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2012 DIGILAW 1169 (BOM)

Laxmanrao Manoharrao Dabir v. Shivram Dhondiba

2012-07-02

S.S.SHINDE

body2012
Judgment : 1. This writ petition takes exception to the judgment and order of the Maharashtra Revenue Tribunal, Aurangabad in Case No.8/B/90 dated 27th September, 1990, the judgment and order in Case No. 81/LR/TNC/A/38 dated 5th December, 1986 passed by the Deputy Collector, Land Reforms, Aurangabad as an Appellate Authority and the judgment and order dated 30th September, 1976 in Case No.S.P.K./1178/73 passed by the Naib Tahsildar, Revenue Record, Kannad. 2. The background facts as disclosed in the petition for filing this writ petition are as under: "The Petitioners are the legal representatives of one Shamrao @ Manorarrao, who was the protected tenant of an agricultural land bearing Survey No.27 called ‘Pandhari’ admeasuring 6 Acres, 32 Gunthas assessed at Rs.11.23 paise situated at village Chincholi Nakub, Taluka Kannad, District Aurangabad. The Respondent No.3 herein is the landlord of the suit land and the Respondent Nos.1 and 2 have purchased a part of the land admeasuring 2 Hectares and 36 Ares on 20th February, 1968. It is the case of the Petitioners that, the Petitioners are dispossessed somewhere in the month of June 1968 from the suit land on the basis of the saledeed executed by the Respondent No.3 in favour of the Respondent Nos.1 and 2. It is submitted that, the Petitioners are dispossessed from the suit land to the extent of 3 Acres and 36 Gunthas." 3. The Petitioners herein filed an application under Section 32(1) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as “the said Act”), on 19th February, 1970 for possession of the suit land before the Tahsildar, Kannad. The Respondent Nos.1 and 2 herein by their written statement dated 12th June, 1970 resisted the said application and contended that, the Petitioners’ father was never the protected tenant of the suit land and they were never in possession of the suit land. It is stated by the Respondent Nos.1 and 2 in their writ statement that, the Petitioners’ father in collusion of the concerned Talathi, got his name mutated in the revenue record. It is further case of the Respondent Nos.1 and 2 that, the Respondent No.3, who is the owner of the suit land, had given the entire land for cultivation to the Respondent Nos.1 and 2 and they are cultivating the suit land since beginning. 4. It is further case of the Respondent Nos.1 and 2 that, the Respondent No.3, who is the owner of the suit land, had given the entire land for cultivation to the Respondent Nos.1 and 2 and they are cultivating the suit land since beginning. 4. The Respondent Nos.1 and 2 are real brothers and each of them is in possession of 1 Acre and 38 Gunthas. The Respondents have denied in their written statement that, they have dispossessed the Petitioners’ father in the month of June 1968 from the suit land. Plea of limitation was also raised by the Respondents in their written statement that, the application filed by the Petitioners for restoration of possession is barred by limitation. 5. The Petitioners examined themselves and their father was also examined in support of their case. Respondent No.3 was examined on behalf of Respondent No.2. It is the case of the Petitioners that, the landlord in his cross-examination admitted that, the Petitioners’ father was protected tenant of the suit land from the year 1950 and that he was cultivating the suit land from the year 1950. It is also admitted in the cross-examination by the landlord that, the Petitioners are in possession of the suit land 10 to 12 years prior from recording the statement. It is also admitted that, since the time of his predecessor in title, the Respondent No.3 is in possession of the suit land. The Petitioners have given part of land namely suit land on Batai basis to the Respondent Nos.1 and 2 and they failed to inform the Respondent Nos.1 and 2 that, the land is in possession of the father of the Petitioners. 6. It is the case of the Petitioners that, it is admitted by the Respondent No.3 in his cross-examination that, before selling the suit land to the Respondent Nos.1 and 2, he has not given any notice to the father of the Petitioners about the sale transaction. It is further case of the Petitioners that, after the execution of the saledeed in favour of Shivram by the Respondent No.3, the said Shivram and Rama obtained possession from the Petitioners after four months from the date of the saledeed. It is the case of the Petitioners that, though the Petitioners’ father sent rent by money orders to the Respondents, they have refused to accept the said rent amount. 7. It is the case of the Petitioners that, though the Petitioners’ father sent rent by money orders to the Respondents, they have refused to accept the said rent amount. 7. The application filed by the Petitioners was rejected by the Tahsildar. Being aggrieved, an appeal was preferred. However, the appeal filed by the Petitioners herein came to be allowed. Being aggrieved, the Respondent Nos.1 and 2 herein preferred revision before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal remanded the matter back to the Appellate Authority for fresh adjudication. In second round of litigation, the Appellate Authority and also the Maharashtra Revenue Tribunal held against the Petitioners and rejected the application for restoration of the possession mainly on the ground that, the application filed by the Petitioners under Section 32 of the said Act was not within the period of limitation. The second ground as it is evident from the perusal of the judgment of the Maharashtra Revenue Tribunal that, the Petitioners or Petitioners’ father was not cultivating the land from the year 1959 onwards. 8. Being aggrieved by the judgment and order of the Maharashtra Revenue Tribunal, this writ petition is filed by the Petitioners. 9. The learned counsel for the Petitioners invited my attention to the copy of the application from the original record, which was filed before the Tahsildar and submitted that, the saledeed, which was executed by the Respondent No.3 in favour of the Respondent Nos.1 and 2 was on 20th February, 1968 and the Petitioners herein were dispossessed somewhere in the first week of June 1968 and thereafter, within two years i.e. on 19th February, 1970 application was filed before the Tahsildar for restoration of the possession. Therefore, according to the learned counsel for the Petitioners, all the Forums below have not properly read and understood the record as available for the perusal. The Appellate Authority has observed in his judgment that, the date of application is 19th February, 1979 and that itself would show non application of mind by the Appellate Authority to the facts and record of the case. It is submitted that, the application, which was filed by the Petitioners was within two years from the said sale transaction entered between the Respondent No.3 and Respondent Nos.1 and 2. It is submitted that, the application, which was filed by the Petitioners was within two years from the said sale transaction entered between the Respondent No.3 and Respondent Nos.1 and 2. The learned counsel for the Petitioners invited my attention to the findings recored by the Appellate Authority and submitted that, upon perusal of the revenue record, which was made available for the perusal of the Appellate Authority, the Appellate Authority has observed in his judgment that, cultivation of Shivram and Manohar as tenant has continued upto 196768. The 7/12 extract shows that, in the year 196667, the Appellant – Shamrao alias Manoharrao cultivated the land to the extent of 3 Acres and 36 Gunthas and Shivram Dhondiba and Rama Dhondiba have cultivated the land as tenants to the extent of 1 Acre, 38 Gunthas each. This entry of the cultivation also continued in the year 196768. In the year 196869, Manoharrao i.e. Shamrao has been shown as cultivating 3 Acres, 36 Gunthas as tenants. Whereas Rama Dhondiba and Shivram Dhondiba have been shown as cultivating 1 Acre, 38 Gunthas each as owner. Thereafter, according to the learned counsel for the Petitioners, there was no reason for the Authorities to reject the application filed by the Petitioners. It is submitted that, the application filed by the Petitioners under Section 32 of the said Act was maintainable in view of the judgment of this Court in the case of KerbaBhiwaji Shinde Vs. Salubai Nagorao and others, [ 1983 Mh.L.J. 1009 ]. Therefore, relying upon the pleadings in the petition and the grounds taken therein, the learned counsel for the Petitioners would submit that, this writ petition may be allowed. 10. On the other hand, the learned counsel for the Respondents invited my attention to the findings recorded by the Maharashtra Revenue Tribunal and submitted that, from the year 1959 onwards when the name of the Defendant No.1 i.e. Respondent No.1 herein was entered as the cultivator in the revenue record, the Petitioners’ father had not taken any steps. The revenue record unequivocally indicates that, the Respondent Nos.1 and 2 are in possession of the suit property from the year 1959, and they continued in possession of the suit property till 1968 even thereafter, they remained in possession, on the basis of the saledeed executed by the Respondent No.3 in their favour. The revenue record unequivocally indicates that, the Respondent Nos.1 and 2 are in possession of the suit property from the year 1959, and they continued in possession of the suit property till 1968 even thereafter, they remained in possession, on the basis of the saledeed executed by the Respondent No.3 in their favour. Therefore, according to the learned counsel for the Respondents, when the Maharashtra Revenue Tribunal and the Appellate Forum on appreciation of facts and evidence on record have held against the Petitioners, this Court may not interfere in those findings, in the writ jurisdiction. It is submitted that, the application, which was filed by the Petitioners was not within two years from the sale transaction. The Petitioners utterly failed to prove on which date they are dispossessed. Therefore, relying upon the reasons recorded by the Maharashtra Revenue Tribunal, the learned counsel for the Respondents would submit that, this writ petition is devoid of any merits and the same may be dismissed. 11. I have given due consideration to the rival submissions. It appears from the perusal of the judgment of the Appellate Authority and also from the Maharashtra Revenue Tribunal that, the application filed by the Petitioners for restoration of possession of the suit land has been rejected merely on the ground that, the said application was not within two years from the alleged sale transaction between Respondent No.3 and Respondent Nos.1 and 2. From perusal of the record, it appears that, the sale transaction between the Respondent No.3 and Respondent Nos.1 and 2 was entered on 20th February, 1968. Perusal of the original record and proceedings and in particular, the application filed by the Petitioners’ father clearly show that, the said application was filed on 19th February, 1970. Therefore, the Appellate Authority and also the Maharashtra Revenue Tribunal have not correctly read the documents, which were available on record. The date of filing of the said application is mentioned at more than one places in the original application and therefore, it is difficult to understand that, how the Appellate Authority and also the Maharashtra Revenue Tribunal have recored that, the said application was not within two years from the sale-deed executed by the Respondent No.3 in favour of Respondent Nos.1 and 2. Therefore, in my opinion, the said ground that, the application filed by the Petitioners’ father was not within limitation, as held by the Appellate Authority and the Maharashtra Revenue Tribunal, cannot be sustained. 12. Secondly, the Maharashtra Revenue Tribunal was not correct in observing that, the Petitioners’ father was not in cultivation of the suit land from the year 1959. The Appellate Authority in its judgment has given categorical findings that, the father of the Petitioners i.e. Shamrao alias Manoharrao was cultivating the land admeasuring to the extent of 2 Acres, 36 Gunthas. The relevant findings recorded by the Appellate Authority in the impugned judgments are reproduced hereinbelow: “From the averments and the record produced it is more or less admitted that plaintiff Shamrao alias Manoharrao was the protected tenant of the land alongwith another person Vithoba. It is also admitted that sometimes later after 1950 Vithoba left the cultivation of the land. The appellant claims that after Vithoba, the other protected tenant, left the cultivation, he continued to cultivate the whole of the land whereas the respondents claims that after Vithoba left the cultivation the respondent No. 1 i.e. Shivram was inducted on the land. The revenue record i.e. Pahani Patrak etc. from the year 1950 onwards upto 1959 does not appear to have been filed. The 7/12 extract from the year 195960 onwards is available on lower Court file which shows that since 195960 both Shivram and Manohar were cultivating the land as tenants. The cultivation of Shivram and Manohar as tenants continued upto 196768. The 7/12 extract shows that in the year 196667 the appellant Shamrao alias Manoharrao cultivated the land to the extract of 2 Acres 36 gunthas and Shivram Dhondiba and Rama Dhondiba have cultivated the land as tenants to the extract of 1 Acre 38 gunthas each. This entry of cultivation also continued in the year 196768. In the year 196869 Manoharrao i.e. Shamrao has been shown as cultivating 2 Acres 36 gunthas as tenants. Whereas Rama Dhondiba and Shivram Dhondiba have been shown as cultivating 1 Acre 38 gunthas each as owner. This ownership appears to have been shown due to sale deed which is alleged to have been effected by the owner Kadu on 2021968. In the year 196869 Manoharrao i.e. Shamrao has been shown as cultivating 2 Acres 36 gunthas as tenants. Whereas Rama Dhondiba and Shivram Dhondiba have been shown as cultivating 1 Acre 38 gunthas each as owner. This ownership appears to have been shown due to sale deed which is alleged to have been effected by the owner Kadu on 2021968. It is the plea of the respondents that the sale deed effected in favour in the year 1968 is not illegal since it has been alienated in favour of the tenant in possession who were cultivating as tenants since very long time.” 13. Therefore, in my considered opinion, the Maharashtra Revenue Tribunal was not right in holding that, the Petitioners’ father was not in the possession and in cultivation of the suit land to the extent of his holding as a protected tenant from 1959. The said finding is contrary to record and therefore perverse. 14. It is not in dispute that, said Manoharrao – father of the Petitioners was protected tenant of the suit land from the year 1950. Upon careful perusal of the judgment and order of the Tahsildar, the Appellate Court and the Maharashtra Revenue Tribunal the said fact is noted by all the three Forums that, Manoharrao was a protected tenant. 15. If at all, the Respondents wanted to take possession of the suit land to the extent of 3 Acres, 36 Gunthas for which said Manoharrao was declared protected tenant, only way, which was available to the Respondents was to take recourse to the provisions of Section 32 of the said Act. Sub-Section (1) and Sub-Section (2) of Section 32 of the said Act read thus: “32. Procedure of taking possession: (1) A tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may, within a period of two years from the date of the commencement of the Hyderabad Tenancy & Agricultural Lands (Amendment) Act, 1957 or the date on which the right to such possession accrued to him which ever is later apply to the Tahsildar in writing in the prescribed form for such possession. Provided that a tenant falling under Clause (b) of the 3rd proviso to section 5 may, within a period of two years from the date of the commencement of Hyderabad Tenancy and Agricultural Lands (Reenactment Validation & Further Amendment) Act, 1961 apply to the Tahsildar for possession. (2) Save as otherwise provided in Sub-Section (3A) no land holder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tahsildar, for which he shall apply in the prescribed form within a period of two years from the date of the commencement of the Hyderabad Tenancy & Agricultural Lands (Amendment) Act, 1957, or the date on which the right to such possession accrued to him whichever is later.” 16. Careful perusal of the said provisions would make it abundantly clear that, if landlord wish to take possession of the land from the protected tenant or tenant as the case may be, only way is to take recourse to the provisions of Sub-Section (2) of Section 32 of the said Act. Admittedly, in the present case, there is no application filed by the Respondent No.3 or other Respondents for taking the possession of the suit land from said Manoharrao under the said Act. "This Court in the case of Kerba Bhiwaji Shinde (supra) has held, where there is a dispute between the tenant and the landlord as to the possession of tenanted land, the only section available to the tenant is Section 32(1) of the Hyderabad Tenancy and Agricultural Lands Act. This Court has also considered the import of Section 32 of the said Act and in paragraph No.8 held that, if the tenant is dispossessed by a landlord he can make an application under Section 8 of the said Act for a declaration that, he is or was tenant of the land and ask for the possession of the land under Section 32 (1) of the said Act. Apart from this, there is no provision. When a tenant makes an application under Section 32(1) of the said Act for possession of a tenanted land he claims a right to be entitled to possession because he is a tenant of the land. Apart from this, there is no provision. When a tenant makes an application under Section 32(1) of the said Act for possession of a tenanted land he claims a right to be entitled to possession because he is a tenant of the land. Every lawful tenant of the land under the act is entitled to possession unless otherwise evicted by the landlord, resorting to any other provisions of the act under section 32(2) of the said Act. Taking possession without resorting to the provisions of section 32(2) of the said Act by the landlord is stated to be an offence and a penalty provided under Sub-Section (4) of the Section 32 of the said Act as provided in Section 96 of the said Act. Therefore, the only way, which was available to the present Petitioners to file application for restoration of the possession was to take recourse to Sub-Section (1) of Section 32 of the said Act and for the Respondents and in particular Respondent No.3 to file application under Sub-Section (2) of Section 32 of the said Act for restoration of possession from the protected tenant. Therefore, for the reasons aforesaid, this writ petition deserves to be allowed for more than one reasons. Firstly, the application, which was filed by the Petitioners’ father under Section 32(1) of the said Act was within the period of limitation. Secondly, the revenue record unequivocally indicates that, the father of the Petitioners was protected tenant, was in possession and cultivation of the suit land to the extent of 3 Acres, 36 in the year 1968 and thirdly, the Respondent No.3 landlord has not resorted to the provisions of Sub-Section (2) of Section 32 of the said Act before dispossession the Petitioners from the suit land, though he was protected tenant. Therefore, the writ petition is allowed in terms of prayer clause (B). The application filed by the Petitioners before the Tahsildar stands allowed. The possession of the Petitioners be restored to the extent of area for which their father namely Shamrao alias Manorarrao was declared as protected tenant. However, it will be open for the parties to agitate before the competent Authority about the extent of area of the suit land in which the father of the Petitioners i.e. Manoharrao, was in actual possession and cultivation of the suit land from 1950 till 1968." 17. Rule is made absolute on above terms. However, it will be open for the parties to agitate before the competent Authority about the extent of area of the suit land in which the father of the Petitioners i.e. Manoharrao, was in actual possession and cultivation of the suit land from 1950 till 1968." 17. Rule is made absolute on above terms. The petition stands disposed of.