SHEVANTABAI MURLIDHAR SHINDE Vs. TRIAMBAKRAO N RAJEBAHADUR

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Maharashtra Revenue Tribunal, Bombay dated 29 12 1988 in Revision Application No.TEN/A/64 of 1988.

(2.) THE subject matter of the land is part of Survey No.183 of village Mhasrul , Taluka and District Nasik . The Petitioner is the heir of original tenant Murlidhar Shinde . The Respondent is the landlord in respect of the said land. It is not in dispute that proceedings between the landlord and tenant for purchase of the said land (total 6 Acres 5 Gunthas ) under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the said Act) were commenced. In the said proceedings the Tenancy Authority excluded the area under mango trees which is now renumbered has Survey No.183/2 (area about 2 Acres 20 gunthas ) which is the subject matter of this proceedings. The authorities have taken into account the fact that the said land bearing Survey No.183/2 was PAD land (fallow land) and there were standing mango trees on the said land. It was found that the Petitioner was not cultivating the said survey No.183/2. In the circumstances, the Tenancy Authority continued the 32G proceedings and gave declaration that the tenant has become deemed purchaser in respect of Survey No.183/1 admeasuring 3 Acres 23 gunthas out of total 6 Acres 5 gunthas . It is not in dispute that the parties have acted on that declaration and in fact the Petitioner has paid the said purchase price relating to Survey No.183/1. While fixing the price the Tenancy Authority excluded the land which is presently the subject matter in this proceeding, being Survey No.183/2. It is not in dispute that the decision of the Tenancy Authority declaring the Petitioner as deemed purchaser is confined only to survey no.183/1. The Petitioner however filed application under Section 84 (C) of the Act for possession of the suit land bearing Survey No.183/2 on the premise that even the said land formed part of Survey No.183; and the Petitioner's predecessor was occupying the same before the tillers' day, as a consequence of which she had become deemed purchaser thereof. It was further averred that the Respondent landlord had no concern with the said land and was in unauthorized possession thereof. The Sub Divisional Officer enquired into the matter and observed thus: "It is clearly seen from the order passed in the proceedings u/s 32G which clearly mentions that the area under Mango trees has been excluded from the 32G proceedings. It can also be revealed that the tenancy can arise only out of the cultivation of land but when there is an area with mango trees, there is no question of cultivating the same land by a tenant or any other person. Thirdly, a very important point is letter addressed by the then A.L.T. in the year 1968 to the talathi of the said village which clearly mentions that the price excluding the area under mango trees and the letter very specifically says that the area of 2 Acres and 20 gunthas should be recorded in the name of Trimbak Rajbaddar and hence at this stage the applicant cannot claim that the opponent is in unlawful possession of the area of mango trees to the extent of 2 Acres and 20 gunthas and hence the following order". Accordingly, the Sub Divisional Officer was pleased to dismiss the said application under Section 84 C, being misconceived. The Petitioner however carried the matter in revision before the Tribunal. The revisional authority has examined all the aspects of the matter and eventually dismissed the revision application of the Petitioner. This order is the subject matter of challenge in the present writ petition.

(3.) AFTER having gone through the records with the assistance of Mr.Sawant I find that there is no substance in this writ petition. The main grievance of Mr.Sawant is that the Petitioner's predecessor was in possession of the land bearing Survey No.183 as a whole as tenant. He contends that merely because no declaration was made in favour of the tenant in respect of Survey No.183/2, which is obviously part of the Survey no.183 as it stood earlier, therefore, it will have to be presumed that the tenant became deemed purchaser even in respect of the suit land (S.No.183/2) and was entitled for possession thereof. He submits that in that case the Respondent will have no right or title to the suit land and, therefore, an unauthorized occupant. This submission, to my mind, is devoid of merits. Both the authorities below have rightly taken into account the fact that in the earlier proceedings under Section 32G, the Tenancy Authorities carefully examined the claim of the parties and have found that the Petitioner's predecessor was entitled to be declared deemed purchaser only with regard to the portion of Survey No.183, which has been now renumbered as Survey No.183/1. The Tenancy authorities have also taken into account the fact that the present Survey No.183/2 is concerned, the same was PAD LAND (fallow land) on which mango trees were standing and that there was no record that the tenant was cultivating the said land so as to claim that he was tenant even in respect of the said land. Accordingly, the relief in the earlier 32G proceedings was confined to land now bearing Survey No.183/1 and purchase price was fixed only with regard to that land. The Petitioner has therefore become purchaser only in respect of Survey No.183/1 which admeasures 3 Acres and 23 gunthas . The said decision on the earlier proceedings has undoubtedly become final. If this be so, no fault can be found with the finding and conclusion recorded by the two authorities below that the Petitioner was not entitled to claim tenancy rights in respect of suit land bearing survey no.183/2. As a consequence, it was held that the Petitioner was not entitled to get possession of land bearing Survey No.183/2, for it was not possible to hold that the Respondent was an unauthorized occupant in the said land inasmuch as the Respondent continued to remain the owner thereof.