DURGABAI DATTAJIRAO GHATGE Vs. YESABA SANTU KAMBLE

JUDGEMENT

(1.) THE principal question that needs to be addressed in the present Petition is: what was the holding of the Petitioner landlady on the date when she made application for possession under Section 33b read with Section 29 of the Bombay Tenancy and agricultural Lands Act, 1948 (hereinafter referred to as 'the Act') on 27th January 1965. It is not in dispute that exemption certificate under Section 88c of the Act has been issued in favour of the petitioner on 30th October 1964. On the basis of that Certificate, the Petitioner filed application for possession of the suit land from the respondents tenants on 27th January 1965. The first Authority, after several remands, have eventually found, as of fact, that the Petitioner landlady was not in possession of any agricultural land on the date of application i. e. 27th January 1965. For reaching at this conclusion, the authority has analysed the evidence on record, both documentary as well as oral. Indeed, it has referred to the statement made on behalf of the landlady in the cross-examination that she has come in possession of certain lands in the year 1965-66 for her personal cultivation. Even that aspect has been examined by the First Authority and a finding of fact recorded that the Petitioner landlady was not holding any land or was not in possession of any agricultural land on 27th January 1965 vide judgment and Order dated October 31, 1986. That view has been affirmed by the Appellate Authority in Judgment and Order dated May 11, 1987. However, the Tribunal, for the first time, has interfered with the concurrent finding of fact recorded by the two Authorities below* on the following reasoning :

(2.) HAVING gone through the record and considering the decisions of the Authorities below, i have no hesitation in taking the view that the decision of the Tribunal cannot be sustained. In the first place, it was not open to the Tribunal to reappreciate the evidence on record to arrive at a different finding of fact. Assuming that the tribunal has proceeded on the assumption that the authorities below have committed error apparent on the face of the record* even so* the conclusion reached by the Tribunal cannot be sustained. Although the Tribunal cannot be faulted with the opinion recorded that the 7/12 extract would indicate that the Petitioner landlady was in possession of 13 acres and 33 gunthas of land as owner, but what has been glossed over by the tribunal is the necessity of ascertaining the fact as to on the date of application, what was the holding of the landlady, if any.

(3.) AS mentioned earlier, two Authorities below, on analysing the materials on record have reached at the clear finding of fact that on 27th January 1965, the Petitioner landlady was not holding any other agricultural land. The First Authority has also adverted to the same record in the shape of 7/12 extract and in particular, the statement made in the cross-examination on behalf of the petitioner landlady that she came in possession of certain lands in the year 1965-66. The Authorities below have found that no positive evidence has been adduced by the Respondents/tenants to even remotely suggest that the Petitioner landlady was in actual occupation of some lands prior to 27th January 1965. The entry in the 7/12 extract would only mention the fact that Petitioner came in possession of certain lands from 1965-66, but that is not sufficient to record clear finding of fact that the possession of those lands was received by the landlady before 27th January 1965. When the revenue records refers to period 1965-66, it is obviously with reference to the agricultural year as is defined in Section 2 (1) of the Maharashtra land Revenue Code, 1966 read with Notification of the State Government dated August 24, 1967 to mean 1st of April of every year i. e. in the present case 1st April 1965 onwards. That will be of no avail because in our case, what is to be ascertained is whether the Petitioner landlady was in possession of any other land on or before 27th january 1965. The legal position as to from which date the holding of the landlord ought to be reckoned is well settled, as can be seen from the decision of the Division Bench of our High court reported in 1966 (LXVIII) 524 in the case of Madhav Vithoba Wani vs. Dhonduas bhandas Bairagi. Accordingly, in my opinion, the decision of the Tribunal, which is impugned in this writ Petition, cannot be sustained either on fact or in law. Hence, this Petition succeeds. The impugned Judgment and Order is set-aside and instead; the order passed by the Appellate authority confirming the order passed by the First authority is restored. No order as to costs.