(1) W.P. 1318.1988 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1318 OF 1988 1] Jankabai w/o Madhavrao died through LRs. 2] Shantabai w/o Sitaram died through LRs. 2a) Bhanudas S/o Sitaram Deshpande, Age : 55 years, Occu.: Nil, R/o C/o S.S. Deshpande, H/o : Shri R.R. Wadekar, H.No. A-4-11, Shivaji Nagar, CIDCO, Dist. Aurangabad 2b) Smt. Bharati w/o Bhalchandra Deshpande, Age : 40 years, Occu.: Household, R/o As above 2c) Smt. Suvarna w/o Dattatraya Deshpande, Age : 42 years, Occu.: Household, R/o As above 2d) Shyamkant Sitaram Deshpande, Age : 40 years, Occu.: Service, R/o As above 2e) Sharadkumar Sitaram Deshpande, Age : 38 years, Occu.: Service, R/o Panchayat Samiti, Vaijapur, Dist. Aurangabad (LRs. Of deceased Pet.no.2 brought on record vide Court’s order dt. 8.7.2005 in CA no. 10268/2003) and also abovesaid Petitioners are LRs. Of deceased pet.no.1 viz. Jankabai W/o Madhavrao, as per Order in CA. no.7457 of2005) .. Petitioners (2) W.P. 1318.1988 Versus 1] Ramdas s/o Nathu Chaudhari died thorugh LRs. 1-A] Smt. Sumanbai w/o Ramdas Choudhary, Age:50 years, Occu.: Household 1-B] Chitra Vishwanath Choudhary, Age : 30 years, Occu.: Household 1-C] Kalpana Ramdas Choudhari Age : 28 years, Occu.: Household 1-D] Alpana Ramdas Choudhari, Age : 26 years, Occu.: Household 1-E] Ganesh Ramdas Choudhari, Age:24 years, Occu.: Agri. All R/o Jarandi, Tq. Soyagaon, Dist. Aurangabad 2] Sadashiva s/o Nathu Age:37 yrs. 3] Devidas S/o Nathu, Age:35 yrs., 4] Ramesh w/o Nathu, Age : 29 yrs., All R/o Jarandi Taluka Soegaon, Occu.: Agriculture Dist. Aurangabad 5] Trimbakrao S/o Damodar, Age:60 yrs., Occu.: Agriculture, R/o Limbayat, Tq. Soegaon, Dist. Aurangabad 6] M.R.T. Aurangabad .. Respondents (Resp.1 to 4 are heirs of orig. Tenant and R.no.5 is relative of Pet.) (3) W.P. 1318.1988 Mr. M.M. Patil (Beedkar), Advocate for the Petitioners Mr. S.S. Choudhari, Advocate for the Respondents 1(A) to 1(E) None present for Respondents 2 to 4 though served Mr. J.S. Gavane, APP for the Respondent no.6-State CORAM : A.V. NIRGUDE, J. DATED : 25TH JUNE, 2009 ORAL ORDER:- 1] This writ petition is filed by the original petitioners Jankabai and Shantabai, who happened to be sisters inter-se, challenging the order dated 20.2.1987 in Revision Petition no. 177/B/1985-A passed by the learned Member of Maharashtra Revenue Tribunal, Aurangabad. 2] There is checkered history to this litigation and the same can be narratted in short, as under:- . Land survey no. 202 gat no. 325 admeasuring 8A 11G situated at village Jarandi was owned by one Madhavrao who happened to be father of the original petitioners. The petitioners became owners of this (4) W.P. 1318.1988 land after the death of Madhavrao. Original Respondents no. 1 to 4 are the heirs and legal representatives of one Nathu, who was tenant of this land. The original petitioners filed resumption proceedings under section 44 r/w. Section 32 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as “the said Act”) within prescribed period after serving the required notices determining the tenancy of Nathu. The said application was allowed on 10.12.1959. Nathu handed over possession of the land to the petitioners vide a panchanama dated 6.7.1960. The petitioners thereafter continued their possession and cultivation til 25.4.1970. On that day, they lost possession due to certain order passed in a proceedings taken out by the original tenant Nathu. 3] Nathu had made an application on 22.10.1969 for restoration of possession of the land under section 45 and 46 of the said Act, on the ground that the original petitioners had dis-continued personal cultivation of the land from 1967 and that (5) W.P. 1318.1988 the original respondent no.5 was inducted in it and he was cultivating the land. He also contended that half portion of the said land was already with him as a purchaser. The Tahsildar then passed an order in favour of Nathu and ordered resumption of land on 25.4.1970. Pursuant to this order the original petitioners were dis-possessed and Nathu was put in possession. 4] The original petitioners then challenged this order before the Deputy Collector. The appeal was allowed on 30.3.1974. Nathu then preferred a revision before the M.R.T. against the said order; but the same was also dismissed on 4.12.1975. Nathu then challenged the order of M.R.T. before the High Court by filing a Special Civil Application which was lateron converted to Writ Petition no. 3060 of 1975. During the pendency of the petition, Nathu died. The respondents 1 to 4, the legal heirs and representatives prosecuted the writ petition but it was dismissed on 21.8.1980. (6) W.P. 1318.1988 5] The respondents nos. 1 to 4 thereafter filed a Civil Suit being suit no. 140 of 1980 before the Civil Judge Junior Division, Sillod, Dist. Aurangabad seeking perpetual injunction against the original petitioners. They claimed that they were tenants in respect of the suit land. The learned Civil Judge then referred the issue of tenancy to the tenancy Court. The tenancy Court then, held that the predecessor of respondents 1 to 4 namely Nathu was a protected tenant in respect of the disputed land. Original petitioners then challenged this finding before the Deputy Collector who on 30.8.1985 held that Nathu was not a protected tenant of the disputed land. Against this decision of the Deputy Collector, the respondents filed Revision Petition under section 91 of the said Act. As said above, the learned Member of the M.R.T., Aurangabad allowed the Revision and held that Nathu was the protected tenant of the disputed land. As said above, this impugned order was passed on 20.2.1987. (7) W.P. 1318.1988 6] The question is whether, the impugned order, is erroneous. The answer is in the affirmative. On perusal of the judgment of the Deputy Collector, which was challenged before the learned Member of the M.R.T., it becomes clear that the respondents and their predecessors Nathu’s concern to the said land had finally come to an end when Nathu’s application under section 44 for resumption of land was finally dismissed. Nathu’s Writ Petition also came to be dismissed in 1980. 7] The learned counsel appearing for the respondents asserted that the respondents and their predecessors Nathu’s concern to the tenancy of the disputed land continued because the original petitioners did not execute the order under section 44 of the said Act in 1960, by taking out proceedings under section 21 of the Mamlatdar’s Courts Act, 1906. He pointed out that all orders passed under the provisions of the Hyderabad Tenancy and Agricultural Lands Act are required to be (8) W.P. 1318.1988 executed through the mechanism of section 21 of the Mamlatdar’s Courts Act. He took me through the provisions of section 94 of the Hyderabad Tenancy and Agricultural Lands Act. It reads as under:- “94. When an original, appellate or revisional order under this Act involves the payment of money by any person, the money shall be recoverable from such person as if it was an arrear of land revenue and where such order involves the putting of any person in possession of land it shall be executed in the manner provided in section 21 of the Mamlatdar’s Court Act, 1906, as if it were a decision of Tahsildar under the said Act: Provided that such order shall not be executed till the expiry of the period of appeal or as the case may be, of application for revision as provided in Section 93).“ 8] Mr. Choudhari is obviously referring to the panchanama dated 6.7.1960 vide which Nathu surrendered possession of disputed land to the original petitioners. Mr. Choudhari asserted that this move of taking possession of the land from Nathu was not proper and despite of such delivery of possession, Nathu would not get deprived of his (9) W.P. 1318.1988 tenancy to the land. I do not agree with Mr. Choudhari. Section 94 merely provides a procedure for execution of the orders passed under the said Act. Not in all cases the parties would resort to execution under section 21 of the Mamlatdar’s Courts Act. Execution of orders are resorted only when there is resistance from the judgment debtor. 9] In this case, it is apparent that Nathu was willing to surrender the possession at that time in favour of the original petitioners. Section 44 of the said Act had given a limited right to a land holder of certain class to terminate the tenancy if he/she could prove that he/she bonafide required the land for personal cultivation. A detail procedure is laid down to process such application and decide it. Obviously, a tenant would oppose such application. It is not clear from record whether original tenant Nathu opposed the application but the original petitioner’s application was allowed rather promptly as early as in 1959 and within one year therefrom the panchanama dated 6.7.1960 was (10) W.P. 1318.1988 recorded. Through this panchanama it is seen that Nathu’s voluntary act of delivery of possession of the land to the petitioners was ratified. Thereafter, Nathu did not take any action for quite some time. On 22.10.1969 he made an application under section 45 for restoration of possession, on the ground that the original petitioners had stopped personal cultivation of the land and had inducted the original respondent no.5 in the land for cultivation. Original respondents opposed this application and repelled Nathu’s attempt to restore possession. As said above, Nathu lost this litigation though he went upto High Court. The position that emerged at that stage was that Nathu’s concern to the said land as tenant had come to an end. In view of this the learned Deputy Collector rightly held that Nathu could not have been held to be a protected tenant of the disputed land. 10] Despite of this clear position, the learned Member of M.R.T. while delivering the impugned judgment, it seems almost lost sight of the fact (11) W.P. 1318.1988 that Nathu had lost the second round of litigation and thus had lost his claim as a tenant to the disputed land. The question before the learned Member was whether Nathu was a protected tenant and whether his right as protected tenant continued even after the second round of litigation? As said above, Nathu’s tenancy came to be terminated way back in 1959. His attempt to restore possession also failed in 1980 and so there was no possibility of holding that Nathu continued to be protected tenant. But the learned Member of the M.R.T. went on discussing how the tenant under section 45 can get an order for restoration of possession and how the right of tenancy remains suspended for first 10 years from the date of the order passed after the land-holder resuming possession for bonafide requirement for personal cultivation. This discussion was rather mis-placed and not relevant. 11] In this case, as said above the tenant’s right to resume possession also came to an end. In view of this, the writ petition deserves to be (12) W.P. 1318.1988 allowed and the impugned order deserves to be set aside. Writ Petition is allowed. Order dated 20.02.1987 passed by the Member, Maharashtra Revenue Tribunal, Aurangabad stands set aside. R & P be sent back. 12] Rule made absolute in the above terms. Sd/- (A.V. NIRGUDE, J.) arp/25june9/WP1318.88