1 unreported IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2259 OF 1991. Kishanrao S/o Piraji Aukale, Age 40 years, Occ.Agriculture, R/o Pimpri (Deshmukh), Taluka and District Parbhani. ... Petitioner. Versus 1. Manaji S/o Ganpati, died per heirs and legal representatives : i) Balasaheb S/o Manaji, Aged 35 years, Occ.Agril., R/o Pimpri (Deshmukh), Tq. and Dist. Parbhani. ii) Sudam S/o Waman Aukale, died through L.Rs. 1(ii-a) Smt.Parvatibai W/o Waman Aukale, Age 45 years, Occ. Agricultural and Labourer, R/o Pimpri (Deshmukh), Tq. and Dist. Parbhani. 2) Bapurao S/o Ganpati, since deceased through L.Rs. i) Baburao S/o Bapurao Aukale, Age 55 years, Occ.Agri., R/o Pimpri (Deshmukh), Tq. & Dist. Parbhani. 2 ii) Shrirang S/o Bapurao Aukale, Age 41 years, Occ.Agri., R/o Pimpri (Deshmukh), Tq. & Dist. Parbhani. iii) Smt.Ansabai W/o Bapurao Aukale, Age 75 years, Occ.Agri., R/o Pimpri (Deshmukh), Tq. & Dist. Parbhani. 3. Maharashtra Revenue Tribunal, Aurangabad, through Registrar. ... Respondents. ... Mr. R.P.Dhase, advocate for the petitioner. Mr.Sachin Bhise, advocate holding for Mr.S.B.Bhapkar, advocate for the Respondent No. 1(i). Mr.B.N.Patil, advocate for Respondent Nos.2(i), 2(ii) and 2(iii). Mr.D.R.Kale, A.G.P. for the Respondent No.3. ... CORAM : V.R.KINGAONKAR,J. Date : 15.01.2010. ORAL JUDGMENT 1. By this petition, the landlord seeks to challenge judgment and order rendered by the Maharashtra Revenue Tribunal, Aurangabad in Tenancy Case No.52/B/90-Parbhani. 2. The petitioner claims to be adopted son of deceased Girjabai. She was original owner of the land in question i.e. S.No.100/A situated at 3 village Pimpri (Deshmukh) Dist. Parbhani. Indisputably, the land in question was declared in favour of deceased Respondent No.1 - Manaji and Respondent No.2 - Bapurao. They were the real brothers inter se. The declaration U/s 38-E of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (for short, "HT and AL Act") was granted after due inquiry U/s 38-E(1) of the said Act. The Tenancy Tribunal fixed amount of Rs.637-50 as the statutory purchase price. 3. The petitioner filed an application for cancellation of the statutory declaration certificate U/s 38-E and restoration of possession of the said land on the ground that the tenants did not pay the price which was fixed by the Tribunal. It was further asserted that the tenants had divided the land amongst themselves, without following due procedure and as such committed breach of the conditions imposed in the declaration certificate. 4. The Additional Tashildar dismissed the application filed by the petitioner. Aggrieved 4 thereby, the petitioner preferred appeal vide Case No.1987/TNC/A/55 which was allowed by the leaned Deputy Collector, Parbhani. The Deputy Collector (L.R.) directed that the petitioner shall be inducted in actual possession of the land in question. The declaration Certificate U/s 38-E was ordered to be cancelled. The tenants preferred Revision Application before the Maharashtra Revenue Tribunal, Aurangabad, against the said judgment rendered by the Deputy Collector (L.R.). The MRT allowed the Revision Application and held that the certificate U/s 38- E could not be cancelled nor the petitioner was entitled to seek restoration of possession. Feeling aggrieved, the petitioner has preferred this Writ Petition. 5. Heard learned counsel and learned A.G.P. 6. The petitioner is not original landlord as such. He claims ownership rights as adopted son of the landlord. His status as a landlord was also subject of dispute before the Tahsildar. 5 He did not produce adoption deed during course of the inquiry before the concerned Tahsildar. Apart from the said disputed question, it is pertinent to note that the Tribunals have consistently held that the internal arrangement made by the tenants can not be treated as transfer because both the brothers got divided their shares by way of amicable settlement. The Tribunals have consistently held that the tenancy rights can not be abrogated on account of such internal division of the land in question by the tenants who were jointly cultivating the said land as on the tillers' day. There is no perversity noticed in respect of such a finding. 7. So far as non-payment of the price amount is concerned, it is significant to note that a part of the amount was already deposited by the tenants. They had raised dispute because according to one of them the entire amount could not be deposited by him on account of internal partition and another brother was equally responsible to pay the amount of price money. The application was moved U/s 19(2) of the HT and 6 AL Act. The MRT held that the statutory ownership was bestowed on the tenant and, therefore, Section 19(2) of the HT and AL Act was inapplicable to the fact situation. It is pertinent to notice that application U/s 19(2) could be filed by the owner of the agricultural land. The ownership itself was transferred in favour of the tenants and, therefore, they had became statutory owners. With the result, the application could not be filed U/s 19(2) of the HT and AL Act. 8. The tenants lateron deposited the entire amount of determined price. A Division Bench of this Court in "Ganpat Sakharam Deshmukh Vs. Yeshwant Digambar Deshmukh" 2000 (1) Mh.L.J. 126, held that to make transfer U/s 38-E effective, the provisions of sub-section (3) of the said section alone will apply and the provisions of clause (d) of sub-section (6) of Section 38 do not come into play at all. The legal point involved in the present case is duly covered by the decision of the Division Bench in "Ganpat Sakharam Deshmukh Vs. Yeshwant Digambar 7 Deshmukh" (supra). The two conditions which are to be satisfied to seek restoration of tenanted land are : "(i) The tenant commits default in payment of entire amount of purchase price; (ii) In respect of the proceedings of recovery, the entire price amount could not be recovered." In the case in hand, there was no attempt to recover the entire purchase price from the tenant. The conditions for restoration of possession to the landlord are, therefore, not satisfied. In this view of the matter, the impugned judgment is quite legal and proper. No interference is called for. 9. In the result, the petition is dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/wp225991 8