LAWS(BOM)-1994-6-12

KISAN YESHWANT DHIRADE Vs. SONABAI BAPPU LOHAR

Decided On June 23, 1994
KISAN YESHWANT DHIRADE Appellant
V/S
SONABAI BAPPU LOHAR SINCE DECEASED THROUGH LEGAL HEIRS Respondents

JUDGEMENT

(1.) --HEARD Mr. C. K. Shinde, learned Counsel for the petitioner, Mr. V. D. Hon, for respondent Nos. 1 (a) and 1 (b ). Mr. D. R. Jaibhar, learned Counsel for respondent Nos. 2 and 3 absent.

(2.) THIS writ petition is directed against an order dated 31st March, 1981 passed by the Maharashtra Revenue Tribunal, Pune, in Tenancy Revision Application No. 2 of 1979. The petitioner and the respondent Nos. 2 and 3, being the sons of one Yeshwant Dhirade, are brothers. Yeshwant Dhirade was, admittedly, a tenant in Consolidated Survey No. 250 of village Belpimpalgaon Tq. Newasa. The land admeasured 13 acres and 5 gunthas. Sobanai (respondent No. 1) was the landlady of that land and, under a notice dated 12-1-1956 issued before the tillers day, she had terminated the tenancy of Yeshwant Dhirade under section 31 of the BT and AL Act, on the ground that she required the suit land bona fide for her personal cultivation. Sonabai was not a widow, as such, at that time, therefore, there was no question of postponement of date of deemed purchase on that count. Her husband is said to have died later on, sometime in the year 1962. Deceased - Sonabai instiuted Tenancy Case No. 1193 of 1957, which was an application under section 29 for possession of the land in pursuance of the terminated tenancy. During the pendency of that application, the tenant appeared before the Court and as stated in the certified copy of the judgment delivered in the aforesaid tenancy case, he had made an application that he had surrendered the possession of the whole of the land. The judgment, further, stated that the application was verified as required by law and the whole proceeding was treated as a proceeding for surrender. The points for determination were framed in that matter. The first point for determination was, whether the tenant had surrendered the land voluntarily. There were three other points for determination. The learned Mamlatdar, Newasa, recorded an affirmative finding on the first point and, finally, ordered under section 29 (3) of the Bombay Tenancy and Agricultural Lands Act, 1948, that the possession of the said land should be handed over to the applicant landlady and the name of the tenant be deleted from the records pertaining to the said lands. This certified copy as well as the certified copy of the statement of Yeshwant Dhirade dated 6-5-1957, were produced in the Tenancy Appeal which arose in the present matter. The tenant made no grievance about the possession of the land for several years thereafter, though the aforesaid order was passed on 8-5-1957. Under a registered lease-deed dated 21-3-1969, the landlady leased the land to one Damu Kalu Suryawanshi and, thereafter, the present petitioner started the dispute.

(3.) THE present petitioner, then, applied for restoration of possession of land under section 27 of the Bombay Tenancy and Agricultural Lands Act, 1948, on the ground that though under the law, the landlady was bound to cultivate the land provisionally for 12 years she had leased out the land on 21-3-1969. At the time of execution of this registered lease deed in 1969, as stated above, Sonabai was a widow. Under section 2 (6) of the BT and AL Act, 1948, in the context of a widow, the cultivation of the land held by widow through a tenant, is deemed to be a personal cultivation of the land. Despite that fact, the tenant filed Tenancy Case No. 5 of 1970 before the Agricultural Lands Tribunal, Newasa, for restoration of possession of the land and the Agricultural Lands Tribunal ordered the land to be delivered back to the tenant under its orders dated 24-3-1972. Appeal No. 8 of 1977 preferred before the Sub-Divisional Officer came to be dismissed on 13-7-1977. But, in Revision Application No. 2 of 1979 before the Maharashtra Revenue Tribunal, Pune the landlady succeeded and the order of restoration of possession was cancelled. The tenant has, therefore, filed this writ petition.