Writ Petition No.1309 of 1989

26th November, 2002

Petitioner Counsel: Mr. PRAFULLA SHAH
Respondent Counsel: Mr. V. S. GOKHALE

JUDGMENT

JUDGMENT :- The Petitioners are the heirs of Vithal Mhatarba Muluk, who claimed to be a tenant of the agricultural land admeasuring 2 H. 5 R, situate in Gat No. 2418 of Village Chas, Taluka Khed. The Respondent No.2 Patilbuwa is his brother.

2. The Respondent No.1 Indubai Bandu Muluk claims to have purchased the land from Respondent No.3 Mohanlal Himmatlal Kataria by a sale deed. The Petitioner made an application on 27th December, 1979 praying for restoration of possession of the land in question. He also claimed an entitlement to purchase the said land under the provisions of the Bombay Tenancy and Agricultural Lands Act, for short "the Bombay Tenancy Act".

3. According to him he and his brother were wrongly dispossessed after 1st April, 1957. This application was decided by the Agricultural Lands Tribunal on 24th February, 1982. The Tribunal held that the Petitioners were not tenant. They preferred an appeal to the Sub Divisional Officer. The Sub-Divisional Officer dismissed the appeal. Thereafter, they preferred a revision to the Maharashtra Revenue Tribunal who allowed the revision on 24th September, 1984.

4. The terms in which the Maharashtra Revenue Tribunal allowed the revision has become a matter of great controversy. The Maharashtra Revenue Tribunal set aside the order of the Court below and remanded the matter back to the trial Court for a fresh inquiry under Section 32-G of the Bombay Tenancy Act with a direction to dispose of the matter in accordance with law. It is crucial to note that while making this order the Maharashtra Revenue Tribunal ordered that the matter be disposed of as per observations made in its order. The relevant observation of the Maharashtra Revenue Tribunal that Vithal and Patilbuwa were tenants in respect of the suit land.

5. After remand for a fresh inquiry under Section 32-G of the Bombay Tenancy Act, the Agricultural Lands Tribunal upon an independent appreciation of the evidence came to the conclusion that the Vithal and Patilbuwa i.e. the Petitioner and Respondent No.3 herein, are tenants. Accordingly, the Agricultural Lands Tribunal fixed the purchase price. The Respondent no.1, Indubai, who claims to have purchased the land from Mohanlal Himmatlal Kataria on 5th November, 1979 carried the matter in appeal before the Sub-Divisional Officer. The Sub-Divisional Officer observed that the Maharashtra Revenue Tribunal had already in its judgment dated 24th September, 1984 concluded that the two brothers Vithal and Patilbuwa were tenants and therefore that issue stood concluded. Thus the Court recorded a concurrent finding that the Petitioner Vithal and Respondent No.2 Patilbuwa are tenants of the land in question.

6. The Respondent No.1, Indubai, carried the matter to the Maharashtra Revenue Tribunal by way of revision. This revision has been allowed by the Maharashtra Revenue Tribunal inter alia on the ground that the issue whether Vithal and Patilbuwa are tenants had not been concluded by the earlier order of the Maharashtra Revenue Tribunal dated 24th September, 1984. According to the Maharashtra Revenue Tribunal there was a mutation entry in favour of the two brothers i.e. Vithal and Patilbuwa of the year 1948, being Mutation entry No.5000; this entry was cancelled by Mutation entry No. 6939 dated 26th January, 1957. Therefore, according to the Maharashtra Revenue Tribunal this cancellation of mutation entry shows that the two brothers were dispossessed sometime after 16th January 1957 and hence they were not in possession of the suit land on 1st April, 1957.

7. Having heard the learned Counsel for both the sides at length, I am satisfied that the order of the learned Maharashtra Revenue Tribunal is not sustainable. In the first place the Maharashtra Revenue Tribunal ought to have taken into account the position that it was being called upon to upset the concurrent findings of fact and that these findings of fact were arrived at on the basis of evidence. It is settled law that the Maharashtra Revenue Tribunal is not entitled to reappreciate the evidence and interfere with the findings of fact in the exercise of its revisional jurisdiction.

8. Secondly,it appears that the Maharashtra Revenue Tribunal has clearly misread its earlier order dated 24th September, 1984 and observed that its observation therein are simply a reproduction of the arguments of the advocates for the Petitioner herein i.e. Vithal and Respondent No.2 herein i.e. his brother Patilbuwa. The Maharashtra Revenue Tribunal has gone to the extent of observing that it had not given any finding about tenancy and therefore the Sub-Divisional Officer could not have read the order as giving a finding of tenancy. In other words, the Maharashtra Revenue Tribunal has held that by its earlier order there was no finding that Vithal and Patilbuwa were tenants of the suit land. This does not appear to be correct. In paragraph 6 of the earlier order dated 24th September, 1984, there is no doubt that the argument of the learned Counsel for the Vithal and Patilbuwa have been reproduced. These arguments are reproduced in the first three sentences of that paragraph. Thereafter, however, the Maharashtra Revenue Tribunal has made observation which includes the observation that the Vithal and Patilbuwa are tenants in respect of the suit land. Moreover, while delivering the operative part of the order, the Maharashtra Revenue Tribunal has directed the matter to proceed in accordance with law as per the observations made above by the learned Member. The only observations that are made are those that lead to the conclusion that Vithal and Patilbuwa are tenants.

9. Mr. Shah, learned Counsel for the Petitioner further points out and in my view rightly that Maharashtra Revenue Tribunal remanded the matter for a fresh inquiry under Section 32-G of the Bombay Tenancy Act. Now, a plain reading of Section 32-G would show that it is a provision which empowers the Tribunal to determine the purchase price of the land to be paid by tenants who are in possession on 1st April, 1957. Unless the Maharashtra Revenue Tribunal was of view that Vithal and Patilbuwa are tenants, there was no question of remanding the matter back for an enquiry under Section 32-G of the Bombay Tenancy Act.

10. Mr. Gokhale, learned Counsel for the Respondents,however, submitted that the deposition of the Petitioner Vithal and his brother Patilbuwa would show that they were not in possession on 1st April, 1957 since they have stated in the deposition recorded in March April, 1981 that they were dispossessed prior to 1957. Apart from the fact that phraseology of the deposition is not exact, this court would not venture into the area of reappreciation of the evidence at this stage of the matter.

11. In the result, the writ petition is allowed. Rule made absolute in terms of prayer clause (c). The order of the Maharashtra Revenue Tribunal is set aside.

In the circumstances of the case, there shall be no order as to costs.

P. A. to give ordinary copy of this order to the parties concerned.

Petition allowed.