Writ Petition No. 109 of 1985

14th October, 1999

Petitioner Counsel: Shri. GULAM MUSTAFA
Respondent Counsel: Shri. A. D. DABIR
Other Counsel: Shri. S.B. BHAPKAR

Cases Cited:
Gulabrao Wani Vs. Hemakashiram, (1956) 59 BLR 195 [Para 6]
Ashok Dwarkanath Ghurye Vs. Narayan Vasudeo, (1989) Mah LR 1157 [Para 6]
Vishnu Bapu Vs. Mohannagar Co-op. Housing Society. , 1990(1) Mah. LR 352 [Para 6]
Dahya Lala Vs. Rasul Mahomad, AIR 1964 SC 1320 (V 51 C 170) [Para 8]
Chavdas Totgram Vs. Papilabai, 1999(3) Mh. L.J. 42 [Para 9]
Sita Ram Vs. Ramchandra , AIR 1977 SC 1712 [Para 11]

JUDGMENT

JUDGMENT :- By this petition under article 227 of the Constitution of India, the petitioners have impugned the order dated 9-11-1984 passed by the Maharashtra Revenue Tribunal, Aurangabad in Revision Application No. 67/D/1981 whereby the order dated 30-4-1981 passed by the Deputy Collector (LR) Aurangabad in Tenancy Appeal No. 80/LR/TNC/A/53 was set aside and respondent No. 1 Narayan Sonaji Patil (now deceased) was declared to be the tenant of the suit-land. The relevant facts which need to be mentioned for deciding the question involved in this writ petition are, in brief, as under :

2. The dispute between the parties relates to an agricultural land bearing Block No. 19 admeasuring 58 acres and 31 gunthas (previously Sy. Nos. 13 and 14) of village Nimbeyati, Taluka Soegaon. This land belonged to one Mohammed Jamal who died on 25-7-1963. The petitioners and respondent No. 2 are his legal heirs. The suit land was however in possession of respondent No. 1. According to the petitioners, deceased Mehmud Jamal had given the suit land to respondent No. 1 under an agreement of licence dated 27-3-1951 for a period of 20 years subject to certain conditions. After the expiry of the said period of 20 years, respondent No. 1 did not restore the suit land to the petitioners but, on the contrary, committed certain acts contrary to the terms and conditions of the licence. The petitioners, therefore, filed a suit for possession of the suit land in the Court of the Civil Judge, Junior Division at Sillod on 25-4-1970. Respondent No.1 resisted the suit contending, inter-alia, that initially Jamal Mahmad had agreed to sell the suit land to him for Rs. 4700/- under an agreement of sale (Souda Pawati) dated 23-2-1950. As the permission for sale could not legally be obtained, therefore, he agreed to give a lease of the suit land to respondent No. 1 for a period of 20 years. Accordingly, a deed dated 27-3-1951 came to be executed. He denied that the said document was an agreement of licence-and contended that it was a lease deed. In short, respondent No. 1 claimed to be a tenant of the suit-land. In view of this contention, the Civil Court framed the following issue :

"Whether defendant No. 1 is a tenant on the suit land on the basis of lease deed dated 27-3-1951, keeping in view the facts of agreement of sale entered into by deceased Mahmad Jamal on 23rd February 1950 and again on 28th of October 1951 ?"

This issue was referred to the Tenancy Court for its finding thereon as required by Section 99A of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as 'the Act').

3. The Tahsildar and A.L.T., Solgaon, after giving due opportunity to both the parties came to the conclusion that respondent No. 1 was in possession of the suit land as a mortgagee for a period of 20 years as per the registered deed dated 27-3-1951 and that his possession after the said date was not lawful, since there was an agreement that the land would be restored to the mortgagor. In this view of the matter, the Tahsildar and the A.L.T. decided the said issue by his order dated 26-6-1980 against respondent No. 1 holding that he was not the tenant thereof. Respondent No. 1 then carried an appeal before the Deputy Collector (LR) Aurangabad against the said order. The Deputy Collector by his order dated 30-4-1981 dismissed the appeal and confirmed the finding of the Tahsildar and A.L.T. The Deputy Collector pointed out that there was no evidence about the contract of tenancy and that respondent No. 1 had failed to discharge his burden of proof to prove that he was a tenant of the suit land. Thereafter, respondent No. 1 filed a revision application to the Maharashtra Revenue Tribunal which was decided in his favour on 9-11-1984. The Maharashtra Revenue Tribunal held that admittedly respondent No. 1 was in possession of the suit land since 1951 and that his possession originated under an agreement. The Maharashtra Revenue Tribunal thus found that respondent No. 1 was lawfully cultivating the suit land and there was no evidence to show that he was in unlawful occupation thereof. In this view of the matter the Maharashtra Revenue Tribunal set aside the order of the Deputy Collector declaring respondent No. 1not to be a tenant and held that respondent No. 1 was the tenant of the suit land. Accordingly the issue referred by the Civil Court was answered.

4. Shri. Mustafa, learned advocate for the petitioners, contended before me that Lawful cultivation does not necessarily create tenancy. He further contended that the Maharashtra Revenue Tribunal had acted beyond the limited scope of revisional jurisdiction and reappreciated the evidence. Shri Mustafa further submitted that the Maharashtra Revenue Tribunal made out a new case which was not pleaded by respondent No. 1. He pointed out that the case of respondent No. 1 was all along to the effect that he was a contractual tenant. Shri Dabir, Learned advocate for the respondent No.1, however, supported the decision of the Maharashtra Revenue Tribunal and submitted that the benefit of Section 5 of the Act was rightfully given to respondent No. 1.

5. There is no dispute of the fact that respondent No.1 has been in possession of the suit land since 1951 persuant to a registered document dated 27-3-1951. The nature of the said document is, however, in dispute. According to the petitioners, it was an agreement of licence whereas, on the other hand, respondent No. 1 has contended that it is a lease deed. It is material to note that the original deed dated 27-3-1951 was not produced before the Tenancy Court. Similarly, the other two documents dated 23-2-1950 and 25-10-1951, which are mentioned in the issue referred to the Tenancy Court were also not produced. The Maharashtra Revenue Tribunal has made it clear in its judgment that the finding as regards the status of respondent No. 1 is regarded on the basis of the fact that he was lawfully cultivating the suit land. The Maharashtra Revenue Tribunal found that there was no case of any licence.

6. In support of his contention that mere lawful cultivation of the land is not enough to confer upon the cultivator the status of a tenant, Shri Mustafa relied upon the decision of a Division Bench of this Court in Gulabrao Wani Vs. Hemakashiram (1956) 59 BLR 195). In that case the facts were that the petitioner, who owned certain land, entered into an agreement of sale with the opponent under a registered deed. The amount of consideration was agreed to be paid by certain annual instalments. It was agreed that the opponent was put in possession of the land after the whole amount was paid of, the opponent was to be given a pacca sale-deed. It appears that the opponent later on started claiming to be the tenant of the land, and therefore, the petitioner filed a tenancy suit for a declaration that opponent was not a tenant of the land. The opponent contended that as he was lawfully cultivating the land he should be deemed to be a tenant under Section 4 of the Bombay Tenancy and Agricultural Lands Act 1948. On these facts it was held that Section 4 in itself does not confer any status of tenancy in favour of the person lawfully cultivating the land but it only raises a rebuttable presumption of his being a tenant and, therefore, under the terms of the agreement there was a special contractual relationship between the petitioner and the opponent which was not in nature of tenancy, the opponent could not be held to be a tenant of the land. As pointed out above, the Maharashtra Revenue Tribunal has held respondent No. 1 to be the tenant solely on the basis that he was lawfully cultivating the suit land. According to Shri Dabir, the Maharashtra Revenue Tribunal had rightly given the benefit of the provisions of Section 5 of the Act to respondent No.1, who has been held to be a deemed tenant. Shri Mustafa, however, relied upon the decision of the learned Single Judge of this Court in Ashok Dwarkanath Ghurye Vs. Narayan Vasudeo (1989 Mah. LR 1157) wherein it was pointed out the ingredients of a contractual tenancy and a deemed tenancy, contemplated by Section 4 of the Bombay Tenancy and Agricultural lands Act, do vary at least to a significant extent. It may be pointed out that the provisions of Section 5 of the Act and Section 4 of the Bombay Tenancy and Agricultural Lands Act are pari materia the same. The learned Single Judge in the said case pointed out that a deemed tenancy postulates absence of a contractual tenancy at the time when deemed tenancy is pleaded. A tenancy cannot be simultaneously a contractual tenancy and also a deemed tenancy. The ingredients of the lease, contemplated by Section 105 of the Transfer of Property Act are not present in the case of deemed tenancy for the simple reason that if those ingredients are present, it would be a contractual tenancy and there would have been no necessity to invoke the deeming provisions of Section 4. It was further observed that contractual tenancy also involves lawful cultivation of the land belonging to another. But lawful cultivation of the land brought about by a regular lease spells something more and different. It was, therefore, held that if a tenant pleads contractual tenancy in a suit and an issue to that effect is referred, normally he should not be allowed by the Tenancy Courts to turn around at the appellate stage or at the revision stage or even in the trial Court after the evidence is led and to contend that he must be deemed to be a tenant within the meaning of Section 4 of the Bombay Tenancy and Agricultural Lands Act. The same view is reiterated by the same learned Single Judge in the case of Vishnu Bapu Vs. Mohannagar Co-op. Housing Society - (1990(1) Mah. LR 352).

7. In the instant case, the plea of tenancy of respondent No. 1 which is based on a lease deed dated 27-3-1951 is that of a contractual tenancy. However, the said contractual tenancy could not be proved before the Tenancy Court as the original lease deed was never produced and proved. The fact of the execution of such a document is, however, not in dispute. It may be pointed out that before the Tahsildar, the petitioners produced a certified copy of the deed dated 27-3-1951. The Maharashtra Revenue Tribunal, has however, not considered this document and observed that the original document was not produced and proved and that no party was interested for calling it and adducing proof thereof. Therefore, according to the Maharashtra Revenue Tribunal it was not possible to state anything about the basis of the tenancy except lawful cultivation of respondent No.1. The Tahsildar has, however, considered the nature of this document and held that the transaction was a mortgage transaction. The perusal of the said document, however, shows that it does not spell out a transaction either of a mortgage or a lease. What is stated in the said document is to the effect that the suit land was given to respondent No. 1 for a period of 20 years from 26-3-1951 on his paying the amount of Rs. 2,000/-. During the said period, respondent No. 1 was entitled to cultivate the suit land but after the expiry of the said period he was to restore the suit land to Mahmad Jamal.

8. Shri Dabir, Learned advocate for respondent No.1, relied upon the decision in Dahya Lala Vs. Rasul Mahomad (AIR 1964 SC 1320 (V 51 C 170) wherein a controversy was whether a person claiming the status of a deemed tenant must have been cultivating the land with the consent or under the authority of the owner. The Supreme Court referring to the provisions of Section 2(18) of the Act pointed out that the relevant condition imposed by the statute is only that the person claiming the status of deemed tenant must be cultivating land "lawfully". It was pointed out that it is not the condition that he must cultivate land with the consent of or under authority derived directly from the owner. It was further observed that the Act affords protection to all persons who hold agricultural lands as contractual tenants and subject to the exceptions specified all persons lawfully cultivating lands belonging to others, and it would be unduly restricting the intention of the Legislature to limit the benefits of its provisions to persons who derive their authority from the owner, either under a contract of tenancy, or otherwise. However, it is material to note that unlike the case on hand, there was a specific case of deemed tenancy in the above mentioned case. The facts of the said case show that certain lands belonging to the appellants were mortgaged to one Umiyashankar who later on inducted the respondent as a tenant of the land. The appellants thereafter applied to the Court constituted under the Bombay Agricultural Debtors' Relief Act for redemption of the land mortgaged. In that proceedings, there was an Award made on the basis of a compromise as per which, it was held that the appellants were entitled to take possession of the lands which were in possession of the respondent. In execution of the said Award the respondent came to be evicted. He, therefore, filed an application under Section 29 of the Bombay Tenancy and Agricultural Lands Act, 1948 for restoration of possession but his prayer was rejected by the lower Court whose decision was confirmed in appeal by the Deputy Collector and by the Revenue Tribunal in revision application. The respondent then filed a writ petition under Article 227 of the Constitution and the High Court set aside the order passed by the Tribunal and ordered possession to be restored to the respondent. It was held that the respondent was entitled to continue in occupation as tenant on the same terms on which he was a tenant of the mortgagee. It is in the peculiar set of the above mentioned facts that the Supreme Curt held that what was necessary for the purpose of deemed tenancy was lawful cultivation of the land and that it was not necessary that there should be consent or authority directly derived from the owner. Considering these facts, it will be clear that the ratio laid down by this decision cannot be pressed into service by Shri Dabir to make out his point. As already pointed out it is not the case of respondent No.1 that he is a deemed tenant within the meaning of Section 5 of the Act. On the contrary, his case is of a contractual tenancy which he did not prove before the Tenancy Court.

9. Shri Dabir also relied upon the decision of a Single Judge of this Bench in Chavdas Totgram Vs. Papilabai (1999(3) Mh. L.J. 42) wherein it was held that the tenant inducted on agricultural land by a mortgage in possession remains a person lawfully cultivating the land and if he is not covered by the exceptions mentioned in section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948, he would be deemed to be a tenant. It was further held that the tenant inducted by a mortgagee in possession during the subsistence of mortgage though a contractual tenant vis-a-vis the mortgagee becomes a deemed tenant on redemption of his equity of redemption by the mortgagor vis-a-vis the mortgagor. However, in my opinion, this authority will be of no use to Shri Dabir for the same reason for which I have held that the authority in the decision in Dahya Lal Vs. Rasul Mahomad does not apply to the facts of the present case.

10. Considering the above mentioned legal position, it is not possible to accept the view taken by the Maharashtra Revenue Tribunal that the respondent No.1 is a tenant of the suit land, because he has been in lawful cultivation thereof. The origin of possession may be lawful. However, its subsequent continuation may not always be lawful. In the instant case, respondent No. 1 was to be in possession only for a period of 20 years from 27-3-1951. Therefore, his cultivation of the suit land after the expiry of the said period may not necessarily to be lawful unless there is specific evidence that the landlord had permitted him to be on the land and cultivate the same.

11. The contention of Shri Mustafa that in deciding the revision application, the Maharashtra Revenue Tribunal had exceeded its revisional jurisdiction, appears to be true and correct. In support of his submission, he relied upon the decision in Sita Ram Vs. Ramchandra (AIR 1977 SC 1712) wherein the facts were that both the lower Courts i.e. the Mamlatdar and the Special Deputy Collector had recorded a finding that the appellant had not cultivated the land in dispute as a tenant of the respondent. But the Revenue Tribunal took the view that the approach of both the lower Courts was erroneous, as, according to it, the burden was shifted on the respondent to rebut the entry in the record of rights and that the respondent failed to discharge that burden. On these facts, the Supreme Court held that the Revenue Tribunal fell into error of entertaining the revision when there was no error of law on the face of record. In the instant case also when both the Courts below, upon considering whatever evidence was placed before them, came to the conclusion that respondent No.1 had failed to prove his contractual tenancy. However, the Tribunal appears to have reassessed the entire evidence to reach a different conclusion that respondent No.1 is a tenant on the basis of lawful cultivation of the suit property. Such a thing was not permissible within the limited scope of the revisional powers. Therefore, there was an error on the part of the Maharashtra Revenue Tribunal to have upset the concurrent findings of facts recorded by both the Courts. Consequently it becomes necessary for this Court to interfere in the exercise of its supervisory powers under Article 227.

12. In the result, the writ petition is allowed and the order dated 9-11-1984 declaring the respondent No. 1 as the tenant of the suit land is hereby quashed and set aside. Rule is made absolute with no order as to costs.

Petition allowed.