NAGESHWAR DEO DEOSTHAN TRUST Vs. NAMDEO GOPALRAO WABLE

JUDGEMENT

(1.) BY means of this petition under Article 227 of the Constitution, the petitioner landlord has taken exception to the judgment and order dated 9. 7. 1990 rendered by the Maharashtra Revenue tribunal (for short "mrt") in Revision Application No. MRT/p/x/2/89/ (TNC. B. 260/89) filed by the respondent tenant, by which the revision has been allowed and they have been declared protected tenants.

(2.) ONE Gitabai Shankar Kulkarni in her capacity as a trustee of a trust by name Shri Nageshrao Deo, Patas, Abshishak Anusthan Trust had filed a suit for possession of the field Survey Nos. 249 and 544 of village patas, Taluka Daund, District Pune, against the original tenant Gopala genu Wabale, who died during the pendency of this petition and is now being represented by the respondents (for short the tenant ). In that suit the defendant had claimed that he was a tenant since 1957-58. An issue of tenancy was, therefore, framed and referred to the Tahsildar by the Civil court under section 85-A of the Bombay Tenancy Act, 1948 (for short

(3.) I perused the judgment and order of the Maharashtra Revenue tribunal. The Tribunal, mainly, on the basis of the entries in the revenue record declared the respondents as "protected tenant" under the provisions of the Bombay Tenancy Act, 1939 (for short Act of 1939 ). It has observed that the entries in the record of rights show that the respondent-tenant was a protected tenant and that the landlord did not apply prior to 8. 11. 1947 as contemplated under section 3a of the Act of 1939 seeking declaration that Gopala was not protected tenant. The MRT, while making such observations and disturbing the concurrent findings of the authorities below has completely overlooked the judgment of this court and the Apex Court in the earlier round of litigation. As a matter of fact, this court in the judgment and order dated 23. 9. 1975 in special Civil application No. 979 of 1971 in paragraph 4 thereof had categorically recorded that revenue record in the form of record of rights show that the entry showing Gopala as protected tenant was deleted by the Mamlatdar on 20th June, 1955. This entry was certified and that certification was made after notice to Gopala. This correction had been carried out on the basis of an order of the Prant Officer dated 6. 11. 1950 This clearly indicates that the name of Gopala was deleted as protected tenant after following the mandate of the provisions of section 3-A of the Act of 1939. Section 3-A of the Act of 1939 clearly provides that every tenant shall form 8. 11. 1947 be deemed to be a protected tenant for the purpose of this Act and his rights as such protected tenant shall be recorded in the record of Rights. Unless his landlord has prior to the aforesaid date made an application to the Mamlatdar for a declaration that the tenant is not a protected tenant. The explanation appended to section 3-A provides that a person shall be deemed to be a protected tenant if such person has been or an application made by the owner of the land as provided in section 3-A of the Act of 1939, declared by a Competent Authority not to be a protected Tenant. This Court in the judgment dated 23. 9. 1975, passed in special Civil application No. 979/1971 had clearly recorded that such order was passed by the Prant officer on 6. 11. 1950 declaring that the tenant was not a protected tenant. The Tribunal, therefore, committed grave error of law and fact and disturbed the concurrent findings recorded by the Authorities below. Morevoer, the tenant who, in the earlier round of litigation, claiming to be a tenant on 1. 4. 1957, was held to be a sub-tenant. He thereafter started second round claiming to be a protected tenant. The litigant cannot be permitted to raise such an issue in the second round if such an issue under the very Act has been decided in earlier proceedings.