2010(2) ALL MR 660
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

V.R. KINGAONKAR, J.

Mahajan S/O. Gonaji Chitale & Anr.Vs.Mukunda S/O. Rama Tipperse & Ors.

Writ Petition No.826 of 1991

22nd January, 2010

Petitioner Counsel: Mr. G. N. CHINCHOLKAR
Respondent Counsel: Mr. N. N. SHINDE,Mr. T. S. LODHE

Hyderabad Tenancy and Agricultural Lands Act (1950), Ss.48, 38(6) - Preferential right to purchase - Petitioners entered into agreement to sell disputed land - Respondent No.1 asserting that he has inherited tenancy of said land and hence claiming preferential right to purchase said land - Application allowed by Tenancy tribunal and sale certificate also granted to him - Said order was upheld by Maharashtra Revenue Tribunal - Petitioners challenging this order of MRT - After death of landlady her daughter became owner of disputed land - Daughter admitted tenancy rights of respondent No.1 and also gave no objection to issuance of sale certificate in his favour - Petitioners have filed suit for injunction against respondent No.1 - Petitioners have also filed suit for specific performance of agreement against daughter of deceased landlady - Rights are not yet finally adjudicated by Civil Courts - Issue of tenancy is not decided against respondent No.1 and petitioners have not acquired ownership of land as yet - Petitioners have no locus standi to challenge judgment of MRT - Issuance of sale certificate also cannot be set aside as same is sequel to order of MRT - Order by MRT is not liable to be interfered with. (Paras 7 to 11)

JUDGMENT

JUDGMENT :- By this petition, the petitioners impugn judgment and order rendered by learned Member of Maharashtra Revenue Tribunal in Revision Application No.67/B/90/N. The Revision Application was allowed by the MRT and order of the appellate authority regarding remand of the matter to the Tenancy Tribunal was set aside.

2. Indisputably, land bearing Gat No.383, admeasuring 77 Ares, was owned by deceased Respondent No.2 Abaibai. The Respondent No.3 Chandrabhagabai is her daughter. She has inherited the land as well as she became owner by virtue of a document of transfer executed by Abaibai in her favour. The Respondent No.1 claims to be tenant of the said land.

3. The petitioners' case is that they agreed to purchase 4l Ares area out of land Gat No.387 from said Abaibai by virtue of an agreement of sale dated 26.6.1987. They further alleged that they were inducted into possession of the said 41 Ares land as prospective purchasers. They were cultivating the said land. According to them, the Respondent No.1 has no concern, whatsoever, with the land in question. Still, however, he submitted an application dated 24.6.1987 for restoration of possession U/s.37(A) of the Hyderabad Tenancy and Agricultural Lands Act, 1950. (For short, "HT and AL Act"). That application was dismissed in default. He lateron filed another application U/s.48 of the HT & AL Act alleging that he was entitled to purchase land in question being tenant thereof. The Tenancy Tribunal (Tahsildar) allowed his application. The petitioners preferred an appeal. The appellate authority held that no proper opportunity was given to the petitioners by the tenancy Tribunal and, therefore, remand was necessary. The appellate authority directed remittance of the matter to the Tenancy Tribunal for afresh inquiry and decision on merits after giving due opportunity to the parties. The order rendered by the appellate authority was challenged by the Respondent No.1 by filing Revision Application before MRT. In the meanwhile, original landlady i.e. Abaibai had demised. The successor in title, namely, Respondent No.3 Chandrabhagabai had given no objection for grant of the necessary certificate by allowing application of the Respondent No.1 (Mukunda). She had admitted his tenancy rights. Considering the change in the circumstances, the MRT came to the conclusion that remand order was unjustified. The MRT, therefore, allowed the Revision Application and set aside the order of the appellate authority and restored the order dated 15.7.1988 rendered by the Tenancy Tribunal i.e. the Additional Tahsildar. Thereafter, the Tahsildar, Nanded issued the certificate under sub-section (6) of Section 38 of the HT & AL Act in favour of the Respondent No.1 on 2l.2.1991.

4. The petitioners alleged that their agreement to purchase the land was prior in time and they have filed a suit for specific enforcement of the said agreement which is pending. They further alleged that they sought injunction against the Respondent No.1 as they were in actual possession of the land in question. They submit that the Respondent No.1 was not in possession of the land in question as on the date of filing application for preferential purchase U/s.48 of the HT & AL Act. They would submit that the Revisional authority committed patent error while allowing the Revision Application without considering the pending Civil suits and their rights as prospective purchasers. Hence, they urge to set aside the impugned judgment of the MRT and also to quash the consequent certificate dated 21.2.1991 issued under sub-section (6) of Section 38 of the HT & AL Act in favour of the Respondent No.1.

5. Heard learned counsel.

6. It emerges from the record that the Respondent No.1-Mukunda had filed an application for restoration of possession (TNC Case No.7/1987). He asserted that his grand father by name Vithoba was tenant of the land in question. He further asserted that after death of his grand father, the tenancy was inherited by his father and, therefore, it was continued to be with him. He claimed restoration of possession on the ground that he was having right to claim the possession because the landlady was not ready to give the same for his cultivation and was thinking to dispossess him. This application was filed on 23.5.1987. It was dismissed for default on 3.9.1987 (Exh.B) vide order of the Additional Tahsildar. Thus, he was not in actual possession of the land at the relevant time.

7. The proceedings initiated by Respondent No.1 Mukunda U/s.48 of the HT & AL Act was on the basis of averment that the petitioners had filed suit (RCS No.489/1987) which indicated that the landlord intended to alienate the land in question to them. So, he asserted the preferential right to purchase the tenanted land. What appears from the record is that temporary injunction was clamped against the Respondent No.1 in the suit instituted by the petitioners for relief of perpetual injunction. It also appears from the record that the petitioners had filed suit for specific performance of the agreement of sale against the vendor and her daughter etc.. The original owner i.e. Abaibai died and thereafter her daughter Chandrabhagabai had executed an agreement of sale in favour of the petitioners. Thus, the factual position is quite clear. The petitioners did not acquire ownership in respect of the land in question. It can not be said that they stepped into the shoes of the landlady. Their rights are not yet finally adjudicated by the Civil Court. The grant of decree for specific performance of agreement of sale is discretionary. The rights of the petitioners are presently in inchoate position. I mean to say their rights are in embryonic stage. Obviously, the question is as to whether the prospective purchasers can challenge the order rendered by the MRT when the landlady did not come forward to challenge the same.

8. The petitioners can not be said to be the landlords qua the land in question. In my opinion, they can not raise dispute regarding the rights claimed by the Respondent No.1-Mukunda unless and until they will acquire the ownership rights. For such a reason it will have to be said that the petitioners have no locus-standi to challenge the impugned judgment of the MRT. It is only after execution of the decree for specific performance of contract, if the same is awarded in their favour, that they may come forward with a plea that they are entitled to challenge the legal status of the Respondent No.1.

9. The matter does not stop here. Mr. Shinde, has placed on record a copy of the certificate issued U/s.38(6) of the HT & AL Act. This fact is also within knowledge of the petitioners and, therefore, they have challenged the said certificate on the ground that it was issued without issuing any notice to them and the original landlady i.e. Chandrabhagabai and without following the due procedure. The certificate issued U/s.38(6) was not the subject matter of challenge when the petition was filed because the same was issued as a sequel to the order of the MRT. Needless to say, if the judgment rendered by the MRT is nullified then the said certificate also will go. The certificate issued U/s.38(6)(a) is required to be treated as conclusive evidence of the same as against land holder and all persons interested in the land. The petition involves several disputed questions of facts. First, the disputed question of fact is whether the Respondent No.1 - Mukunda was tenant in possession of the land in question and, therefore, was entitled to apply for the certificate U/s.38(6) on the ground that he had preferential right to purchase the land in question. The second question is whether the transfer of the land in favour of the petitioners may be legally effected without following due procedure under the provisions of the HT & AL Act. Mr. Chincholkar, learned advocate submitted that Chandrabhagabai is not the original landlady but has acquired ownership by sale deed executed by Abaibai. He further submitted that she has also filed affidavit about absence of tenancy of the Respondent No.1. These are the disputed questions of facts. Mr. Shinde, learned advocate points out that she had denied such contention in the written statement filed before the Civil Court.

10. The petitioners have already filed a Civil Suit for relief of injunction against the Respondent No.1. They have also filed suit for specific performance of the agreement of sale against the vendor. The petitioners may seek framing of the issue regarding tenancy of the Respondent No.1 in the proceedings of the Civil suits. The Civil Court shall refer such issue for decision by the Tenancy Tribunal. If, ultimately, the issue of tenancy is decided against the Respondent No.1 then only the impugned judgment and the certificate can be held as ineffective. At present, however, when the petitioners are not in the position of the landlord then it is difficult to set aside the sale certificate issued U/s.38(6) of the HT & AL Act and the impugned judgment. It can not be over looked that the successor in title i.e. Chandrabhagabai admitted claim of the Respondent No.1 Mukunda before the appellate Tribunal. Considering these intervening developments, I find it difficult to interfere with the judgment and order rendered by the MRT and the consequent sale certificate issued U/s.38(6) of the HT & AL Act.

11. For the reasons aforestated, the petitioners contention can not be accepted. However, it will have to be said that if the tenancy issue referred by the Civil Court is ultimately answered by the Tenancy Tribunal against the Respondent No.1-Mukunda, after the regular inquiry, then the impugned judgment and the sale certificate will be set aside. The petitioners may apply in such eventuality to this Court for the purpose of revocation of the dismissal of the petition and grant of reliefs claimed therein. It is made clear that such right of the petitioners is kept open and will depend upon the final adjudication of the Civil suits and the tenancy issue which may be referred by the Civil Court. With these observations, the petition is dismissed. No costs.

Petition dismissed.