RAMCHANDRA MANGALYA KADU Vs. MADHUKAR CHAMAR CHURI

JUDGEMENT

(1.) THIS writ petition under Article 227 takes exception to the judgment and order passed by the Maharashtra Revenue Tribunal at Bombay dated October 13, 1989, in Case No. Ten. A. 196 of 1989. Briefly stated the land in question is bearing Survey No. 339 Hissa No. 1, admeasuring 1 acre 8 gunthas and 12 annas situate at Village Badapokharan in Dahanu Taluka of District Thane. This land originally belonged to one Keshav Gokulya Raut, since deceased. The said Keshav Raut sold the land in question in favour of the petitioner herein by registered sale deed on 24-12-1965. It is the case of the petitioner that at the time of execution of the sale deed the petitioner was put in possession of the suit land. However, the respondent No. 1 who claims that he was tenant in respect of the suit land since prior to 1957, for the first time, on September 12, 1975 moved an application purported to be under section 84-C of the Bombay Tenancy and Agricultural Lands Act, 1948 contending that the sale deed in favour of the petitioner is invalid and that he should be put back in possession of the disputed land. That application was allowed by the Tahsildar by order dated March 17, 1976. It is not in dispute that thereafter the possession of land was taken over by the authorities from the petitioner and made over to the respondent No. 1 on 1-6-1976 on the basis of the above order. The petitioner, however, challenged the order passed by the Tahsildar before the Appellate Authority, namely, the Sub-Divisional Officer being Tenancy Appeal No. 11/76. That appeal was dismissed by the Appellate Authority on 21-8-1977. The petitioner carried the matter in revision before the Maharashtra Revenue Tribunal being Revision No. 72 of 1978. The Tribunal after examining the rival contentions remanded the matter for further investigation to the file of the Tahsildar, by order dated 10-7-1979. After remand, the Tahsildar on application of the petitioner by order dated 28-11-1980, directed restoration of possession of the land pending inquiry to the petitioner. This order was, however, set aside on December 26, 1981 in the revision filed by the father of respondent No. 2. The Maharashtra Revenue Tribunal rejected the revision filed by the petitioner by order dated September 21, 1982 and ordered that the enquiry under section 84-C of the Act to proceed. Accordingly, the Tahsildar Dahanu proceeded with the enquiry under section 84-C and by his order dated December 14, 1988 held that in view of M. R. T. order dated July 10, 1979 and to meet the ends of justice enquiry under section 84-C should be proceeded further. The respondent No. 1 filed Tenancy Revision No. 2 of 1989 before the Sub-Divisional Officer, who, by his order dated June 17, 1989, dismissed that revision and affirmed the Tahsildars view that further enquiry is necessary. In view of the observations made by the Appellate Authority the respondent No. 1 filed revision application before the Maharashtra Revenue Tribunal being Tenancy A. 196 of 1989. In this revision the Tribunal examined the legal question as to whether proceedings under section 84-C could be invoked in the fact situation of the present case. The Tribunal has positively held that remedy under section 84-C of the Act was unavailable. This observations of the Tribunal, though adverse to the respondent No. 1 in the revision application filed by him, has become final. The Tribunal did not stop at that but took the view that in the fact situation of the present case, the appropriate remedy would be under section 32 (1-B) of the Act. Therefore, the Tribunal directed the authorities to initiate proceedings under section 32 (1-B) between the parties in respect of the suit land. Tribunal passed the following order:

(2.) THE petitioner has challenged the abovesaid Tribunals order to the limited extent that it observes that the proceedings under section 32 (1-B) of the Act should be initiated in respect of the suit lands between the parties. It is also contended on behalf of the petitioner that the observations made by the Tribunal with reference to continuation of proceedings under section 84-C may be inappropriate, but at the same time the conclusion reached by the Tribunal that remedy under section 84-C was unavailable is correct in law. It is contended that as the conclusion reached by the Tribunal with regard to the unavailability of proceedings under section 84-C has not been challenged by the respondent No. 1, that question need not detain this Court. It is, however, submitted that even if this Court were to examine that question, that conclusion reached by the Tribunal will have to be upheld in view of the statutory provisions as also on the principle enunciated by the Apex Court in the case of (Mohamad Kavi Mohamed Amin v. Fatmabai Ibrahim) reported in 1997 (6) Supreme Court Cases 71. It is argued that in the present case, admittedly, the application under section 84-C has been filed almost after ten years from the date of the alleged dis-possession. Besides, contends the learned Counsel for the petitioner that, having regard to the scheme of the provisions of the Act, limitation for filing application under section 84-C was six months from the date of dispossession; and the present application having been filed much beyond the stipulated period, the same was not maintainable in law. In so far as the observation of the Tribunal that the case was governed by the provisions of section 32 (1-B) of the Act is concerned, learned Counsel contends that on the plain language of section 32 (1-B) that remedy could be available only when the tenant who was in possession on the appointed day i. e. 15-6-1955, and, who on account of his being dispossessed before 1-4-1957, otherwise than in the manner and by order of the Tahsildar as provided under section 29, would get protection of that provision. Whereas, in the present case, going by the case made out by the respondents-they are allegedly dispossessed when the petitioner took over possession of the suit land on the date of execution of the sale deed on 24-12-1965, which is outside the relevant period of that provision. In the circumstances, it is contended that, neither remedy under section 84-C of the Act as instituted by the respondent No. 1, nor the remedy under section 32 (1-B) of the Act as observed by the Tribunal, would be available in law in the present case.

(3.) ON the other hand Mr. Karlekar submits that the respondent No. 1 was in possession of the suit land on the tillers day i. e. 1-4-1957 and, on account of which, he has become deemed purchaser thereof. He submits that the statutory right which was enured in his favour cannot be whittled down; and, in any case, the petitioner cannot be said to have derived valid title in respect of the suit land on the basis of sale deed executed with the erstwhile owner who ceased to be the owner on and from 1-4-1957 by operation of law. He contends that, in such a situation, remedy under section 84-C was the appropriate remedy and the respondents ought to be allowed to pursue the same against the petitioner. He has placed reliance on the decision of this Court reported in 2000 (4) Bom. C. R. 366 : 2000 (3) All. M. R. 281 in the case of (L. J. Kriplani since deceased by his legal heirs v. Manik Aditwar Patil and others) to buttress the above contention. He submits that, in any case, the respondent No. 1 can always take recourse to remedy under section 84 of the Act; and if that remedy was available to the respondent No. 1, the Court would permit the respondent No. 1 to convert the present application, as filed by the respondent No. 1, as having been filed under section 84 of the Act. He further contends that the respondent No. 1 has already deposited the amount determined by the tenancy authority in terms of the order passed under section 84-C of the Act and for that reason also he should be declared to have become deemed purchaser of the said land, which declaration would relate back to tillers day i. e. 1-4-1957. In the circumstances he submits that this Court ought not to interfere with the order as passed by the Tribunal.