2003(2) ALL MR 1052
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.M. KHANWILKAR, J.

Nana Tukaram Havalkar & Anr. Vs. Smt. Chatura Govind Shelke & Ors.

Writ Petition No.554 of 1988

3rd July, 2002

Petitioner Counsel: Shri. N. V. BANDIVADEKAR
Respondent Counsel: Shri. S. S. PANDIT

Bombay Tenancy and Agricultural Lands Act (1948), S.4(a) - Expression "member of the owner's family" - It would ordinarily mean the person related to the owner - Person who is unrelated to owner's family, merely because he has been brought up as member of the family, cannot achieve the status of being "member of the owner's family". (Para 8)

Cases Cited:
Harish Chander Vs. Ghisa Ram, AIR 1981 SC 695 [Para 3,5]
Dhondu Bapu Surve Vs. Anirudha Yeshwant Vaidya, Vol.77 TLR 6 [Para 3,5]
Dahya Lala Vs. Rasul Mohamed Abdul Rahim, AIR 1964 SC 1320 [Para 3,4]
Jagan @ Jagannath Umaji Vs. Gokuldas Hiralal Tewari, Vol.LXXXIX BLR 622 [Para 3]
Hanmanta Daulappa Nimbal since deceased by his heirs and L.Rs. Vs. Babasaheb Dajisaheb Londhe, AIR 1996 SC 223 [Para 3,5]
Shaikh Sujat Vs. S.K. Mehaboob, AIR 1999 SC 2257 [Para 3,8]


JUDGMENT

JUDGMENT :- This writ petition under Article 227 of the Constitution of India takes exception to the order passed by the Maharashtra Revenue Tribunal, Pune dated 27th August, 1987 in Revision Application No.MRT/KP/96/84.

2. The land in question in the present proceeding is admeasuring 8 Acres 20 Gunthas out of Gat No.37 of Village Talanduge, Taluka Hatkanangale, Dist. Kolhapur. The Petitioners claim that they were tenants in respect of the said land prior to 1957, for which reason they had become deemed purchasers on the tillers day (1-4-1957). On that premises, application was filed by the Petitioners under Section 32G of the Bombay Tenancy & Agricultural Lands Act. The Additional Tahsildar and A.L.T. Hatkanangale by order dated 20th September, 1982 allowed the said application and held that the Petitioners were tenants on the tillers day and have become deemed purchasers. As a consequence of that declaration, the authority determined the purchase price in respect of the suit lands and also provided for time to pay the said amount. The first authority, the Tahsildar, for recording the finding that the Petitioners were tenants on the tillers day, essentially took into account 7/12 extracts in respect of the disputed land for the last 35 years which clearly indicated that the Petitioners were cultivating the suit land as tenants. The Tahsildar also adverted to the fact that the landlords' plea was that the Petitioners were partners in cultivation and not tenants. The Tahsildar however, held that the landlords failed to establish that the Petitioners were servants within the meaning of Section 4(1)(b) of the said Act. Accordingly, the application preferred by the Petitioners was allowed. The Respondents filed appeal before the Sub-Divisional Officer, Division Kolhapur being Tenancy Appeal No.2188/82. The Appellate Authority was pleased to reverse the view taken by the Tahsildar, by its order dated 26th March, 1982. The Appellate Authority was of the view that if the Petitioners claimed to be the tenants on the tillers day, there was no justification for the Petitioners to take out the proceeding under section 32G as late as in the year 1981. Moreover, the Appellate Authority was of the view that it is not understood as to why the suo moto proceedings were not started by the A.L.T. on the tillers day. In so far as entries in 7/12 extracts are concerned, the Appellate Authority discarded the same on the premises that the oral evidence on record would indicate that the status of the Applicant was only that of a servant. The Appellate Authority, while referring to the receipts relating to the sugarcane sold to Kolhapur Sugar Mills purported to have been cultivated in the suit land, was of the view that the receipts have come from the custody of the Respondents landlord which confirms the position that the status of the Petitioners was one of the servant and not as a tenant. The Appellate Authority has also adverted to the stand taken by the Respondents that the Petitioners were not tenants as such but partners in cultivation. However, relying on the oral evidence, the Appellate Authority took the view that the Petitioners were cultivating the land only as servants and therefore, cannot be said to be tenants on the tillers day. Accordingly, the appeal preferred by the Respondents was allowed. The Petitioners carried the matter before Maharashtra Revenue Tribunal. The Tribunal moreover or less adopted the same reasons noted by the Appellate Authority for deciding the matter in favour of the Respondents. Accordingly, the Revision Application was dismissed. It is against this decision that the present writ petition has been filed under Article 227 of the Constitution of India.

3. The learned Counsel for the Petitioners contends that going by the plain language of Section 4 and the stand taken by the Respondents before the authorities, the authorities had no option but to hold that the Petitioners were lawfully cultivating the suit land belonging to the Respondents as tenants on the tillers day. To support this contention reliance is placed on the entries in the 7/12 extracts for the last 35 years which clearly go to show that the land was cultivated by the Petitioners. Moreover, strong reliance is placed on the observations made by the authorities below that the Petitioners were partners in cultivation. Besides that, it is submitted that, even the documentary as well as the oral evidence on record would support that the Petitioners were lawfully cultivating the suit land as servants on crop share basis. It is therefore, contended that the petitioners were deemed tenants within the meaning of Section 4 of the Act. In support of this submission reliance is placed on the decision reported in AIR 1981 SC 695, Harish Chander and others Vs. Ghisa Ram and another, decision of this Court reported in Vol.77 Tenancy Law Reporter Page 6 in Dhondu Bapu Surve Vs. Anirudha Yeshwant Vaidya and on Constitution Bench of the Apex Court reported in AIR 1964 SC 1320 in Dahya Lala and others Vs. Rasul Mohamed Abdul Rahim and others. Reliance was also placed on the another decision of the Apex Court reported in Vol.LXXXIX The Bombay Law Reporter 622, Jagan @ Jagannath Umaji Vs. Gokuldas Hiralal Tewari. On the other hand the learned counsel for the Respondents has supported the view taken by the two courts below. According to him the courts below have recorded finding of fact that the Petitioners were not tenants in respect of the suit land and such a finding of fact ought not to be interfered in exercise of writ jurisdiction. In so far as the entries appearing in the 7/12 extracts in the village record are concerned, the learned counsel contends that, besides the name of the Petitioners, names of other six persons tenants have been shown, therefore, it will be impermissible to hold that the Petitioners were deemed tenants in respect of the entire land. The learned counsel further contends that in so far as the plea that the Petitioners were partners in cultivation, the same will have to be understood in the context that sugarcane was cultivated in the suit land. In other words, the lease was for sugarcane cultivation and therefore, the subject provisions of the Act will have no application and the Petitioners cannot be declared as deemed purchasers. The learned counsel next contends that the authorities below have consistently found that the Petitioners were brought up by the Respondents as their family members and therefore, they cannot be said to be tenants within the meaning of Section 4 of the Act. The learned counsel further placed reliance on decision of the Apex Court in AIR 1996 SC Page 223 in Hanmanta Daulappa Nimbal since deceased by his heirs and L.Rs. Vs. Babasaheb Dajisaheb Londhe and contends that mere entries in the revenue records would not confer any right on the Petitioners in absence of receipts or written lease in their favour. Reliance is also placed on the decision of the Apex Court reported in AIR 1999 SC 2257, Shaikh Sujat and another Vs. S.K. Mehaboob to contend that family member cannot be treated as tenant within the meaning of Section 4 of the Act.

4. Having considered the rival contentions, it would be apposite to first advert to Section 4 of the Act. Section 4 reads thus :

"4(i). "A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not,-

(a) a member of the owner's family, or

(b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any members of the owner's family, or

(c) a mortgagee in possession.

.........."

The object of this section was examined by the Constitution bench of the Apex Court in Dahya Lala and others Vs. Rasul Mohamed Abdul Rahim and others (supra). The Apex Court in Para No.3, while adverting to Section 4 of this Act has observed thus :

"Section 4 of the Act in so far as it is material provides: "A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant, if such land is not cultivated personally by the owner and if such person is not (a) a member of the owner's family, or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any members of the owner's family, or (c) a mortgagee in possession". Section 4 seeks to confer the status of a tenant upon a person lawfully cultivating land belonging to another. By that provision, certain persons who are not tenants under the ordinary law are deemed to be tenants for purposes of the Act. A person who is deemed a tenant by Section 4 is manifestly in a class apart from the tenant who holds lands on lease from the owner. Such a person would be invested with the status of a tenant if three conditions are fulfilled-(a) that he is cultivating land lawfully, (b) that the land belongs to another person, and (c) that he is not within the excepted categories"

(emphasis supplied)

The Apex Court in Paragraph 6 of the same decision has observed thus :

"The Point in controversy is whether a person claiming a status of a deemed tenant must have been cultivating land with the consent or under the authority of the owner. Counsel for the appellants submits that the tenancy postulates a relation based on contract between the owners of land and the person in occupation of the land and there can be no tenancy without the consent or authority of the owner to the occupation of that land. But the Act has by Section 2(18) devised a special definition of tenant and included therein persons who are not contractual tenants. It would therefore be difficult to assume in construing section 4 that the person who claims the status of a deemed tenant must be cultivating land with the consent or authority of the owner. The relevant condition imposed by the status is only that the person claiming the status of a deemed tenant must be cultivating land lawfully. It is not the condition that he must cultivate land with the consent of or under authority derived directly from the owner. To import such a condition is to rewrite the section and destroy its practical utility. A person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a "deemed tenant". Persons such as licensees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to others but it cannot be assumed therefrom that they are the only persons who are covered by the section. 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 benefit of its provisions to persons who derive their authority from the owner either under a contract of tenancy or otherwise. In our view, all persons other than those mentioned in clause (a), (b) and (c) of Section 4 who lawfully cultivate land belonging to other persons whether or not their authority is derived directly from the owner of the land must be deemed tenants of the lands."

(emphasis supplied)

5. The legal position is therefore, well settled. In the present case, the Petitioners have placed reliance on 7/12 extracts for over 35 years before institution of the application which clearly indicate that the Petitioners were lawfully cultivating the suit land. There is no dispute that the Petitioners were cultivating the suit land to the knowledge and with the consent of the Respondents. In that sense, the Petitioners were persons lawfully cultivating the suit land on the relevant date belonging to the Respondents. The next question however is whether Petitioners were cultivating the suit land as servants on wages payable in cash or kind but not on crop share or hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family. The plea taken by the Respondents before the authorities was that the Petitioners were partners in cultivation but not tenants. It logically follows that the Respondents have conceded the position that the Petitioners were cultivating the suit land on crop share basis. Even there is record to support this position. The first authority has averted to entries in the 7/12 extracts which clearly indicates that the Petitioners were cultivating the suit land on crop share basis. Once we reach at this decision then it necessarily follows that the Petitioners were in lawful cultivation on crop share basis and therefore, tenant within the meaning of Section 4 of the Act. The learned counsel for the Respondents no doubt relied on the decision of the Apex Court AIR 1996 SC 223 in the case of Amanita D. Nimbal (supra), however that decision is on the facts of the said case whereas from the observations of the Constitution Bench in Dahya Lala's case referred to above, it would be clear that it is not necessary that the person should be cultivating the land under a written lease. This Court in the case of Dhondu Bapu Surve (supra) has held that :

"All that is required under that section is lawful cultivation by a person other than the member of the family of the landlord subject to other conditions laid down in Section 4."

Then the Court has observed that :

"It is not open to the Revenue Tribunal to read into that section old fashioned notion of the law of landlord and tenant, which required the entries in the tenancy column, rent note or rent receipt to support the case of tenancy."

6. Understood thus, merely because the Petitioners could not produce rent receipts or rent note that would not disrobe them of the status accrued to them by operation of law under section 4 of the Act. There is no dispute that the Petitioners were lawfully cultivating the suit land. The only controversy that requires to be examined is: Whether the Petitioners were cultivating the suit land as servant on wages payable in cash or kind or on crop share basis? The finding of fact recorded by the first authority is that the Petitioners were cultivating the suit land on crop share basis will have to be accepted as correct in the backdrop of the materials which have come on record. The reasons given by the Appellate Authority as well as the Revisional Authority will be of no consequence. In fact the Appellate Court has preferred to rely on the oral evidence and discarded the documentary evidence which had gone unrebutted. The learned counsel for the Petitioners has rightly relied on the decision of the Apex Court reported in AIR 1981 SC Page 695 in Harish Chander and others Vs. Ghaisa Ram and another that presumption arises with reference to entries in the village record. That presumption in the present case has not been rebutted. Understood thus, the findings of fact as recorded by the first authority was based on the correct application of the legal position, whereas both the Appellate Authority as well as Revisional Authority have misdirected themselves in discarding the documentary evidence. Moreover, both the Appellate as well as Revisional Authority have clearly over looked the plea taken by the Respondents that the Petitioners were cultivating the suit land as partners in cultivation. Going by the stand taken by the Respondents it was not open to take the view that the petitioners were cultivating the suit land as servants on wages payable by cash or kind. No doubt argument advanced before this court by the learned counsel for the Respondents is that admission should be examined in the context of the plea that the lands were leased out for sugarcane cultivation. This argument clearly over looks the concurrent finding recorded by three authorities that there is no evidence on record to hold that the original lease was for sugarcane cultivation. In absence of that evidence it is not possible to accept that the special provisions of the Act will have application to the suit land so as to denude the Petitioners of their status of deemed purchasers which has enured to them by operation of law. In this view of the matter, the appropriate course would be to restore the order passed by the Tahsildar and to set aside the orders passed by the Appellate as well as the Revisional Authority.

7. The next argument advanced on behalf of the Respondents that the 7/12 extracts indicate the names of other six tenants alongwith the Petitioners. This argument is wholly unfounded inasmuch as the Tahsildar has declared tenancy rights of the Petitioners only in respect of lands which are shown to be in their possession in that 7/12 extract. The 7/12 extracts clearly indicate the extent of possession of the respective tenants out of land Survey No.37. In the circumstances, this argument raised for the first time before this court is devoid of merits.

8. The other contention raised on behalf of the Respondents that the Petitioners were brought up in the family of Ramchandra Sakharam Patil as servant is also without any substance. Assuming that the Petitioner No.1 was brought up in the family of the Respondents that by itself would not make the Petitioner No.1 as member of the Respondents' family. The expression "member of the owner's family" appearing in Clause (a) of Section 4 has already been considered by this Court on more than one occasion. The person who is unrelated to the owner's family, merely because he has been brought up as member of the family, cannot achieve the status of being "member of the owner's family". The expression "member of the owner's family" would ordinarily mean the person related to the owner. In the circumstances, it is not possible to hold that the Petitioners can be said to be members of the Respondents' family so as to exclude them from the application of Section 4 of the Act. Reliance placed by the learned counsel for the Respondents on Shaikh Sujat (supra) case is wholly inapposite. In that case, the Appellant was related to the owner of the land, being his nephew. Whereas, in the present case, there is nothing on record to show nor it has been so argued that the Petitioners were related to the Respondents in one way or the other. In this backdrop, the decision relied upon by the Respondents is of no consequence.

9. Accordingly, this petition succeeds. The orders passed by the Appellate as well as the Revisional Authority are set aside and the order passed by the Tahsildar dated September 20, 1982 is restored. No order as to costs. Record and Proceedings be returned to the concerned authority forthwith.

Petition allowed.