Writ Petition No.918 of 2000

26th April, 2011

Petitioner Counsel: Mr. R.S. DESHMUKH
Respondent Counsel: Mr. S.M. KULKARNI

Cases Cited:
Sita Ram Bhau Patil Vs. Ramchandra Nago Patil, AIR 1977 SC 1712 [Para 6,24]
Maruti Bala Raut Vs. Dashrath Babu Wathare and others, AIR 1974 SC 2051 [Para 6,24]
Gulabrao Sahebrao Shinde Vs. Sayaji Shankar Shinde, 2004(1) ALL MR 742 =2004(1) Mh.L.J. 873 [Para 6,24]
Khetrabasi Biswal Vs. Ajaya Kumar Baral and others, (2004) 1 SCC 317 [Para 7,25]
Jagtu Vs. Suraj Mal & Ors., 2011 ALL SCR 162 [Para 7,25]
Smt. Nakubai Walu Dhokane (Since Deceased through L.Rs.) Vs. Shri. Bhagwansingh Prakash Chandra Kapoor, 2008(5) ALL MR 1 [Para 7,25]
Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim, (1997) 6 SCC 71 [Para 8,26]
Janba (Dead) Through L.Rs. Vs. Smt. Gopikabai, 2000(2) ALL MR 678 (S.C.)=2000(5) SRJ 131 [Para 8,26]
Radhu Gokul Gawali, Died, Through L.Rs. and others Vs. Mohan Kishan Gawali, Died through L.Rs. and others, 2007(4) ALL MR 339 =2007 MCR 1029 [Para 8,26]
Waman Atmaram Lavand and another Vs. Dattatraya @ Dattu Baba Lavand and others, 2009 (5) Mh.L.J. 442 [Para 8]
Santoshkumar Shivgonda Patil and others Vs. Balasaheb Tukaram Shevale and others, 2009(6) ALL MR 489 (S.C.)=2010 (2) Mh.L.J. 150 [Para 8,26]
Smt. Sarita Gopalkumar Chand Vs. Madgu S/o Sitaram Ramteke and others, 2010(5) ALL MR 843 [Para 9,18]
Apparao Manaji Vs. Sadhu S/o Sambhaji and others, 1972 Rev. R. 217 [Para 10,27]
Limbaji Shankar Munde (deceased through L.Rs.) Vs. Bhaurao Baliram Munde (deceased through L.Rs.) and others, 2010(2) ALL MR 179=2010 (3) Mh.L.J. 138 [Para 12,27]
Ganpat Sakharam Deshmukh Vs. Yeshwant Digambar Deshmukh, 2000(2) ALL MR 338 =2000 (1) Mh.L.J. 126 [Para 12,27]
Rangrao Ganpatrao Kulkarni Vs. Syed Hakim S/o Syed Jafar and another, 2000(1) ALL MR 417 =2000 (2) Mh.L.J. 659 [Para 12,24]
Ananda Dattu Patil since deceased through his LRs. Nivrutti Ananda Patil and others Vs. Ramesh Anandrao Patil and another, 2003 (5) Mh.L.J. 622 [Para 12,24]
Radhy Shyam and another Vs. Chhabi Nath and others, 2009 ALL SCR 1765 =2009 (5) SCC 616 [Para 13,24]
Jai Singh and others Vs. Municipal Corporation of Delhi and another, 2010(6) ALL MR 410 (S.C.) =2010 (9) SCC 385 [Para 13,24]
Sneh Gupta Vs. Devi Sarup and others, 2009 ALL SCR 786 =2009 (6) SCC 194 [Para 13]

JUDGMENT

JUDGMENT :- By this petition, filed under Article 227 of the Constitution of India, the petitioners who claim to be subsequent purchasers of tenanted land are assailing the judgment dated 1st December, 1999 delivered by Maharashtra Revenue Tribunal in Revision Case No.31/B/94/A under section 91 of Hyderabad Tenancy & Agricultural Lands Act, 1950 (hereinafter referred to as 1950 Act). By said order, the Maharashtra Revenue Tribunal has allowed revision filed by present Respondent no.1, has quashed and set aside the judgment and order of Tahsildar as also of Additional Collector and has directed Tahsildar to proceed under section 38 (2) (3)(4)(5)(7) and (8) of 1950 Act for determination of purchase price and for its recovery from Respondent No.1 Deorao. It is not in dispute that this Court, while issuing rule in the matter, had granted rule on interim relief and thereafter on 23rd July, 2002 also granted adinterim relief in terms of prayer clause (C) of the writ petition.

2. The facts are not much in dispute. The lands in dispute located in Nanded District initially belonged to one Samdani Khatun and after her death same devolved upon Yusuf Khan i.e. present Respondent No.2. The father of Respondent No.1 viz. Hari (deceased) was protected tenant in possession of these lands. The lands were disposed of by sale deed dated 3rd November, 1970 by Yusuf Khan to one Ramnath Gangusingh Rawal i.e. present Respondent No.3. This was after a public notice dated 20th October, 1970 declaring intention to sale and inviting objections from all. It was claimed that no objection was raised even by Hari at that time. The mutation entry No.873 then reflected name of Respondent No.3 Ramnath. Said Respondent along with others then sold those lands to petitioner No.1 and Petitioner No.2 on 15th October, 1983. On 19th October, 1983 the remaining suit lands were also sold to all the petitioners. The relevant mutation entries were then sanctioned on 10th August, 1990.

3. Protected tenant Hari Tukaram had filed Regular Civil Suit No.189 of 1970 contending that he was in possession and Respondent No.3 Ramnathsing had no interest in the suit lands. This suit was filed on 6th November, 1970 and was decided on 21st July, 1983. It is not in dispute that original owner viz. Yusuf Khan was not party to it and present petitioners were not in picture at that time.

4. The fact that deceased Hari was declared as protected tenant in 1980 i.e. in case No.92/B/77/N dated 7th April, 1980 in possession over disputed land is also not in dispute. In this background, deceased Hari in 1985 moved Tahsildar by filing application under section 150 of Maharashtra Land Revenue Code for obtaining a mutation entry in his name. Thereafter, in 1988 he filed another application under section 38 (3) of 1950 Act for determination of purchase price and for issuance of ownership certificate. During pendency of these proceedings, he expired on 12th October, 1988.

5. Both these applications filed by deceased Hari were prosecuted by his son Deorao and have been decided by common order on 7th January, 1993 by Tahsildar. Tahsildar found status of Hari as tenant undisputed but then further noted that Hari was not in possession and he had no preferential right to purchase. The other issues i.e. issue No. 3 on limitation, issue No.4 about cause of action or issue No.5 about jurisdiction were, therefore, not answered. Deorao then challenged this order of Tahsildar in appeal before the Additional Collector, Nanded. That authority decided the appeal on 30th April, 1994. It maintained the order of Tahsildar and found that Hari should have approached Yusuf Khan immediately after he learnt about the proposed sale. It was also found that he was negligent in exercising his preferential right to claim ownership and though there was no express period of limitation stipulated, his inaction for considerable period disentitled him to such ownership. It was also noted that the tenancy rights in suit land were given by Hari to his son but that will appeared to have not been acted upon. Properties were therefore mutated in the name of Deorao, his mother and sister after death of Hari. Hence nonjoinder of said mother and sister was found fatal. Reliance was also placed on spot inspection by Tahsildar to conclude that lands were not in possession and under cultivation of Respondent No.1. The Additional Collector ultimately found that Deorao therefore could not establish that the disputed lands were under his cultivation and he wanted to purchase them for his bonafide personal cultivation. The appeal, therefore, came to be dismissed. Maharashtra Revenue Tribunal in revision filed by Deorao vide its judgment dated 1st December, 1999 reversed all these findings. This reversing judgment of Maharashtra Revenue Tribunal is questioned by Advocate Mr. Deshmukh for petitioners.

6. According to learned counsel, the concurrent findings reached by Tahsildar and Additional Collector after appreciation of evidence on record could not have been distinguished or disturbed by Maharashtra Revenue Tribunal as under section 91 of the 1950 Act it has very limited jurisdiction. He has relied upon judgments of Supreme Court in the case of "Sita Ram Bhau Patil V/s Ramchandra Nago Patil" reported in 1977 AIR (SC) 1712; in the case of "Maruti Bala, Raut V/s Dashrath Babu Wathare and others" reported in AIR 1974 SC 2051 and judgment of this Court in the case of "Gulabrao Sahebrao Shinde V/s Sayaji Shankar Shinde" reported in 2004 (1) Mh.L.J. 873 : [2004(1) ALL MR 742] to point out the scope of jurisdiction available to Maharashtra Revenue Tribunal in such matters. He contends that this facet is over looked and material looked into by Tahsildar or Additional Collector has also not been considered. For instance, the visit of Tahsildar to spot and his findings thereon are not appreciated by the Maharashtra Revenue Tribunal at all.

7. Attention is invited to discussion on the aspect of nonjoinder of necessary parties by Additional Collector, with contention that Maharashtra Revenue Tribunal has totally ignored this aspect. Judgment of Honourable Apex Court in the case of "Khetrabasi Biswal V/s Ajaya Kumar Baral and others" reported in (2004) 1 SCC 317, and in the case of "Jagtu V/s Suraj Mal & Ors." reported in 2011 ALL SCR 162 and judgment of this Court in the case of "Smt. Nakubai Walu Dhokane (Since Deceased through L.Rs.) V/s Shri. Bhagwansingh Prakash Chandra Kapoor" reported in 2008 (5) ALL MR 1 are pressed into service for said purpose. Learned counsel invites attention to the reliefs claimed in application moved in the year 1985 and in the year 1988 by deceased Hari to urge that reliefs claimed are mutually inconsistent.

8. Attention is invited to provisions of section 38 (1) read with section 38 (7) of 1950 Act to point out conditions in which right to purchase can be exercised by a tenant like Hari. Provisions of section 46D of 1950 Act are also pressed into service to show how the tenant can exercise that right to purchase. The silence of tenant from the year 1970 till 1988 or then in any case from the year 1980 till 1988, according to him, in this respect is very significant. Deceased tenant Hari was aware of all sale deeds and, therefore, changes in ownership and hence though law does not expressly stipulate any limitation on said right to purchase, he should have acted within reasonable time. Reliance is being placed upon judgment in the case of "Mohamad Kavi Mohamad Amin V/s Fatmabai Ibrahim" reported in (1997) 6 SCC 71, in the case of "Janba (Dead) Through L.Rs. V/s Smt. Gopikabai" reported in 2000 (5) SRJ 131 : [2000(2) ALL MR 678 (S.C.)], in the case of "Radhu Gokul Gawali, Died, Through L.Rs. and others V/s Mohan Kishan Gawali, Died through L. Rs. and others" reported in (2007 MCR 1029) : [2007(4) ALL MR 339], in the case of "Waman Atmaram Lavand and another V/s Dattatraya @ Dattu Baba Lavand and others" reported in 2009 (5) Mh.L.J. 442 and in the case of "Santoshkumar Shivgonda Patil and others V/s Balasaheb Tukaram Shevale and others" reported in 2010 (2) Mh.L.J. 150 : [2009(6) ALL MR 489 (S.C.)]. According to him, a person like Hari not in possession, therefore, cannot aspire to purchase the property at all and even if it is presumed that Hari had any such right, he did waive the same because of his inaction for long time.

9. Lastly attention is invited to consideration of various sale deeds executed by Yusuf Khan in favour of petitioners in 1983 and to the application of doctrine of lispendens and provisions of section 48 (7) of 1950 Act. Learned counsel states that first sale deed is dated 3rd November, 1970 i.e. before filing of civil suit and the other sale deeds are after final adjudication in that civil suit. Therefore, the concept of lispendens is not at all attracted. Support is being taken from judgment of this Court in the case of "Smt. Sarita Gopalkumar Chand V/s Madgu S/o Sitaram Ramteke and others" reported in 2010(5) ALL MR 843. It is further contended that neither before Tahsildar nor before Additional Collector the question of application of section 48 (7) was raised either by Hari or than by Deorao. Before Maharashtra Revenue Tribunal also the question was not raised and cognizance of said provision by Maharashtra Revenue Tribunal for the first time directly in revisional jurisdiction is, therefore, unsustainable.

10. Advocate Mr. Kulkarni appearing for Respondent no.1 has supported the impugned order. He has invited attention to previous history of litigation and then to various sale deeds. He contends that status of deceased Hari as protected tenant was never in dispute and has not been questioned at any point of time. The protected tenant, therefore, must be presumed to be in possession till his tenancy is duly determined and is evicted therefrom in accordance with law. Support is being taken from judgment of this Court in the case of "Apparao Manaji V/s Sadhu S/o Sambhaji and others" reported in 1972 Rev. R. 217.

11. He further states that the earlier landlord viz. Samdanibegum had initiated proceedings for resumption against Hari and those proceedings failed on 30th December, 1961. In this background, he relies upon express language of section 38 of 1950 Act to urge that it does not stipulate any limitation. The procedure prescribed for sale by landlord is also relied upon and for that purpose attention is invited to section 48 of same Act. The learned counsel states that all subsequent sale deeds whether during pendency of suit before it or thereafter, are rightly held bad and nonest because of violation of said section, by Maharashtra Revenue Tribunal.

12. On the issue of limitation, learned counsel has contended that Tahsildar has expressly decided that issue against present petitioners and petitioners did not challenge that finding in appeal before Additional Collector. The appeal was filed by Respondent No.1 Deorao only. Hence, petitioners have given up the said challenge. It is contended that the defect of nonjoinder noticed by Additional Collector is also irrelevant because the internal dispute (if any) between Respondent no.1, his sister or mother has got no bearing on adjudication of controversy. The Maharashtra Revenue Tribunal has correctly appreciated the controversy and in fact the jurisdictional errors at the hands of Tahsildar and Additional Collector are corrected by that authority. Judgment of this Court in the case of "Limbaji Shankar Munde (deceased through L.Rs.) V/s Bhaurao Baliram Munde (deceased through L.Rs.) and others" reported in 2010 (3) Mh.L.J. 138 : [2010(2) ALL MR 179] is pressed into service to urge that no limitation as such is prescribed under section 38E of 1950 Act. Judgment of Division Bench in the case of "Ganpat Sakharam Deshmukh V/s Yeshwant Digambar Deshmukh" reported in 2000 (1) Mh.L.J. 126 : [2000(2) ALL MR 338] is again relied upon for very same purpose. To explain the scope of revision, judgment in the case of "Rangrao Ganpatrao Kulkarni V/s Syed Hakim S/o Syed Jafar and another" reported in 2000 (2) Mh.L.J. 659 : [2000(1) ALL MR 417] and in the case of "Ananda Dattu Patil since deceased through his LRs. Nivrutti Ananda Patil and others V/s Ramesh Anandrao Patil and another" reported in 2003 (5) Mh.L.J. 622 are relied upon.

13. It is urged that under Article 227 of the Constitution, the jurisdiction available to this Court is very limited and as order of Maharashtra Revenue Tribunal does not suffer any jurisdictional error or perversity this Court should not interfere. Support is being taken from judgment of Honourable Apex Court in the case of "Radhy Shyam and another V/s Chhabi Nath and others" reported in 2009 (5) SCC 616 : [2009 ALL SCR 1765], in the case of "Jai Singh and others V/s Municipal Corporation of Delhi and another" reported in 2010 (9) SCC 385 : [2010(6) ALL MR 410 (S.C.)], and in the case of "Sneh Gupta V/s Devi Sarup and others" reported in 2009 (6) SCC 194 : [2009 ALL SCR 786].

14. In reply arguments, Advocate Mr. Deshmukh has contended that in Regular Civil Suit no.189 of 1970 or then the order of Additional Tahsildar dated 26th July, 1977 there was no adjudication of title of Respondent No.3 Ramnath or his predecessor. In this background learned counsel further states that when on account of spot inspection fact of absence of possession is brought on record, the alleged presumption of possession of protected tenant is not available. It is further urged that the petitioners have purchased the land from Ramnath in 1983 and they have been always contesting the matters before various Courts. Hence, there is no presumption of giving up of the plea of limitation. It is lastly urged that in present facts provisions of section 48 (7) are not violated as there is no tenant on the land.

15. After hearing respective counsel and after perusal of records, I find that status of deceased Hari as protected tenant is not in dispute. The said status crystalised in the year 1988 and in absence of any further challenge thereto has attained finality. The perusal of provisions of Chapter IVA of 1950 Act show that it deals with rights of protected tenants, ordinary tenants and land holders. The rights of protected tenant to purchase land are given in section 38 (1). As per that provision, such protected tenant like Hari is entitled to purchase the land holders interest in the land held by former as a protected tenant. This provision has been given an overriding effect and it operates notwithstanding anything to the contrary in any law, usage or contract subject to provisions of subsection (7). Subsection (7) puts ceiling upon the extent of area which can be purchased by such protected tenant and is not relevant in present matter, at this stage. Section 38E confers ownership upon such protected tenants statutorily from a notified date. It is not in dispute that said provision has come into force in Nanded District on 25th May, 1957. The said provision operates notwithstanding anything contained in Chapter IVA or then notwithstanding any law for the time being in force or any custom or usage or decree or contract or grant to the contrary. Thus, from the date of notification, ownership of all lands held by protected tenants which they are entitled to purchase from their land holders, stands transferred to and vested in protected tenant holding it and from that date the protected tenant is deemed to have become full owner of such lands. The position emerging is very clear. Original landlord here had filed presumption proceedings against protected tenant Hari and those proceedings met with failure on 30th December, 1961. The date of notification under section 38E (1) is 25th May, 1957. In view of clear statutory provision, it is apparent that Hari statutorily become owner on 25th May, 1957 itself. In other words, Samdanibegum or then Yusuf Khan ceased to be owners of said land from same date. With the result, sale deed dated 3rd November, 1970 executed by them in favour of Respondent No.3 Ramnath has no legal existence because Yusuf Khan did not possess or own any transferable interest in suit lands on said date. It was not necessary for Hari to file any suit against Yusuf Khan and as Ramnath was trying to interfere with his poesssion, he filed suit only against Ramnath. In that suit, trial Court framed an issue to find out whether Hari proved his juridical possession on suit land on the date of suit. It is not in dispute that suit has been filed on 6th November, 1970 and trial Court has answered that issue in favour of deceased Hari. The other issues are consequential and not very relevant. However, issue No.6 was about the status of protected tenant and trial Court has attempted to find out whether Hari was protected tenant or then Ramnath was that protected tenant. From facts discussed above, it is clear that Ramnath had obtained a sale deed in his favour on 3rd November, 1970 i.e. before institution of suit and hence on that day he was not the tenant at all. Still the issue was referred to Tahsildar for adjudication and Tahsildar has after considering relevant material found Hari to be protected tenant. As already noted above, this finding has not been questioned by anybody and has attained finality.

16. These findings, therefore, squarely show that Hari was in possession as against Ramnath after 6th November, 1970 and even on 21st July, 1983 when Regular Civil Suit No.189 of 1970 filed by him, came to be decided. The sale deeds by Ramnath in favour of the petitioners are dated 15th October, 1983 and 19th October, 1983. In the light of discussion above, it is clear that Ramnath who himself had no marketable title to suit lands could not have conferred any title upon petitions and those sale deeds are therefore inconsequential.

17. The question of possession has been gone into by Tahsildar firstly. The proceedings in which that question has been gone into were instituted in 1985 and 1988. Hari died on 12th October, 1988. An application for spot inspection was made on 27th July, 1992 and spot has been inspected on 27th August, 1992. The perusal of observations in his report by Tahsildar reveal that he found both the fields not under cultivation and fallow. However, he has qualified it by stating that at few patches of land few seeds of hybrid jowar were found sprinkled and a very thin crop of jawar was seen standing in about 3 to 4 Gunthas of land and here and there, and between these patches of thin crop of jawar land was grassy covered by shrubs and trees. It is important to note that Tahsildar was concerned with status of Hari and possession of Hari. On the date of spot inspection Hari was not alive and these remarks, therefore, are not sufficient to show that Hari was not in possession during his life time. Possession of Hari during his life time was sufficient to answer the controversy. Tahsildar has not taken any pains to find out that position. Residence or service of Deorao elsewhere was not at all relevant in this matter.

18. Even otherwise, it can be said that if Hari was in possession, after him his son Deorao would have come in possession. In other words, if Deorao is not found in possession, it may imply that Hari also was not in possession. The spot inspection does not show an assertion by petitioners that the thin crop of jawar was raised by them. The facts, therefore, clearly show that it is Deorao who had been in cultivating possession on the date of spot inspection. This spot inspection report is further looked into by Additional Collector while deciding appeal. Said authority has found that after death of Tenant Hari his son (Deorao) had not cultivated the lands because of his service with Pune Municipal Corporation for long time. It also noticed that in future he was not in position to cultivate the lands personally because of same service. Additional Collector has also noticed the finding of Tahsildar that Jawar crop was standing in 3 to 4 Gunthas and rest of the land was uncultivated. So, both the authorities have accepted that about 3 to 4 Gunthas of suit land was under cultivation. The appreciation of spot inspection by Additional Collector and Tahsildar to record a finding of absence of possession of Hari is, therefore, unsustainable. Spot inspection does not support any such conclusion. In any case, Maharashtra Revenue Tribunal has not expressly relied upon it. Maharashtra Revenue Tribunal has noted protected status of Hari and then noted provisions of section 48(7). Though reference to provisions of section 52 of Transfer of Properties Act by Maharashtra Revenue Tribunal in present circumstances is misconceived, still it is apparent that the Maharashtra Revenue Tribunal also did not notice absence of title in Ramnath or then the consequently absence of title in purchasers from Ramnath i.e. present petitioners. All the three authorities did not realise the scheme of Section 38E and effect of deeming fiction in it. Judgment in Smt. Sarita Gopalkumar Chand V/s Madgu S/o Sitaram Ramteke and others (supra) need not therefore be looked into.

19. Section 48 (1) of 1950 Act stipulates that where a land holder intends to sell any land leased to a tenant, he has to apply to Tribunal for determination of reasonable price thereof. Tenant is given first right to purchase it. Under provisions of section 48 (7) any sale made in contravention thereof is invalid. Here, after 25th May, 1957 lands had vested in Hari and thereafter there was no land holder as such and hence when Yusuf Khan sold lands on 3rd November, 1970 to Ramnath he was not a land holder. When Remnath sold lands in 1983 to present petitioners, Ramnath or his brothers were again not land holders. The provisions of section 48, therefore, were not relevant at all.

20. The provisions of section 38 (1) show that a protected tenant is entitled to purchase the land holder's interest "at any time" after the commencement of Hyderabad Tenancy & Agricultural Lands (Amendment) Act, 1954. Thus, Legislature has not prescribed the time limit and for that has used the words "at any time". This scheme of section 38 (1) undergoes a change in section 38E where the Legislature has superseded not only the provisions of Chapter IVA of 1950 Act but provisions of any other law for time being in force and has also countermanded custom, usage, decree contract or grant to the contrary. Thus from the date of notification ownership stands vested in protected tenant. This is further emphasised by deeming fiction where Legislature has stated that from the date of such notification such protected tenant "shall be deemed to be full owner". It is, therefore, obvious that on 25th May, 1957 itself Hari had become full owner of land and there were no questions of Hari moving anybody for determination of either purchase price or for grant of ownership certificate.

21. Scheme of section 38 shows the procedure in which right to purchase conferred upon him is to be exercised by protected tenant. Its subsection (2) requires such protected tenant to make an offer to the land holder stating the price which he is prepared to pay for land holders interest. Under section 38E every land holder of land situated in the area specified in notification has to file an application within 90 days of nofication before Tribunal for determination of reasonable price of his interest in the land which is already transferred to the ownership of protected tenant under subsection (1). This provision also contemplates a situation in which such application is not filed within said period by land holder but a certificate under subsection (2) has been issued by Tribunal. The Tribunal in that event can suo motu proceed to determine the purchase price and thereupon the provisions of subsection (4) to (9) of section 38 mutatis mutandis apply to that determination. It is therefore obvious that submission of application for determination of purchase price or for grant of ownership certificate by Hari is superfluous. Effort of petitioner to raise an issue of limitation by linking it to applicationin moved by Hari in 1985 or 1988 therefore must be held to be misconceived. He becomes stattory owner under section 38E, issuance of ownership certificate in his favour is only a formality and it does not depend upon payment of purchase money by him. I find the direction by Maharashtra Revenue Tribunal to Tahsildar to proceed under section 38 (2) and (3) improper because in the light of provisions of section 38E the Tribunal has to proceed as per provisions of subsection (4) to (9) of section 38.

22. In view of this discussion, it is apparent that the application for mutation filed by Hari in the year 1985 under section 150 of Maharashtra Land Revenue Code ought to have been granted as he had become statutory owner from 25th May, 1957. It is also clear that grant of ownership certificate in his favour was only a formality flowing from section 38E and it also ought to have been allowed. In any case, action under section 38E (3) ought to have been initiated. The various defences raised on the basis of transactions by Yusuf Khan or by Ramnath are irrelevant because statutory ownership conferred upon deceased Hari cannot be taken away by those transactions and that ownership cannot be conferred back upon petitioners. The argument of limitation or waiver being raised on the strength of those transactions is again misconceived and in any case it militates that clear intention of Legislature flowing from section 38E read with 38 (1). The ownership is statutorily transferred and section 38 (1) permits a tenant to make offer to purchase at any time. Here, the question of such offer does not arise as situation is covered by provisions of section 38E.

23. In view of these findings, though I have noted at length respective rival contentions raised before me, I do not find it necessary to consider the same pointwise here. Tahsildar and Additional Collector both have misdirected the inquiry and refused to implement the clear provisions of beneficial legislation. Hari had become owner on 25th May, 1957 and proceedings filed by him in 1985 have been prosecuted by his son Deorao. After 25th May, 1957 the family of Yusuf Khan ceased to have any relation or isnterest in suit lands and Ramnath or then purchaser from him also do not have any interest in those lands. The question of nonjoinder of necessary parties is therefore not required to be gone into at their ins;tance. It is a trivial issue which can be resolved by the legal heirs of deceased Hari in accordance with relevant provisions of law.

24. Before parting, it will be appropriate to note the precedents cited. Adv. Kulkarni has argued on the limited scope available to this Court under Art. 227 of the Constitution of India. As after considering the rival contentions on merit, I am proceeding to dismiss the petition, I do not find it necessary to refer to those judgments in more detail. In Jai Singh & Others vs. Municipal Corporation of Delhi & Another [2010(6) ALL MR 410 (S.C.)] (supra), in para 25 Hon. Apex Court has declared that High Court can not correct all hardships or wrongs if decision of the tribunal is within jurisdiction. The power can be used when in case of serious dereliction of duty & flagrant violation of fundamental principles of law. Discussion by Hon. Apex Court in para 29 in Radhy Shyam & Anr. v. Chhabi Nath & Anr. [2009 ALL SCR 1765] (supra) does not show a different result. Manifest miscarriage of justice can be corrected in this jurisdiction which is otherwise sparingly exercised. Here, it is convenient to refer to similar objections raised by Adv. Deshmukh to interference by MRT under S. 91 of 1950 Act with the concurrent findings. In AIR 1977 S.C. 1712 -"Sita Ram Bhau Patil v. Ramchandra Nago Patil", S.76 of the Bombay Tenancy and Agricultural Lands Act (67 of 1948), what is "Error of law."as a ground for revision by Revenue Tribunal is considered & it is held that the Revenue Tribunal fell into error of entertaining the Revision when there was no error of law on the face of the record. The presumption which was said to arise due to the record of rights was before the Deputy Collector as well as the Mamlatdar. Discussion therein shows that If the authority entrusted with adjudication goes into the question and assesses the same, its decision may be right or wrong but that will not mean that there is any error of law on the face of record. AIR 1974 S.C. 2051- "Maruti Bala, Raut v. Dashrath Babu Wathare" considers same provision & lays down that the when the findings of fact are already there, Revenue Tribunal has no power to appreciate evidence and come to its own conclusion. In Gulabrao vs. Sayaji [2004(1) ALL MR 742] (supra), learned Single Judge has considered this Apex Court judgment & taken a similar view on very same provision. In Rangrao Ganpatrao vs. Syed Hakim [2000(1) ALL MR 417] (supra) & Ananda vs. Ramesh (supra) this Court has held that when findings are perverse, interference in revision is permitted. As found by me above, the Tahasildar & Additional Collector both clearly failed to understand the concept of statutory transfer of ownership on tillers day to Hari, deeming fiction enacted & consequential absence of any interest either in Ramnath or his vendors or then purchasers from him. Importance given by them to service or residence of Deorao at Pune is patently erroneous. Some errors are noted by MRT due to protected status of Hari & it has then resorted to S. 48(7) of 1950 Act. Interference by it is to secure implementation of beneficial provisions in favour of weakling like Hari. The refusal by Tahasildar & Additional Collector to exercise jurisdiction & to abide by S.38E is beyond comprehension & needed correction by MRT as also by this Court.

25. After death of Hari, the two applications filed by him were /are being prosecuted by his son Deorao. Wife or daughter of Hari are not brought on record. It is apparent that a third party like present petitioners who have no right to disputed lands can not derive any advantage out of it. The outcome of present litigation will be for the benefit of all legal heirs of Hari and their absence in no way prejudices the petitioners. In Khetrabasi Biswal vs. Ajay Kumar (supra), Hon. Apex Court has held that selectees whose names figured in list were being affected because of challenge & were therefore necessary parties. In Jagtu v. Surajmal (supra), when suit was for enforcement of certain rights relating to land, land-owner is held to be necessary party. In Nakubai Walu vs. Bhagwansingh (supra), the defendant, party to sale agreement , expired & plaintiff did not bring on record of suit for specific performance his two daughters but only widow was substituted as his legal representative. All these judgments therefore show an existing legal right in party not brought on record and its getting affected in the adjudication. Deorao as legal heir of Hari can definitely prosecute the matter against ex-landowners, purchasers from them and no right of his mother or sister is being adversely affected.

26. It is already noted that objection on the ground of limitation is based on misconception that Hari had to take some steps in the matter. Case of Hari is squarely covered by S. 38E and he had become owner already in 1957 against the wish of Samdani Begum or Yousuf Khan. S. 46D operates in distinct field and Hari's case does not even fall under it. The Additional Collector has at one place observed that Hari ought to have approached Yousf Khan to redress his right to purchase but it is contrary to law & also scheme of the 1950 Act. Petitioners accept that there is no express provision prescribing any period of limitation but then, due to its absence, they contend that obligation to act within reasonable time is cast. Various judgments of Hon. Apex Court & this Court are relied upon. Sub-section 2 of S. 38 shows an option given to protected tenant to purchase. But under S. 38E of 1950 Act there is no such option either to landowner or to protected tenant. An ownership certificate can also be issued to tenant directly without any application either by him or landowners. No time limit is therefore prescribed for said purpose in the said provision. In Mohamad Kavi vs. Fatmabai (supra) necessity of initiating suo-motu inquiry into validity of sale-deeds by Mamalatdar within reasonable time is laid down after noticing that statute did not prescribe any time limit for it. In Janba vs. Gopikabai [2000(2) ALL MR 678 (S.C.)] (supra), S.50 of Bombay Tenancy & Agricultural Lands (Vidarbha Region) Act,1958 is looked into with S.41(2) and it is like S. 38H of 1950 Act here. By said provision, tenant is required to exercise right to purchase within one year. There is no such occasion or rider in S. 38E. In Radhu Gokul vs. Mohan Kishan [2007(4) ALL MR 339] (supra), learned Single Judge of this Court has considered necessity of initiating action for summary eviction under S.98 of 1950 Act for summary eviction within reasonable time. Though this court found that Kisan there was a protected tenant, impact of notification dated 25/5/1957 and scheme of S. 38E was not pressed into service and dispossession in 1965-66 in that capacity was the cause given for maintaining S. 98 application. Therefore in para 13 of the report, this Court has noted that there was no dispute about ownership of landholders even in 1966. Thus admitted dispossession & absence of claim to statutory ownership or to end of status as protected tenant are therefore the points which changed the entire perspective. In Santoshkumar vs. Balasaheb [2009(6) ALL MR 489 (S.C.)] (supra) the absence of stipulation of any time limit to the exercise of revisionary powers under S. 257 of Maharashtra Land Revenue Code, 1966 is looked into and Hon. Apex Court has held that said power to revise needed to be invoked within reasonable time.

27. In Apparao Manaji vs. Sadhu (supra) this Court has held that once the revenue records disclosed possession, presumption of its continuity arises as tenant can not be evicted or loose possession otherwise than in due course of law. Here, I have already held reliance on spot panchanama by Tahasildar or by Additional Collector to answer issue of possession against Hari unsustainable. In Ganpat vs. Yeshwant [2000(2) ALL MR 338] (supra), the Division Bench of this Court has noticed difference in scheme of S. 38 & 38E of 1950 Act and then found that deposit of purchase money is not condition precedent for issuance of ownership certificate under S. 38E(2) and purchase can become ineffective only in eventualities specified in its subsection (3). In Limbaji Shankar Munde vs. Bhaurao Baliram Munde [2010(2) ALL MR 179] (supra) this Court has found Tahasildar justified in entertaining an application by tenant under S.38E(1) of 1950 Act and directing the delivery of possession. It is held that said provision does not contain any stipulation about limitation & same can not be imported & read into it. In facts before me, Hari & after him Deorao have been in possession of disputed lands and application by Hari in 1985 & 1988 as discussed above is within fourcorners of law & maintainable.

28. With the result, though some of my reasons are different than Maharashtra Revenue Tribunal, in the end, I do not see any case made out warranting interference in exercise of writ jurisdiction. Petition is dismissed. No costs.

29. At this stage Advocate Shri Deshmukh seeks continuation of interim order granted on 23rd July, 2002 for twelve more weeks. Shri Kulkarni is strongly opposing the prayers. However, in the interest of justice, the said interim order is continued for twelve weeks more from today and shall cease to operate automatically thereafter.

Petition dismissed.