JAMATUL MUSLIMIN JAMA MASHID Vs. ALLIMIYA SHAIKH AHMED

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.) Learned counsel for the Petitioner has pointed out that because of law as laid down by the Full bench of this Court in Panpoi Dharmal Sansthan Dhotarkherda vs Bhagwant S/o Maroti Dhakulkar, 1989 MhLJ 710 Respondent no.1 could have applied under section 70 (b) of tenancy Act within six months of his alleged dispossession. That dispossession as claimed by him in Civil Suit was in the year 1985. The suit was later on withdrawn. The Appeal preferred by Respondent no.1 tenant in mutation matter was dismissed on 31.1.87. Application under section 70 (b) has not been moved within six months even from said date. It is therefore, urged that initial application by which cognizance has been taken by Tahsildar is itself barred by limitation when the said provisions of section 70 (b) read with section 71 are appreciation in the background of the provisions of Mamlatdar Court's Act and above referred Full bench.