BHAGWANRAO SACASHIV GAIKWAD Vs. NARNARI JAYAVANT ZAAGZAP

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, Pune dates March 7, 1990 in revision No. MRT-SH-X-3-86- (TNC-B-217 of 1986 ). Pune. The land in question is an agricultural land bearing Gat No. 197, situated at Village Shelgaun (Vale), Taluka Barsi, District Solapur. The patitioner claims that he was tenant in respect of the suit land Since 1974-75. As he was in incluted in the suit land as tenant after the tillers day, the patitioner gave intimation to the landlord that he was willing to purchase the suit land under Section 32-O of the Bombay Tenancy and Agricultural lands act, 1948. Thereafter, the Petitioner file: application before the Tenancy Authority for determination of the purchase price on the ground that he had become deemed purchaser of the suit land by operation of law. That application was allowed and the purchase price in respect of the suit land came to be fixed at Rs. 2,800. 00. It is also seen that the Petitioner deposited the said purchase price in terms of the order passed by the tenancy Authority, where after, the Authority issued certificate in favour of the Petitioner under section 32-M of the Act, With the resistance of certificate under Section 32-M of the Act, there is presumption that the Petitioner has purchased the suit land and has become owner thereof. That certificate has been issued on 18th December 1976. The Respondents who were the landlords in respect of the suit land have not challenged the order passed under Section 32-O or the issuance of certificate under Section 32-M by the Tenancy authority, but instead, preferred to file suit for declaration and injunction in the Court of Civil judge, Junior Division, Barsi being Civil Suit no. 569 of 1977. The relief claimed in this Suit is for declaring that the order passed by the Tenancy authority was beyond jurisdiction and illegal. That Suit has been resisted by the Petitioner by filing written statement. After the pleadings were filed, the Civil Court framed issues, one of them being - Whether Defendant prove that he is the tenant of the suit land?"

(2.) THE Civil Court was of the view that since the issue of tenancy arises for consideration, such issue can be resolved only by the Tenancy Authority and therefore, made Reference to the Tenancy authority in terms of Section 85-A of the Act. That Reference, was placed before the Additional tahsildar, Barsi being Court Reference No. 83. The additional Tahsildar, Barsi, by Judgment and Order dated February. 13,1985 held that as the proceedings under Section 32-D have concludes and the order passed therein have been allowed to attain finality, coupled with the fact that certificate under Section 33-M has also been issued in favour of the Petitioners. the question of examining the issue as referred, does net arise the reasoning prodeeds on, the basis that the issue already stands answered in the earlier proceedings as it is only person who is lawfully cultivating the suit land and inducted as tenant, wough be entitled to become deemed purchaser by operation of law and on that basis, the earlier proceedings have been decided in favour of the Petitioner. Against that decision, Respondents carried the matter in appeal before the Sub-Divisional Officer being tenancy Appeal No. 14 of 1985. The Appellate authority by Judgment and Order dated 22nd August 1986 has affirmed the view taken by the Tenancy authority and therefore, dismissed the Appeal preferred by the Respondents. The Respondents, thereafter, carried the matter in Revision before the Maharashtra Revenue Tribunal. The Tribunal, an the other hand, discarded the opinion recorded by the two authorities below and proceeded to examine the issue of tenancy, on merits. The Tribunal Then proceeded to record finding that the Petitioner was not tenant in the suit land. On that basis, the revision Application filed by the Respondents was allowed. It is this decision, which is subject matter of challenge in the present writ Petition.

(3.) MR. Mandlik for the Petitioner contends that the first two authorities had rightly answered the issue as referred by the Civil Court on, the reasoning that when the earlier proceedings under section 32-O have attained finality and more particularly, with the issuance of Certificate under Section 32-M in favour of the Petitioner that issue stands concluded and cannot be reopened by the Tenancy Authority, merely because the Civil court has made Reference to examine that considered only in the decision under Section 32-0 and issuance of Certificate under section 32-M was to be challenged by way of statutory appeal under the tenancy Act. He further submits that for deciding the Suit as filed by the Respondents, the question of examining the issue as to whether the Petitioner was, tenant in respect of the suit land, does not arise, because the challenge in the Suit will have to be confined only to the question as to whether the orders passed by the Tenancy Authority in proceedings under Section 32-O of the Act and the certificate issued under Section 32-M of the Act is beyond jurisdiction and illegal, as contended. This submission is made without prejudice to the argument which would be available to the Petitioner in the Suit pending before the Civil Court that such a plea was available only in appeal to be filed under the provisions of the Tenancy Act and the Civil Court would address itself, if At all only to the Question that the said orders were obtained by fraud. But that is not the case pleaded in the Plaint as filed, He therefore submits that the Tribunal has completely exceeded its jurisdiction in addressing itself to the merits of the issue as to whether the Petitioner was tenant in respect of the suit land because such an issue cannot and could not have been gone into in the Reference as made by the Civil Court because that issue stands concluded by the Order passed under Section 32-O Of the Act and with issuance of certificate under Section 32-M of the Act in favour of. the Petitioner.