NIVRUTTI GANGARAM PAWAR Vs. DINKAR MARUTI JADHAV

JUDGEMENT

(1.) THIS is yet another matter where the petty and small landlord has been waiting for the fruits of the statutory protection given to such landlords since 1962. The matter has been swinging like pendulum from one authority to another since 1964. Briefly stated, the predecessor of the Petitioners was the owner is respect of suit lands Survy No. 619/2 and 619/3, admeasuring 1 acre 5 gunthas and 1 acre 4 gunthas respectively, situated at Village Karadi, Taluka Khatau, District Satara. The said Nivrutti Gangaram Pawar predecessors of the Petitioner had filed an application for issuance of certificate under Section 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act ). The appropriate authority allowed the said application, presumably on January 27, 1961. On the basis of that decision, Certificate under Section 88-C came to be issued in favour of Nivrutti Gangaram Pawar on 23rd June 1964. The consequence of issuance of such a Certificate is that the provisions of Section 32 to 32r of the Act became inapplicable to the suit land. The quintessence for issuance of such a Certificate is a finding recorded by the authority that the holding of Nivrutti Pawar does not exceed economic holding, and his total income including the rent from the agricultural lands does not exceed Rs. 1,500/- per year. Since Nivrutti Pawar was a certificated landlord, he had the privilege of terminating the tenancy in respect of the Suit lands for personal cultivation by virtue of Section 33-B of the Act. In exercise of that statutory remedy, said Nivrutti Pawar issued notice on 24th August, 1964 to the Respondent tenant. At this stage, it is necessary to mention that initially said Nivrutti Pawar terminated tenancy in respect of seven different lands, out of which, proceedings as against another tenant Bhiku Nimbalkar attained finality and the landlord succeeded in obtaining possession of the land admeasuring 1 acre 5 gunthas. In so far as Respondent is concerned, the said Nivrutti Pawar initiated action against the Respondent by terminating tenancy in respect of five different lands. However, ultimately, the proceedings have been confined only to two lands referred to above. I shall make reference to this aspect in detail a little latter. As mentioned earlier, on issuance of Section 88c certificated on 23rd June 1964, immediately within the statutory period, Petitioners predecessor Nivrutti Pawar issued notice under Section 33-B on 24th August 1964 and soon thereafter, within the statutory period, filed application under Section 33-B read with Section 29 before the Tenancy Authority for possession of the suit lands on 21st September 1964. It is necessary to note that in so far as the order passed on application for issuance of certificate under Section 88-C of the Act is concerned, that was allowed to attain finality and is not the subject matter of challenge in the present Writ Petition. In fact the Respondent did attempt to challenge the validity of the Certificate in proceedings under Section 33-B, from which, the present Petition emanates, but that challenge has been repelled finally by the Maharashtra Revenue Tribunal in its order dated 30th November 1983, whereafter, the said aspect has not been agitated by the Respondent before the authorities below on remand of the case for retrial.

(2.) AS mentioned earlier, the present Petition arises out of application filed by Nivrutti Pawar for possession of the suit lands under Section 33-B read with Section 29 of the Act. The said application was allowed by the Tahsildar on 30th June 1996 in relation to the suit lands, holding that the predecessor of the Petitioners established bonafide requirement for personal cultivation. Against the said decision, matter was carried in appeal, which was allowed by the Appellate Authority. However, the Petitioners predecessor eventually took up the matter up to this Court by way of Special Civil Application No. 969 of 1977 and this Court by Judgment and Order dated November 27, 1980 allowed the said Writ Petition, but remanded the case for further enquiry to the Appellate Authority. From the decision of this Court, it appears that this Court has clearly opined in paragraph 2, that the application as filed by Nivrutti Pawar was within the stipulated period of time. However, the controversy before this Court was whether the decision of the Appellate Court recording the fact that notice issued by the Petitioners predecessor terminating the tenancy on 24th August 1964 was not served on the tenant. While examining that aspect, this Court clearly found that there was clinching record to establish the fact that the said notice was duly served on the tenant. However, this Court remanded the matter to the Appellate Court to examine the other issues with reference to the provisions of Section 33-B namely, the issue of bonafide requirement and the question of holding in the context of Section 33-B (5) (b) of the Act. After the above said order, the appeal as originally filed by the Respondent tenant, stood restored before the Appellate Authority, being Tenancy Appeal No. 27 of 1966. When that Appeal was pending, the Petitioners predecessor Nivrutti Pawar died on 4th January 1981. After the death of Nivrutti Pawar, an application was preferred before the Appellate Authority which is at page 30 of the paper-book, clearly asserting that all the Petitioners were the heirs and successors in interest of the estate of Nivrutti Pawar. However, for some reason, only Petitioner No. 1 (Prakash Nivrutti Pawar) came to be described in the cause title of the appeal as heir of Nivrutti Pawar. Be that as it may, the Appellate Court proceeded to decide the appeal on that basis, but by its Judgment and Order dated March 31, 1982 was pleased to dismiss the Appeal preferred by the Respondent tenant, holding that Nivrutti Pawar was entitled for restoration of suit lands. The Appellate Authority, however, did not address to the issues that ought to have been considered in view of the remand order passed by this Court, namely, the issue on bonafide requirement and the holding of the parties. As the Appellate Authority directed the restoration of possession, the Respondent preferred Revision before the Maharashtra Revenue Tribunal, Pune being Revision No. 3 of 1982 (TNC. B. 237/82 ). The Tribunal allowed the said Revision Application and remanded the matter to the First Authority. In fact, in view of the remand order passed by this Court, the Tribunal, at best, could have remanded the matter once again to the Appellate Authority and not to the First Authority to re-examine the matter afresh. The reason for remand recorded by the Tribunal can be discerned from paragraph 9 of the decision, which mentions that the Court below has not considered the two issues which it ought to have examined. That reason is unexceptionable. However, in terms of the Judgment and Order passed by the Tribunal on November 30, 1983, the matter stood restored to file of the First Authority for re-examination of the aforesaid two issues of bonafide requirement and holding. The First Authority formulated following two issues for its consideration, which read thus: (1) Whether the applicant i. e. deceased heir of the original landlord has proved bonafide requirement of suit lands for personal cultivation? (2) Whether the applicant has proved that he is within the holding?

(3.) IN so far as the first issue is concerned, parties led further evidence before the First Authority. That was required in view of the changed circumstances because of the death of Nivrutti Pawar predecessor of the Petitioners. The Petitioner No. 1 examined himself and one more witness Kisan Anna Snakpal to establish the plea of bonafide requirement. It is relevant to note that in the earlier round, the Petitioners predecessor Nivrutti Pawar had entered the witness box to depose on the issue on bonafide requirement. Through that evidence, he had clearly asserted that he had no other agricultural land in his possession and that he wanted possession of the suit land for personal cultivation. After remand, as aforesaid, the Petitioner No. 1 entered the witness box and asserted that he required the suit land for personal cultivation. He has also deposed that the Petitioners did not possess any other land except land bearing Survey No. 522/5 admeasuring 1 acre 5 gunthas received from another tenant Bhiku Rama Nimbalkar pursuant to Courts order, but stated that possession of said land was yet to be received. Nevertheless, the evidence of Petitioner No. 1 clearly asserts that the land was required by him for his personal cultivation and that, none of the Petitioners had any other agricultural land in their possession. It is on the basis of this evidence, the First Authority answered the issue of bonafide requirement in favour of the Applicant. Even the second issue regarding holding was answered in the affirmative by the First Authority. Consistent with the said finding, the First Authority allowed the said application and directed restoration of possession of the suit land by the Respondent tenant to the Applicant. Against this decision, the Respondent carried the matter in appeal. The Appellate Court, on the other hand, reversed the finding of fact returned by the First Authority on both the aforesaid issues. It is interesting to note that the Appellate Authority proceeded to reverse the finding of fact in very casual manner, as can be discerned from the relevant portion from its decision, which reads thus:-This lower Court has decided the issue No. 1 in affirmative but it is seen that lower Court might have not seen the cross-examination in lower Court that he has admitted that his income is Rs. 200/- to Rs,300/- per month, means there is no genuine need for the landlord to obtain possession of the land in dispute. Hence, the heirs of the landlords requires for cultivating land personally is not bonafide. The lower Court had decided the issue No. 2 in affirmative but lower Court does not know there is no question of deciding the issue in affirmative or in negative only to consider the holding on the date on which opponent landlord is brought on record. The certificate given by the village Surli, Taluka Koregaon (page 321 L. C. papers) that respondent is not holding that and it is produced by the respondent is sufficient on going through the above facts and considering the income of the respondent is Rs. 200/- to Rs. 300/- per month. It seems there is no bonafide requirement of dispute land.