ABDUL RAHIM AFZALSHA KAZI Vs. ABBAS ALAMSHA KAZI

JUDGEMENT

(1.) THIS writ petition takes exception to the judgment and order passed by the Maharashtra Revenue Tribunal, Pune, dated december 3, 1984, in Revision No. MRT-NS-II-1/81 (TEN. B. 37/1981 ). Present petition arises out of reference proceedings made by the Civil Court in the Civil suit between the parties to this petition. Respondent filed Regular Civil Suit no. 77 of 1973 which was, in fact, instituted in the year 1968 against the petitioners for declaration and appropriate relief. One of the declaration claimed in the said suit is that document dated 15th February, 1957 is void and is not binding on the plaintiffs. The said document is stated to be effecting partition between the family members of the parties. Validity of the said document was put in issue. In response, the petitioners filed their written statement and asserted that the said document was not a partition deed, but a gift deed. Since the petitioners claimed that the document in question was a gift deed, the next question that arose is whether the transfer by way of such a gift deed of agricultural land in favour of the petitioners was permissible in view of the bar under section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act") since there was nothing to show that the petitioners were agriculturists on 15th February, 1957. Since this became the contentious issue, the Civil Court made reference to the Mamlatdar on the fallowing terms :

(2.) PURSUANT to the said reference made, both the parties appeared before the tenancy Authority and adduced evidence in respect of their respective stand. The tenancy Authority on evaluating the evidence on record found as of fact that the evidence produced by the parties would not establish the position that the petitioners were carrying on agricultural activities on 15th February, 1957 or were owners of any agricultural land. Although the issue as referred by the Civil court was loosely framed, the main aspect that was examined by the tenancy authority was whether the petitioners were agriculturists on 15th February, 1957. That issue has been answered against the petitioners and the conclusion so reached by the Tenancy Authority is obviously a finding of fact on that issue. This finding of fact has been confirmed by the appellate authority in the appeal preferred by the petitioners by judgment and order dated 21st October, 1982. The matter was thereafter carried in revision before the Maharashtra Revenue tribunal, which, in turn, dismissed the revision application by a detailed judgment and order dated December 3, 1984. The Tribunal has observed at the outset that the controversy raised on behalf of the petitioners was beyond the scope of remedy of revision available under section 76 of the Act. Nonetheless, it proceeded to analyse the entire evidence produced by the parties afresh and reached at the same conclusion, which was reached by the two authorities below on the issue as to whether the petitioners were agriculturists on 15th February, 1957. The aforesaid concurrent decisions are subject matter of challenge in the present writ petition.

(3.) THE first grievance made before me is that the order of reference as made was untenable. It was next contended that from the pleadings on record, it would appear that the petitioners are the members of a unit of the family consisting of the petitioners and the respondents, which is an undivided Muslim family and, if it is so, the issue ought to have been answered in favour of the petitioners. This submission proceeds on the assumption that the petitioners have share in the property owned by the respondents, which was originally held by mohommed Sha. Reliance is placed on the provisions of section 63 read with section 2 (7) (a) of the Act to buttress the argument that in such a case, the petitioners will have to be held as agriculturists along with the respondents. It was next contended that the petitioners had relied upon documentary evidence, such as Khasra Extracts; Assessment Receipts, Sale Deed in respect of Plot No. 133c. Insofar as the sale deed of Plot No. 133c is concerned, it describes the land as Paradi land and going by the definition of Paradi land in section 2 (26) of the Maharashtra Land Revenue Code, 1966, it will have to be held that the said land was agricultural land and on that basis the conclusion that the petitioners were agriculturists was unacceptable. On the above arguments, learned Counsel has criticised the decisions rendered by the three authorities below, though concurrent.