W.P. No. 799 of 1990,W.P. No. 4165 of 1991

15th January, 1998

Petitioner Counsel: P. V. MANDLIK
Respondent Counsel: J. P. AKOLKAR, A.G.P., S.S. CHOUDHARI, ANIL H. KASLIWAL, S.C. BORA and E.P. SAWANT

Cases Cited:
JT 1996(10) SC 43 [Para 8]

JUDGMENT

JUDGMENT :- Writ Petition No. 799/90 arises out of the order dated 14-12-1989 passed by the Maharashtra Revenue Tribunal, Aurangabad setting aside its own order dated 24-6-1989 in Revision No.96/B/1988/P and also setting aside the orders passed by the Additional Tahsildar, Sub-Division Selu and Deputy Collector, Selu. The land admeasuring about 23 acres 38 gunthas in S. No. 590 situated at Parbhani belonged to one Shri Prabhakarrao Rajaram Taklikar and the petitioner entered into an agreement on 3-5-1957 with the said Prabhakarrao for cultivation of the said land admeasuring 23 acres 38 gunthas along with the well in S. No. 590 on tenancy basis for a consideration of Rs. 3,000/-. Subsequently the said land was cultivated by the petitioner and his elder brother Raghorao @ Raghoo. Both the brothers continued to cultivate the said land jointly and in accordance with the provisions of section 38 of the Hyderabad Tenancy Agricultural Lands Act, 1950 they became the joint owners of the said property and certificate dated 27-3-1962 in form No. 13 (Under Rule No.22) came to be issued in favour of both the brothers.

2. It is the contention of the petitioner that Raghoji was his elder brother and after the land was vested in favour of both the brothers jointly in terms of the order passed by Tahsildar on 25-3-1962 in pursuance of the provisions of section 38 of the Act, both the brothers became joint owners of the said land and Pahanipatrak as well as 7/12 extract pertaining to the said land issued by the revenue authorities from time to time showed both the brothers as joint owners of the property. However, some time in the year 1975-76 Raghoji manipulated the record and showed his personal share as 15 acres 38 gunthas and that of the petitioner as 7 acres 38 gunthas. The petitioner is not very sure when this alleged manipulation of record came to his knowledge. The petitioner therefore, approached the Additional Tahsildar, Sub-Division, Selu and filed an application/Petition for correction of the mutation entry - pertaining to the land in S.No. 590 and prayed that the land should be shown as equally distributed between both brothers namely each one should be shown as the owner of 11 acres 38 gunthas. This application appears to have been filed some time in July 1986 and after hearing both the parties the Additional Tahsildar by an order dated 7-10-1986 allowed the application and directed the mutation entries to be corrected. In the meanwhile, Raghoji before this application was filed, had expired and the application was filed against his son namely Rama. Being aggrieved by the order passed by the Additional Tahsildar on 7-10-1986 Rama approached the Deputy Collector by an appeal under section 90 of the Act. The said appeal was partly allowed by the Deputy Collector and the matter was remanded back for fresh enquiry by the Additional Tahsildar as it was observed that sufficient opportunity was not given to Rama.

3. As directed by the Deputy Collector, the Additional Tahsildar conducted a fresh enquiry and by an order dated 8-9-1987 allowed the original application of the petitioner. Aggrieved by this fresh order Rama filed another appeal before the Deputy Collector, Selu and by order dated 13-10-1988 the appeal was rejected. The said order of the Deputy Collector came to be challenged before the Maharashtra Revenue Tribunal, Aurangabad in Revision No. 96/B/1988/Parbhani and the same was rejected by order dated 26-4-1989 on the ground that revision application was not maintainable against the orders impugned. This order dated 26-4-1989 seems to have been passed without hearing the learned advocate of the appellant.

4. Rama therefore, filed application for restoration of his revision application and the same came to be allowed by order dated 9-11-1989 by the Maharashtra Revenue Tribunal. However, while restoring the revision application to his file the Maharashtra Revenue Tribunal, instead of maintaining the same number seems to have changed the number of revision application as case No. 77/B/89/P and after hearing both the parties at length the Member, Maharashtra Revenue Tribunal, Aurangabad allowed the revision/application by his order dated 14-12-1989 and held that both the lower Courts committed an error of law and exceeded their jurisdiction in modifying the previous order passed by the Tahsildar under section 38-a of the Act. The Maharashtra Revenue Tribunal recorded a finding that on principles both the brothers should have equal property in disputed land but it appeared that at the time of purchasing the land the present petitioner was not able to pay half the purchase price and Raghoji purchased 15.38 acres land by paying more price.

5. This order of the Maharashtra Revenue Tribunal has been challenged by the petitioner in the instant petition. It is pertinent to note that as against the order impugned in this petition, the Tahsildar in both his orders i.e. order dated 7-10-1986 as well as order dated 8-9-1987 held that the original documents namely Pahanipatrak as well as certificate in form No.13 under Rule 22 issued on 23-9-1962 were manipulated and particularly the entries showing the share of each brother was interpolated in the original documents. This finding of fact made by the Tahsildar was confirmed by the Deputy Collector vide his order dated 13-10-1988 which was impugned before M.R.T. This petition was admitted by this Court on 29-3-1990 and interim relief restraining respondent No.3 from alienating the suit land S. No. 590 was granted. Subsequently, it appears that the suit lands were sold by respondent No.3 to respondents Nos. 4 and 5 and the petitioner therefore, filed writ petition No. 4165/91 praying for quashing the sale-deed in favour of respondents Nos. 4 and 5. Similar prayers have been incorporated in Writ Petition No. 799/90 by way of amendment which was allowed by this Court.

6. Learned counsel appearing for Respondent No.3 contended that the order issued by the Tahsildar on 25-3-1962 as well as the certificate issued in form No. 13 on the same date clearly shows the share of each of the brothers and the petitioner had only 7 acres 38 gunthas in his name as per both these documents. He further submitted that on the basis of the sale-deeds entered into between the petitioner and some other parties in the year 1983, the copies of which have been brought on record, the petitioner had admitted that he held only 7 acres 38 gunthas land in S.No. 590. The learned counsel, therefore, urged that the petition is devoid of merits and the order passed by the Maharashtra Revenue Tribunal, deserves to be confirmed.

7. On perusal of the original record and proceedings, it is observed as under :

The original agreement dated 3-5-1957 was entered between the petitioner and the original owner namely Prabhakar Taklikar and Raghoji was not a party to this agreement. Pahanipatrak for the years 1955-56 to 1957-58 shows that the suit land was jointly cultivated by the petitioner and his elder brother Raghoji. The affidavit executed jointly by both the brothers before the Tahsildar, Parbhani on 20-7-1961 clearly stated that both the brothers were cultivating the suit land admeasuring 23 acres 38 gunthas jointly and in this affidavit there is a clear interpolation made in different handwriting and in different ink subsequently reading as :

"Ganpati to the extent of 7 acres 38 gunthas and Raghoji to the extent of 15 acres 38 gunthas with the well to the extent of this share."

Affidavit filed by Prabhakar on 20-7-1961 clearly stated that both the brothers were joint ordinary tenants and there was no separate division made out. The affidavit alleged to have been signed by Raghoji on 20-7-1961 appears to be a document which is subsequently brought on record carrying the date as 20-7-1961, and in this affidavit Ragho states that he has purchased 15 acres 38 gunthas from the suit property. The certificate issued under section 38(5) of the Act on 27-3-1962 is in two parts, the first part pertains to the names of the original landlords and the ordinary tenants and the provisions under which this certificate was being issued, whereas the second part pertains to the description of land. In the second column pertaining to the description of the land in which it is clearly shown that the land admeasuring 23 acres 36 gunthas is jointly held. However, in the first part below the name of Raghoji and Ganpat subsequent interpolation has been made adding the figures A15 - 38G and 7A - 38G beneath the names of Raghoji and Ganpat respectively. This is no doubt a subsequent interpolation in the certificate issued by the Tahsildar. Even in the order dated 23-5-1962 issued by the Additional Tahsildar, Selu there is an interpolation made showing the respective acerage of two brothers by adding figures A15 - 38G and A-7 - 38G beneath the names of Raghoji and Ganpat respectively. The 7/12 extracts right from 1961-62 till 1974-75 does not show individual share of both the brothers and for the first time in the year 1975-76 an interpolation seems to have been made in the column of cultivators name by incorporating figures 15-38 and 7-38 beneath the names of Raghoji and Ganpat respectively. The details in form No.8A for the years 1976-77, 1978-79, 1981-82 and 1982-83 in respect of the suit land showed the name of the petitioner holding the entire land admeasuring 9H. 56 ares in S. No. 590.

8. From the original documents namely the agreement dated 3-5-1957 it is clear that the petitioner Ganpat had taken the suit land for cultivation as a tenant and the Pahanipatrak as well as 7/12 extracts issued till the year 1975-76 show that both the brothers namely petitioner and Raghoji were cultivating the suit land jointly. In terms of the order passed under section 38-A of the Act, the petitioners became joint owners and such an order has been passed on 25-3-1962. The application made by both the brothers jointly on 20-7-1961 before the Tahsildar has been subsequently interpolated, the order dated 25-3-1962 passed by the Tahsildar has been interpolated and the certificate in form No.13 under Rule 22 has also been subsequently interpolated. This is a case where the elder brother undoubtedly appears to have taken the younger brother for a ride and in connivance of the revenue authorities manipulated the record behind his back. There was no reason, the share being shown in the year 1975-76 as 15 acres 38 gunthas and 7 acres 38 gunthas in the name of Raghoji and the petitioner for the first time, if original order passed on 25-3-1962 and the certificate issued in form No. 13 consequent to that order really stated such an individual share. Notwithstanding these records, the provisions of section 38 of the Act will have to be taken into consideration independently and so long as there is no dispute that both the brothers were cultivating the lands and they were the ordinary tenants of the suit lands, they ought to have become joint owners of the entire land. In such a situation the individual share ought to be equal unless by some registered document executed between the brothers the share was shown as unequal. Change of mere mutation entries in the year 1975-76 shall not change the equal share of the brothers. In this regard reliance may be placed on a recent Judgment of the Supreme Court in the case of State of U.P. Vs. Amar Singh etc., JT 1996(10) SC 43, wherein the Supreme Court inter alia held thus :

"It is settled law that mutation entries are only for the purpose of enabling the State to collect the land revenue from the person in possession but it does not confer any title to the land. The title would be derived from an instrument executed by the owner in favour of an alienee as per Stamp Act and registered under Registration Act."

In the instant case as observed earlier, there are no such documents executed between the two brothers any time after 1961-62 and therefore, the mutation entries manipulated for the first time in the year 1975-76 on 7/12 extracts cannot be relied upon.

9. In the result, the petition is allowed and the impugned order dated 14-12-1989 passed by the designated Member of Maharashtra Revenue Tribunal, Aurangabad in respect of the suit land is hereby quashed and set aside. Rule made absolute accordingly with costs quantified at Rs. 2,500/-, to be paid by Respondent No.4.

10. Writ Petition No. 4165/91 has been filed challenging the sale-deed No. 2222 executed by Respondent No.4 i.e. Ramrao Raghoji Renge in favour of Respondents Nos. 5 and 6 on 30-4-1990 which was a suit property in dispute under Writ Petition No. 799/90 and also order passed by the Maharashtra Revenue Tribunal on 4-7-1991, whereby the order dated 29-3-1990 passed by the Deputy Collector granting permission to Ramrao to sell the land-admeasuring 5 acres from S.No. 590 out of the suit land which was in dispute in Writ Petition No. 799/90.

11. Undoubtedly this Court had granted interim relief in Writ Petition No. 799/90 and in the said Writ Petition the dispute was in respect of the ownership of 4 acres of land from S. No. 590. The petitioner claimed that he ought to be declared the owner of 11 acres 38 gunthas instead of 7 acres 38 gunthas as was shown in the mutation entry some time in the year 1975-76. Leaving this disputed land aside, Ramrao Raghoji Renge, was still owning land admeasuring 7 acres 38 gunthas and if he has sold 5 acres land by the impugned sale-deed subsequent to the interim orders passed by this Court, it would not be proper to hold that the sale-deed No. 2222 dated 30-4-1990 is illegal per se, so long as there is a scope for redressal of the Petitioner's grievance in Writ Petition No. 799/90. Even if this 5 acres land out of the suit property is alienated by the respondent No.4 by signing sale-deed with Respondents Nos. 5 and 6, he admittedly still holds more than 4 acres of land and therefore, the remedy of the petitioner cannot be said to be circumvented by signing the impugned sale-deed. Under these circumstances, it will not be just and proper to quash and set aside the sale-deed executed by Respondent No.4 in favour of Respondents Nos. 5 and 6 on 30-4-1990 and hence, the order dated 4-7-1991 passed by the M.R.T. confirming the order passed by the Deputy Collector calls for no interference, provided the Respondent No.3 still holds 4 acres of land which ought to be restored to the petitioner namely Ganpat.

12. It is therefore, directed that land admeasuring 4 acres from S. No. 590 of Parbhani which is presently in possession of Respondent No.4 be restored by Respondent No.3 or any of his subordinate competent Officers to the petitioner within a period of one month from today. However, in case Respondent No.4 does not possess 4 acres of land from S. No. 590 or he possesses any land less than 4 acres, the said deficiency will have to be removed by restoring the land in possession of Respondents Nos. 5 and 6 from S. No. 590. In any case the Respondent No.3 or his competent subordinate Officer is directed to take steps to restore 4 acres of land from S. No. 590 which was in possession of Respondent No.4 prior to the sale-deed dated 30-4-1990 within a period of one month from today.

13. In the result, Writ Petition No. 4165/1991 is disposed of in terms of above order with no order as to costs.

Order accordingly