LAXMIBAI JOSHI Vs. ARDISHI BABU HINGMIRE

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution filed by the landlords against the order passed by the Maharashtra Revenue Tribunal allowing the application for revision filed by the tenant against the order passed by the tenancy Awal Karkun as affirmed by the District Deputy Collector for tenancy Appeals, Kolhapur. Dattatraya Ganesh Joshi, Vishwanath Narayan Joshi and Govind Sitaram Joshi who were cousins owned 1/3rd share each in Survey No. 124/1 situated at village Rajapur, Taluka Shirol, District Kolhapur. It my be mentioned that the land was neither partitioned nor were the shares in the land demarcated. They filed three similar applications under section 88-C of the Bombay tenancy and Agricultural Lands Act, 1948 (hereinafter called as the "Tenancy Act). These applications were granted and a joint certificate was issued on 28th March, 1966. It was received by one Waman Vishwanath Joshi who was the agent of Vishwanath Narayan Joshi. In pursuance of this certificate, Dattatraya and Vishwanath gave notice of termination on 12th November, 1963 and initiated proceedings under section 33-B of the Tenancy Act on 11th December, 1963 in the Court of Tenancy Awal Karkun, Shirol. THIS application was dismissed on the ground that he landlords had not proved that they needed the land bona fide and also on the ground of limitation, in as much as the application was not filed within three months of the receipt of the certificate. The landlords thereafter filed an appeal before the Special Deputy Collector who allowed the application holding that the application was within time and sent back the case to the Tenancy Awal Karkun for fresh enquiry regarding the need of the landlords. After the remand, the tenancy Awal Karkun allowed the parties to lead further evidence and held that the landlords have established that they needed the land bona fide for their personal cultivation. He, therefore, allowed the application of the landlord to the extent of 2/3 share in the land. The tenant thereafter filed an appeal to the District Deputy Collector who dismissed it. The tenant then filed an application before the Maharashtra Revenue Tribunal which hold that the application before the Mamlatdar was barred by time. It was also held that the initial application ought not to have been granted by the Tenancy Awal Karkun as all the landlords have not made the application. The Maharashtra Revenue Tribunal, therefore, allowed the application for revision and dismissed the landlords application filed before the Tenancy Awal Karkun. It is against this order that the present petition has been filed. Mr. Jathar, the learned Counsel for the petitioner, urged that the Maharashtra Revenue Tribunal has committed an error in holding that the application filed by the petitioners was barred by time. He submitted that the Special Deputy Collector has recorded the findings that the applications were within time and initially remanded the case to the Tenancy Awal Karkun. THIS point was not agitated at all after the remand and it was not open for the respondent to take up that point again before the Maharashtra Revenue Tribunal. Even on merit, Mr. Jathar urged that the application is within time as he has received the certificate on 12th November, 1963 and has filed the application on 11th December, 1963. In my opinion, this submission has substance and deserves to be accepted, but, that apart, I have already mentioned that the land was held by three cousins and that the land was not partitioned and they were holding the land in common. In view of the matter, it was not open for the land owners to apply for possession of 2/3 share in the land. I am fortified in my view by the decision of this Court in (Jinabi Haji Ramjan Shaikh v. Bakaji Bhau Mandalik) 63 Bom.L.R. 657 where this Court has observed :