ANUSAYABAI GANPATI GAIKWAD Vs. BABA TATYA NIKAM

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the constitution of India, takes exception to the judgment and order passed by the Maharashtra Revenue Tribunal, Kolhapur dated 23/07/1987 in revision Application No. MRT SS/9/1982.

(2.) THE suit lands are situated at village Nagewadi, Taluka Khanapur, district Sangli. In all 4 lands are subject matter of the present petition, viz. Survey Nos. 36/1c, 97/7, 291/6 and 257/4 respectively. These lands were owned by one Bhau Aba Nikam who died on 17/04/1953 leaving behind his wife Srnt. Kasabai and daughter Anusayabai. It is common ground that the respondent No. 1 (Baba Tatya Nikam) is the cousin brother of Anusayabai. It is also not in dispute that there is no written Kabulayat or rent receipt executed in favour of the said Baba Tatya Nikam in respect of the suit land. However, the said Baba Tatya Nikam, predecessor of the present respondents claimed that he was tenant in respect of the suit land on the basis of certain entries in the revenue records. There is nothing on record to indicate that the original respondent No. 1 had at any point of time paid any rent revenue with regard to the suit land. The tenancy authority proceeded on the assumption that the original respondent No. 1 was the tenant before the tiller's day in respect of the suit land and, therefore, initiated proceedings under section 32g of the Bombay tenancy and Agricultural Lands Act, 1948 (hereinafter referred to Tenancy Act ). In that proceedings statement of Anusayabai appears to have been recorded in which she has deposed that Baba Tatya Nikam was her cousin brother and was occupying the suit lands prior to tiller's day. It is relevant to note that anusayabai gave another statement before the Authority on 16-11-1963 that she had never stated in her earlier statement that respondent No. 1 was tenant in respect of the suit land. Besides, when the statements of Anusayabai were recorded by the authorities, Kasabai widow of original landlord Bhau Aba Nikam, was still alive. It is not in dispute that no notice was given to the said kasabai regarding the proceedings, though in ordinary course she had become landlady being widow of original landlord -Bhau Aba Nikam. Kasabai however, died much after the statement of Anusayabai was recorded on 25-10-1962. Suffice it to point out that Tenancy Authority by its order dated 22-3-1963 held that Baba Tatya Nikam, original respondent no. 1 herein, was tenant prior to tiller's day only in respect of land bearing Survey No. 36/1-C referred to above. This decision was challenged by Anusayabai before the appellate authority by way of Appeal No. 23 of 1965. Even the original respondent No. 1 tenant filed Appeal against the same decision, being dissatisfied by the finding returned by the tenancy authority that he was not tenant in respect of other lands prior to the tiller's day, by way of Appeal No. 328 of 1964. Both the appeals were heard and decided together by the appellate authority vide judgment and order dated 4-7-1967. The appellate authority allowed the appeal preferred by Anusayabai and reversed the conclusion reached by the first authority that the original respondent No. 1 was tenant in respect of the land bearing Survey No. 36/1-C, whereas the appeal preferred by the respondent No. 1 came to be dismissed. The Appellate authority found that the original respondent No. 1 may get himself declared as tenant by taking recourse to proceedings as permissible in law. The respondent no. 1 did not take recourse to that measure but, instead, challenged the decision of the appellate authority by way of revision application before the Maharashtra Revenue Tribunal. The Revisional Authority by its order dated 25-11-1968 partly allowed the revision observing that instead of requiring the tenant to take recourse to remedy for declaring himself as a tenant prior to tiller's day, the authority may make reference to the tahasildar for deciding tha. t issue. Pursuant to the order of Tribunal the authority made reference to the Tahasildar which was numbered as Tenancy Case No. 12 of 1974. The Tahasildar held that, the respondent No. 1 was tenant in respect of land bearing Survey No. 36/1-C only prior to 1-4-1957, whereas he came in possession of the remaining land after the tiller's day. The Tahasildar accordingly decided the case on 17-10-1977. Against this decision the respondent No. 1 did not take the matter in appeal in spite of the finding returned against him with regard to other lands except Survey No. 36/1-C. Whereas, the present petitioners - heirs of said Anusayabai preferred appeal before the Appellate Authority taking exception to the opinion expressed by the Tahasildar relating to Survey No. 36/1-C. It is relevant to note that while the proceedings were pending before the tenancy authority, the said Anusayabai expired and the matter was contested by the present petitioners. Be that as it may, the appeal preferred by the petitioners was allowed by the appellate authority. The appellate authority referred to all the relevant materials and essentially took the view that the original respondent No. 1, being the cousin brother of Anusayabai, could not have claimed to have become a deemed tenant within the meaning of section 4 of the Tenancy Act. The appellate authority has further held that the claim set up by the respondent No. 1 that he was contractual tenant pursuant to the oral lease in his favour was not established from the record. On that finding of fact the Appellate court proceeded to allow the appeal preferred by the petitioners. It would be apposite to advert to the relevant discussion of the Appellate Court which reads thus :-

(3.) ACCORDING to the petitioners the Tribunal could not have reappreciated the materials on record to interfere with the finding of fact in exerise of its revisional jurisdiction. It is further contended that the tribunal having accepted the fact that the respondent No. 1 was the cousin brother of deceased Anusayabai, through whom the petitioners inherited the suit lands after the demise of their grand mother Kasabai, it was not open to the Tribunal to still conclude that respondent No. 1 was deemed tenant in respect of the suit land, having regard to bar contained in section 4 of the Act. It is further contended that the case as set up by the respondent No. 1 that he was contractual tenant in respect of the suit land has not been substantiated and it has been so found by the final fact finding Court. It is contended that when the Tribunal has adverted to the fact that there is no rent receipt or lease deed or crop share paid by the respondent No. 1 then, it is incomprehensible as to how respondent No. 1 can be said to have established the fact that he was contractual tenant in respect of the suit land. It is further submitted that Tribunal could not have discarded the subsequent statement of Anusayabai dated 16-11-1963. It was also submitted that when the previous statement of Anusayabai was recorded on 25-10-1962, at the relevant time, Kasabai who had succeeded after the death of her husband original owner Baba Aba Nikam, was alive and, therefore, Anusayabai was not competent to depose on behalf of the landlady. Moreover, it is also demonstrated from the record that no notice or intimation was given to the said Kasabai relating to the earlier proceedings. In the circumstances, it is contended that Tribunal has clearly exceeded its jurisdiction in deciding the matter in favour of the respondent No. 1 that too with regard to other suit lands when the respondent No. 1 had not even challenged the decision of the Tenancy authority in that behalf.