VITHAL GENU SATAV Vs. KRISHNABAI BAPURAO ARDE

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of the Constitution of India has been filed with a prayer to set aside the judgement and order passed by the Maharashtra Revenue Tribunal, Pune in Revision Application No. MRT. P. II/181 (TEN B 38/81) and by the Additional Collector, Pune in Tenancy Appeal No. 181 of 83 and for restoration and confirmation of the judgement and order passed by the Tenancy Awal Karkun, Mulshi in Case No. 33-B-1/62.

(2.) THE dispute in the present petition concerns the following three suit lands. <FRM>JUDGEMENT_660_BCR1_1998Html1.htm</FRM> Balashet Gulambe was the original tenant who died leaving behind him two sons viz. Bandoba and Mahadeo. Bandoba died on 1st March, 1941 and Mahadeo died sometime in 1965. Bandoba left behind him as his only heir his married daughter Smt. Krishnabai. On the death of Bandoba the land devolved upon Mahadeo. He in turn is said to have gifted the suit lands to Smt. Krishnabai. Mahadeo had filed Tenancy Suit no. 291 of 1957 for bona fide personal cultivation under section 31 of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as "the Act". The said application was dismissed on 31st October, 1957. Consequently the petitioner-tenant claims to have become deemed purchaser of the suit land on the Tillers day i. e. 1-4-1957 or on the date when Mahadeo died. Krishnabai applied for an exemption certificate under section 88-C of the Act. This was granted on 14th June, 1957. Thereafter Krishnabai filed Tenancy Case No. 33-B/1/62 for bona fide personal cultivation under section 33-B on 16th March, 1962. By judgement dated 31st May, 1963 after examining the evidence on record, oral as well as documentary, it was held after considering her bona fides that the land is required for personal cultivation. Her application was, however, rejected on the ground that the lands stand in the name of Mahadeo who is not a member of the joint family of the applicant or the ancestor of the applicant. This order was challenged by Krishnabai in Tenancy Appeal No. 181/63. It was, however, not challenged by the tenants. The petitioner claims to be a tenant of agricultural lands being Survey No. 184 admeasuring 12 acres and 14 gunthas, Survey No. 174 admeasuring 24 gunthas and Survey No. 179 admeasuring 2 acres 29 gunthas in all admeasuring 15 acres 27 gunthas. The Additional Collector, Pune, upheld the order of the Tenancy Aval Karkun, Mulshi vide his judgement and order dated 5-2-1964, Thus even the Appellate Court has accepted that the petitioner has proved the bona fide requirement for personal cultivation. The petitioner thereafter filed Revision Application No. T. E. N. AP. 322/64 before the Maharashtra Revenue Tribunal. This application was decided on 19th March, 1965. The important question raised before the Tribunal was whether the certificated landlord had satisfied the conditions referred to in section 32-B (5) (c) of the Act. According to this clause, one of the conditions to be fulfilled by the landlady is that she should establish that the suit lands stood in the record of rights or in the record or in any public record of similar revenue record on the first day of January, 1952 and thereafter until the commencement date in the name of the landlord himself or of any other ancestors. Relying on the earlier judgement of the Tribunal given in 12 T. L. R. page 156 (Radhabai v. Rama Bagadu) it was held that the word "ancestor" is wide enough to include both paternal and maternal predecessors as the Tenancy Act applies to all citizens of the State irrespective of their religion the word" ancestor" cannot be restricted to its meaning in Hindu law. Since the land originally belongs to Balseth and thereafter to Bandoba and Mahadeo, Krishnabai being the married daughter cannot be held to be not the legal heir. The Tribunal further held that since the transfer of the suit land in the name of Krishnabai, the rent of the suit land was being paid to her. It is further held that the tenant was a party to the proceedings under section 88-C of the Act. Therefore, the fact that the suit lands belong to Krishnabai is a question of fact and that fact cannot be questioned by the tenant, he having submitted to 88-C proceedings and having accepted Krishnabai as the landlord on paying rent to her. It is categorically held that the title of the landlord cannot be challenged by the tenant unless and until he disowns tenancy rights in respect of the suit land. It is also held that at the time of the application under section 88-C the suit lands stood in the name of Krishnabai and on 1-1-1952 the same were shown in the name of Mahadeo, her uncle. It was, therefore, held that both the courts erred in law in holding that the condition referred to in section 33-B (5) (c) of the Act is not fulfilled. The matter was remanded to the Appellate Authority for making distribution of the suit land and taking into consideration the holdings of the parties. The operative part of the order of Tribunal reads as under:

(3.) COUNSEL for the respondent has also relied upon a decision of this Court given in Special Civil Application No. 1058 of 1974 decided on 12th February, 1980 and a decision of this Court in Writ Petition No. 2068 of 1982 decided on 8th July, 1983 and a decision of this Court in Special Civil Application No. 2518 of 1973 decided on 10th November, 1980. In all the aforesaid judgements it has been held that once the proceedings have become final the legal heirs do not have to prove their bona fide requirement all over again. It has also been pointed out by the Counsel for the respondent that the original landlady and the heirs have been dragged into unnecessary litigation merely because a wrong interpretation of law was made at the time when the original order was passed way back on 31st May, 1963. Apart from this I am of the view that when exercising the jurisdiction under Article 227 of the Constitution of India, this Court will not sit as a Court of Appeal. The only concern of the Court under Article 227 of the Constitution is to see whether the impugned order suffer from an error apparent on the face of record. The Court can examine as to whether the Tribunal has committed an error of jurisdiction. It can examine as to whether or not the findings of the Tribunal are perverse to such an extent that no reasonable Tribunal could come to the conclusion which have been arrived at by the Tribunal. These proceedings cannot be equated with proceedings under the Act. The hierarchy of courts under the Act ends with the Maharashtra Revenue Tribunal. Therefore, keeping the aforesaid facts and circumstances in view I find that the judgement cited by the petitioners being 78 Bombay Law Reporter 603 is not applicable to the facts and circumstances of this case.