KRISHNA RAMA AMBOLKAR Vs. VITHOBA RUKMANNA AMBOLKAR

JUDGEMENT

(1.) THIS is a petition filed under Article 227 of the Constitution of India challenging the judement of the Member, maharashtra Revenue Tribunal in Revision Application No. MRT-KP-209/81 whereby the revision application filed by the petitioners is rejected by its judgment and order, dated 14/1/1982.

(2.) FEW facts which are relevant for the purpose of this petition are that the petitioners filed an application under Section 70-B for a declaration that they are tenants of Respondent No. 2. Maruti Ganpati Ambolkar with respect to 44 Ares out of Revision Survey No. 70 (now Gat No. 324)of Village : Basarge, Taluka : Chandgad, District : Kolhapur Responded no. 2 was shown as party to the said application. The entire Survey no. 70 was mortgaged to Respondent No. 3 Bank and in the 7/12 extract the mortgage, encumbrance and charge was noted. It appears that the entire Survey No. 70 now Gat No. 324 was owned by Rama Ambolkar who had two sons Krishna Ambolkar and Rukmanna Ambolkar This rukmanna had two sons Vithoba i. e. Respondent No. 1 and Ganpati father of Respondent No. 2, Ganpati died on 14th July, 1969. It appears to be the case of the petitioners that 1/3rd share out of the entire Survey no. 70 was allotted to Rukmanna. Rukmanna and his two sons Vithoba and Ganpati had 1/6 share each. As a result of the partition amongst them Ganpati was in possession of the suit land which admeasured 44 Ares. After the death of Ganpati on 14th July, 1969 was inherited by Respondent No. 2 Maruti. It is the case of the petitioner that in the year 1979 a lease was created in favour of the petitioners, on the basis of which the proceedings under Section 70-B were taken up before the tenancy Aval Karkun, Chandgad. From the record it appears that there was hardly any contest in the said application. Respondent No. 3-Bank, as a mortgagee, though joined as Opponent No. 2 was not served and the application was allowed on 30th April, 1980.

(3.) BEING aggrieved and dissatisfied by the aforesaid order Respondent no. 1, whose case was that there was no partition between himself and his brother Ganpati and therefore possibly there could not be any lease by maruti by excluding Vithoba and therefore he was party aggrieved by the said decision and he filed Tenancy Appeal No. 21 of 1980 against the petitioners, Respondent No. 2 Maruti and Respondent No. 3-Bank. This appeal was also dismissed by the Deputy Collector and Special Land acquisition Officer by order, dated 31-7-1981, It was held that Maruti created a lease in favour of the present petitioners.