JAMALUDDIN ABDULA MUKADAM Vs. ALLIMIYA SHAIKH AHMED BANGI

JUDGEMENT

(1.) THE Petition was heard earlier on 19.11.2012 and thereafter today. After hearing respective Counsel as this Court found that the S.D.O-. statutory authority expected to decide the Appeal as per provisions of section 74 of Bombay Tenancy and Agricultural Act, 1948 (Hereinafter referred to as Tenancy Act) has failed to appreciate the rival contentions and consideration therein is cryptic. In view of this finding which is reached after hearing, the facts and rival contentions are only briefly mentioned below for the purposes of record.

(2.) THE Petitioners claim that suit land i.e. survey No.85/1 admeasuring 0.34 Gunthas of village Mandivali Taluka District Sindhudurg in Taluka Dapoli District Ratnagiri has been gifted to them by its owner on 13.9.1985. In terms of that gift mutation entry at serial No.11 was taken and its name was recorded on said lands. Present Respondent no.1 claiming to be a tenant challenged that mutation entry in Appeal under section 247 of Maharashtra Land Revenue Code before the S.D.O. Dapoli. The S.D.O. Dapoli found that claim of Respondent no.1 as tenant was not substantiated and in any case was not relevant as there was no adjudication under section 70 (b) of Tenancy Act. His Appeal was therefore rejected. The said Respondents thereafter on 23.11.1987 filed an application under section 70b of Tenancy Act before the Tahsildar. The Tahsildar has allowed that application on 29.6.1991 and in those proceedings present Petitioners as also the original owner were parties. Rival contentions, documents produced have been appreciated and then a finding in favour of Respondent no.1 has been returned. This was questioned by the Petitioner in Appeal before the S.D.O and their Appeal has been dismissed on 16.11.1991. The said Judgment of S.D.O was further questioned by Petitioners in a Revision under section 76 of Tenancy Act before the M.R.T. That Revision has been dismissed on 2.12.1994.

(3.) IN the alternative, without prejudice it is urged that being the First Appellate Authority-the SDO was duty bound to atleast refer to the objections raised before him by present Petitioners. Those objections are not even mentioned and mechanically order by Tahsildar has been upheld. This was further questioned in Revision before the M.R.T.and in Revision specifically the aspect of limitation has been raised in grounds 9 to 11. The Revisional Authority has also overlooked that aspect. The learned counsel therefore submits that the order passed by the Appellate authority as also the Revisional authority shows total non application of mind and as there is failure to exercise jurisdiction, the same need to be quashed and set aside. Attention is invited to order dated 8.4.1995 passed by this Court while admitting the Writ Petition to attempt to show how prima facie necessary findings have been reached and possession of the Petitioner has been protected.