1 wp8011-09.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8011 OF 2009 Rukmini V. Patil & Ors .. Petitioners versus Vishwanath D. Pethkar (deceased) through legal heirs Vimal Mahadeo Kerure & Ors .. Respondents Mr.S.G.Karandikar with Mr.Amit Sale for the petitioners. Mr.S.S.Patwardhan for respondent Nos.1A and 1B. Mr.Prathamesh A. Gokhale i/by Mr.Ambar Joshi for respondent Nos.2B to 2D. CORAM : S.C.DHARMADHIKARI, J. 3rd August 2011. P.C.: . For the purpose of the present petition and at the risk of the petitioners, Respondent Nos.2A, 2E and 2F are deleted. 2 Heard both sides. The petitioner impugns an order of Maharshtra Revenue Tribunal dated 24th April 2009, dismissing Revision Application 2 wp8011-09.doc No.MRT-41/B/2000 by upholding the preliminary objection raised by the present respondents. 3 The petitioners before me are the revision applicants. They filed a revision application under section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, challenging an order dated 1st July 2000 of the Sub Divisional Officer, Miraj in Tenancy Appeal No.5 of 1993. 4 The tenancy appeal was filed by respondent Nos.1(a) and 1(b), viz., Vimal Mahadeo Kerure and Suryakant Vishwananth Petkar. They challenged the order in that appeal, which was passed by the Tahsildar, Tasgaon, Taluka Tasgaon, District Sangli, in Tenancy Case No.9 of 1992. 5 Mr.Karandikar appearing on behalf of the petitioner submits that the Maharashtra Revenue Tribunal has erroneously proceeded on the basis that the proceedings initiated by respondent Nos.1(a) and 1(b) are in the nature of execution and, therefore, the present petitioners cannot file a revision application. Mr.Karandikar submits that if the proceedings initiated where in the nature of execution, then, the tenancy appeal in 3 wp8011-09.doc which the Sub Divisional Officer made order dated 1st July 2000, was itself incompetent and not maintainable. The Tribunal, therefore, has clearly erred in law in refusing to entertain the revision application and dismissing it on the ground that it is not maintainable. 6 Mr.Karandikar submits that before the Tribunal it was very clear that Survey Nos.733/2B/2A/2, 733/2B/1 and 733/2B/2A/1 situate at Tasgaon, District Sangli are agricultural lands owned by one Laxmibai Patki. The total area was 20 acres. The respondent No.1’s predecessor in title was tenant of the land. About 14 acres from the total area of the land was surrendered by the tenant in favour of the land lady. On 3rd July 1982, the land lady sold remaining 6 acres of land to the tenant by a registered Sale Deed. As the land lady transferred surrendered land to others, the tenant initiated proceedings for restoration of possession of the same. The matter was contested right up to the Tribunal and in the Revision Application No.139 of 1976, the Tribunal by an judgment and order dated 4th July 1977, directed restoration of possession to the tenant. The Tahsildar issued notices to the parties for handing over the possession. The purchasers of the land by name, Rohida and Chavan, challenged the notices of the Tahsildar in Tenancy Appeal No.14 of 4 wp8011-09.doc 1981 and other purchaser also challenged the said order/notices by filing a Tenancy Appeal No.15 of 1981. Both the appeals were heard by Sub Divisional Officer, Miraj who dismissed the same, some time in the year 1990. The orders of the Sub Divisional Officer were not challenged by the purchasers. However, they challenged the order and judgment of the Tribunal in Revision Application No.139 of 1976 before this Court in Writ Petitions being Writ Petition No.1673 of 1981 and Writ Petition No. 1680 of 1981, but, both these writ petitions were dismissed. The purchasers filed a special leave petition in the Hon’ble Supreme Court, but, it was dismissed with a clarification that they can resist the execution of the order and raise all contentions therein. Thus, according to the Tribunal, its order passed in Revision Application No.139 of 1976 has attained finality. In the opinion of the Tribunal, the execution of the order is something which remains to be done and that is how the matter was sent to the Tahsildar. 7 However, the petitioners argued that in Revision Application No.MRT/139/76, a compromise was arrived at between the parties without the consent of the other interested persons and, therefore, purchaser Mr.Rohida and Mr.Chavan filed writ petitions mentioned 5 wp8011-09.doc above, which were dismissed on the ground that they were not parties to the revision application. Therefore, the legal heirs of Vishwanath Pethkar filed a application on 7th July 1992 before Tahsildar, Tasgaon, to handover the possession to them. His order of dismissal was impugned by filing Tenancy Appeal No.5 of 1993. That has been allowed by the Sub Divisional Officer, Miraj on 1st July 2000. The petitioners are purchasers of the land from Shri Chavan. They are challenging the orders passed by the Sub Divisional Officer on the ground that the application filed by the legal heirs of the original tenant, cannot be said to be a execution proceeding. It is argued that the compromise between the parties to Revision Application No.139 of 1976 cannot be held to be binding on the petitioners. The order passed by the Hon’ble Supreme Court is being misinterpreted and based on the same, the petitioners are non suited by the Tribunal. Mr.Karandikar submits that the Tenancy Appeal No.5 of 1993 is a substantive proceeding initiated by the heirs of the said Vishwanath Pethkar and if that is a substantive proceeding to which the petitioners are impleaded as parties, then, the revision application was maintainable. 8 On the other hand, Mr.Patwardhan appearing for respondent Nos. 6 wp8011-09.doc 1A and 1B who are the contesting respondents argues that, the Tribunal is right in its conclusion that revision application was not maintainable. Essentially, these are proceedings which can be traced to section 73(2) of the Bombay Tenancy and Agricultural Lands Act, 1948. They are in the nature of execution proceedings. The land lady who has not cultivated land although she was put in possession, could not have deprived respondent Nos.1A and 1B, of their benefits, as tenants of the agricultural lands. It was her bounden duty to hand over the land to them. She alienated it so as to deprive respondent Nos.1(a) and 1(b) of their statutory rights. That alienation does not bind the respondent Nos. 1(a) and 1(b). In fact, the land lady admitted that the alienation was wrongful and illegal. That is how the compromise was arrived at. That compromise was questioned, not by the present petitioners, but, by those through whom the present petitioners are claiming, viz., Mr.Rohida and Mr.Chavan. Therefore, all actions, which emenate from the wrongful and illegal conduct of the land lady, are such that the consequences thereof must be faced and accepted even by the present petitioners. They are the beneficiaries of such wrongful acts and it does not lie in their mouth to say that the substantive proceedings were initiated for their ouster and hence, the revision application is 7 wp8011-09.doc maintainable. The land lady and those claiming through her have not questioned the orders against them. These orders have become final. The status is undisputed. Mr.Patwardhan, therefore, submits that petition be dismissed and he is supported in his arguments by respondent Nos.2B to 2D. 9 Having heard the learned counsel appearing for the parties and perusing with their assistance the order passed by the Maharashtra Revenue Tribunal, I am of the opinion that the Maharashtra Revenue Tribunal has failed to render any findings on the basis of the rival contentions and particularly, those, highlighted before me. A careful perusal of the impugned order shows that the Tribunal has not held that the revision at the instance of the petitioner is incompetent because they must be visited with the consequences of the wrongful act allegedly committed by the land lady. There is no discussion in the impugned order that the compromise entered into by the land lady was to the knowledge of Mr.Chavan and Mr.Rohida. The petitioners are claiming through the said Chavan and he has not pursued his objections any further, but, limited liberty was given to him to resist the execution of the order passed in the earlier round of litigation and 8 wp8011-09.doc particularly in Revision Application No.139 of 1976. There is nothing in the impugned order which indicates that the subsequent alienation in favour of the petitioners by the said Mr.Chavan binds neither respondent Nos.1(a) and 1(b), nor the heirs of the deceased land lady. In such circumstances, to hold that the revision application at the instance of the present petitioner is not maintainable, is something which is not permissible in the given facts and circumstances. There is also no proper and conclusive finding with regard to the Sale Deed in favour of the petitioners inasmuch as if the petitioners are alienee/purchaser of the properties/lands, then, as contended by Mr.Karandikar to the extent of 7 acres atleast, the Sale Deed is valid or whether the successors in interest of the said Vishwanath Pethkar are entitled to claim possession of entire 14 acres of land. All these issues also remain unanswered in the impugned order. 10 In these circumstances, there is no alternative, but, to set aside the order of the Tribunal and restore the revision application to its file. The impugned order is, therefore, set aside. The revision application is restored to the file of the Maharashtra Revenue Tribunal for decision afresh. All contentions of parties including those raised before me, are 9 wp8011-09.doc kept open. I have not expressed any opinion on either of these contentions. It is for the Tribunal to deal with them. It is only with a view to highlight several aspects of the controversy that the contentions have been noted by me. Finding that they have not been dealt with, that the impugned order is required to be quashed and set aside. 11 The petition is allowed in these terms, but, without any orders as to costs. Mr.Karandikar states that in the light of the order passed in this writ petition, the application before the Tribunal is revived, but, the order passed by the Sub Divisional Officer, Miraj in Tenancy Appeal No.5 of 1993 dated 1st July 2000, has not been stayed and, therefore, the petitioners may be dispossessed from the land which the land lady may not be ultimately entitled to. Therefore, until the revision application is heard by the Tribunal, this Court should protect the petitioners possession. 12 Although the request is opposed by Mr.Patwardhan, it is stated that it may not be immediately possible for the Tribunal to take up the matter. The matter pertains to the jurisdiction of Maharashtra Revenue Tribunal, Pune. 10 wp8011-09.doc 13 In these circumstances and with a view to balance the equities, it is directed that until the revision application is decided by the Tribunal, the order dated 1st July 2000 in Tenancy Appeal No.5 of 1993 decided by the Sub Divisional Officer, Miraj, shall not be executed and enforced as against the petitioners and both sides are directed to maintain status-quo in relation to that portion or the area covered by the Sale Deed in favour of the petitioners. Since the matter is pending for a long time and this is the third round of litigation, interest of justice would be served if a request is made to the Tribunal to dispose of the said revision application as expeditiously as possible and by 31st October 2011. Order accordingly. (S.C.DHARMADHIKARI, J)