GAJANAN VASANT VIJJAYANKAR Vs. VALUBAI BAPU GOVINDHI

JUDGEMENT

(1.) This petition under Article 227 of the consitution of India challenges an order made by the maharashtra Revenue Tribunal by which the tribunal held that the application filed by the petitioners and Respondents numbers 2 and 3 under section (84?) (Bombay Act No. LXVII of 1948) (hereinafter for the sake of brevity referred to as "the said Act"), was not maintainable.

(2.) The petitioners and Respondents Nos.2 and 3 are owners of half portion of a plot of land bearing Revision survey Nos. 91 and 92 situate in Kagal Taluka in the District of Kolhapur. It will be convenient to refer hereinafter to the petitioners and Respondents numbers 2 and 3 as "the landords" In 1953 the landlord leased the said plot of land to one shankar Krishna Bondre whose heirs and legal representatives are Respondents Nos.5 (a), 5 (c) and 5 (d) . It is not disputed that the said lease was for the purpose of cultivation of sugar cane. By a writing dated october 24, 1969, the said Bondre created a sub-lease in respect of the said plot of land in favour of the first Respondent Valubai for a period of ten years for a consideration of Rs. 4,000/- It is the case of the landlords that on coming to learn about the sub-lease they gave a notice of three months terminating the said lease in favour of the said Bondre. In the said notice the ground for termination was mentioned as the creation of the said sublease In favour of the First Respondent without the consent of the landlords. This notice was addressed both to the said Bondre as also to the first Respondent. Thereafter the landlords filed an application under Sec.84 of the said Act against the first Respondent. The said application was numbered as Tenancy case No.9 of 1971 and was heard by the Assistant collector, Karvir Division, Kolhapur. The said Assistant collector sent the papers to the Tenancy Aval Karkun, Kagal, for recording evidence, both oral and documentary, which the said Aval Karkun did and forwarded his report to the said Assistant Collector. Before the said Assitant collector it was contended by the first Respondent that she was in possession of the plot of land on the basis of the said writing dated october 24, 1969 and, therefore, it could not be said that her possession was illegal or invalid. It was further urged that the legality of the First Respondent's tenancy was yet to be decided and, therefore, the landlords should seek redress under sections 14 and 29 of the said Act. The said Assistant collector held that the said writing dated October 24, 1969 was executed without the consent of the landlord, and, therefore, the possession of the First Respondent was a wrongful possession and that of a trespasser, and he allowed the said application and passed an order of summary eviction from the said land against the first Respondent. The first Respondent thereupon approached the Maharashtra Revenue Tribunal in revision. Before the Tribunal four contentions were taken on behalf of the First Respondent, namely (1) the application under section 84 was not maintainable and the only remedy available to the landlords was to proceed under sub-section (2) of sec. 29 (2) the said Bondre was a necessary party to the proceedings. (3) as the said plot of land was leased to the said Bondre for the purpose of cultivation of sugarcane, section 27 of the said Act was not attracted, and, therefore, the landlords could not file an application under section 84 on the ground that the said plot of land had been sublet by the said Bondre to the first Respondent, and (4) the said Bondre had become a deemed purchaser on April 1, 1957, and the question of unlawful subletting by the said Bondre, therefore, did not arise. The Tribunal held that by reason of the provisions of section 43A of the said Act sec. 27 did not apply to the plot of land in question inasumuch as the said plot was leased for the purpose of cultivation of sugar-cane and therefore, the application filed by the landlords under section 84 was not maintainable and that the proper remedy for the landlords was to proceed under section 29 (2) of the said Act. It is against this order of the Tribunal that the present petition under Article 227 of the constitution has been filed by the petitioners.

(3.) The other co-owners not having joined the petitioner in filing this petition, they have been made Respondents Nos.2 and 3 to the petition. The original fourth Respondent was a member of the Maharashtra Revenue Tribunal whose name on an application by mr.Abhyankar, learned advocated for the petitioners has been delected from the record. This petition reached hearing before pendse, j., on October 23, 1980. At the hearing of this petition the attention of the learned judge was drawn to two unreported decision of this High court, both being by learned single judges, the first being the judgment of judges, the first being the judgment of Vaidya, J., delivered on December 11, 1975 in spl. Civil Appln. No. 1782 of 1972 with spl. Civil Appln No.345 pf 1972 * -Hiralal Vithalads Gurjarathi v. Kondaji Keru Girme, in which vaidays J., held that section 27 of the said Act did not apply to lands which had been leased for cultivation of sugar-cane. The second decision is that of Apte, J., in spl. Civil Appln. No.5076 of 1976 with spl. Civil No. 5079 of 1976, Hari Rau pawar V. Jijabai, decided on july 20, 1977, in which the learned Judge held that section 27 applied to lands leased for cultivation of sugar-cane. In view of this conflict, pendse, J., by his order dated october, 23, 1980 referred the matter to a Division Bench. While this matter was pending, the petitioners applied to the court to bring on record the heirs and legal representatives of the said Bondre who had in the meantime died Bondre,s heirs and legal repesentativeswere thereafter added as Respondents Nos.5 (5), (c) and 5 (d) to the petition.