RAHIBAI VITHOBA PASHANKAR, GANPAT VITHOBA PASHANKAR, DHONDABAI BAJIRAO PADALE, RAMDAS NAMDEO PASHANKAR, ARJUN NAMDEO PASHANKAR, MAHADU VITHOBA PASHANKAR Vs. YESHWANT VITHOBA PADALE

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 February 22, 1990 in revision No. MRT/p/x/9/1982 (TNC. B. 328/1982. The land in question is agricultural land Survey No. 45 admeasuring 16 acres 6 gunthas situated at village Malalung, taluka Mulshi, district Pune. The said land was Ramoshi Inam land, which was class III inam. That was abolished under the provisions of the Bombay Inferior and Village watans Abolition Act, 1958 with effect from 1st may l959. The holder of the land paid the requisite amount on 21st April 1962, on which date the land stood regranted to him. The predecessor of the Respondent, one Rama Arjun ramoshi, who was the owner of the suit land, died in the year 1952. His son Shripati also died on 3rd October 1975, leaving behind Respondent No. 3 herein, the second wife, and his daughter shantabai from the first wife. The predecessor of the Petitioners Vithoba Pashankar, who was the husband of Petitioner No. 1; father of petitioner No. 2; and uncle of Petitioners Nos. 4 and 5 was in possession of the suit land as protected tenant as is mentioned in the Mutation entry No. 513 effected on 21st January 1959. His name appeared on the village record since 1949. The entries in the village records for the subsequent years from 1964-65 till 1966-67 indicate as 'khud' in 'tenant' column. However, on application to the Cirele Officer, the said entry was corrected and the name of the petitioners' predecessor, Vithoba, came to be entered by order dated 25th June 1967, which was also later on certified before the death of the predecessor of the Respondent, Shripati. The predecessor of the Petitioners, Vithoba, died in 1979. In the meantime, the predecessor of the respondent, Shripati, husband of Respondent No. 3 Laxmibai, sold three acres out of the suit land to the predecessor of the Petitioners, Vithoba, and his brother Namdeo. The remaining land remained in the name of the landlord, which, the record would establish, was being cultivated by the predecessor of the Petitioners. It appears that proceedings under section 32g of the Bombay tenancy and Agricultural Lands Act were commenced in the year l967 and not ice came to be issued to the Petitioners' predecessor Vithoba on 25th january 1974. The Respondent No. 3 herein as a counter-blast filed application on 15th July 1976 under section 70 (b) of the Act for a negative declaration that the Petitioners are not tenants. The present writ petition arises from the orders passed on the said application. The said application was contested before the Tahsildar. The Tahsildar by his decision dated May 2, 1987, was pleased to dismiss the application. The tahsildar has noted that the applicant, respondent No. 3, except examining herself, did not adduce any other evidence, whereas the petitioners not only adduced oral evidence, but also produced documentary evidence in the shape of mutation entries to support their stand that their predecessor has been recorded as protected tenant. Besides the mutation entry, statements recorded by the revenue officers, containing the statement of Shripati, predecessor of Respondent no. 3, were also relied upon, which concede the position that since 1959, the predecessor of petitioners, Vithoba, has been cultivating the suit land as tenant and that he was accepting khand from him. On analysing the evidence on record, the Tahsildar came to the conclusion that the Respondent No. 3 applicant was not entitled for getting negative declaration against the petitioners as the Petitioners were tenants in the suit land through their predecessor, at least since 1950. The Tahsildar has also adverted to the admission of the Respondent No. 3 in her oral evidence that she was not aware of the transaction between her predecessor Shripati and the predecessor of the Petitioners. She has also admitted that during the lifetime of Shripati, he used to receive food grains from the Petitioners. In this view of the matter, the Tahsildar found that the evidence on record would clearly establish that the Petitioners were cultivating the suit land as tenants and that position is established by mutation entries and the revenue record, which have remained unchallenged by the predecessor of Respondent No. 3, Shripati, during his lifetime. The Tahsildar also went on to observe that the application filed by respond en t No. 3 was not competent, because the other heirs were not joined. Against this decision, the matter was carried in appeal by the respondent No. 3. The appellate authority by decision dated September 10, 1982, confirmed the view taken by the Tahsildar and proceeded to dismiss the appeal. The appellate authority in the first place found that the Respondent No. 3 had no locus standi to file the appeal. Laxeibai had filed the appeal, because, it has come on record that she had sold the suit land to the other parties, namely, P. K. Gujar and Y. V. Padale. It then went can to observe that the proceedings were in any case bad for non-joinder of necessary parties. It also held that the original application filed by the Respondent No. 3 was barred by limitation, inasmuch as application for negative declaration ought to have been made within six months from the date of cause of action. It found that in the present case, the cause of action had arisen much earlier, for which reason application was not competent. The appellate authority has then concluded that the Petitioners cannot be said to be unauthorised culltivators. It has adverted to the admission of the applicant, Respondent No. 3, including the effect of unchallenged mutation entries. Accordingly, the appeal came to be dismissed. Against the said decision, the purchasers of the suit lands from Smt. Laxmibai, as well as Respondent No. 3, preferred revision application before the M. R. T. The Tribunal was pleased to allow the said revision application by the impugned judgment and order. The Tribunal proceedeo to examine the matter with reference to the submissions canvassed before it that though the Petitioners were in occupation of the suit land, they cannot be said to be tenants, because no fresh agreement or lease was executed in favour of the Petitioners in respect of the suit land after the date of regrant. The Tribunal was impressed by this submission and held that since no fresh agreement of lease was executed in favour of the Petitioners after the date of regrant, they would not continue to be tenant in respect of the suit lands. The Tribunal in para 9 has clearly recorded that though the petitioners were previous tenants in respect of the suit land, however, after the date of regrant, their tenure would be governed by the provisions of section 320 of the Act and the petitioners having failed to send intimation within the specified period, were not entitled for any protection. The Tribunal then went on to observe that even if there was any lease created between the parties, the same being without permission would be illegal and the occupation of the Petitioners would be unauthorised. The tribunal then found that since the Petitioners preferred to purchase only three acres of land out of the suit land, totally admeasuring 16 acres, it clearly goes to show that the petitioners never considered themselves as tenants in the suit land. In substance, the conclusion reached by the Tribunal is that after the date of regrant, the Petitioners though were lawfully cultivating the suit land as tenants, could not be termed as tenants in absence of fresh lease executed in their favour in respect of the suit land. The Tribunal also discarded the mutation entries which operated in favour of the Petitioners on the above reasoning. Insofar as the technical issues decided against the respondent No. 3 about the maintainability of the proceedings, the Tribunal found that in the present proceedings under section 70 (b) of the act, the main question was whether the person has established his status as that of tenant in the suit land. On that reasoning, the issue of locus standi and non-joinder of necessary parties has been answered by the Tribunal.

(2.) Insofar as the issue of limitation is concerned, the Tribunal found that since the respondent No. 3 was challenging the capacity of the Petitioners as tenants, the question of proceedings being instituted after limitation does not arise. On the above reasoning, the tribunal proceeded to decide the revision in favour of the Respondents by setting aside the orders passed by the two authorities below.

(3.) Mr. Karandikar, for the Petitioners, contends that the Tribunal has clearly exceeded its jurisdiction in answering the technical issues in favour of the Respondents. He submits that in any case, even on merits, the reasons, which have weighed with the Tribunal, cannot be sustained and are clearly contrary to the settled legal position. He submits that since the suit land was in am land and has been regranted after the tillers' day, the date of regrant would be the tillers' day be ing 21st April 1962. He submits that from the evidence on record, as has been found by the two fact finding authorities below, the predecessors of the Petitioners were in occupation of the suit land as tenants at least since 1950, i. e. , much prior to the tillers' day and that position is substantiated by the statement of Shripati Rama recorded by the circle Officer before effecting the concerned mutation entries. In that view of the matter, the Petitioners will have to be held as tenants prior to the tillers' day and for which reason it was unnecessary for the Petitioners to send intimation within the meaning of section 320 of the Act. To buttress this contention, reliance its placed on the decision of our High Court reported in 2004 (3) Mh. L. J. 75 in the case of pradeeprao @ Virgonda Shivgonda Patil v. Sidappa girappa Hemgire since deceased through his heirs and LRs. Ginnappa Sidappa Hemgire and others. Reliance is also placed on the observations made by the Apex Court in para 6 of the case reported in A. I. R. 1976 S. C. 1910 in the case of pandurang Dnyanoba Lad v. Dad a Rama Methe and others. It has been found that section 320 applies only to tenancies created after the tillers' day, i. e. , 1st April 1957. The argument, therefore, proceeds that in the present case, in fact, the tenancy was created since 1950 and much, earlier to 1st April 1957, for which reason the provisions of section 32o of the Act will have no application. Besides, contends Mr. Karandikar, that not only the documentary evidence would support the claim of the petitioners, but even the Respondent No. 3 and her predecessor, Shripati Rama, conceded that the petitioners were cultivating the suit land, whereas the only argument as was canvassed before the Tribunal on the assumption that after the date of regrant, the status of the Petitioners would undergo change and since no fresh lease has, been executed in favour of the Petitioners, coupled with the fact of non-compliance of requirement of section 320 of the Act, the petitioners would not deserve any protection; that contention is fallacious and cannot stand the test of judicial scrutiny, especially in the light of the two decitsions referred to above.