2013(5) ALL MR 187
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.R. GAVAI, J.
Jijabai Dinkar Jadhav (D) Thr. Lrs. Vs. Shri Haribhau Rangnath Kulkarni
Writ Petition No. 2013 of 2001
11th January, 2013
Petitioner Counsel: S.G. Karandikar,V.B. Rajure
Respondent Counsel: S.V. Palsuledesai,S.D. Rayrikar
Bombay Tenancy and Agricultural Lands Act (1948), Ss.32(1), 32G - Purchase of land by tenant - Tenant of widow land lady had sub-let the land - Sub-tenant was cultivating land and was in possession on tillers day - Application for determination of purchase price by predecessor in title of sub-tenant after death of widow landlady maintainable - Order declaring predecessor in title as tenant is proper. (Paras 8, 9)
2. This petition takes exception to the judgment and order of learned Maharashtra Revenue Tribunal ("Tribunal" for short) dated 13th January 1999 passed in review application being case No.MRT/NS-VIII-1-96 thereby allowing review application filed by respondent seeking review of order dated 12th February 1996 passed by the Tribunal in Revision Application No.MRT-NS-VIII-7-94.
One Saraswatibai Kulkarni was the original landlady. She had leased out the suit land to respondent by a registered lease-deed dated 3rd March 1952. It is the case of the petitioner that land was further sub-leased by respondent and, on the tillers day i.e. 1st April 1957, the predecessor in title of the petitioner was in possession of the land as sub-tenants of the respondent. However, since on the tillers day Saraswatibai was widow, the proceedings under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 ("said Act" for short) came to be postponed. The order passed by Third Additional Magistrate, Karad dated 8th June 1962 would show that the predecessor of the petitioner was a sub-tenant of Shri Hari Ranganath Kulkarni who is shown as tenant of Saraswatibai. The landlady Saraswatibai expired on 4th August 1980. After she expired, in the succession proceedings, respondent came to be declared as legal heir of Saraswatibai. In the meantime, the predecessor in title of the petitioner initiated proceedings under section 32-F read with section 32-G of the said Act for determination of the purchase price. Prior to initiation of the said proceedings, the petitioner had also issued notice to the legal heirs of deceased landlady and copy was also given to Additional Tahasildar and Agricultural Lands Tribunal, ("ALT" for short) on 1st November 1980. In spite of service of notice, respondent did not appear before ALT and, as such, the ALT passed an order thereby declaring the petitioner as tenant having purchased the suit land for Rs.6,900/-. Being aggrieved thereby, respondent preferred appeal before the Sub-Divisional Officer, Karad ("SDO" for short). Learned SDO in his order observed that though respondent was given various notices and the matter was adjourned on various dates, for the reasons chosen, the respondent remained absent. It was also found that deceased Saraswatibai in her application dated 26th December 1971 and in reply dated 24th April 1978 had accepted the petitioner to be a tenant. Learned SDO also observed that the ALT has rightly passed the order in the proceedings under section 32-G declaring the predecessors of the petitioner as tenant. In this premises, learned SDO dismissed the appeal. Being aggrieved thereby, respondent preferred revision application before the Tribunal. The same also came to be dismissed on 12th February 1996. However, it appears that a review application was made by respondent and it was decided by some other presiding officer. The review application came to be allowed. Hence the present petition.
4. Shri Karandikar, learned counsel appearing for the petitioners submits that learned the Tribunal has grossly erred in allowing the review application. Learned counsel submits that learned Tribunal has gone beyond the scope of review and almost treated the review petition as an appeal against the order passed by his predecessor. Learned counsel submits that this is not permissible in law. Learned counsel submits that the finding given by learned Tribunal that Saraswatibai had lost interest in the land after she had executed lease-deed in favour of respondent is also totally perverse. Learned counsel, therefore, submits that the order passed by learned tribunal in the review application is not sustainable in law and liable to be quashed and set aside.
5. Shri Palsuledesai, learned counsel appearing for respondent, on the contrary, submits that the possession of the petitioner was of Rit-4 (Type-4). Learned counsel submits that as per Rit-4 the occupant cultivates the land by giving him half share in the crop and retaining half share by way of labour charges. Learned counsel, therefore, submits that the learned the Tribunal has rightly remanded the matter for fresh enquiry by the ALT.
6. The perusal of material on record would show the possession of the predecessor in title of the petitioner on tillers' day. The entries as on tillers day would reveal that on the tillers day, the predecessors in title of the present petitioners were in possession as sub-tenant of respondent who has been shown as tenant of deceased Saraswatibai. Not only this but a statement made by deceased Saraswatibai on 5th April 1978 before ALT would also show that the deceased Saraswatibai has stated that respondent was tenant, however, the possession of the land was with the predecessor in title of the petitioner as sub-tenant. By making said statement she has requested for determination of purchase price and payment of lump- sum amount to her. The findings of fact as recorded by learned ALT and learned SDO have been duly affirmed by the learned Tribunal.
32. Tenants deemed to have purchased land on tillers' day
(1) On the first day of April 1957 (hereinafter referred to as "the tillers day") every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if,-
(a) Such tenant is a permanent tenant thereof and cultivates land personally;
(b) Such tenant is not a permanent tenant but cultivates the land leased personally; and
(i) the landlord has not given notice of termination of his tenancy under section 31; or
(ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29 for obtaining possession of the land; or
(iii) the landlord has not terminated this tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29 for obtaining possession of the lands:
Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Maharashtra Revenue Tribunal under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as "the postponed date".
Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub-section (3) of section 31 shall be deemed to have purchased the land on the 1st day of April 1958, if no separation of his share has been effected before the date mentioned in that proviso.
8. Undisputedly, it is the case of the respondent that he was the permanent tenant. From the material on record and the entire revenue entries, it is clear that the respondent has sublet the land held by him to the predecessor in title of the petitioner and, as such, as per the provisions of section 32(1) the petitioner would be a sub-tenant who is deemed to be a tenant of the land held by him on the tillers' day. In so far as contention of respondent regarding Rit-4 is concerned, even according to Rit-4, the possession of the occupant would on the basis of sharing of half of the crops. As such, possession would be of the petitioner as sub-tenant who had agreed for cultivating the land on the condition of giving half share of the crop to the tenant. Undisputedly, it is the petitioner's predecessors in title who were in possession of the suit land on the tillers day. In that view of the matter and in view of provisions of sections 32(1) and 32-G of the said Act, the orders passed by learned ALT and learned SDO affirmed by leaned Tribunal in revision application cannot be faulted with.
9. I am of the considered view that the learned Tribunal has grossly erred in passing the impugned order in review application. The scope of review jurisdiction is very limited. The Tribunal can exercise review jurisdiction only for correcting an error apparent on the face of record. I am of the considered view that there was no error apparent on the face of record in the order passed by learned Tribunal in revision application warranting invocation of review jurisdiction. The learned Tribunal while exercising review jurisdiction has crossed the limits of the review jurisdiction. Apart from that, some of the findings given by learned Tribunal are also perverse. Learned Tribunal has observed that that the interest of the landlady came to an end on 3rd March 1952 when she executed lease-deed in favour of the respondent. Merely by executing the lease-deed in favour of respondent, the original landlady had not lost her interest in the land. Even after execution of lease-deed in favour of respondent she continued to be the landlady of the said land and, as such, finding given by learned Tribunal in the impugned order in that regard is totally perverse. Therefore, in my considered view, the impugned order passed by learned the Tribunal is not sustainable in law and liable to be quashed and set aside.
10. In the result, the impugned order passed by learned the Tribunal in Review Application No.MRT-NS-VIII-1-96 dated 30th January 1999 is quashed and set aside. Needless to mention that the orders passed by learned ALT and learned SDO and the original order passed by learned Tribunal in revision application are upheld. Rule is made absolute in terms of this order.