1 dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO.570 OF 1990 1. Smt.Subhadrabai w/o.Ganpatrao Ingale since deceased by heir heirs and legal representatives: A. Vyankatesh Arjunrao Ingale, residing at June Rajwada near Karvir Nagar Wachanalaya, Kolhapur. 2. Smt.Vithabai Joti Patil, since deceased by heirs heir and legal representatives: Maruti Joti Patil residing at Hatkanangale, Taluka: Gadhinglaj, District Kolhapur. Petitioners vs. Shri Babu Appa Nesarkar, residing at Hatkanangale taluka Gadhinglaj District Kolhapur. Respondent Mr.S.G.Karandikar for the petitioner. Mr.G.S.Godbole for the respondent. CORAM : R.V. MORE,J. DATED : 29th July, 2008 ORAL JUDGMENT: Heard the learned counsel for the respective parties. 2. This writ petition filed under Article 227 of the Constitution of India takes exception to the order dated 22.12.1989 passed by the learned Member, Maharashtra Revenue Tribunal, Pune in Review Application bearing 2 No.MRT.KP.1-1987 whereby the respondent’s review application was allowed and the earlier order dated 12.08.1987 was quashed and set aside and the matter was remanded to the trial court for fresh decision. 3. Few facts for the purposes of disposal of present writ petition are as follows: . The dispute is about Gat No.998 (Old Survey No.111/1) admeasuring 7 acres 15 gunthas approximately (hereinafter for the sake of brevity called as "the said land"). There is no dispute that petitioner no.1 was owner of the said land and one Joti Patil, predecessor-in-title of petitioner no.2 was a tenant in respect of 5 acres and 15 gunthas of the said land and one Sattu (Sataba) Appa Nesarkar was tenant in respect of 2 acres. There is also no dispute that the tenant-Joti Patil died leaving behind widow Vithabai and a son Maruti Joti Patil, the petitioner no.2. There is also no dispute that Sataba died after 1.4.1957 and the present respondent is real brother of Sataba @ Sattu. 4. The landlady Smt.Subhadrabai obtained certificate under Section 88-C of Bombay Tenancy and Agricultural Act, 1948 (for short, "BT & AL Act"). However, she could not get possession of the said land from the tenant and, therefore, proceedings under Section 32-G 3 read with Section 33-C commenced. By order dated 6.1.1979 passed by the Tahsildar, purchase price was fixed in favour of the respondent who claimed to be sole tenant in respect of the entire suit land. 5. The landlady Subhadrabai as well as widow of Joti challenged the aforesaid order of Tahsildar, fixing purchase price in favour of respondent by filing Tenancy Appeal Nos. 24/1979 and 25/1979 respectively before the Assistant Collector, Gadhinglaj. Both these Appeals came to be allowed and matters were remanded back to the Additional Tahsildar & A.L.T. for fresh hearing. 6. After remand, there was compromise between the landlady Subhadrabai and petitioner no.2-Maruti Patil in respect of land admeasuring 5 acres and 15 gunthas in which Joti Patil was tenant. Under the compromise, the petitioner no.2 purchased 2 acres of the land and the land admeasuring about 3 acres and 5 gunthas was retained by the landlady Subhadrabai. In view of the compromise, the Additional Tahsildar and A.L.T., Gadhingalaj held that petitioner no.2-Maruti Patil purchased two acres of land and two acres of land is purchased by Laxmibai, the widow of ‘Sataba and her brother-in-law’ i.e. the present respondent. 7. The respondent thereafter preferred Appeal bearing 4 No.20/1985 before the Sub Divisional Officer, Gadhinglaj. By order dated 27.03.1986 the S.D.O. not only dismissed the respondent’s Appeal and confirmed the purchase price, but deleted the word "and her brother-in-law" in the operative part of the order of Additional Tahsildar and A.L.T. The respondent thereafter challenged the above order of S.D.O. before the Maharashtra Revenue Tribunal by filing Revision and the M.R.T., after hearing both the sides, by its order dated 12.08.1987 dismissed the respondent’s Revision. 8. The respondent thereafter filed Review Application on 12.11.1987 and this Review Application was allowed by the learned Member of the Tribunal by the order impugned in the present petition. 9. Mr.Karandikar, the learned counsel for the petitioner, submitted that the Maharashtra Revenue Tribunal, could not have entertained the Review Application filed by the respondent after recording the finding that there was no discovery of new and important material and that there was no mistake or error apparent on the face of record. He further submitted that the Tribunal could not have recorded the finding of tenancy in favour of respondent in respect of entire land. He further submitted that the learned Member of the Tribunal placed reliance on mutation entry no.525 and 5 the statement of Vithabai dated 6.11.1978 to come to the conclusion that respondent is tenant in respect of entire land. He further submitted that this mutation entry was effected pursuant to the order of the Tahsildar which was already set aside and the statement of Vithabai cannot be construed to hold that the respondent is tenant in respect of entire land. 10. Mr.Godbole, the learned counsel for the respondent, per contra, supported the impugned order. He submitted that the learned Member of the Tribunal rightly allowed Review Application since the learned Member found that there is sufficient reason to review the order. He submitted that the statement of Vithabai dated 6.11.1978 is sufficient to infer the respondent’s tenancy in view of the provisions of Section 4 of BT & AL Act. He lastly submitted that no interference is called for in the impugned order in the exercise of this Court’s jurisdiction under Article 227 of the Constitution of India. 11. Having heard the learned counsel for the respective parties and having gone through the impugned order and the orders passed by the Additional Tahsildar and A.L.T. as well as S.D.O., I am of the considered opinion that there is merit in the petition. The learned Member of the Tribunal by order dated 12.8.1987 dismissed the 6 respondent’s Revision. The learned Member of Tribunal took into consideration the statement of respondent made on 30.9.1978 before the Additional Tahsildar and ALT to the effect that the said land belong to landlady Subhadrabai and after the demise of Joti Patil in or about 1957, since nobody was there he began to cultivate the said land on his behalf. The learned Member of the Tribunal also recorded the finding that the tenancy rights in favour of the respondent never established as per his own saying that he was only cultivating the said land along with Joti Patil. 12. The abovereferred Review Application came to be filed under Section 322 of the Maharashtra Land Revenue Code, 1966. Under Section 322, the Tribunal may, either on its own motion or on the application of any party interested entitled to review its own decision. Proviso to section 322 puts restriction on Tribunal’s powers to review its own order. In view of proviso, the Tribunal can review its order only on the ground (i) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of such party or could not be produced by him at the time when its decision was made, (ii) that there has been some mistake or error apparent on the face of the record and (iii) for any other sufficient reason. The learned Member of the Tribunal in paragraph 9 of the 7 impugned order has observed that review application cannot be considered on the ground that there is apparent error on the face of record or there is discovery of new material. The learned Member of the Tribunal, however, held that there are sufficient reasons to review the earlier order and on this basis, the review application was entertained and ultimately allowed by quashing and setting aside the earlier order dated 12.08.1987. 13. The learned Member of the Tribunal mainly took into consideration two circumstances to entertain the Revision on the ground of "any other sufficient reason" namely (1) mutation entry no.525 was effected and duly certified on 17.11.1979 in favour of respondent mutating his name as tenant to the said property and (2) the statement of deceased Vithabai recorded on 6.11.1978 in which she stated that after the death of her husband Joti Patil, the respondent was cultivating the said land. In my considered opinion, the learned Member of Tribunal committed serious error in taking into consideration the above two circumstances. The mutation entry no.525 was effected and certified in favour of the respondent in pursuance of order of Additional Tahsildar and A.L.T. passed on 6.1.1979. There is no dispute that this order was subsequently set aside by the S.D.O. in Tenancy Appeal Nos. 24/1979 and 25/1979 on 7.8.1981. 8 Thus, the learned Member of the Tribunal relied upon the Mutation Entry, recorded in pursuance of an order, which was already set aside. In that view of the matter, the reliance placed by the learned Member of the Tribunal in respect of mutation entry is misplaced and that could not have been the ground to review the earlier order. 14. So far as the statement of deceased Vithabai recorded on 6.11.1978 is concerned, the same also does not advance the respondent’s case any further in view of definition of phrase "to cultivate personally". The phrase "to cultivate personally" is defined in Section 2(6). Explanation I reads as follows: "Explanation.I- A widow or a minor, or a person who is subject to physical or mental disability, or a serving member of the armed forces shall be deemed to cultivate the land personally if such land is cultivated by servants, or by hired labour, or through tenants." . In view of above explanation, the respondent cannot become tenant of the said land assuming that he was cultivating the said land after the demise of Joti Patil. Thus, even the second ground could not have been relied upon by the learned Member of the Tribunal to review its earlier order. 9 15. In the facts and circumstances of the case, the impugned order deserves to be quashed and set aside. Writ Petition is accordingly allowed. Rule is made absolute in terms of prayer (b). There shall be no order as to costs. [R.V. [R.V. [R.V. MORE,J.] MORE,J.] MORE,J.]