GANPATI SHANKAR DESAI Vs. RAU GANU KILLEDAR

JUDGEMENT

(1.) THIS writ petition has been filed challenging the order passed in Revision Application No. MRT. KP. 246 of 1981 by Maharashtra Revenue Tribunal, Kolhapur dated 3rd February, 1983, with a prayer that the same may be quashed and set aside and that the judgement and order passed in Tenancy Appeal No. 23 of 1976 passed by the Assistant Collector, Gadhinglaj Division, Gadhinglaj, dated 25th May, 1981 be restored.

(2.) THE petitioners are stated to be the tenants and the respondents the landlords of the suit land bearing Survey No. 7, admeasuring 2 acres and 23 gunthas of Village Palyachahuda in Bhudargad Tahsil of Kolhapur District. The Agricultural Land Tribunal started 32-G proceedings under the Bombay Tenancy and Agricultural Lands Act, 1948 (herein after called as the Act ). After recording the evidence, an order for fixation of purchase price in favour of the tenants was passed on 25th July, 1974. This order was set aside in appeal in view of the fact that certain landlords were not impleaded as parties. After remand, the statement of the parties came to be recorded. After appreciating the evidence, the Tahasildar declared the purchase price. It was stated by the tenants that they are cultivating the suit land since 1944. They were paying rent at the rate of Rs. 50/- per year. They also paid rent and assessment to the Government. It was stated that they are willing to purchase the suit land. On behalf of the landlords, it is stated that the present petitioners were not lawful tenants of the suit land. They had not paid the rent and the suit land was Sanadi Inam land. After the regrant they have not exercised their rights for purchase of the suit land. Thus, it was stated that the purchase of the suit land may be declared ineffective. It was urged on behalf of the landlords that the suit land has been in possession of the petitioners as mortgagee and not as tenants. The respondents in their statement have stated that an amount of Rs. 200/ being price of the suit land has been paid to the landlords. The Tahasildar considered the evidence led by the parties. There is no documentary evidence as to whether or not the petitioners were cultivating the suit land as on 1-4-1957. It was observed that the tenants have led no oral or documentary evidence in support of their case. In view of the facts stated above, it was held that the proceedings under section 32-G of the Act in respect of the suit land should be dropped as there exists no relationship between the parties, of landlords and tenants. The petitioners filed an appeal against the said order in the Court of Assistant Collector, which was numbered as Appeal No. 23 of 1976. The Appellate Court has observed the arguments of the appellants as also the respondents/landlord.

(3.) IT was submitted by the Counsel for the petitioners that V. F. VII-XII record of rights extract of the lower Courts papers show that the appellants name is entered as "protected tenant" of the suit land as per Mutation Entry No. 2 and 3 in other rights. The landlord/respondents in their statement have admitted that the appellants cultivated the land and their father had lease the land. In the VII-XII extract, the rent at the rate of Rs. 7. 72 is also mentioned. However, the respondents/landlords stated that the father of the petitioners had advanced a sum of Rs. 200/ to their predecessor in title. It was stated that the land was held by the petitioners as mortgagee. Conflicting evidence given by the petitioners was also pointed out. The lower Court examined the evidence and came to the conclusion that the name of the petitioners is mentioned as protected tenants in the record of rights extract. Their name is also shown as cultivators. The rent is shown to have been paid in the sum of Rs. 7. 72. The land which was inam land was regranted in July, 1971. Relying on these entries in the record of rights, the Appellate Court accepted the case of the tenants. It has been held that these entries have presumptive value and in case they are to be challenged or disregarded, stronger and more reliable proof either documentary or oral should be produced. It is also held that it would be asking for too much to seek corroboration of the entries by other documentary proof. It is also held that the respondents (landlords) have not produced any documentary proof in support of their say that the appellant is a mortgagee in possession. The Appellate Court also observed that the oral evidence has been recorded two to three times and also in previous proceedings. The Appellate Court observed that there is a statement before the lower Court that the landlord had accepted the lease, but not the purpose of the said lease. The lower Appellate Court also took notice of the statements made by the respondents (landlords ). The lower Appellate Court, however, rejected the oral evidence given by both the sides being unreliable. Relying on the record of rights, it is held that the petitioners were tenants of the landlords. It is observed that had this been the case of mortgage, surely the landlords would have moved the Revenue authorities to make the entry in the record of rights. It is also observed that no mortgage deed has been produced or witnesses examined to prove the contention. The Appellate Court has observed that the lower Court was wrong in brushing aside the evidence in the record of rights. Consequently, the appeal was allowed. The appellants were held tenants of the suit land and the case was sent back to the lower Court for fixing the purchase price. The landlords carried the matter in revision under section 76 of the Act to the Maharashtra Revenue Tribunal. The Revision Application was decided on 3rd February, 1983. The Tribunal appreciated the evidence on record and came to the conclusion that the Appellate Court had rightly drawn the presumption about the correctness of the entries in the record of rights. He has however, held that the presumption has been rebutted. This presumption has been held to be rebutted on the basis that the alleged tenant has stated that he has never paid any rent. Further he has admitted that he has paid Rs. 200/- as price of the land. Therefore, the tribunal comes to the conclusion that there is no necessity of any documentary evidence when the alleged tenant himself has deposed before the Court about the nature of his possession. The tribunal observed as follows: