PANDU KASU SABALE Vs. LAXMAN KASHINATH KUSALKAR

JUDGEMENT

(1.) BY this writ petition field under Article 227 of Constitution of India, the petitioners seek to challenge the legality and correctness of the order passed by Maharashtra Revenue Tribunal on 31-3-1986 confirming the order passed by the Assistant Collector, Rahuri Division, Ahmednagar on 18-9-85 and the order passed by Additional Tahsildar, Newasa on 3-3-1982.

(2.) KESU Limba Sable was the original owner of agricultural land bearing Gat No. 2061 admeasuring 3 Hectares 49 acres situated at village Sonai. He vide document dated 17-1-1938, mortgaged the said land with Kashinath Kusalkar for an amount of Rs. 200/- for a period of seven years. The said document was styled as Shartiche Kharedi Khat. The mortagagor Kesu Limba Sable died on 21-1-1940 leaving behind his two sons Pandu and Narayan who also died and the present petitioner are their legal representatives. The mortgagee Kashinath also died and the present respondents are his legal representatives. The mortgage was not redeemed by the mortgagor within stipulated period. The mortgagee and after his death his legal representatives continued to remain in possession. It appears that in the year 1967, the present petitioners filed a regular civil suit against the present respondents before the Civil Court for redemption of mortgage property and its possession. The suit was contested by the present respondent and plea was set-out in the defence that the document dated 17-1-1938 was not the document of mortgage nor a mortgage was created by that document but the said transaction was a conditional sale with right of re-purchase. The defence set-out by the present respondents was not accepted by the trial Court and the suit was decreed in favour of the petitioners on 3-4-1970 and it was held therein that the transaction was mortgage. The judgment and decree passed by the trial Court was challenged in appeal by respondents herein without success. Second appeal came to be filed by the respondent No. 1 herein before this Court and on August 22,1979 this Court dismissed the second appeal and upheld the judgment and decree passed by the courts below. It was held by this Court that the transaction between the parties vide document dated 17th January, 1938 was mortgage and not conditional sale and, therefore, a decree for redemption of mortgage was rightly passed by the courts below. The petitioners in execution of the decree obtained possession of the disputed land. After the litigation had attained finality in Civil Court upto this Court, the respondents herein on 7-2-1981 made an application before the Addl. Tahsildar, Newasa under section 32-G of the Bombay Tenancy and Agricultural Lands Act. 1948 (Tenancy Act ). It was stated in the application that the applicants (respondents herein) were cultivating the suit land lawfully after expiry of the period of seven years of execution of document dated 17-1-38 and had become tenant. It was prayed in the application that the enquiry be made under section 32-G and price be fixed for purchase of the said land which they were prepared to pay. The application was contested by the present petitioners and in reply plea was set-out that the applicants (respondents herein) were mortgagee in possession and, therefore, could not claim to be tenant under section 4 of the Tenancy Act and, therefore, application under section 32-G was not maintainable. The Addl. Tahsildar held the enquiry and by his order dated 21-10-85 directed the present petitioners to hand over possession of the suit land to the respondents herein. The respondents herein were directed to pay the purchase price of the land as determined in the order. It was also ordered that on payment of entire purchase price the sale certificate under section 33-A of the Tenancy Act be issued. Dissatisfied with the order passed by the Addl. Tahsildar and Agriculture Land Tribunal, Newasa on 21-10-85, the petitioners preferred appeal before the Assistant Collector, Rahuri Division, Nagar but the said appeal came to be dismissed on 18-9-1985. The orders passed by Addl. Tahsildar and Assistant Collector came to be challenged by the present petitioners in revision application before the Maharashtra Revenue Tribunal, Pune without success.

(3.) THE Revenue courts below held that the mortgagor or for that matter his successors in interest did not exercise their right of redemption within seven years as was stipulated in the document dated 17-1-1938 and therefore the mortgage came to an end and thereafter the possession of the mortgagee or his legal representatives was not as mortgagee but their possession would be deemed to be that of licensee and, therefore, on 1-4-1957 the respondents herein became deemed tenants The thought-process of Revenue courts below is reflected in the observations made by the Maharashtra Revenue Tribunal which read thus: