MAKAJI N Vs. BAI M KAMBLE

JUDGEMENT

(1.) NARHAR s/o Shamrao Patil alongwith his brother Uadhav, was the owner of the agricultural land in Survey Nos. 9 and 10 of Village Yelwat in Ausa taluka of Latur district. Makaji s/o Nira mahar was a protected tenant as declared under Section 38e of the hyderabad Tenancy and Agricultural Lands Act, 1950 ("the Act" for short)in respect of agricultural land in survey no. 9 to the extent of 1 acres and 34 gunthas and survey no. 10 to the extent of 22 acres and 16 gunthas (half share ). Makaji was dispossessed from the land in Survey No. 10 when the said declaration was made in 1958. Subsequently, he died and therefore, his son Ganpati present petitioner-submitted an application for restoration of possession of the said land to the Tahsildar on 31. 3. 1964. It was registered as Case No. 244 of 1964. By then, Narhari was also no more and therefore, his son Jivanrao was issued notice by the Tahsildar. After hearing both the parties and on perusal of the documentary evidence brought on record the Tahsildar rejected the application of the petitioner on 30. 10. 1964. No appeal was filed but on 10. 6. 1970 an application came to be filed before the Tahsildar by the petitioner repeating the same prayer for restoration of the subject land. On the same day, the Tahsildar , Ausa, replied that the claim was finally decided by his earlier order dated 30. 10. 1964 and therefore, the application was disposed of in terms of the said order. The petitioner subsequently submitted a representation to the various authorities including the Honourable Chief Minister of maharashtra. From the Secretariat this application appears to have been forwarded to the Collector, Osamanabad, who, in turn, called upon the tahsildar to make a fresh inquiry. The Tahsildar submitted a report and informed that the restoration application was also rejected on 30. 10. 1964. The petitioner thereafter filed an appem before the Deputy Collector which came to be listed as TNC Appeal No. 120 of 1978. The Deputy Collector, land Reforms, Osmanabad, allowed the appeal partly and remanded the petitioner's application to the Agricultural Lands Tribunal, Ausa, to decide the claim of the applicant afresh by giving reasonable opportunity to ' both the parties. The present respondent no. 1 was not a party in Appeal no. 120 of 1978 but, she challenged the said order dated 25. 7. 1978 passed in the said appeal by filing revision application registered as Case No. 124 of 1978 before the Maharashtra Revenue Tribunal. This revision was allowed by the judgment and order dated 15. 2. 1979. The revision was allowed holding that the appeal decided by the Deputy Collector was without jurisdiction and the order dated 25. 7. 1978 was set-aside. The Tribunal held that the declaration made in favour of the petitioner's father under Section 38e of the Act in respect of the half share of the agricultural land in survey no. 10 was cancelled, the Naib Tahsildar, Ausa, had rightly rejected the application filed by the petitioner under Section 38e (a)Explanation, by order dated 13. 4. 1964 and the said order had received finality as there was no proper appeal filed against the said order within the reasonable time or within the time prescribed under the Act. Hence, this petition under Article 227 of the Constitution of India.

(2.) AS noted by the Tribunal, it is seen from the record and proceedings placed before this Court that a final declaration under Section 38e of the Act was made in favour of Makaji on 1. 2. 1957 in respect of the land in survey Nos. 9 and 10. On 14. 5. 1958 the list of the protected tenants was displayed on village Chavadi and the panchanama to that effect in respect of such protected tenants was drawn by the Tahsildar and Kird keeper. It was accordingly notified by the Naib Tahsildar, Land Records, ausa, on 14. 5. 1958. In the said list, Makaji Nira was shown to be a protected tenant on the agricultural land of 1 acre and 24 gunthas in survey no. 9 and half share in the agricultural land admeasuring 22 acres and 16 gunthas from sruvey no. 10. At page 53 of the Tahsildar's fileld the following noting appears :

(3.) BASED on the above noting, the Naib Tahsildar came to the conclusion that on partition of the agricultural land in Survey No. 10 between narhar and his brother Udhavrao, the protected tenant's claim was deleted from Narharrao's share and it was retained in Udhavrao's share and therefore, the declaration made under Section 38e of the Act got extinguished. Surprisingly and in fact, shockingly this finding of the tahsildar, which was not accepted by the Deputy Collector, has been accepted by the Tribunal and thus, the ownership of Makaji, which devolved on his son under Section 40 of the Act, created in his favour by operation of the Act came to be nullified initially by the Naib Tahsildar and subsequently, by the Tribunal by the impugned order dated 15. 2. 1979.