging the claim of the applicants and made a vain attempt to take over the suit lands in the name of making it to N. A. use as the land was fallow. On perusal of the record it is seen that out of the suit land only 1A-12 Gs. is shown as P. K. (pot kharaba) and the remaining land in Survey No. 163-A and B are being cultivated by the tenants. So only because their names have disappeared from the Record of Rights for the period of 2 years, their legitimate right cannot be brushed aside, in view of the fact that the trial court which has considered all these aspects in the proper perspective has observed that the applicants have proved their tenancy, they are cultivating the suit lands continuously and their names were deleted only for a period of two years prior to 1-4-57 which is an attempt to dislodge the valuable rights of the tenants which were to accrue on 1. 4. 57. The trial Court has rightly observed that the fact finding authority in terminating tenancy after 1. 4. 57 is the A. L. T. and two years prior to 1. 4. 57 is the Special Tehsildar appointed for the purpose of disposing of the cases under section 32(1B) of the Amending Act 1948 and that the applicants were still in possession of the suit property even after their names were deleted. Therefore, the opponents have no case at all. It is also worthy to be seen that it is a well settled principle of law that in the matter of application of evidence and the credibility of witnesses, the opinion of the trial Court should not be lightly disturbed in appeal. It requires circumstances of exceptional character to justify reversal. The trial Judge sees, hears and questions witnesses and finding of fact arrived at by him on oral testimony should not be disturbed except in rare cases where some error susceptible of being dealt with only by arguments is disclosed such as omission to take account of circumstances of truth itself material to establish of the evidence or giving credence to testimony which turns out on more careful analysis to be substantially inconsistent with itself or any disputable fact. It is open to an appellate Court to differ from the Court which heard the evidence where it is manifest that the evidence accepted by such Court of first instance is contrary or is, so improbable or is to be incompletely or is for other sufficient reasons not worthy of acceptance. The appellate Court should not disturb findings of the facts of the trial Court unless evidence accepted is contradictory or so improbable or is to be incompletely or otherwise unworthy of acceptance. If this test is applied to the lower appellate courts judgment, then it is certainly to be viewed that the lower appellate court has failed in applying law of evidence in the instant case as can be seen by the hastily and hurried observations of the Sub Divisional Officer Viz. The learned Advocate for the Opponents stated that Shri Datar the present appellant in his deposition has admitted that the present appellants are cultivating the lands and that but for his say he has no other evidence to show that the opponents are not the tenants of the suit property. These observations made by the learned Member of M. R. T. are quoted as they are because the learned counsel appearing for the Petitioner criticised the approach adopted by the learned Member of M. R. T. by submitting that the learned Member of M. R. T. went on appreciating the evidence for dislodging the findings recorded by Sub Divisional Officer which, according to him, happens to be the last Court of facts. The learned Counsel for the Petitioner had criticised this approach adopted by the learned Member of M. R. T. , and, therefore, it was necessary for this Court to examine whether the learned Member of the M. R. T. was exercising the jurisdiction which vested in him in his revisional jurisdiction. It became necessary for this Court to examine the approach which was adopted by the learned Member of the M. R. T. which was heavily criticised by the Counsel appearing for the Petitioner for the purposes of justifying the case of the Petitioner for getting the writ of certiorari for correcting the error, as he thought, committed by the member of the M. R. T.