DINKAR RAMCHANDRA MORBALE Vs. MAHADU NATHU WARKE

JUDGEMENT

(1.) ). This writ petition takes exception to the judgment and order passed by the Maharashtra revenue Tribunal, Kolhapur, dated September 1, 1983 in Revision No. MRT-KP-168/82. Briefly stated, the land in question is agricultural land bearing No. RES 59/1b situated at village kalankwadi taluka Bhudargad, district Kolhapur. The Respondents instituted suit bearing Regular civil Suit No. 28 of 1977 in the Court; of Civil judge, Junior Division, Radhanagari, for possession of the suit land and for mesne profits on the assertion that they were the tenants in the suit land prior to the tillers day, i. e. , lst April l957, on account of which they became deemed purchasers thereof and that they have purchased the same by paying the purchase price and certificate under section 32m of the Act was also granted in their favour. In other words, it was stated by the Respondents that they are the tenant purchasers in respect of the suit land, which was originally owned by one Smt. Jankibai digambar Kulkarni. It was their case that the petitioners herein forcibly dispossessed them in december 1973 on the basis of false pencil entry for which reason, suit for possess ion came to be filed. In the said suit, the Petitioners filed written statement stating that the land bear ing r. S. No. 59 was totally admeasuring 5 acres 30 gunthas and the whole land was owned by one laxmibai Ganesh Kulkarni and not by Janaki digambar Kulkarni. It is their case that their predecessor one Gopal Babai Powar was inducted in the suit land as tenant pursuant to Kabulayat dated,18th February 1939 for l0 years and since then he was lawfully cultivating the suit land. The Petitioners, therefore, claimed right, titkle and interest in the suit land through their predecessor Gopal Babai Powar and asserted that, in fact, they have become deemed purchasers be ing in lawful cultivation of the suit land on the tillers' day, lst April l957. On the basis of pleadings, as filed before the Civil Court, issues which could be exclusively tried by the tenancy court did arise. Accordingly, those issues were framed and reference was made to the tenancy court under section 85a of the Act, to decide the following issues : "1. Do plaintiffs prove that on the date of suit they were in possession of the suit lands on the bas is of their tenancy rights, and 2. Do the defendants prove that their forefathers were the tenants over the suit land and after their death, they had become the tenants over the suit land,

(2.) THE said reference proceeded before the tahsildar, Bhudargad, be ing TNC Reference No. 10/1977. The tenancy authority by decision dated october 30, l982, found that the plaintiffs, respondents, were the tenants in the suit land. For coming to that conclusion, the tenancy authority referred to the previous proceedings between Jankibai and the Respondents plaintiffs and found that the conclusion that the respondents were tenants was inevitable. The tenancy authority rejected the claim of the petitioners that they were tenants through laxmibai Ganesh Kulkarni in the suit land and found that the Petitioners were trespassers. Against that decision, the Petitioners carried the matter in appeal before the Deputy Collector, and Special Land Acquisition Officer, No. 8, kolhapur be ing Tenancy Appeal No. 6/1992. , The appellate authority on analysing the evidence on record in substance found that the first authority had glossed over the crucial aspect that Laxmibai was the owner in respect of the suit land and there was ample material on record to establish that position, bes ides the admission of Jankibai in the Criminal Case No. 5 of l969 that she did not have any title, in th,,suit land. It will be apposite to reproduce the view taken by the appellate authority, on the basis of which the appellate authority thought it appropriate to remand the matter to the firat authority for a de novo trial after allowing the parties to lead evidence. The same reads thus : "after hearing both the sides, and examining ev idence on record it is, observed that Shri Gopal Babaji Powar has accepted the suit land for culitivation as tenant from Smt. Laxmibai Kulkarni by a register Kabulayat of 28-2-39 (p. 221 ). He is forefather of tne appellants as admitted by the watmukhatyar of laxmibai's adopted son. (p. 211 ). The respondents in their application at page 127 have stated that Smt. Jankibai w/o digambar Kulkarni its the owner of the suit land. They relied on Vyavastha patra at page 117. The lower court has made Smt. Jankibai as party in the proceeding as requested by the respondent (121 ). However Smt. jankibai denied the ownership of the suit land (p. 247), In the Vyavastha Patina (p. 1117) the suit land is no t mentioned there in. No other ev idence on record to show that Smt. Jankibai is owner of the suit land not the claim ownership of the same. On the other hand it has observed from the judgment in Criminal Case No. 5/69, smt. Jankibai deposed before the Sub divisional Magistrate, Gadhinglaj Dn. , gadhinglaj that she did not have any title in the S. No. 59/1-A and 59/1-B. She further stated that the respondent in the present appea1 approached her and told her that since these lands stood in her name, she should sell these lands to them for some amount. She admits that she was tempted by the money and executed sale deed (p. 197 ). Smt. Jankibai has confirmed this fact before the lower (court) in her deposition at p. 247. The lower court has not (taken) into consideration this fact before corming to the conclusion that Smt. Jankibai is owner of the suit land and respondents are tenant thereof. He relied on the decision given in 32-G proceeding and has drawn inference while giving findings of the issues. On going through the judgment in 32g enquiry (p. 69) it has disclosed that no proper enquiry was made nor any issues were framed by the Addl. Tahasildar and a. L. T. , Bhudargad. He relied on sale deed at page 59 while accepting respondents as tenant and deemed purchaser of the suit land and directed to issue purchase certificate u/s. 32m. The lower court has taken into consideration this judgment as basic data for giving findings on the issue referred by the Civil Court. He has not examined the appellants Nos. 1, 2, 4 to 9 nor he tried to discuss the evidence put before him. His findings is based on presumption and not on the evidence on record. In the result, I have no alternative than to pass the following order. ORDER the appeal is allowed. Order of the lower court is set aside and case remanded back for retrial. The lower court should examine the appellants Nos. 1, 2, 4 to 9 and decide the case on merit by allowing both the parties to lead their respective evidence. No order as to the costs.

(3.) AGAINST this decision, the Respondents carried the matter in revision before the tribunal. The Tribunal in the impugned judgment in the first place found that there was no occasion for the appellate authority to remand the matter, that too by directing the first authority to permit the parties to adduce further evidence, as no such request was made. It then went on to analyse the evidence, which was on record, namely, the 7 x 12 extracts and the proceedings which culminated in favour of the respondents between them and Jankibai declaring the Respondents having become deemed purchasers. On that basis, the Tribunal preferred to affirm the view taken by the first authority. The tribunal also rejected the claim of the petitioners that, in fact, Laxmibai was the owner of the suit land and that the same was leased to predecessor of the Petitioners. On the above reasoning, the Tribunal preferred to allow the revision preferred by the Respondents and set aside the decision of the appellate authority, and, instead, restored the order passed by the first authority. This decision of the Tribunal is the subject matter of challenge in the present writ petition.