UDAY NARAYAN APATE Vs. SHANKAR RAGHO

JUDGEMENT

(1.) The petition challenges the order of the Maharashtra Revenue Tribunal in Case No.MRT/KP/31/91 in which the Tribunal has set aside the order passed by the Assistant Collector, Gadinglaj in Tenancy Appeal No.42 of 1990. The facts giving rise to the present petition are as follows:

(2.) Being aggrieved by the decision of the Awwal Karkun, the petitioners preferred Tenancy Appeal No.42 of 1990. The Assistant Collector, Gadhinglaj decided the Appeal on 21.1.1991 and held that the respondents had no evidence to prove their tenancy rights and, therefore, the applications filed by them were dismissed while allowing the appeal. The Assistant Collector concluded from the order of Mahalkari, Ajara dated 21.10.1959, that the physical possession of the lands was handed over to the petitioners in view of the proceedings under section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, hereinafter referred to as the 'BT&AL Act'). The Assistant Collector also observed that the name of the tenants were deleted under mutation entries dated 4.8.1971 and 5.8.1971 vide orders of the Tenancy Courts. These mutation entries in the records were never challenged by the respondents and, therefore, the Assistant Collector held that those entries bind the parties. He has further held that the respondents had not proved that they were tenants and that the application u/s 70(b) was filed after an inordinate delay of 30 years. By relying on the judgment of this Court, the Assistant Collector held that the tenancy must be proved with convincing evidence and that the status of a tenant cannot be conferred on a party on the basis of imaginary grounds. The Assistant Collector has noted that the judgment of Nagpur Bench of this Court in the case of Abdul Aziz Abdul Habib v/s. Syed Zulfikar Husan, 1985 Mh.L.J. 655 relied on by Awwal Karkun was applicable only to the lands in Vidharbha in view of the Bombay Tenancy Agricultural Lands (Vidharbha Region) Act. The Assistant Collector then relied on the judgment of this Court in Special C.A. No.4517 of 1976 dated 11.11.1980 (M.B. Tiwari v/s. S.B.Shinde) where it was held that if a person is inducted on a land during the management by the State he does not acquire tenancy rights. It has been observed that the moment the land reverts back to the landholder it no longer remains under the management of the State. The Court has held further than any person who continues to be in possession because he was inducted by the State, would be in unlawful possession and cannot claim the status of a deemed tenant. This order of the Assistant Collector has been reversed by the Maharashtra Revenue Tribunal on 28.9.1992. The MRT has relied on the judgment of this Court in the case of Abdul Aziz Abdul Habib (supra) and has restored the findings of the Avval Karkun. The Tribunal while rejecting the submissions on behalf of he petitioners has held that the petitioners had not obtained possession of the disputed lands in accordance with the BT&AL Act and therefore, it could not be said that they were in possession of the land on the date when the respondents filed application u/s 70(b) of the BT&AL Act.

(3.) Mr.Mhamane, appearing for the petitioners, submits that the petitioners were in settled possession as landholders of Gat No.437 and 450 and that they had acquired the land from their predecessor in title. According to him, the father of the respondent had given up his claim to the land in 1959 itself. He relies on Kabje Patti Panchanama (the possession receipt) which was drawn by the Nazir of the District Court, Kolhapur in favour of the Petitioners. The learned advocate points out that for well over 30 years, the respondents did not bother to stake their claim to the land. He submits that in any event the respondents had no right in the land once their predecessor in title Ragho Bhadavankar i.e. the father of Respondent No.1 had given up his right to the land. The learned advocate draws my attention to the judgment of the Nagpur Bench of this Court in the case of Abdul Aziz Abdul Habib (supra) which has been relied on by the Awwal Karkun and the Revenue Tribunal. He points out that this judgment is in respect of section 2(32) of the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act 1958 which in terms is different from the BT&AL Act, 1948. He then places reliance on the judgment of the Supreme Court in the case of Dhondu Undru Choudhary v/s. Ganpatlal S.L. Agarwal, 1991 Supp (1) SCC 513 in support of his submission that the respondents had no right in the land.