JUDGMENT - A.M. KHANWILKAR, J.:---This writ petition under Article 227 of Constitution of India is directed against the judgment of the Maharashtra Revenue Tribunal dated 31-10-1985 in Revision No. 8 of 1983. Briefly stated the petitioners are landlords in respect of agricultural lands bearing Survey No. 162/1, 162/3, 164/4 and 214 situated at village Belsar, Tahsil Purandhar, District Pune. It would be relevant facts it would be essential to reproduce the genealogy of the parties which is as under :- TUKARAM I |----------------------------------------------------------| | | Jaywant (R) Anandrao | | | Bajirao 1) Yeshwant 2) Baban 3) Krishna | 4) Kundalik 5) Baburao Changunabai(Petr. No. 2) 6) Muktabai 7) Laxmibai | 8) Shantabai 9) Sakhubai-Shobhabai. Ganpat (Petr. No. 1) From the said genealogy it will be seen that parties are related to each other through common ancestral Tukaram. The said lands were originally owned by Tukaram. After his demise his son Anandrao started claiming (sic cultivating) the suit land and thereafter Bajirao, son of Anandrao started cultivating the suit land till 1950. In the year 1950 Bajirao died leaving behind petitioners as his heirs. Petitioner No. 1 is the son and petitioner No. 2 is the wife of said Bajirao. It appears that since the petitioner No. 2 was widow and petitioner No. 1 was minor at the relevant time, the uncle Jaywant started cultivating the suit land. From the genealogy it will be seen that Jaywant was real brother of Anandrao, through whom the petitioners claim to have inherited the suit land. In the above mentioned circumstances, said Jaywant cultivated the suit land till the tiller's day on 1-4-1957. The tenancy authority therefore initiated suo motu proceedings under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1947 (sic 1948) (hereinafter referred to as the said Act) in respect of the suit land, however, by an order dated 20-4-1963 the same stood postponed in view of the fact that petitioners were disabled landlords at the relevant time. By another Order dated 30-7-1963 the tiller's day stood postpon with regard to one of the suit lands bearing Survey No. 214. It is not in dispute that on 29-6-1967 petitioner No. 1 became major. This date assumes importance as the period for giving intimation under section 32-F of the Act would commence on this date. By another Order dated 30-7-1963 the tiller's day stood postpon with regard to one of the suit lands bearing Survey No. 214. It is not in dispute that on 29-6-1967 petitioner No. 1 became major. This date assumes importance as the period for giving intimation under section 32-F of the Act would commence on this date. It appears that respondent gave intimation to the landlord only on 16th July 1970, which is beyond the prescribed period of 2 years from the date on which the disability of the landlords ceases. Further, admittedly, the respondents did not send any intimation to the tribunal as required under the provisions of section 32-F of the Act. The petitioners have sent reply to the aforesaid intimation on 30th July 1970. Respondents thereafter did not take any further steps, however, the authorities initiated suo motu enquiry for determination of the purchase price under section 32-G of the Act in respect of the suit land for the first time in the year 1974. The said proceedings were initiated only against the Petitioner No. 1. Therefore, the petitioner No. 2 appeared and raised a preliminary objection and also prayed for joining her as party to the enquiry. This objection was raised on 10th May 1974, which came to be rejected. Against the said order the petitioner No. 2 preferred an appeal before the Additional Collector, Pune which was also rejected on 24th December, 1976. In further appeal preferred by the petitioner No. 2 direction came to be passed to join the petitioner No. 2 as party to the suo motu enquiry under section 32-G, on 15th November 1978. Thereafter suo motu enquiry under section 32-G was proceeded before the Addl. Tahasildar, Purandar. During the pendency of the said enquiry the petitioner's uncle Jaywant expired and his eldest son Yeshwant started cultivating the suit land. It is relevant to note that Yeshwant had made statement in the above said proceedings that he was not willing to purchase the suit land. On the other hand, another son of Jaywant Shri Baburao expressed willingness to purchase the suit land. On the basis of the evidence on record, the Addl. Tahsildar, Purandar by his order dated 3rd April 1981 held that respondents were cultivating the suit land on the tiller's day and as such were deemed tenants and entitled to purchase the suit land. On the basis of the evidence on record, the Addl. Tahsildar, Purandar by his order dated 3rd April 1981 held that respondents were cultivating the suit land on the tiller's day and as such were deemed tenants and entitled to purchase the suit land. The Tahasildar fixed the purchase price of the suit lands by the said order. Against the said decision the petitioners took the matter in appeal before the Addl. Collector, Pune being Appeal No. 43 of 1981. The Addl. Collector, Pune was pleased to dismiss the said appeal by order dated 2nd November 1982. The Appellate Court confirmed the finding recorded by the Addl. Tahasildar that respondents were tenants on the tiller's day and thus entitled to purchase the suit lands. The petitioners carried the matter in revision before M.R.T., Pune being Revision No. 8 of 1983. The tribunal was pleased to dismiss the revision application preferred by the petitioners and confirmed the concurrent findings recorded by courts below by order dated 31st October 1985. 2. It is against the aforesaid concurrent findings and orders passed by the courts below the present writ petition under Article 227 of Constitution of India has been filed. The petitioners have challenged the decision of the courts below on various counts. However, in my view, it is wholly unnecessary to examine each of the ground raised on behalf of the petitioners, but it would be appropriate to leave the said questions open with liberty to the petitioners to raise the same at an appropriate stage if and when an occasion arises. According to me the petition should succeed on the sole ground that the courts below have totally misdirected themselves in not adjudicating the main question as to whether the respondents can be said to be tenants in respect of the suit land at all. 3. Before proceeding to examine this matter in greater detail, it is necessary to refer to the relevant provisions which are attracted in deciding the present matter. 3. Before proceeding to examine this matter in greater detail, it is necessary to refer to the relevant provisions which are attracted in deciding the present matter. Section 2(6) reads as under : "(6) to cultivate personally" means to cultivate land on one's own account i) by one's own labour, or ii) by the labour of any member of one's family, or iii) under the personal supervision of oneself or any member of one's family, by hired labour or by servants on wages payable in cash or kind but not in crop share, being land, the entire area of which a) is situate within the limits of a single village, or b) is so situated that no piece of land is separated from another by a distance of more than five miles, or c) forms one compact blocks." Section 2(18) reads as under : "(18) "tenant" means a person who holds land on lease and includes- a) a person who is deemed to be a tenant under section 4; b) a person who is a protected tenant, and c) a person who is a permanent tenant and the word "landlord" shall be construed accordingly." Section 4 reads as under : (4) A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not--- a) a member of the owner's family, or b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, or c) a mortgage in possession." 4. In my view, it was the duty of the Tahasildar to have first examined the basic question as to whether the respondents who are admittedly close relatives and family members of the petitioners family can be said to be tenants in view of the legal bar created by the above referred provisions, before continuing with the suo motu proceedings for fixation of the purchase price under section 32-G of the Act. Undoubtedly, section 32-G would apply only in those cases where the person in possession of the agricultural land is a tenant. Undoubtedly, section 32-G would apply only in those cases where the person in possession of the agricultural land is a tenant. The Act defines tenant to mean that a person who holds land on lease and includes a person who is deemed to be a tenant under section 4. We are not concerned with other categories of tenants mentioned in the said provisions. In the present case, admittedly, there is nothing on record to indicate that tenancy was created by lease. As such the respondents cannot claim to be tenants in respect of the suit lands on the basis of any lease. The courts below have however proceeded on assumption that the respondents were deemed tenants within the meaning of section 4 of the Act since they were found to be cultivating the suit lands on the tiller's day. Section 4 of the Act on the other hand, postulates that, a person, who is a member of the owners family, is presumed to be not a tenant in respect of the lands although cultivated by him on behalf of the owner. It is not in dispute that the respondents are closely related to the petitioners and undoubtedly would fall in the category of persons being members of the owners family. Accordingly, they would be clearly estopped from claiming to be deemed tenants, as the Act imposed bar on the persons who are members of the owners family, unless they are able to prove to the contrary by positive evidence that their relationship was that of landlords and tenants. A person, who is lawfully cultivating any agricultural land belonging to another person on the tiller's day, would ordinarily become deemed tenant within the meaning of section 4 of the Act, provided however that the said person is not a person of owners family. In the circumstances, in my view, the courts below have clearly lost sight of this aspect before holding that the respondents were entitled to purchase the suit land as deemed tenants. No enquiry has been undertaken by the courts below in this regard, notwithstanding the fact that there was no dispute that the parties were closely related to each other. In the circumstances, in my view, the courts below have clearly lost sight of this aspect before holding that the respondents were entitled to purchase the suit land as deemed tenants. No enquiry has been undertaken by the courts below in this regard, notwithstanding the fact that there was no dispute that the parties were closely related to each other. It was the duty of the tenancy Court to examine this question whether the respondents are a tenants within the meaning of section 4 of the Act before proceeding with the enquiry for fixation of purchase price under section 32-G of the Act. Since this has not been done in the present case, notwithstanding the concurrent findings recorded by the courts below it would be of no avail to the respondents. 5. There is additional reasons as to why it will have to be held that such an enquiry was necessary inasmuch as sub-section (6) of section 2 of the Act defines the expression 'to cultivate personally'. Provisions of Explanation (I) as well as Explanation (II) of the said sub-section will have direct bearing on the question which will have to be examined in the present case. "Explanation I.---a widow or a minor, or a person who is subject to physical or mental disability, or a serving member of the armed forces shall be deemed to cultivate the land personally if such land is cultivated by servants or by hired labour, or through tenants. Explanation II.---in the case of a joint family, the land shall be deemed to have been cultivated personally if it is cultivated by any member of such family." Explanation I no doubt does not refer to the lands of the disabled landlord being cultivated by member of the owners family, however, Explanation No. II provides that in case of joint family, the lands shall be deemed to have been cultivated personally if it is cultivated by any member of such family. On reading the said explanations together with section 4 of the Act, it will, necessarily, have to be held that the members of the owners family cannot be termed as deemed tenant so as to become entitled to purchase the agricultural lands within the meaning of section 32-G of the Act. On reading the said explanations together with section 4 of the Act, it will, necessarily, have to be held that the members of the owners family cannot be termed as deemed tenant so as to become entitled to purchase the agricultural lands within the meaning of section 32-G of the Act. In other words, no proceedings under section 32-G of the Act could be initiated when it is established from the record that parties are members of the owners family unless a clear finding is recorded by the Tenancy Court that in spite of their relationship the land was being cultivated by them as tenant within the meaning of the Act. 6. No doubt, the question, whether the respondents are tenants or not has been raised for the first time before this Court, however, since the said question goes to the root of the matter, it would be essential to ad-judicate the said question before answering any other question raised on behalf of the petitioners. Moreover, to the relationship of the parties is already on record. 7. In the circumstances, it will be essential to first examine the said question before deciding any other issue which has been raised in this writ petition. The only option, therefore, is to remand the matter to the Addl. Tahasildar for framing appropriate issue as to whether the respondents can be said to be tenants much less deemed tenants within the meaning of the Act so as to have become entitled to purchase the said land as such. It is only after recording finding on the said question that the reasoning given by the courts below would become meaningful and be looked into. The learned Counsel for the respondents vehemently objected for adopting such a course as according to her, in view of the concurrent findings recorded by the courts below that the respondents were tenants and therefore entitled to purchase the suit land, it would not be proper to take a different view while exercising writ jurisdiction. I am afraid, the concurrent findings recorded by the courts below, in this case, is on the assumption that the respondents are tenants and therefore entitled to purchase the suit lands. There is no enquiry made by the tenancy authorities nor a positive finding recorded as to whether there existed relationship of the landlord and tenant between the parties. I am afraid, the concurrent findings recorded by the courts below, in this case, is on the assumption that the respondents are tenants and therefore entitled to purchase the suit lands. There is no enquiry made by the tenancy authorities nor a positive finding recorded as to whether there existed relationship of the landlord and tenant between the parties. The learned Counsel has also relied on the decision reported in 78 T.L.R. 96 (M. Khader Sheriff Saheb v. The Commissioner of Agricultural Income Tax, Madras)1 to contend that High Court should not interfere with the concurrent findings recorded by the courts below. The said decision can have no application to the present case for the simple reason that in the present case there is no enquiry at all on the question as to whether the relationship of the landlord and tenant existed between the parties. The courts below, on the other hand, have proceeded on the assumption that the said relationship was existing, which in my view, cannot be sustained in law. 8. Since I have already taken the view that it is necessary to remand the matter to the Addl. Tahasildar for fresh enquiry on the aforesaid issue, the Tahasildar shall decide the matter, after permitting the parties to lead further evidence, on the basis of settled legal position. 9. Reference was made to the decisions of this Court reported in (Tyabbhai M. Bagasanwalla v. Hindu Industries Pvt. Ltd.)2, 1997 Mh.L.J. 443 and 1990 Mh.L.J. 631 (Syed Ibrahim Syed Ashraaf and another v. Zamarudbi Zamsuddin and others)3, by the petitioners to contend that in view of relationship between the parties the respondents were not the tenants within the meaning of the Act and they were not entitled to be declared as deemed tenants or deemed purchasers. Since the matter is being remanded for examining the said question I am not expressing any opinion and the same is left open. 10. In the circumstances this writ petition deserves to be allowed. The orders passed by the courts below are quashed and set aside and the matter is remanded to the Addl. Tahasildar, Purandar for fresh enquiry after permitting the parties to lead further evidence. Since the matter is pending for long time, the Tahasildar shall ensure that enquiry is concluded within a period of 6 months from the receipt of this order. Parties to appear before the Addl. Tahasildar, Purandar for fresh enquiry after permitting the parties to lead further evidence. Since the matter is pending for long time, the Tahasildar shall ensure that enquiry is concluded within a period of 6 months from the receipt of this order. Parties to appear before the Addl. Tahasildar on 14-8-2000 to enable the Tahasildar to fix the schedule for hearing of the matter. 11. In the aforesaid circumstances, writ petition is allowed with no order as to costs. Rule is made absolute in the above terms. The order passed by the Tribunal dated 31-10-1985 and order passed by the Addl. Collector, Pune on 2-11-1982 in Appeal No. 43 of 1981 and the order passed by the Addl. Tahasildar and A.L.T. Pune dated 3-4-1981 in 32-FG 119/79 are quashed and set aside. The matter is remanded to the Addl. Tahasildar and A.L.T. Purandar for further enquiry as aforesaid. Certified copy expedited. Parties to act on the copy of this order duly authenticated by Sheristedar of this Court. Writ petition allowed. -----