PANDHARINATH GOPINATH Vs. LIMBAJI LAXMAN

JUDGEMENT

(1.) THIS is a tenants petition under Article 227 of the Constitution against the judgment delivered by the Maharashtra Revenue Tribunal, Aurangabad, rejecting the application filed by the petitioner against the Appellate order passed by the Collector, Aurangabad, dismissing his appeal against the order passed by the Tahsildar allowing the application of the landlord to resume half of the land from the petitioner under section 44 read with section 32 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter called as the "Hyderabad Tenancy Act"). The petitioner is a tenant of two fields of village Dinnapur, Taluka Paithan, District Aurangabad. One Madhavrao was the original landlord of these fields but he expired in 1951 leaving behind him his two widows (1) Sunderabai and (2) Ansabai and a daughter. There was no partition between his heirs. On 18th December, 1958, Sundarabai alone served a notice of resumption of both these lands under section 32 read with section 44 of the Hyderabad Tenancy Act on the ground that she required these lands for her bona fide requirement. As the petitioner did not surrender these lands, she alone filed an application on 25th March, 1959 under the above-mentioned section in respect of both the lands. It may be mentioned that the other heirs of Madhavrao were not made parties to this application. THIS application was rejected by the Tahsildar. The Collector also dismissed the appeal. She thereafter took up the matter to the Maharashtra Revenue Tribunal, where it appears that Ansabai, the other widow, agreed not to oppose the application of Sundarabai on the assurance that her interest in the land to the extent of 1/2 share would not be disturbed. After the remand, Sundarebai died on 1st September, 1967 but it appears that no application was tiled in time to bring the legal representatives on record. On 19th February, 1968, the respondent applied for substituting his name in place of Sundarabai as her heir on the ground that she had made will in his favour. It appears that the Tahsildar, without any notice, ordered on 23rd February, 1968 that Limbaji should be brought on record. Thereafter a fresh notice was issued under section 32 read with section 44 of the Hyderabad Tenancy Act to the petitioner. The Tahsildar conducted an enquiry and on 27th June, 1968 he passed an order restoring possession of 1/2 land to Limbaji. Against this order, the petitioner filed an appeal before the Collector but that appeal was dismissed. An application for revision was also dismissed by the Maharashtra Revenue Tribunal. It is against this order that the present petition has been filed. Mr. Hussein, the learned Counsel for the petitioner, urged that the Tahsildar has committed an error in bringing the respondent on record in place of the deceased Sundarabai without notice to the petitioner. He further urged that the Tahsildar has also committed an error in setting aside the abatement on merits he submitted that the revenue authorities have committed an error in following the application of landlord for resumption of the land on the basis of requirement of the original applicant who has died. In my opinion, the submission is well-founded. It is true that the Naib Tahsildar has set aside the abatement and condoned the delay in filing the application for bringing the legal representative on record. Here the original applicant has gifted the property a will to her brother and, therefore, it is natural that there would have been delay in making the application to bring the legal representative on record on the basis of that will. The Tahsildar, therefore, seems to have been justified in setting aside the abatement, but that does not mean that Limbajis name should be brought on record without notice to the petitioner. The petitioner was very much interested and it was open to him to challenge the will. Under these circumstances, the Tahsildar has committed an error in bringing Limbajis name on record in place of Sundarabai without notice to the petitioner. The Collector and the learned Member of the Maharashtra Revenue Tribunal have also committed an error in holding that the petitioner was not entitled to a notice on that ground. The order bringing Limbaji-respondent on record is, therefore, liable to be set aside. The Tahsildar will have to find out whether the respondent is able to prove the will and whether the property has been really given under the will to Limbaji by the deceased. So far as the requirement of the landlord is concerned, there is no dispute that sundarabai has died and the revenue authorities have granted the application under section 32 read with section 44 of the Hyderabad Tenancy Act on the basis that she required the suit land bona fide for her personal cultivation. It is very well settled by the decision of this Court that it is the requirement of the heirs that will have to be taken into consideration. In (Hariba Keshav Barbole v. Smt. Motibal Deepchand) 76 Bom.L.R. 595 the Division Bench of this Court has observed :