YASHODABAI ANANDA PATIL Vs. GANPATRAO RASMCHANDRA PATIL

JUDGEMENT

(1.) This writ petition under Article 227 of the constitution of India takes exception to the Judgment and Order passed by the Maharashtra Revenue Tribunal, camp at Kolhapur dated 19.4.1988 in Revision application No. MRT/ss/131/85. Briefly stated the petitioner Ananda was co tenant in respect of the land bearing Survey No. 128 of Village Kasvalapur Taluka miraj alongwith Shri. Krishana Babu Pawar. Both the tenants executed surrender deed and expressed their willingness to surrender their suit land to the respondents landlords. On the basis of that surrender deed dated 10. 10. 1935, the landlord filed application for possession before the Mamlatdar under the provisions of the Bombay Tenancy and Agricultural lands Act on the ground that the tenants intend to surrender the land. The application was accompanied by the Deed of Surrender executed between the parties. On the said application, statement of the Petitioner as well as of the co-tenant came to be recorded by the mamlatdar on 24.5.1956. The statement as recorded by the Mamlatdar clearly indicates that the Petitioner has accepted that he has executed surrender deed in writing with full understanding and of his own volition. On the basis of this statement recorded by the Mamlatdar and considering the attending circumstances, the Mamlatdar passed order on 1.6.1956, which reads thus:

(2.) This order has been reproduced in its entirety as argument has been advanced on behalf of the petitioner which will have to be answered with reference to the contents of this order. Be that as it may, after the order was passed by the Mamlatdar, possession receipt was executed on 29.6.1956 which mentions that the Petitioner and the co tenant has handed over possession to the Respondent landlord. In other words, the record indicates that the Petitioner and other co tenant lost possession of the suit land prior to the Tiller's day i. e. 1.4.1957. This position is further reinforced by the fact that the petitioner made an application under Section 32- (1b) of the Act for possession on 23.10. 1972. The application proceeds on the premise that the petitioner lost possession between 15.6.1956 and 1.4.1957. That application was however, later on withdrawn by the Petitioner on the ground that the petitioner had already filed suit for possession on 3.12.1970 being Civil Suit No. 380 of 1970 before the civil Judge, J. D. Sangli for restoration of possession under Section 6 of the Specific Relief act,1963. Be that as it may, the suit filed toy the petitioner proceeded further and came to be decreed on 24.4.1973. The Civil Court has noted the argument advanced by the parties and in substance has found that the Petitioner was unauthorizedly dispossessed within six months preceding the date of institution of the suit. The Civil Court has recorded the finding that the Petitioner was dispossessed on 5.8.1970 and the suit was filed on 3.12.1970. The landlord being dissatisfied, carried the matter in revision against the decree of possession referred to above by way of civil Revision Application No. 334 of 1973. That revision application was rejected by this court on 8.4.1974 maintaining the decree for possession passed by the Trial Court in favour of the Petitioner. Obviously, as the said decree was under Section 4 of the Specific Relief Act, the landlord then instituted substantive suit for possession on the basis of title being Special Civil Suit No. 161 of 1974. According to the Respondents-landlords, the possession obtained by the Petitioner in execution of the decree in Suit no. 380 of 1970 was improper. In the suit filed by the respondents landlords, the Petitioner has filed written statement. In the written statement the petitioner has contended that he was cultivating the suit land in the capacity as tenant and that he has become deemed purchaser by operation of law. The specific plea taken in the written statement is that the surrender deed has not been acted upon between the parties and not withstanding the surrender, the petitioner continued to lawfully cultivate the suit land as a tenant. At this stage, it is relevant to note that no specific plea has been taken in the written statement that the surrender deed or the order passed by the Mamlatdar permitting the surrender is illegal, inoperative or nullity as such. It is necessary to mention this fact because one of the argument advanced before this court is that the order passed by the Mamlatdar permitting surrender is nullity. In view of the stand taken in the written statement the Civil Court framed the following two issues: "1) Whether the Petitioner is tenant of the suit land 2) Whether the Petitioner has become deemed purchaser of the suit land - as the aforesaid two issues could be exclusively tried by the Tenancy Court, the Civil Judge made reference to the Tenancy authority by virtue of Section 85a of the Tenancy Act. Before the Tenancy authority, petitioner did not adduce any oral evidence at all. However, after recording of evidence of respondents-landlords was over, the Petitioner tendered certain documents in the shape of revenue receipts, money orders and letters, to which the respondents-landlords objected. Inspite of that objection, the first authority allowed the documents to be produced on record, without permitting exhibition of the said documents as such The tahsildar thereafter, on the basis of material on record/ by Judgment and order dated 30. 6.1979 answered the two issues referred for its consideration against the Petitioner. The Tahsildar essentially held that the surrender deed having been accepted by the Mamlatdar after recording of the statement of the petitioner/ the relationship of landlord and tenant between the parties stood determined on possession of the suit land being made over to the respondents-landlords. Besides, the Tahsildar has noted that after possession of the suit land was made over to the Respondents-landlords/ mutation entry has been immediately recorded being No. 3557 in the year 1936-57. Accordingly/ the Tahsildar found that the petitioner was not cultivating the suit land in the capacity as tenant on the Tiller's day and cannot be held to have become deemed purchaser. The Petitioner carried the matter in Appeal before the Sub Divisional officer in Tenancy Appeal No. 44 of 1979. The appellate Authority on the other hand by Judgment and order dated 31.8.1985 accepted the version of the petitioner. The Appellate authority essentially referred to three circumstances. The first is that, the landlord was staying at Baroda at the relevant time in 1956 and thereafter. Secondly the letters, money orders and Land revenue receipts produced on record would clearly show that the Petitioner was cultivating the suit land in the capacity as tenant inspite of the surrender. Besides, the Appellate court found that, in the earlier Civil Suit between the parties under Section 6 of the Specific Relief act, the court has clearly recorded that the surrender has not been acted upon and that tenant was not dispossessed on 29.6.1956 but continued to remain in possession till he was dispossessed on 5.8.1970. Accordingly/ the Appellate Authority proceeded to hold that the Petitioner was lawfully in cultivation of the suit land on the Tiller's day and therefore, had become deemed tenant and consequently became deemed purchaser thereof. Against this decision, the respondents landlords carried the matter in revision before the Maharashtra Revenue Tribunal. The maharashtra Revenue Tribunal by the impugned Judgment and order has however/ reversed the finding and -the conclusion reached by the Appellate authority and, instead, restored the view taken by the first authority, to answer the Above said two issues against the Petitioner. The Tribunal has considered the matter in the following perspective. It has found that, in view of the surrender deed executed between the parties and the possession having been made over to the landlord on 29,6.1956, pursuant to order passed by the Mamlatdar, the relationship between the parties as landlord and tenant was lawfully determined, It has further noted that co-tenant Krishana Babu Pawar has submitted to the surrender. Besides, no case of fresh lease in favour of the Petitioner has been either pleaded or proved by the Petitioner after the surrender of land on 29.6.1956. It is also noted by the Tribunal that, the fact that the Petitioner made application for restoration of possession under section 32- (1b) of the Act before the Tenancy authority presupposes that he conceded the position that he lost possession after 15.6.1956 and before 1.4.1957. The Tribunal has further held that the petitioner did not step into the witness box to prove the fact, as is sought to be projected that inspite of the surrender deed he continued to remain in lawful possession of the suit land till dispossession on ;5.8.1970 nor examined any witness to support that fact: whereas, the Power of attorney of the petitioner gave application in writing that no evidence of the Petitioner was necessary. This circumstance has also been held against the Petitioner by the Tribunal. In substance, the Tribunal has found that the Petitioner has not adduced any legal evidence to support his plea that he continued to occupy the suit land inspite of the surrender. The Tribunal has also noted that the so called documents, namely, letters, money orders and land revenue receipts were of no avail to the Petitioner because the same have not been proved in evidence. Moreover, the Petitioner has not put the said documents to the witness examined on behalf of the Respondents landlords but brought it on record after recording of evidence was closed. In other words, it is held that the said documents were inadmissible and cannot be looked into, to decide the point in issue. The Tribunal has also noted that changes were made in the number of the suit land during the consolidation scheme and that fact was not brought to the notice of the Civil Court, which decreed the suit for possession in favour of the petitioner. Besides, the Tribunal has recorded that the decree of possession passed by the Civil Court in proceeding under Section 6 of the Specific Relief Act cannot be the basis for accepting the claim of the petitioner which is required to be answered by the tenancy authority independently on its own merit. It has noted that while adjudicating claim under Section 6 of the Specific Relief Act for the relief of possession the scope of enquiry is very limited and the court is only required to find out as to Whether the plaintiff has been unauthorizedly dispossessed within six months preceding the date of the institution of the suit and nothing more. The tribunal has also considered the 7/12 extracts on record relating to the suit land which clearly indicates that the Respondents landlords were in possession and cultivating the suit land since 1956-57 to 1973-74 and during this period the name of the petitioner has not been entered in the record in any capacity. The Tribunal thereafter proceeded to deal with the approach adopted by the Appellate authority in answering the issue in favour of the Petitioner. It has found that the Appellate authority jumped to the conclusion that the Petitioner is a deemed purchaser essentially on the basis of the finding of the Civil Court in an enquiry under Section 6 of the specific Relief Act for possession, although that finding will not be material for deciding the issue to be decided by the Tenancy authorities. The Tribunal has then observed that the reason which has weighed with the Appellate authority that the Respondents landlords were staying at Baroda at the relevant time was also without any substance. The Tribunal then observed that the Appellate authority could not have given importance to the documents produced by the petitioner as they have not been proved in evidence. Moreover, the Tribunal while adverting to the opinion expressed by the Appellate authority has found that the letters relied upon by the Petitioner would only show that the Petitioner and landlords had some understanding and even if the same were to be held as admissible in evidence, it would not establish the factum that the Petitioner was in possession of the suit land in the capacity as tenant thereof. Even with regard to the revenue receipts the Tribunal has faulted the approach of the Appellate authority by observing that the revenue receipts by themselves do not show that the Petitioner was in possession of the suit land as tenant or that the said amount was paid by him in the capacity as tenant. Taking over all view of the matter the Tribunal found that the approach of the Appellate authority was manifestly wrong and for that reason preferred to affirm the opinion expressed by the first authority with regard to the two issues against the Petitioner. Accordingly, the Tribunal allowed the revision preferred by the Respondents landlords by the impugned judgment and order.

(3.) This decision has been taken exception by the petitioner before this court. According to the petitioner, the Tribunal has exceeded its jurisdiction under Section-76 of the Act in dwelling upon matters of fact and reappreciating the evidence on record. The learned counsel has relied on the decision of the apex Court in A. I. R. 1974 S. C. 2051 in Maruti Bala rant's case to submit that such a decision cannot be sustained. It is next argued that the finding of fact recorded by the Civil Court in the suit for possession under Section 6 of the Specific Relief Act that the surrender has not been acted upon by the parties and the Petitioner has been dispossessed on 5.8.1970 would not only bind the parties inter se but also the tenancy authorities. It is submitted that, in the wake of that finding, it necessarily follow, that the petitioner was in lawful cultivation of ,the suit land on 1.4.1957 and therefore, will have to be treated a, deemed tenant by operation of law and consequently deemed purchaser. The learned counsel next submits that the surrender permitted by the Mamlatdar is invalid. It is argued that the Mamlatdar has not recorded in the order that he has explained the position and the consequences thereof or elicited information regarding the voluntariness of the petitioner to surrender. Moreover, Mamlatdar has not made any endorsement on the surrender deed itself. Besides, Mamlatdar has not considered the fact mentioned in the surrender deed which mentions that the possession is already handed over on the date of execution of the surrender deed. The learned counsel has placed reliance on the ruling reported in a. I. R. 1975 S. C. 919 in Ramchandra Kedshav Adke, V,. Govind Joti Chavare to contend that, in such situation, the surrender would be invalid and nullity. The learned counsel contends that, if that contention was to be accepted, then it necessarily follows that the Petitioner continuously remained in lawful cultivation of the suit land as were on the Tiller', day i. e. 1.4.1957, surrender deed and possession receipt dated 29.6.1956 notwithstanding. In which case the Petitioner would become deemed tenant by operation of law and therefore, deemed purchaser. The learned counsel, further contends that the Tribunal has completely misdirected itself in holding that the document produced by the Petitioner in the shape of revenue receipts, letters and money orders were inadmissible. According to. him, those documents were already proved in the suit between the parties and it was not necessary to prove the said documents afresh in the present proceeding. It is also contendedy that the Mamlatdar has not kept in mind that an application was preferred which is in Marathi, clearly records that the landlord be called for examination with reference to the above document and no orders have been passed on that application. In this view of the matter, it is submitted that the order of the Tribunal cannot be sustained and the order passed by the appellate authority be restored. On the other hand, the counsel for the Respondents landlords submits that the above arguments are devoid of merits. It is also argued that the plea now taken before this court about validity of the surrender is being raised for the first time and in fact, such a plea was not taken in the written statement as filed before the Trial Court from which the present proceeding emanate. It is also argued that the argument now made before this court that no order has been passed on the application preferred by the Petitioner tenant to examine the landlord, was not made either before the Appellate court or for that matter in the memo of writ petition but is raised across the bar, which has taken the respondents by surprise. In so far as argument regarding finding of fact recorded by the Civil Court under Section 6 suit, it is contended that the finding returned therein is only for the limited purpose as the scope of that proceeding was to find out whether the Petitioner has been unauthorizedly dispossessed during the preceding six months or not and nothing more. 'no other finding recorded. ---- -. " would bind the parties, as would be evident from the plain language of sub Section-4 of Section 6 of the Specific relief Act. Besides, reliance is placed on the decision of the Apex Court reported in (1974) I s. C. C. 48 in the case of M. C. Chockalingam and other Vs. V. Manickavasagam and others. in particular, Para 13 thereof as well as A. I. R. 1929 Calcutta 1046 in chhadek Karikar Vs. Sayad Ali Kaviraj and others, to buttress the above proposition. In so far as the conclusion reached by the Tribunal that the documents produced by the Petitioner were inadmissible, the learned counsel for the Respondents contends that no fault can be found even with that opinion expressed by the Tribunal. For, the tenancy proceeding commenced pursuant to the reference made by the Civil Court are independent and substantive proceeding in which both the parties are obliged not only to plead but prove their respective stand. The learned counsel for the respondents submits that there is no substance in this writ petition and the same deserves to be dismissed.