BAPUSAHEB SHANTAPPA SHETE Vs. DINKAR BALWANT PATIL

JUDGEMENT

(1.) THIS writ petition challenges the orders passed by the Maharashtra Revenue Tribunal in Revision Application No. 313 of 1981 dated 20th Jan. 1983 confirming the orders passed by the Assistant Collector, Shahuwadi Division, Kolhapur in Tenancy Appeal No. 21 of 1977 and 32 of 1977 dated 17th August, 1981 in turn confirming the order passed by the Aval Karkun, Panhala in Tenancy Case No. 1 of 1976 dated 31st December, 1976. It is prayed that the said orders be quashed and set aside and the petitioners application for fixation of standard rent be granted.

(2.) THE dispute relates to land bearing Block No. 199, Original Survey No. 57 admeasuring 9 hectares 67 gunthas and assessed at Rs. 6. 56 and Block No. 181 which comprises of Original Survey No. 53/13 and 56/1. The aforesaid lands were situated in village Akurde, Tal. Panhala, Dist. Kolhapur, hereinafter referred to as "the suit land". The respondents are admittedly the tenants of the suit land. The deceased Bapusaheb filed an application on 3-2-1976 under section 43-B of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as "the Tenancy Act" for fixation of standard rent. According to the petitioner, the suit lands were leased for the purpose of cultivation of the sugarcane. It was the petitioners case that the lease with regard to the suit land was recorded by Kabulayat dated 22-1-1952. It is the case of the respondents that with regard to the part of Block No. 81 i. e. Survey No. 57/1 was a jirayat land and, therefore, the rent with regard to the said land cannot be fixed. The Tenancy Aval Karkun after considering the evidence led by both the parties came to the conclusion that Survey No. 57/1 is of Jirayat land and, therefore, it cannot be said that it was leased for the purpose of sugarcane. He also held that the other two lands were leased for cultivation of sugarcane. It was the case of the landlord that the suit lands were leased for creating sugarcane cultivation to the father of the petitioner. It was stated that the Additional Tahsildar and A. L. T. , Panhala by his order dated 19th September, 1970 passed in Tenancy Case No. 32-G/akurde-56 and 58 declared the land bearing R. S. Nos. 56/1 and 53/13 sugarcane lands. It was stated that no similar declaration was made with regard to R. S. No. 57/1. On the other hand it was contended that the lands are in personal cultivation for a long time. It was further stated that the kabulayat dated 22-1-52 produced by the applicant therein in support of his claim was not executed by his late father. Therefore, it was stated that kabulayat may not be taken into consideration as evidence in the present proceedings. He complained that the land bearing R. S. No. 57/1 is jirayat land and not a sugarcane growing land. He also stated that no sufficient water sources are available to the suit land. Hence the gross produce may not be as given by the applicant in his deposition. It was argued before the Court of Tenancy Aval Karkun that the Additional Collector and A. L. T. , Panhala by his order dated 19th September, 1970 has declared the lands R. S. Nos. 56/1 and 53/13 as sugarcane lands and has dropped the proceedings. Therefore, reasonable rent under section 43-B of these land have to be fixed. It was further argued that though the land R. S. No. 57/1 has not been declared by the competent authority as sugarcane land, the opponents are using the said land for growing sugarcane crops since long back. Hence the reasonable rent of the land will have to be fixed under section 43-B after considering the circumstances in the present case. It was further contended that the Kabulayat dated 22-1-52 executed by late Shri Balwant Hari Patil, father of opponent No. 1, is for growing sugarcane crops hence there is no necessity for the applicant to get declaration in respect of R. S. No. 57/1 as sugarcane. It was also contended that the reasonable rent of these lands may be fixed taking into account crop produce from these lands. On the other hand it was contended by the tenants that the Kabulayat dated 22-1-52 is itself in dispute as it has been denied by them. The applicant having failed to prove the said Kabulayat it should not be read in evidence. It was also submitted that it is the duty of the applicant to prove the documents. The same not having been proved should not be taken into consideration. It is further stated that the applicant having failed to get necessary declaration from the competent Court that R. S. No. 57/1 is sugarcane land, the land may be treated as Jirayat land. It was necessary for the applicant to get the declaration in respect of the land as sugarcane land when the Additional Tahsildar and A. L. T. , Panhala declared the land R. S. No. 53/13 and 56/1 as sugarcane lands. It was further contended that mere use of the land may not be taken into consideration at the time of the determination of reasonable rent. It was further stated that for determination of reasonable rent it is the net income which is relevant and not the gross income. On the basis of the aforesaid pleadings the Court of Tenancy Aval Karkun framed issues. Issue No. 1 was whether the lands are sugarcane growing lands. After noticing various pleadings the Court came to the conclusion that the burden of proof to prove the lease is automatically on the applicant. The applicant has failed to do so. It is further observed that perusal of the order dated 19th September, 1970 shows that no reference was made by the A. L. T. of the land R. S. 57/1 though it is mentioned in the lease on which the said order is based. It is also noticed that the applicant had not raised this point or omissions of the aforesaid land before the A. L. T. Thus it was observed that mere use of the land does not help the applicants case.

(3.) AGAINST this order an appeal was filed under section 74 of the Act. The same arguments were raised again by Counsel for both the parties. The Assistant Collector after going through the whole evidence held that it is apparent that the lease deed that has been produced at page 47 of the trial Courts papers has not been proved by the landlord. His argument that the same was accepted in proceedings under section 32-G was not convincing. The said document not having been proved could not be read into evidence. Even according to the rent receipts it was held that the same are for four survey numbers which do not include the Survey No. 57/1. This order was passed on the two appeals which have been filed by the landlord as well as the tenant being Appeal Nos. 47 of 77 (21/77) and 48 of 77 (32/77 ). Thereafter the revision application was filed before the Maharashtra Revenue Tribunal. The Tribunal by its judgement dated 20-1-83 dismissed the revision filed by the landlord. It is held that there is a concurrent finding recorded by both the courts below that Block No. 199 i. e. R. S. No. 57/1 is jirayat land. For this, trial Court has relied on the proceedings under section 32-G of the Act, certified copy of which is produced at page 37 in which it was held that R. S. No. 56/1 and 53/13 are sugarcane lands. It is also held that no objection was raised by the landlord when the lands R. S. No. 57/1 was excluded from the declaration to the effect that this is a sugarcane land in the proceeding taken out under section 32-G of the Act. The Tribunal thereafter considered the argument of the tenants regarding kabulayat not being proved. Alternative argument was that the said document has been produced at a late stage. Uptill remand it was not brought on record. Considering these arguments the Tribunal has held as follows: this Kabulayat is not entered in V. F. VII-XII extract, although it is dated 22-1-52. No doubt, the sugarcane crop was then in all the three pieces of lands. However, if the rent receipts produced at pages 73 to 81 are seens, there are four pieces of land and the rent fixed is Rs. 300/- plus two bales of jaggery for all four pieces of lands. From these rent receipts, it will be seen that the land R. S. No. 6/2 is 5 acres 7 gts. The land R. S. No. 53/12 is 0-17 gts. land and R. S. No. 56/1 is 1 acre 16 gts. and R. /s. No. 57/1 is 1 acre 26 gts. So if the rent is seen, it will be seen that the rent if compared with the acreage of the land, it is not high. It is only Rs. 300/- and two bales of jaggery. The tenant has in his deposition initially accepted that two lands R. S. No. 56/1 and 53/13 have been taken by him for the purpose of growing sugarcane. However, he has denied that R. S. No. 57/1 has been accepted for the purpose of growing sugarcane. Under such circumstances, the landlord ought to have proved that Kabulayat by adducing evidence or by examining the witnesses taken on that Kabulayat. However, that was not done. Simply he has put on record that Kabulayat. So when the tenant denied having taken the land R. S. No. 57/1 for the purpose of growing sugarcane purpose, the burden was heavily on the landlord to prove the purpose. As can be seen that although the land R. S. No. 6/3 is included in all the rent receipts, the landlord himself has excluded that land and therefore concurrent finding recorded below, according to me must be confirmed and it must be held that the land bearing R. S. No. 57/1 is not sugarcane growing land".