JANARDAN KRISHNAJI KULKARNI Vs. VISHNU GANAPATI GHORAPADE

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 dated 13-4-1989.

(2.) THE land in question is an agricultural land bearing Survey No. 66, gat no. 352. 4. 28-A admeasuring 4 acres and 28 gunthas at village Matyapur, taluka and district Satara. The petitioner is the owner of the suit land whereas the respondents herein claim to be tenants in respect of the suit land. It is common ground that the petitioner had taken out proceedings under section 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the "act") in which the petitioner was held to be entitled for issuance of a certificate. In other words, the petitioner was a certified landlord. On the basis of that certificate, the petitioner filed an application for possession of the suit land against the respondent No. 1 who was his tenant. That application was decided in favour of the petitioner on 2-8-1963 by the tahsildar who in turn directed the respondent No. 1 to hand over possession of the suit land to the petitioner. It is not in dispute that the order issuing certificate in favour of the petitioner under section 88-C as well as the order of possession under section 33-B of the Act have never been challenged by the respondent No. 1 in appeal. The record also indicates that pursuant to the aforesaid order under section 33-B, possession of the suit land was taken over from the respondent No. 1 and handed over to the petitioner on 6-5-1964. Mutation entry to that effect has been recorded in the revenue record bearing No. 1245. Even this mutation entry has not been challenged at any point of time. Be that as it may, the respondents herein, without disclosing the above position, instituted an application before the tenancy authority under section 70 (b) of the Act for a declaration that they were in possession of the suit land on the tiller's day i. e. 1-4-1957 as tenants and have continued to remain in possession as such till the institution of the application. That application was filed on 23-4-1985. The Tahsildar allowed the said application on 31-8-1985. The Tahsildar was persuaded to take a view that notwithstanding the certificate issued under section 88-C of the Act and the possession order passed under section 33-B of the Act as well as the Mutation Entry No. 1245 as recorded on 6-5-1964 in the revenue record, the respondents have remained in possession as the taking over possession was only a paper entry made in the record. On that basis, the Tahsildar allowed the application preferred by the respondents under section 70 (b) of the Act. Against that decision, the petitioner carried the matter in appeal before the Sub-Divisional officer. The Sub-Divisional Officer also affirmed the view taken by the Tahsildar by judgment and order dated 16-8-1986. Before the Sub-Divisional Officer, the petitioner had pressed into service the judgment and decree passed by the Civil Court in the suit instituted by the petitioner against the respondents, being Regular Civil Suit No. 263 of 1985, for a perpetual injunction in which it has been positively found by the Civil Court on the basis of evidence on record adduced before it that the petitioner was found to be in possession of the suit land. However, the Appellate Authority discarded that judgment and decree of the Civil Court on the specious argument that the same has not become final and conclusive because it was an appealable decree. In the circumstances, the petitioner carried the matter in revision before the maharashtra Revenue Tribunal, Pune. The Tribunal by the impugned judgment and order has dismissed the revision application preferred by the petitioner, in substance affirming the view expressed by the two authorities below. These concurrent decisions are the subject-matter of the present writ petition under Article 227 of the Constitution of India.

(3.) MR. Anturkar for the petitioner contends that once the order issuing certificate under section 88-C in favour of the petitioner has become final and, in fact, on that basis the petitioner has succeeded in proceeding under section 33-B of the Act, it presupposes that the tenancy of the respondents has been determined on 2-8-1963 and that position has remained unchallenged. Mr. Anturkar submitted that, in fact, pursuant to the said order, the petitioner has already taken possession of the suit land which fact is reinforced by the Mutation Entry No. 1245 effected in the village records which also has remained unchallenged. Indubitably, there is presumption about the correctness of that entry unless contrary was to be proved; and the evidence as adduced by the respondents cannot be said to be sufficient to counter that position. Moreover, he submits that the competent Civil Court has examined the issue of possession on the basis of evidence adduced before it and has positively found that the petitioner was put in possession as per the said mutation Entry in 1964. In the circumstances, the learned Counsel submits that once the order under section 33-B has been allowed to become final, it was not open to the respondents to institute proceedings for a declaration under section 70 (b) of the Act as has been resorted to in the present case. He submits that the respondents did not disclose the order of the tenancy authorities under section 33-B in the application, but it is the petitioner who had to bring that on record before the tenancy authority. The learned Counsel, therefore, submitted that even though all the three courts have decided the matter against the petitioner, they have overlooked the important legal position that the proceedings under section 70 (b) of the Act was unavailable on the principles analogous to res judicata and more so when the tenancy stands determined by order dated 2-8-1963. Subsequently, the tenancy Court could not have declared that the respondents were tenants on 1-4-1957 and that have continued to remain in possession of the suit land in that capacity even now.