DATTATRAYA YAMAJI BHUTKAR Vs. VAIJINATH MADHAV

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India has been filed with a prayer for quashing the order passed by the Maharashtra Revenue Tribunal in Revision Application No. M. R. T.-SH-X-6/81 (TEN. B. 334/81) dated 27-1-1988 and to restore the order dated 18th August, 1981 of the Special Deputy Collector, Tenancy Appeals and Special Land Acquisition Officer No. IV. Karmala in Tenancy Appeal No. 26 of 1977 confirming the order dated 17-2-1997 of the Tahsildar, Karmala in Court reference No. 9 of 1973.

(2.) THE petitioner has filed a Civil Suit No. 251 of 1970 against the respondents in the Court of Civil Judge, Senior Division, Solapur in respect of the agricultural land bearing Gat No. 126 situate at village Wangi, Tal. Karmala, hereinafter referred to as "the suit land". It is stated by the petitioner that respondent Nos. 2 and 3 are the owners of the suit land. Respondent Nos. 2 and 3 were the Kartas of the family. On 8th April, 1958 respondent Nos. 2 and 3 executed a Sathe Khat in favour of respondent No. 1. By virtue of this Sathe Khat respondent No. 1 took possession of the suit land. The Sathe Khat (agreement for sale) is registered. Mutation Entry No. 2348 was made in the Revenue Record on 14th July, 1959 wherein respondent No. 1 is shown as tenant. This entry has been certified on 6th September, 1962. Thereafter Mutation Entry No. 2631 was recorded in the Revenue Records on 1-11-1964 which was certified on 18-11-64. This mutation entry records that respondent No. 1 has been put in possession of the suit land on the basis of the Sathe Khat. In the Civil Suit respondent No. 1 took a plea that the Sathe Khat was made for legal necessity. As an alternative plea it was stated that he is a tenant on the suit land. In view of this plea taken by the respondent No. 1, Reference was made under section 85-A read with section 70 (b) of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as "the Act", to the Revenue Court. In the said reference an issue was framed to the effect "does the defendant prove that he is a tenant of the suit land Gat No. 126 of the village Wangi, Tal. Karmala since 1958-59?" Accordingly notices were issued to both the parties and their statements were recorded. After considering all the evidence the Tahsildar Karmala decided the reference on 17th Feb. 1977 holding that respondent No. 1 is not a tenant on the suit land. Before arriving at the said conclusion the Tahsildar took note of the statement made by the respondent No. 1 to the effect that the suit lands was owned by respondent Nos. 2 and 3 and it was taken possession of by respondent No. 1 as tenant since 1958-59. Respondent No. 1 also produced extract of V. F. 7/12 in respect of the suit land showing that his name has been shown as a tenant in the Kul and Khand column. He also produced the extract of Mutation Entry No. 2348 in which his name had been entered as tenant from the year 1958-59. The Tahsildar also notices that in his cross-examination respondent No. 1 has deposed that no rent note was executed in the matter. He came in possession of the land by Sathe Khat dated 8th April, 1958. He also admitted that he has not paid any rent to the landlord. Respondent No. 1 also produced the extract of Mutation Entry No. 2631 dated 1-11-64 which showed that he came in possession of the land by Sathe Khat dated 8-4-58. It was further stated by respondent No. 1 that at first the land was leased out to him and the Sathe Khat was executed after 8 days. The petitioner had produced photo copy of the registered Sathe Khat. On perusal of the said Sathe Khat the Tahsildar came to the conclusion that the said document does not mention that the suit land was in possession of respondent No. 1 as tenant on the date of execution of Sathe Khat. On the contrary, the wording of Sathe Khat shows that the land was given in the possession of respondent No. 1 by respondent Nos. 2 and 3 with an agreement to sell the same and not for cultivation as a tenant. Statement of respondent No. 2 was also recorded in which he had stated that the land was never leased out by him to respondent No. 1 as a tenant. It is stated that the possession was given on the basis of Sathe Khat with the understanding to sell the same. The Tahsildar also notices that respondent Nos. 2 and 3 are not the sole owners of the land. The petitioners are also joint owners of the land. Respondent Nos. 2 and 3 admitted that they are owners of the land. Tahsildar, however, rightly held that the said Court has not to go into the details as to whether they are sole owners or the co-owners of the land. On the basis of the above the Tahsildar held that respondent No. 1 is in the possession of the suit land by Sathe Khat and not by lease deed. An argument was raised by the Counsel for respondent No. 1 to the effect that he is a deemed tenant by virtue of provisions of section 4 of the Act. This argument was rejected on the ground that although respondent No. 1 holds land lawfully he is not holding it on lease. Hence he cannot be held to be holding land as a tenant.

(3.) AGGRIEVED against this order respondent No. 1 filed an appeal before the Deputy Collector. The said appeal has also been dismissed by an order dated 18th August, 1981. After considering the evidence the Appellate Court holds that according to section 2 sub-section (18), tenant means a person who holds land on lease and includes a person who is deemed to be a tenant under section 4 of the Act. According to section 4 of the Act, a person lawfully cultivating the land belonging to another person shall be deemed to be a tenant. The Appellate Court has held that respondent No. 1 cannot be held to be a tenant as he had admitted in the cross-examination dated 10-2-75 that he is cultivating the suit land due to Sathe Khat. In the body of the Sathe Khat it is mentioned that the possession of the suit land is delivered to respondent No. 1 on the day of Sathe Khat. This fact of possession is also supported by Mutation Entry No. 2631 dated 1-11-64 which has been duly certified on 18-11-64. Even the witness Shri Kalyanrao Janardhan Jadhav who was examined by respondent No. 1 stated that respondent No. 1 is Wahiwating the land as owner since last 18 to 19 years. The respondent failed to produce any evidence in respect of the rent receipts or lease period. The Appellate Court, therefore, held that in the absence of such important evidence, respondent No. 1 cannot be called a tenant of the suit land. It is held that the respondent No. 1 has totally failed to establish his claim as tenant. Thus the order passed by the Tahsildar has been upheld.