IBRAHIM AMIRSAHEB KOKANI Vs. BABU KASAM SHAIKH

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution on India has been filed with a prayer for quashing the orders passed by the Maharashtra Revenue Tribunal in Revision Application No. TEN. A. 24 of 1983 dated 29th December, 1983 confirming the order passed by the Sub-Divisional Officer, Nasik Sub-Division, Nasik, dated 27th September, 1982 and for restoration of the order of the Tahasildar dated 26th December, 1981 in Tenancy Case No. 28/1973.

(2.) THE facts as stated by the petitioner may be noticed. The petitioners are the owners of the agricultural lands comprising the Survey Numbers mentioned below:-- <FRM>JUDGEMENT_81_BCR2_1998Html1.htm</FRM> Kasam Hussain Musalman was the predecessor-in-title of the respondents No. 1 to 10. He was the tenant on the suit land. In Tenancy Case No. 76 of 1959, the petitioners took possession of Survey No. 48, Survey No. 19/4 and half of Survey No. 18 out of the suit lands. Kasam remained as a tenant in respect of Survey No. 19/2 and Survey No. 18/2 (which pot-Hissa was carved out after possession of half of the Survey No. 18 was taken ). Kasam failed and neglected to pay the rent of the suit premises from 1957 onwards. The petitioners, therefore, by a notice dated 2nd July, 1983 terminated the tenancy of Kasam in respect of Survey No. 19/2 and 18/2 on the ground that the tenant had committed defaults in as much as he had not paid the rent from 1957, inspite of the fact that he was informed about non-payment of the rent every year in the month of June. The petitioners filed Tenancy Application No. 24 of 1973 before the Tahasildar, Nasik for possession of the land in Survey No. 19/2 and Survey No. 18/2 under section 29 read with section 25 (2) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called as "the Act") on 15th November, 1973. During the pendency of this application, Kasam died on 28th May, 1976. On 8th April, 1977, the petitioners made an application to bring the respondents No. 1 to 10 on the record as heirs of deceased Kasam. The widow of the deceased Kasam, Parvatibai was impleaded and appeared in the proceedings. Parvatibai completed her deposition on 1st December, 1977. She also died on 2nd April, 1981. After the evidence of both the parties was recorded, the Tahasildar gave a judgement on 26th December, 1981, granting possession of Survey No. 19/2 and Survey No. 18/2 to the petitioners. An appeal was filed against the aforesaid order by the heirs of Kasam and Parvatibai in the Court of Sub-Divisional Officer, Nasik Sub-Division, District Nasik, being Tenancy Appeal No. 18/1982. The aforesaid appeal was decided by order dated 31st August, 1982 and the same was dismissed on the ground that the same is barred by limitation. Having dismissed the appeal, the Sub-Divisional Officer, however, continued the proceedings under section 76-A of the Act, being Tenancy Review No. 25/1982. By order dated 27th September, 1982 exercising the power of review under section 76-A, the Sub-Divisional Officer set aside the order dated 26th December, 1981. Against the aforesaid order, the petitioners filed a Revision Application No. TEN. A. 24 of 1983 in the Maharashtra Revenue Tribunal (hereinafter referred to as "the Tribunal") at Bombay. The aforesaid Revision Application has been dismissed by the Tribunal by its order dated 29th December, 1983.

(3.) THE Counsel for the petitioners has submitted that the order passed by the Sub-Divisional Officer under section 76-A is without jurisdiction. It is submitted by the Counsel that the provisions of section 76-A can only be invoked if no appeal is filed against the original order. In the present case, the appeal had been filed and therefore, it was not open to the Sub-Divisional Officer to exercise jurisdiction under section 76-A. Whether or not the appeal is filed within the prescribed period is not relevant so long as it is accompanied by an application for condonation of delay. It is submitted that the respondents had filed the appeal, but the same was dismissed on the ground that it is barred by limitation. Having dismissed the appeal, the very same officer exercised the power of review under section 76-A. It is also submitted by the Counsel that the decision given in the Review Application by the Sub-Divisional Officer is also against the merits of the case. Upon the death of Kasam, Parvatibai had been impleaded as the legal heir along with the other respondents. However, only Parvatibai had appeared in the witness box and gave the statement on 1st December, 1977. She was representing all the respondents. In this view of the matter, it has been wrongly held by the Sub-Divisional Officer and wrongly confirmed by the Tribunal that the proceeding had abated. It has also wrongly been held that the order has been passed against a dead person.