GULABRAO SAHEBRAO SHINDE Vs. SAYAJI SHANKAR SHINDE

JUDGEMENT

(1.) THIS writ petition under art. 227 of the Constitution of India takes exception to the Judgment and Order passed by the Maharashtra Revenue tribunal, Pune dated 2/03/1990 in Revision Application No. MRT-NS/ viii/89 (TNC. B. 210/89 ). The land in question is agricultural land bearing gat Nos. 323 and 799 situated at Village Jamb, Taluka Wai, District Satara. The said land was originally owned by Smt. Housabai Govind Shinde. The said Housabai executed a lease deed in favour of the petitioner on 20/09/1987. One of the condition stated in this lease deed is that the petitioner has been put in actual possession of the suit land along with crops, on condition of payment of l/3rd (one-third) crops share to said housabai. On 28/09/1987, Smt. Parvatibai Sudan Sakunde, the granddaughter of Housabai and Smt. Tarabai Anandrao Babar, stepmother of Smt. Parvatibai, executed a consent deed to the agreement dated 20/09/1987 executed by Housabai in favour of the petitioner herein. The said Housabai died on 11/12/1987, whereafter, the mutation entry No. 1102 was effected on 3/12/1988 and the name of Smt. Parvatibai Sudan Sakunde was entered in the record of rights with regard to the suit lands, as the only legal heir of Housabai. The said parvatibai, later on, executed Sale Deed dated 7/06/1988 in favour of respondent in respect of the suit land for consideration of Rs. 45,000/- (Rupees Forty-five Thousand ). After the said transaction, name of respondent was entered in the record of rights in place of said Smt. Parvatibai vide mutation entry No. 1136. The petitioner immediately thereafter, served notice to the respondent on August 16, 1988 expressing his intention to exercise his right to purchase the suit land conferred by virtue of s. 33-O of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act' ). The petitioner, thereafter, on 19/08/1988, filed application before the Tenancy Awwal Karkun, Wai being Tenancy Case No. 17 of 1988 purported to be under s. 70 (b) of the Act for declaration that he is tenant in respect of the suit land since 20/08/1987 as per the written agreement of lease. The Tenancy Awwal Karkun, Wai, by making necessary enquiry, in which parties adduced evidence, by Judgment and Order dated 15/03/1989 allowed the application preferred by the petitioner. The tenancy Awwal Karkun has adverted to all the relevant materials on record and on analysing the same, has found as of fact, that the petitioner was in lawful cultivation of the suit land, which was earlier belonging to Housabai and now owned by the respondent, as tenant. Against this decision, the respondent carried the matter in appeal before the Sub-Divisional Officer. The Appellate Authority, by Judgment and Order dated 21/07/1989, dismissed the Appeal and confirmed the finding of fact recorded by the first authority. Accordingly, even the Appellate Authority found, as of fact, that the petitioner was in lawful cultivation of the suit land since 20/09/1987 as tenant. These concurrent decisions were challenged by the respondent before the Maharashtra Revenue Tribunal. The Tribunal, on the other hand, by the impugned Judgment and Order has allowed the Revision application preferred by the respondent. To overturn the concurrent views taken by the two authorities below, the Tribunal has found that on proper construction of the lease deed, it appears that the petitioner was accepted as partner in cultivation by deceased Housabai and in no way, it would suggest that the intention of Housabai was to lease out the suit lands. The tribunal then adverted to 7/12 extract and noted that the name of the petitioner is mentioned in the 'other rights column' indicating that the petitioner has right to take water, whereas, the mode of cultivation was mentioned as Type I, which means the land was cultivated personally by the landlady. The Tribunal has further found that there was no evidence to show that the petitioner had paid l/3rd share of crop to Housabai or to parvatibai or for that matter, to the respondent, at any time. The Tribunal, therefore, proceeded to hold that the terms of agreement have not been acted upon by the parties. The Tribunal then records that the agreement was not signed by the petitioner in whose favour it was executed by said housabai, which affected the efficacy of the said document. The Tribunal has then observed that there is no explanation/evidence forthcoming as to from which source the petitioner supplied water to his sugarcane crop in the disputed land. Further, it appears that the sugarcane was sown in the suit land on 3/08/1987, whereas, as per the disputed agreement, the petitioner was put in possession on 20/09/1987. The Tribunal found that the evidence on record indicates that Housabai was in possession of the suit land till her death and which fact has been conceded by the petitioner and his witnesses. The Tribunal, therefore, found as of fact, that the petitioner was not in possession of the suit la?d till Housabai died and even thereafter. The Tribunal has then observed that there is reason to believe that the disputed lease deed is sham and bogus. For recording this opinion, the Tribunal has adverted to the circumstances that the 7/12 extract reveals that deceased Housabai was in possession at the relevant time. Whereas, the disputed agreement shows that the petitioner was put in possession oh the specious reasoning that Housabai was unable to cultivate the land due to her old age. The Tribunal also took into account that the consent deed executed by Parvatibai and Tarabai was wholly unnecessary because Housabai was the sole owner of the suit land, who was alive at the relevant time. On the above reasoning, the Tribunal found that the disputed agreement was sham and bogus. The Tribunal has then observed that it appears that the petitioner has failed to give intimation to the landlord within one year as required by virtue of s. 32-O of the Act. On the above reasoning, the Tribunal allowed the Revision preferred by the respondent, overturning concurrent decisions of the two authorities below. It is this Judgment of the Tribunal, which is subject matter of challenge in the present writ petition.

(2.) MR. Thorat for the petitioner mainly contends that the Tribunal has completely exceeded its revisional Jurisdiction in overturning concurrent finding of facts recorded by two authorities below. According to Mr. Thorat, the Tribunal is not competent to discuss the evidence and to come to its own conclusion on the question of fact as to whether the petitioner was in lawful cultivation of the suit land as tenant or not. He therefore submits that the tribunal has clearly exceeded its jurisdiction. Mr. Thorat further contends that assuming that the Tribunal in its revisional jurisdiction was competent to interpret document, which can be stated to be question of law, but in the present case, it was not even remotely suggested by the respondent at any stage that the purport of the said document was to create partnership in cultivation, which did not amount to tenancy or deemed tenant. He further contends that the Tribunal has also exceeded its jurisdiction in recording its opinion that the evidence on record would suggest that the parties did not act upon the conditions of the disputed agreement. He further submits that the question as to whether the said document was sham and bogus, was also completely outside the scope of jurisdiction vested in the Tenancy authority. In support of this contention, reliance has been placed on the decision in the case of Dada Savla Yadav v. Vasant Anant Sultane. He submits that even the opinion recorded by the Tribunal that the petitioner has failed to give necessary intimation within the specified period under s. 32-O is error apparent on the fact of the record inasmuch as the petitioner had given such intimation to the respondent on 16/08/1988 itself. Moreover, he contends that in any case, it is well settled that the question of giving such intimation under s. 32-O would arise only when the issue as to whether the petitioner was tenant in respect of the suit land or not, is conclusively answered by the Tenancy Authority and which opinion would culminate with the decision in the present writ petition. He submits that the limitation specified under s. 32-O would commence from the date of the decision of this Court. According to Mr. Thorat, the Tribunal has completely misdirected itself in dwelling upon matters which were not germane for deciding the matter in issue which has caused serious miscarriage of justice.

(3.) LEARNED Counsel for the respondent, on the other hand, has supported the decision of the Tribunal and has adopted the reasons recorded by the Tribunal to support the order passed in favour of the respondent. According to the respondent, there was ample evidence on record, which would belie the claim of the petitioner regarding tenancy rights in respect of the suit land. Learned Counsel has placed reliance on the oral evidence of the petitioner and his witnesses to the effect that it is conceded that housabai was cultivating the land till her death and in the wake of that evidence, the finding as reached by the two authorities below, cannot be sustained and consequently, the finding of fact as recorded that the petitioner was in lawful cultivation of the suit land since 20/09/1987 will have to be discarded and therefore, no fault can be found with the ultimate conclusion reached by the Revisional Authority. Learned Counsel further submits that it is common ground that the disputed agreement was not a registered document. He submits that if the said document was not registered, the conclusion reached by two authorities below which is founded on that document, cannot be sustained because the document is inadmissible in evidence. Reliance has been placed on the Full Bench decision of the Patna High Court in the case of Ram Nath Mandal and others v. Jojan Mandal and others. It is therefore contended that if the said document was to be discarded being inadmissible, then the finding on the issue of whether the petitioner was in lawful cultivation of the suit land, will necessarily have to be answered against the petitioner. Learned Counsel contends that there is no justification to interfere in exercise of writ jurisdiction only because the Revisional Authority had overturned the concurrent decisions of two authorities below. According to the learned counsel, the Revisional Authority acted within jurisdiction and each of the reasons recorded by the Revisional Authority are germane for deciding the matter in issue.