SANGANBASSAPPA CHANNAPPA MANIKSHETTI TRUST Vs. VISHWANATH SHIVLINGAPPA BIRAJDAR IRANAPPA SHIVLINGAPPA BIRAJDAR SMT

JUDGEMENT

(1.) THIS writ petition takes exception to the order passed by the Maharashtra Revenue Tribunal, Pune dated June 30, 1986 in Revision No. MRT. SH. II. 1/86 (TEN 8 /36/85) Pune.

(2.) BRIEFLY stated, the land bearing Gat Nos. 830, 824 and 807 situated at village Kini, Taluka Akkalkot, District Solapur was owned by Sangabassappa Manikshetty. Some time in the year 1941, the said Sanmgabassappa Manikshetty by his Will created a public trust in respect of the subject property and also provided maintenance to her widow Nillawabai from the income of the said land of the trust. The said Sangabassappa Manikshetty however, leased out the suit land to one Shivlingappa viz. father of the Respondent Nos. 1 and 2 and husband of Respondent No. 3 herein in the year 1950-51. It has come on record that in the Village Record mutation entry has been mae on 15-2-1954 to indicate that the subject property is a trust property. The said Sangabassappa Manikshetty however, expired on 3-11-1995, leaving behind widow Nillawabai. Under the Will executed by him, Nillawabai was to get maintenance. The parties, however, have proceeded on the premise that Nillawabai became the landlady after the demise of the husband Sangabassappa Manikshetty. The matter has been examined in that perspective. Be that as it may, it is Respondents' case that the said Nillawabai dispossessed Shivlingappa, their predecessor in title from the suit lands in the year 1956 which is before the tiller's day i. e. 1-4-1957. In the circumstances, Shivlingappa had filed application under Section 29 (i) for restoration of possession of the suit land in which an exparte order was passed in favour of said Shivlingappa directing handing over possession of the suit lands to him. Against the said decision Nillawabai had filed an appeal in which both Nillawabai and Shivlingappa entered into compromise whereunder it was agreed between the parties that Nillawabai would retain possession of the suit land. This compromise has been recorded on 29-6-1959. However, soon thereafter Nillawabai expired on 15-7-1967. The said Shivlingappa predecessor of the Respondents filed Tenancy Case under Section 32 1b of the Act before the Tahasildar for restoration of possession. This application is undoubtedly filed against the predecessor of the trustees which was created by deceased Sangabassappa Manikshetti in respect of the suit land. The Tahasildar after adjudication of the matter by order dated 31-10-1973, allowed the application filed by the said Shivlingappa and ordered restoration of possession of the suit lands. Pursuant to this order, the said Shivlingappa is stated to have been put in possession of the suit lands, as is seen from the mutation entry. However, being dissatisfied by the above said order, the trustees preferred an appeal before the S. D. O. Solapur, which appeal was however dismissed on 5-6-1974. Consequently the trustees took up the matter in revision before the M. R. T. , Pune bearing No. 290/1974. The Revisional authority allowed the said revision preferred by the trustees and was pleased to quash the proceedings initiated by Shivlingappa under Section 32 1b of the Act. It is not in dispute that this order passed by the Tribunal, negating the claim of restoration of possession set up by Shivlingappa, has attained finality, as the same has gone unchallenged. The predecessor of the Respondent in that sense suffered the said order during his life time. The said Shivlingappa died on 12-9-1975. The record indicates that Tahasildar fixed rent in respect of the suit land some time on 19-12-1975. Taking clue from this development, the Respondent Nos. 1 and 2 filed tenancy Case No. 6 of 1980 under Section 70 (b) of the Act in the year 1980 before the Additional Tahasildar, Akkalkot asserting that they are tenants. The application does not specifically set out as to whether the tenancy is claimed prior to the tiller's day or on the basis of possession obtained by Shivlingappa, their predecessor, in the year 1973. Be that as it may, the said application was allowed by the Tahasildar on 16-9-1980. The Tahasildar held that the Respondents were tenants in respect of the suit lands. Against this decision, the trustees preferred an appeal before the S. D. O. Solapur, being Tenancy Appeal No. 14 of 1981. The said appeal was allowed by the S. D. O. Solapur by judgment and order dated 5-6-1982. In this decision the S. D. O. has opined that the amount received by the trustees from the Respondents was not towards rent but as mesne profits. The matter was carried in appeal by the Respondents. The appellate authority by its order however, remanded the case for fresh enquiry in terms of the observations made in the said order dated 5-6-1982. Accordingly, the matter was reexamined by the Tahasildar. The Tahasildar after reexamining the rival case, by order dated 12-9-1983 has held that the Respondents were not cultivating the lands personally as they were working in Panchayat Samiti as peons. The Tahasildar further held that they got the lands cultivated through the labourers. In the circumstances, the Tahasildar held that the Respondents were not tenants and were not entitled for declaration in that behalf under Section 70 (b) of the Act. Against this decision the Respondents carried the matter in appeal being Tenancy Case No. 50 of 1983 before the S. D. O. However, it is relevant to point out that the Petitioners are relying on possession receipt by Talathi Kini mentioning that Gat Nos. 507, 830 and 824 have been taken over and handed over to the trustees. (Kabje pavati is also part of record ). The appeal preferred by the Respondent was however allowed by the Assistant Collector, Solapur Division, Solapur by order dated dated October 31, 1984. The Appellate authority placed reliance on the mutation entry in respect of the suit lands pertaining to the year 1973 indicating that the possession of the suit land was handed over to the tenants. The Appellate Court has also adverted to the receipt produced by the tenants for the year 1976-77 that the trustees accepted the amount by way of rent of the suit land. The Appellate Court further took into account that the trust has not obtained any certificate under Section 88b of the Act, and, therefore, rights of tenant which had crystallized cannot be taken away. Consistent with these observations, the Appellate authority allowed the appeal and declared that the Respondents were tenants in the suit land. The Petitioners being dissatisfied by the said order, filed revision application before the M. R. T. Pune. The Tribunal has more or less toed the same line of reasoning given by the appellate authority for dismissing the revision preferred by the Petitioners. It is against this decision the present writ petition under Article 227 has been filed by the Petitioners.

(3.) THE first contention raised is that the original tenant having entered into compromise with Nillawabai, it was not open for his successors to assert that they still continued to be tenants in respect of the suit lands claiming through the original tenant. It is contended that undisputedly the original tenant Shivlingappa was dispossessed prior to the tiller's day and that in the proceedings for restoration of possession the said Shivlingappa and Nillawabai, who was accepted to be landlady, entered into a compromise, and that compromise having gone unchallenged by him or for that matter by his successors, would be binding on them and denude the Respondents to claim that the original tenant was in possession of the suit lands on the tiller's day. It is further contended that in any case the original tenant had taken recourse to the proceedings under Section 32 1b of the Act and which proceedings were evidentially rejected by the revisional authority and that order has become final. It is therefore, contended that the relief for restoration of possession at the instance of the original tenant having been rejected and having attained finality, the Respondents who are the successors of the original tenant cannot assert tenancy rights in respect of the suit land. It is contended that mere factum of possession would be of no avail to the Respondents, assuming the same is sought to be established on the basis of mutation entry. The learned Counsel has further contended that the receipts issued by the trust by itself cannot create tenancy in favour of the Respondents. It is contended that in the application filed before the authorities below, the Respondents have come with a positive plea that they were claiming tenancy through their predecessor Shivlingallpa. In the circumstances, according to the petitioners, the present proceedings were nothing but abuse of process especially when the earlier proceedings had attained finality and were binding on the Respondents who were successors in interest or the original tenant.