FULABAI Vs. MAHARASHTRA REVENUE TRIBUNAL, NAGPUR

JUDGEMENT

(1.) THE petitioner is a landholder and is a widow. She is challenging an order passed by the Revenue Tribunal holding that she was not entitled to a relief of resumption of land under section 39 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereafter referred to as the Tenancy Act, but that her application made under section 39 had to be decided under the provisions of section 38 of the Act. The petitioner is the owner of field survey number 48/2, area 10.29 acres and survey number 49/2, area 13.27 acres, both of village Isapur, taluq Darwha, District Yeotmal. These fields belonged to her husband Shamlal, who had by a will bequeathed them to the petitioner. Shamlal died on 17 -5 -1945 and the petitioner then became the owner of the fields. It appears that there were disputes between the petitioner and her sons and as a result of a compromise decree passed by a civil Court she got possession of these fields in 1958. She had leased out both those fields to respondent No. 4 Babya by a lease deed dated 11 -3 -1958. She then served a notice dated 11 -2 -1961 under section 39 of the Tenancy Act on the tenant and filed an application under section 36 of the Tenancy Act for possession. This application was contested by the tenant on several grounds. One of the grounds urged by the tenant was that the landholder had earlier filed an application under section 39 of the Tenancy Act, but that it was rejected on 31 -10 -1968 and it was then held that she had no right to serve notice under section 39. It was also contended by the tenant that the landholder was not an agriculturist and that agriculture was not main source of her livelihood. He, however, admitted the execution of the lease deed dated 11 -3 -1958, but he contended that he was in possession as a lessee for several years before the lease deed. The landholder examined herself but the tenant did not go into the witness -box, nor did he give any other evidence.

(2.) THE Naib -Tahsildar found that though the earlier order rejecting the application under section 39 was not res judicata between the parties, Babya was a tenant since the year 1952 -53 and he, therefore, granted the application of the landholder to the extent of half the area of the two fields. This order was set aside by the Sub -Divisional Officer in appeal by the landholder and he held that the landholder was entitled to relief under section 39 of the Tenancy Act and granted the application in respect of the entire area leased out to the tenant, The Maharashtra Revenue Tribunal in a revision application filed by the tenant took the view that the order in the earlier proceedings was not res judicata and that on the material on record Babya could not be held to be an old tenant. The Tribunal did not accept the finding that the tenancy of Babya came into being for the first time on 11 -3 -1958. The orders of the Naib -Tahsildar and the Sub -Divisional Officer were set aside and the matter was remanded back to the Tahsildar for a fresh decision.

(3.) THE tenant filed an appeal which was rejected by the Sub Divisional Officer, who held that the Naib -Tahsildar had given good reasons to show that the appellant before him had 'failed to prove that he was a tenant of the land in question during the intervening period from 1955 -56 upto the commencement of the Tenancy Act and had thus failed to establish that he was a tenant of the suit fields prior to 1 -4 -1957. The tenant then filed a revision application before the Maharashtra Revenue Tribunal.