KRISHNA KISAN RAJARAM KARVE Vs. DINKAR ANAJI KUMBHAR

JUDGEMENT

(1.) ALL these three writ petitions can be disposed of by common Judgment, as they are between the same parties in relation to the agricultural land bearing Survey Nos. 230/3-B (part) and 230/4-A/2, which has been subsequently formed into Gut No. 1294, situated at village Pandare, taluka Baramati, district pune. Petitioner Krishna alias Kisan Rajaram karve and others are the landlords in respect of the suit land. It is not in dispute that Dinkar anaji Kumbhar was inducted in the suit land as tenant. It is also not in dispute that the landlords issued notice for possession of the suit land under section 31 of the Bombay Tenancy and Agricultural Lands Act for personal cultivation on 25th August 1986. Thereafter, the landlords instituted proceedings for possession of the suit lands on that ground, which proceedings culminated with the order of possession of half portion of the suit lands to be handed over to the landlords. That order was passed on 3rd March 1959. Pursuant to the said order, the landlords have been put in possession of the half portion of the suit lands. That land is not subject matter of the present proceedings. However, insofar as the remaining half portion of the suit lands is concerned, the landlords subsequently filed application for issuance of exemption certificate under section 88c of the act on 30th November 1959. We are not concerned even with the said proceedings. What is relevant for our purpose is that the tenant himself moved an application before the Tenancy Awal Karkoon, which was numbered as Proceedings No. 1 of 1959 stating therein that he was not interested in cultivating the suit lands any further and that he was in occupation of other lands owned by him, which were sufficient to cater to his requirements. In other words, the application came to be filed by the tenant that he may be permitted to deliver possession of the suit lands to the landlords. That application was considered by the Tenancy Awal Karkoon and after giving sufficient opportunity to the tenant, eventually, the same was allowed and the tenant was permitted to surrender the lands to the landlords by order dated 30th October 1959. The order clearly records that matter was also postponed on 3 occasions and the tenant was made fully aware of the consequences of his stand that he would like to hand over possession of the suit lands to the landlords and inspite of that, the tenant volunteered and stood by his application. Indeed, after the tillers' day, i. e. , 1st April 1957, the question of surrender of lands by the tenant did not arise, because, on that day, by operation of law, the tenant became deemed purchaser and that the relationship of landlord and tenant between the parties came to an end. However, the stand taken by the tenant, such as in the present case, was surely one covered by section 32g of the Act, which obligates the tribunal to record a statement of tenant whether he is or is not willing to purchase the land held by him as tenant. Before we refer to the other facts, it will be apposite to advert to the scheme of the Tenancy Act. Section 32 of the Act provides that on the tillers' day, the tenant is deemed to have purchased the land under cultivation, but that arrangement is subject to the other provisions of the Act, as is provided for in sub-section (1) of section 32. Section 32g thereafter obligates the tenant to exercise the right to purchase the suit land. In cases where the tenant declines the option of purchase, it would necessarily follow that the statutory purchase has become ineffective and procedure for resumption of land under section 32p of the Act is required to be initiated in such cases. In other words, it is not as if on 1st April 1957, the tenant becomes full and absolute owner of the land, but his right is subject to complying with other requirements of the Act including section 32g, expressing willingness to purchase the suit land. Whereas, in the present case, it is seen that the tenant filed application before the tenancy Awal Karkoon on 29th September 1959 mentioning in clear terms that he was not interested in having the land or continuing to cultivate the same. The order passed by the tenancy authority on 30th October 1959 also records the fact that the tenant was clearly told that his stand would disentitle him from purchasing the suit lands and inspite of that, the tenant stood by his stand that he may be permitted to hand over the suit lands to the landlords. Pursuant to the said order passed by the Tenancy authority on the application filed by the tenant* the revenue record indicates that the landlords were put in possession of the suit lands on 4th December 1959 and they have continued to remain in possession thereof since then. It is, however, after lapse of more than 23 years, the tenant chose to file appeal questioning the correctness of the order passed by the tenancy authority on his own application for permitting him to hand over the suit lands to the landlords. The appeal is filed on the assertion that the tenant is still in occupation of the suit land and that the earlier arrangement worked out between the parties was due to misrepresentation of the tenant. Besides filing the appeal questioning the decision of the tenancy authority dated 30th October 1959, the tenant also simultaneously filed application under section 37 read with section 39 of the Act for restoration of the suit lands to him on the assertion that he has been forcibly dispossessed from the suit land some time in the year 1982. In the said application, the tenant also prayed for relief of compensation for the loss suffered due to such forcible dispossession. The appeal filed by the tenant was numbered as Appeal No. 30 of 1982 filed before the Sub-Divisional officer, Baramati Division, Baramati, whereas the application under section 37 read with section 39 of the Act was numbered as Tenancy Case No. 3 of 1982 before the Tahsildar, Baramati. The application filed by the tenant being Tenancy case No. 3 of 1982 was decided by the Tahsildar, baramati, by a judgment and order dated March 3, 1983. The Tahsildar found that the application preferred by the landlords for issuance of exemption certificate under section 88c of the act was misconceived, because the same was filed after the tillers' day. It is noted that in the present case, the tillers' day would be 3rd March 1959, on which date the application of the landlords under section 31 of the Act for possession of the suit lands on the ground of personal cultivation came to be disposed of, whereas the application under section 88c of the act was filed in October 1959. The Tahsildar further found that since the landlords had invoked the provisions of section 31 of the Act for obtaining possession of the suit lands on the ground of personal requirement, there was no question of tenant surrendering the suit lands after the tillers day. On this reasoning, the tahsildar allowed the application preferred by the tenant for restoration of the suit lands and also directed the landlords to pay compensation quantified at Rs. 3,000/- to the tenant. It is not in dispute that the Tahsildar has not addressed himself to the factum of the date of dispossession of the tenant from the suit lands. Against the decision passed by the Tahsildar directing restoration of suit lands to the tenant, the landlords preferred appeal before the sub-Divisional Officer being Tenancy Appeal No. 32 of 1983. That appeal was allowed by the appellate authority on July 3, 1983. The appellate authority found that the application filed by the tenant for restoration of suit lands under section 37 read with section 39 of the Act was misconceived and was not tenable in law. Accordingly, the appeal came to be allowed by setting aside the order of restoration of suit lands passed by the Tahsildar. Against this decision, the tenant carried the matter in revision before the Maharashtra Revenue Tribunal being Revision No. MRT. P. VII-12/83 (TNC-B-198/83) Pune. While this revision application was pending, the Sub-Divisional officer decided the appeal preferred by the tenant questioning the correctness of decision of the Tenancy Awal Karkoon dated 36th October 1959 by judgment and order dated 28th July 1983. The appeal preferred by the tenant came to be dismissed on the reasoning that the tenant was fully aware about the decision passed on 30th october 1959 and there was no sufficient cause for entertaining the appeal after the lapse of 23 years. The appellate authority also recorded a finding on merits that there is no infirmity in the decision passed by the Tenancy Awal Karkoon dated 30th October 1959, because that order was passed after giving sufficient opportunity to the tenant and the same came to be passed only after the tenant volunteered to hand over the suit lands to the landlords. Against the decision passed by the appellate authority in Tenancy appeal No. 30 of 1982, the tenant preferred revision application before the M. R. T. being revision No. MRT. P. IX. 7/1983 (TNC-B-253/1983 ). It is relevant to note that after the decision of the Tahsildar dated 15th March 1983, directing restoration of the lands to the tenant, the tenant had filed appeal before the Sub-Divisional officer being Appeal No. 38 of 1983 for enhancing the compensation awarded by the tahsildar quantified at Rs. 3,000/ -. That appeal came to be dismissed by the Sub-Divisional officer on 28th July 1983 on the reasoning that the appeal preferred by the landlords has been allowed. Naturally, the tenant carried this decision in revision before the M. R. T. by way of revision No. MRT. P. IX. 8/1983 (TNC. B-254/1983 ). Since all the three revision applications were pending before the M. R. T. , the Tribunal proceeded to decide the same by common judgment and order dated February 16, 1985. It has affirmed the view taken by the appellate authority that the application as filed by the tenant under section 37 read with section 39 of the Act was not maintainable. It has also affirmed the finding recorded by the lower authority that the surrender of the suit lands by the tenant was voluntary. The Tribunal also affirmed the finding of fact recorded by the authorities below that no documentary evidence was adduced by the tenant, except his oral evidence to support his stand that he was giving half crop share to the landlords till the alleged dispossession on 23rd april 1982, whereas the 7 x 12 extracts and other contemporaneous record would indicate that from 1959-60 onwards, the possession of the suit lands is recorded of landlords as 'khud'. In other words, the Tribunal has answered all the material issues in favour of the landlords, but then proceeded to hold that the surrender was illegal and void on the ground that the landlords had already obtained possession of half portion of the suit lands under section 31 of the Act by order dated 3rd March 1959. The Tribunal has, however, not even adverted to the grievance made on behalf of the landlords that the appeal filed by the tenant questioning the decision of the tenancy Awal Karkoon dated 30th October 1959 after lapse of 23 years was barred by limitation. Be that as it may, as mentioned earlier, although the Tribunal has answered the material issues in favour of the landlords, proceeded to grant relief to the tenant by holding that the order of surrender passed by the Tenancy Awal Karkoon, baramati, dated 30th October 1939 was illegal and void and the same will have no effect. On that reasoning, it proceeded to pass the following order:

(2.) AGGRIEVED by the aforesaid decision, the landlords have filed Writ Petition. No. 3056 of 1985, whereas the tenant has filed two writ petitions, being Writ Petition No. 267 of 1986 and Writ Petition No. 268 of 1986 respectively. The landlords are questioning the decision of the tribunal holding that the order of the Tenancy awal Karkoon dated 30th October 1959 is illegal and void and will have no effect, whereas the tenant has questioned the decision of the tribunal on the argument that although it is held that the order of surrender is void, but has not given any relief to the tenant on the reasoning that the appropriate remedy for the tenant at best would be under section 84 of the Act.

(3.) IN the backdrop of the above facts, Mr. Dani, for the landlords, contends that the appeal presented by the tenant questioning the decision of the Tenancy Awal Karkoon dated 30th October 1959 was untenable and the appeal court had no authority to entertain the same because the same was filed much beyond limitation and that no formal application for condonation of delay was accompanied along with the appeal nor any formal order has been passed by the appellate court to condone the delay in filing the appeal nor any sufficient cause has been made out for condonation of delay of almost 23 years. He, therefore, submits that in such a case, the appeal Court cannot assume jurisdiction to enter upon the merits of the controversy unless the delay in filing an appeal was to be condoned in the first place. In support of this submission, reliance is placed on two decisions of the supreme Court reported in 1995 Supp (3) S. C. C. 231 in the case of Secretary to Govt. of India and others v. Shivram Mahadu Gaikwad; and a. I. R. 1999s. C. 3837 in the case of Ramesh chand Sharma v. Udham Singh Kamal; and decision of our High Court reported in 2003 (3) Mh. L. J. 238 in the case of Ballumal A. Jaisingh v. M/s. J. J. Builders and others. Mr. Danithen submits that assuming that the order passed by the tenancy Awal Karkoon dated 30th October 1959 is illegal or untenable for any reason, even so it was obligatory on the part of the tenant to question the correctness of the said decision immediately after the said order was passed within the limitation period prescribed by the act. He submits that unless the validity of the order is put in issue, it was not open for the tenant to ignore that order till it is set aside as the same will bind the parties inter se. To buttress this submission, reliance is placed on two decisions of the Apex Court reported in a. I. R. 1991 S. C. 2219 in the case of State of punjab v. Gurdev Singh, Ashok Kumar and 1999 (1)Mh. L. J. 782 in the case of V. S. Charati v. Hussain Nhanu Jamadar by L. Rs. He further submits that as no sufficient cause for condoning delay of 23 years has been made out, the appeal as presented by the tenant was incompetent and the same could not have been examined on merits at all and all the reasons recorded by the appellate authority or for that matter by the revisional authority on merits of the contentions will have to be ignored and effaced from the record. He submits that if the landlords are right in this submission, then it would necessarily follow that the subsequent actions taken by the tenant for restoration of land or compensation was unavailable to the tenant and the same ought to be rejected on that count alone. He submits that in any case the finding of fact recorded by the authorities below which has been affirmed till the stage of revision application by the Tribunal is that the tenant has failed to produce any documentary evidence to support his stand that he was in possession of the suit land from 1959-66 onwards and since the tenant would be bound by the order of surrender passed in 1959, consequent to which possession has been made over to the landlords, as has been recorded in the revenue records in the shape of kabje Pavti, the grievance of the tenant at this distance of time, after lapse of 23 years of forcible dispossession cannot be sustained, being an afterthought. He further submits that it has been found as of fact that the order of surrender was voluntary and there was no substance in the allegation of the tenant that it was obtained by misrepresentation and that finding of fact will bind this Court. On the above arguments, Mr. Dani submits that writ petition preferred by the landlords will have to be allowed in toto by setting aside the decisions passed by the authorities below on the appeal preferred by the tenant as well as on the application preferred by the tenant for restoration of the suit lands.