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2000 DIGILAW 588 (BOM)

Keshaorao s/o Rajaram Acharya & others v. Kaushi wd/o Mahadeo Deurkar & others

2000-08-10

A.M.KHANWILKAR

body2000
JUDGMENT - A.M. KHANWILKAR, J.:---This writ petition under Article 227 of the Constitution of India, is directed against the judgment of the Maharashtra Revenue Tribunal, Nagpur, dated 9th August, 1990 in Revision Application No. Ten. A. 66/85. 2. Briefly stated, the respondents are the successors of the original tenant Mahadeo. The petitioners, on the other hand, have purchased the suit land from the original landlord. The suo motu tenancy proceedings were initiated in the year 1964-65, which were, however, dropped on the basis of the statement made by Mahadeo that he had voluntarily left the possession of the suit land. The Special Deputy Collector, Land Reforms, however, started suo motu revision proceedings and by his order dated 16th May, 1968, remanded the matter to the Additional Tahsildar for fresh disposal. After remand, the Additional Tahsildar, by the judgment and order dated 17-1-1971, held that the respondents who are the successors of the original tenant Mahadeo, have become the full owner of the suit land. The Additional Tahsildar recorded a finding that Mahadeo was in possession of the suit land on 1-4-1961 as well as on 1-4-1963 and had thus acquired status of full owner under section 46(1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as the Act). Against the said decision, the matter was taken up in appeal before the Sub-Divisional Officer at the instance of the petitioners herein. The Sub-Divisional Officer confirmed the order passed by the Additional Tahsildar and dismissed the appeal. Thereafter the petitioners preferred revision before the Tribunal which was dismissed as having abated. This order was challenged before this Court by the Writ Petition No. 549 of 1980 and the revision petition was restored to file of the Tribunal. The Tribunal, by the impugned order, has dismissed the revision application. 3. The main point argued on behalf of the petitioners is that the original tenant Mahadeo was cultivating the suit land in the capacity of partner and not as tenant. It is further contended that if it is held that the possession of original tenant Mahadeo was that of partner, in that case, the orders passed the courts below are totally without jurisdiction inasmuch as a partner cannot become a tenant and thus, a full owner within the meaning of the Act. It is further contended that if it is held that the possession of original tenant Mahadeo was that of partner, in that case, the orders passed the courts below are totally without jurisdiction inasmuch as a partner cannot become a tenant and thus, a full owner within the meaning of the Act. In support of this contention, reliance has been placed on the decision reported in (1962 N.L.J. 459)1. 4. Second point argued on behalf of the petitioners is on the basis of the decision reported in (1980 Mh.L.J. 254)2, which has taken the view that the dispossessed tenant ought to file an application for restoration within a period of two years from the date of dispossession and failing which the suo motu proceedings for transfer of ownership cannot be initiated in respect of such tenant. 5. The learned Counsel for the respondents has resisted the aforesaid arguments by pointing out that so far as the issue of partnership is concerned, the courts below have concurrently found that the original tenant Mahadeo was not cultivating the suit land as partner. Reliance has been placed on the finding recorded by the Additional Tahsildar that no documentary evidence has been adduced to show about the terms of the partnership between the parties. On the other hand, the tenant in his evidence had categorically denied that he was cultivating the suit land as partner. This finding has not been interfered with by the Appellate Court and the tribunal refused to interfere in revisional jurisdiction on the ground that the question was pure question of fact. 6. With regard to the second question, the learned Counsel for the respondents, points out that since it has been found that the original tenant was in possession of the suit land on 1-4-1961 as well as on 1-4-1963, the said decision will have no application for the simple reason that the right of a tenant had already crystallised on 1-4-1963 to become full owner in respect of the suit land. In other words, it is submitted that dispossession of Mahadeo after 1-4-1963 is of no consequence and the judgment relied upon will, therefore, have no application. 7. In other words, it is submitted that dispossession of Mahadeo after 1-4-1963 is of no consequence and the judgment relied upon will, therefore, have no application. 7. Having considered the rival submissions, I am of the view that insofar as the issue of partnership is concerned, the courts below have concurrently found that it cannot be said that Mahadeo was cultivating the suit land in the capacity of partner. In the circumstances, the judgment relied upon by the learned Counsel for the petitioners reported in 1962 N.L.J. 459 is of no avail. The said decision, no doubt, holds that if the land is cultivated by the partner, he does not become a tenant and in law, the landlord continues to cultivate the land personally. Since on facts, it is found that Mahadeo was cultivating the suit land not as a partner, the ratio of the said judgment will have no application to this case. On the other hand, the concurrent finding recorded is that said Mahadeo was in possession of the suit land as tenant and the same is substantiated by the khasra entries as well as the statement of Mahadeo recorded as back as on 31st August, 1967. In the circumstances, the first submission advanced on behalf of the petitioners, in my view, has no substance and deserves to be rejected. 8. With regard to the second question urged by the petitioners that no suo motu proceedings could have been initiated, the learned Counsel for the respondents is right in raising as objection that this question is being urged for the first time before this Court which ought not to be permitted. I am of the view that having regard to the finding recorded by the courts below that Mahadeo was in possession of the suit land on 1-4-1963 and, therefore, became full owner, cannot be doubted. Once it is held that Mahadeo was in possession of the suit land on 1-4-1963, by virtue of section 6 of the Act, it is not open to challenge the status of Mahadeo that of a tenant, at this stage. In the circumstances, Mahadeo, being a tenant and was in possession of the suit land on 1-4-1963, therefore, became entitled to purchase the suit land by virtue of section 49-A of the Act. In the circumstances, Mahadeo, being a tenant and was in possession of the suit land on 1-4-1963, therefore, became entitled to purchase the suit land by virtue of section 49-A of the Act. As soon as the right of Mahadeo to purchase the suit land had crystallised on 1-4-1963 itself, the fact that he was dispossessed after 1-4-1963, cannot denude him of the right under section 49-A of the Act to purchase the suit land. It is wholly irrelevant whether Mahadeo remained in possession of the suit land after 1-4-1963 inasmuch as by virtue of provisions under section 49-A of the Act, the ownership of the suit land stood transferred in his favour by operation of law. In my view, the judgment relied upon on behalf of the petitioners reported in 1980 Mh.L.J. 254 has no application, inasmuch as, in that case the tenant was dispossessed from the suit land prior to 1-4-1963 and the tenant also failed to take recourse to restoration of possession provided for in law, within a period of two years, on account of which he lost the right to become full owner by virtue of section 49-A of the Act. Naturally, therefore, in such a case, no declaration could be issued in favour of such a defaulting tenant and for which reason even suo motu proceedings by the authorities cannot be permitted. In the circumstances, the ratio of the said judgment has no application to the present case as the only issue which arises for consideration in this case is whether the original tenant Mahadeo was in possession of the suit land on 1-4-1963 and if the same is answered in affirmative, by virtue of mandatory legal provisions, he would become full owner of the suit land on 1-4-1963. I am, therefore, of the view that even the second question urged on behalf of the petitioners, is of no substance and deserves to be rejected. 9. For the aforesaid reasons, the writ petition is dismissed with no order as to costs. Rule stands discharged. Writ petition dismissed. -----