BHARART DAGADU GAVATE Vs. MAHADU BALA GAVATE

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the order dated 12th March, 1990 in Revision Application No. MRT-P/viii/1/87 (TNC. B. 179/87) by the member of Maharashtra Revenue Tribunal, Pune.

(2.) THE petitioner claims to be tenant in respect of the entire Land Bearing Gat No. 2162 admeasuring 16h. 26r at village Chakan, District Khed. The respondent is the real paternal uncle of the petitioner. The petitioners father was enjoying the said land as a tenant of Shankar Narayan Bhagat and Shri Daval Bhagat. Both the landlords had share in half portion of the said land. It is not in dispute that with regard to the land owned by Shri Shankar Narayan Bhagat, which was occupied by the petitioners father as a tenant, proceedings under section 32-G of the Bombay Tenancy and Agricultural Lands Act ("act" for brief) were commenced in which it was held that the petitioners father was tenant and he was declared as deemed purchaser. Thereafter, purchase price was also fixed and it was duly paid by the petitioners father. As a consequence of which, section 32-M certificate was issued in his favour. Those proceedings have culminated on 31st December, 1959. The present proceedings relate to the other half portion which was owned by Shri Dhaval Bhagat. The petitioner claims that even this land was occupied by the petitioners father as a tenant; whereas the respondent claims that the petitioners father was enjoying the said portion of the land, being the elder brother and was holding the same for and on behalf of the joint family of which the respondent was a member. It is relevant to note that since the whereabouts of Shri Daval Bhagat was not known, the Tenancy Authority did not commence the proceedings under section 32-G of the Act. However, the respondent filed application claiming that he was a tenant in respect of the portion owned by Shri Dhaval Bhagat and for declaration in that behalf and for passing consequential order. In these proceedings, the tenancy authority enquired into the matter and held that the petitioners father was the tenant even in respect of this portion of the land owned by Shri Dhaval Bhagat. This was challenged by the respondent before the Appellate Authority. The Appellate Authority remanded the matter to the Tenancy Authority to enquire, essentially: (1) As to whether the name of the petitioners father which appeared as protected tenant came to be deleted and (2) As to whether the petitioners father and respondent were staying together and (3) The subject land was cultivated by the petitioners father on behalf of the joint family. After remand, the tenancy authority analysed the entire materials on record produced by the respective parties and recorded a clear finding of fact that the petitioners father was the tenant in respect of the land in question which was owned by Shri Dhaval Bhagat. It is relevant to note that neither before the Tenancy Authority nor at any stage thereafter, the original owner Shri Dhaval Bhagat appeared and resisted the claim of the petitioners father, in respect of the land owned by him. The respondent carried the matter in appeal. The Appellate Authority once again confirmed the finding of fact recorded by the authority that the petitioners father was the tenant in respect of the subject land vide order dated 29th June, 1987. The respondent thereafter carried the matter in the Tribunal. The Maharashtra Revenue Tribunal after analysing the materials on record has not disturbed the findings of fact recorded by the two courts below that it is established from the record that the land was cultivated by the petitioners father as a tenant and that it was not of joint family of which the respondent was a member. The Tribunal has also recorded a clear finding that the respondent has not adduced evidence to show that the suit land was taken for the benefit of the joint family. Notwithstanding these findings, the Tribunal was pleased to set aside the order passed by the lower authorities and remanded the matter for further enquiry on the singular ground that the landlord was not served in the proceedings. In the circumstances, this petition takes exception to that remand order passed by the Tribunal.

(3.) THE main grievance of the petitioner is that on merits, the Tribunal has not disturbed the findings of fact recorded by the authorities below that the petitioners father was a tenant in respect of the said land. In such a case, there would be no question of remanding the matter for further enquiry on the stated ground that the landlord was not served in the 32-G proceedings. It is contended that assuming that the landlord has not been served in accordance with the requirement of the statutory provisions, but that grievance can be made only by the landlord. The learned Counsel for the respondent on the other hand supported the view taken by the Tribunal for remanding the case. In support of his submission, reliance has been placed on the decision reported in the case of (Madhav Kesun Khuspe v. Sundrabai Mugutrao Phadatare since deceased through heirs Krishna Dagdu Khuspe and others) reported in 1978 Mh. L. J. 289. Emphasis is placed on paras 9 and 10 of this decision to contend that if necessary formalities required under the Act are not complied with, the proceedings will have to be held as vitiated.