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2012 DIGILAW 1342 (BOM)

Divakar Savleram Torne v. Suresh Rafayal Torne

2012-07-23

S.S.SHINDE

body2012
Judgment : S. S. SHINDE, J. 1. Heard. 2. Rule. Rule made returnable forthwith. By consent, heard finally. 3. This writ petition takes exception to the judgment and order dated 17.1.2011 passed by the Maharashtra Revenue Tribunal, Aurangabad in Case No. 49-B-2009-AN. 4. It is the case of the petitioners that the land bearing Gat No. 389 (old survey No. 208/05) admeasuring 2 H 2 R and agricultural land bearing Gat No. 476 (old survey No. 231/6B) admeasuring 5 R situated at village Padhegaon, Tq. Shrirampur, District Ahmednagar is the property in dispute. By virtue of coming into force the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter of the sake of brevity referred to as “the said Act”), one Mr. Savala Godaji Torne was declared as deemed purchaser of the suit property on tillers day. It is the case of the petitioners that petitioners’ forefather has also paid rent, which was fixed by the tenancy Court of Rs.50/-to the landlord continuously. More so, there was an enquiry before Tahsildar, Shrirampur under Section 32-G of the said Act. In that enquiry, the tenant was declared as entitled to purchase the suit land on tillers day. 5. It is further case of the petitioners that, there was drought situation, therefore, the petitioners’ forefather applied for tagai loan, which was granted in favour of the original tenants viz. Savala Godaji Torne by the then Tahsildar and entry to the form No.13 is taken and grant of Tagai Loan vide Collector’s order an amount of Rs.1575/-was sanctioned. Out of which, price as fixed by the Tahsildar, Shrirampur of Rs.1078.14 is paid to one legal heirs i.e. Devdan Ananda Torne by cheque and the remaining amount of Rs.496.86 was refunded to the tenant Savala Godaji Torne on 2.1.1973. 6. It is further case of the petitioners that after lase of 34 years, L.Rs. of landlord (respondents herein) filed an application before the Tenancy Court at Shrirampur, it numbered as Tenancy Case No. 2 of 2005 praying for declaration and eviction of the tenants. The said application has been specifically resisted by the petitioners on various legal and factual grounds. 7. On 5.9.2008, the Tahsildar i.e. the Tenancy court Shrirampur while deciding the said application filed by the L.Rs. The said application has been specifically resisted by the petitioners on various legal and factual grounds. 7. On 5.9.2008, the Tahsildar i.e. the Tenancy court Shrirampur while deciding the said application filed by the L.Rs. of landlords, has specifically drawn a conclusion that on 15.3.1963, the land was purchased as per the provisions of Section 32-G of the said Act and mutation entry No.4256 was allowed. It is case of the petitioners that, it was further observed by the Tahsildar on 29.3.1972 that, the Collector has awarded amount of Rs.1575/-as Tagai loan and out of the said amount an amount of Rs.1078.14 has been paid as purchase price by way of cheque No. 692454 and remaining amount of Rs. 496.86 was refunded to the tenant. Moreover, the tenant has paid the said loan by regular payment on 17.1.1975. 8. Being aggrieved by the judgment and order of the tenancy court, the respondents i.e. original landlords had filed Tenancy appeal No. 17 of 2008 before the Sub Divisional Officer, Shrirampur. In the said appeal, written statement/written notes of arguments were filed by the petitioners herein. 9. On 28.10.2009, the Sub Divisional Officer, Shrirampur allowed the said appeal filed by the respondents remanding the matter for fresh consideration of Tahsildar, Shrirampur. 10. Being aggrieved by the said order, the present respondents had filed Revision No. 49-B-2009-AN, before the Member, Maharashtra Revenue Tribunal, Aurangabad. The petitioners herein had contested the said revision by filing say on record. On 17.1.2011, the learned Member of the Tribunal, has allowed the revision filed by the respondents, thereby holding that the petitioners are liable to be evicted summarily under the provisions of Section 32-G of the said Act. Hence, this petition. 11. The learned counsel appearing for the petitioners invited my attention to the provisions of Sub-section (3) of Section 32-K of the said Act and submitted that, if the appellate authority or the M.R.T. wanted to record the finding that, the petitioners have not paid the total amount of purchase price, before recording such finding, it should have been seen that whether there is compliance of Section 32(K) (3) of the said Act buy the Tahsildar or not. In the first instance, the Tahsildar ought to have issued notice to the petitioners under Subsection (3) of Section 32-K of the said Act, and then after giving notice/opportunity to the petitioners/tenants to deposit amount, if any, and upon failure to deposit said amount, could have recorded further that, the petitioners have not paid full purchase price. However, no such notice, as envisaged, under sub Section (3) of Section 32-K of the said Act has ever been issued by the Tahsildar to the petitioners. It is submitted that, the Tahsildar was satisfied that, full purchase price of the suit land has been deposited by the petitioners herein.It is further submitted that the application filed by the respondents-landlord is after a period 32 years from the date of payment of price. It is submitted that, such belatedly filed application, by the respondents-landlords should not have been entertained by the authorities. It is submitted that, the M.R.T. has not properly considered the point of limitation. Learned counsel invited my attention to the copy of Form No. A, Exh “A” at page 15 of compilation of the writ petition, to point out an entry in respect of granting Tagai loan and submitted that the Tagai loan of Rs.1575/-was sanctioned to Shri Savala Godaji Torne and out of the said amount, an amount of Rs.1078.14 towards price of the suit land vide cheque No. 692454 was paid to Devdan Ananda Torne. Therefore, according to the learned counsel appearing for the petitioners, the price, as determined by the authorities, was paid by the petitioners. It is submitted that, assuming but without admitting that, if the authority was of the opinion that, the full purchase price has not been deposited/paid by the petitioners, by invoking sub-Section (3) of Section 32-K of the said Act, notices should have been given to the petitioners to deposit the said amount. Learned counsel in support of his contention that such notice is required to be given, has pressed into service, a reported judgment of this Court in the case of Rangnath Pandharinath Gosavi vs. Sakharam Shiva Bhosale (since deceased, by his L.Rs.) and others, reported in 2004 (5) Bom.C.R. 34 and more particularly para 5 of the said judgment. Learned counsel in support of his contention that such notice is required to be given, has pressed into service, a reported judgment of this Court in the case of Rangnath Pandharinath Gosavi vs. Sakharam Shiva Bhosale (since deceased, by his L.Rs.) and others, reported in 2004 (5) Bom.C.R. 34 and more particularly para 5 of the said judgment. Therefore, relying upon the grounds taken in the petition, annexures thereto and the judgment cited above, the learned counsel appearing for the petitioners would submit that the impugned judgment and order cannot be sustained, and the same therefore, deserves to be quashed and set aside. 12. On the other hand, the learned counsel appearing for the private respondents i.e. landlords submits that the application was filed by the respondents before the Tahsildar. Counsel appearing for the respondents invited my attention to the contents of said application and the prayers made therein. Relying upon the contents of the said application and more particularly paragraph No.2 of the said application, counsel appearing for the private respondents submits that specific issue was raised in the said application that the petitioners have not deposited purchase price, as determined by the Tahsildar, in three instalments. According to learned counsel, total purchase price, which was determined by the authority, was Rs.1183.74. The learned counsel further invited my attention to the contents of the application and submitted that, the respondents had raised three grounds viz. i) the petitioners are holding the lands more than the ceiling limit, ii) the respondents are landlords and there is default in payment of rent by the petitioners i.e. original tenants and iii) in violation of the conditions of the grant of loan, the petitioners have partitioned the said land. It is submitted that the Tenancy Court has wrongly held that the purchase price is deposited by the petitioners/tenants. The appellate court has recorded a finding that the record does not disclose about deposit of purchase price by the petitioners. Learned counsel further submits that M.R.T., on admitted facts, had adjudicated the issue whether the purchase price is paid by the petitioners and if paid, whether that is the full price paid by the petitioners as determined by the authorities. Therefore, according to the counsel appearing for the respondents, the M.R.T. has correctlyreached to the conclusion that the purchase price is not paid by the petitioners. Therefore, according to the counsel appearing for the respondents, the M.R.T. has correctlyreached to the conclusion that the purchase price is not paid by the petitioners. The learned counsel further submits that, in paragraph 8, the M.R.T. has agreed to the findings recorded by the appellate authority that, the purchase price is not deposited by the petitioners and further in paragraph 9, it is held that even if it is assumed that the price is paid by the petitioners/tenants, however, that is not the full price, as they have paid Rs.1078.14. However, as per the price determined by the authority, the petitioners tenants were supposed to pay Rs.1183.74. Therefore, according to the learned counsel, the M.R.T. has reached to the correct conclusion and has also considered the contentions of the petitioners that, the application filed by the respondents landlord is not within limitation and held that the certificate under Section 32-M of the said Act is not yet issued to the petitioners and therefore, there is no question of limitation for filing application by the original landlords. Learned counsel relying on the judgment of Constitutional Bench of the Supreme Court in the case of Sriram Narayan Medhi Vs. The State of Maharashtra, reported in 1971 SC 1992 has submitted that the petitioners-original tenants have willfully defaulted in payment of purchase price. Even after the notices were issued by the authority, the petitioners have not shown willingness to deposit the purchase price. Therefore, according to the learned counsel appearing for the respondents-landlords, this Court may not interfere in the impugned judgment and order of the M.R.T. and prayed for dismissal of writ petition. 13. I have given due consideration to the rival submissions canvassed by the counsel appearing for the respective parties. I have carefully perused the judgment and orders passed by the appellate authority as well as the revisional authority. It is not in dispute that the tenancy court i.e. Tahsildar has recorded that the petitioners/original tenants have deposited Rs.1078.14 towards purchase price of the said land. It is not necessary to reproduce the findings of the Tahsildar, suffice it to say that the tenancy court, in its judgment, has referred to the fact that out of sanctioned loan towards Tagai, an amount of Rs. 1078.14 was paid to Shri Devdan Ananda Torne by cheque No. 792454 by the Tahsildar, Shrirampur towards purchase price. It is not necessary to reproduce the findings of the Tahsildar, suffice it to say that the tenancy court, in its judgment, has referred to the fact that out of sanctioned loan towards Tagai, an amount of Rs. 1078.14 was paid to Shri Devdan Ananda Torne by cheque No. 792454 by the Tahsildar, Shrirampur towards purchase price. It is not in dispute that Devdan is one of the L.Rs. of original landlord. 14. On perusal of findings recorded by the S.D.O. Shrirampur i.e. the appellate authority, the said authority in paragraph 4 has observed that, the enquiry was conducted in respect of the suit land. An amount of Rs.1183.74 was supposed to be paid to Savala Godaji Torne, in three instalments by the petitioners. However, there are no receipts on record showing that the said instalments are paid by the petitioners i.e. original tenants. So far as the contention raised by the respondents that the petitioners are holding more land than the ceiling limit is concerned, that aspect has already been dealt with by the appellate authority, however, no definite or concrete findings are given on the said issue. The third point, which was raised by the respondents herein that, the lands are partitioned in breach of condition of grant of land, has been discussed by the appellate authority. However, no definite finding is recorded on the said issue. The contention of the landlord that there is default in payment of rent, the appellate authority has not recorded its finding on the said aspect also. 15. When the revision was filed by the original applicants before the M.R.T., the M.R.T. in its judgment has recorded that “concurrent finding of the authorities below that, the purchase price was paid and there was no default in payment of purchase price is arbitrary, baseless or perverse.” These observations of the M.R.T. goes contrary to what is held by the appellate authority. In fact, the appellate authority held that, there are no receipts to suggest that purchase price is deposited by the tenants. Therefore, M.R.T. was not correct in observing that, there are concurrent findings of the authorities below that purchase price was paid and there was no default in payment of purchase price. In fact, the appellate authority, in clear words, has stated that, there are no receipts indicating that the purchase price is deposited/paid by the tenants i.e. petitioners herein. Therefore, M.R.T. was not correct in observing that, there are concurrent findings of the authorities below that purchase price was paid and there was no default in payment of purchase price. In fact, the appellate authority, in clear words, has stated that, there are no receipts indicating that the purchase price is deposited/paid by the tenants i.e. petitioners herein. Therefore, above quoted observations from the judgment of M.R.T., would indicate non application of mind on the part of the learned Member of the M.R.T., to the facts of the case and findings recorded by the authorities below. 16. The aspect that the petitioners/tenants have paid part of purchase price and not full purchase price, as determined by the authority, has not been discussed or gone into by the Tahsildar or by the appellate authority. It appears that, in paragraph 8, the M.R.T. has entered into exercise of recording findings that, whether the petitioners/tenants have paid entire purchase price or not. In fact, such exercise by the M.R.T. in the first instance, was not warranted, when the Tahsildar and the appellate authority has not entered into the said exercise to find out whether the price paid by the tenants, as was determined by the appellate authority, is deposited in part of in full. That apart, from perusal of Exhibit “A” to the petition, it appears that the amount of Rs.1575/-was sanctioned as Tagai loan to the petitioners-tenants and out of that, it further appears that, an amount of Rs.1078.14 was deducted and is paid to Devdan Torne. Therefore, if M.R.T. wanted to take totally different view than the view taken by the Tahsildar or by the appellate authority, it was incumbent on the part of the M.R.T. to find out from the said documents whether the said payment of Rs.1078.14 is deducted by the authority on account of payment of full purchase price towards the suit land or it is petitioners/tenants, who asked the Tahsildar to deduct the said amount towards purchase price of the suit land. However, that exercise has not been gone into. However, this Court refrain itself from making any observations on the said aspect on merits. 17. However, that exercise has not been gone into. However, this Court refrain itself from making any observations on the said aspect on merits. 17. The other contentions raised by the respondents/landlords that the petitioners/tenants are holding excess land than the ceiling limit, secondly, that tenants are in default in making the payments of rent and thirdly, in violation of breach of the condition of grant of loan, the suit land is partitioned, on all these aspects, the M.R.T. has not given findings at all. 18. Therefore, for the reasons aforesaid, in my considered view, the judgment and order dated 17.1.2011 passed by the Maharashtra Revenue Tribunal, Aurangabad in Case No. 49-B-2009-AN, cannot sustain in law and the same is quashed and set aside. The judgment and order passed by the appellate authority to the extent of remand of the case to the Tahsildar is confirmed. 19. Rule is made absolute to the above extent. Writ petition is disposed of. 20. It is needless to mention that the parties are at liberty to put forth their contentions before the Tahsildar confining to their original pleadings in the application filed by the respondents-landlords and the say filed by the petitioners in the said dispute. 21. Since the parties are pursuing the litigation for a considerable period, it is desirable that the Tahsildar shall decide the proceeding, as directed by the appellate authority, as expeditiously as possible, however, within a period of six months from today. 22. It is further needless to mention that the parties shall not seek any unnecessary adjournment and the concerned authority also shall not grant such adjournment, unless there exists extraordinary reason. The parties to appear before the Tahsildar Shrirampur on 17.8.2012.