:1: IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1446 OF 1988 WRIT PETITION NO. 1446 OF 1988 WRIT PETITION NO. 1446 OF 1988 Smt. Kamalabai Rau Dhangar Smt. Kamalabai Rau Dhangar Smt. Kamalabai Rau Dhangar since deceased through her since deceased through her since deceased through her legal heirs : legal heirs : legal heirs : A) Leelabai Shyamrao Landge, A) Leelabai Shyamrao Landge, A) Leelabai Shyamrao Landge, B) Balaso Appanna Pujari, B) Balaso Appanna Pujari, B) Balaso Appanna Pujari, C) Malabai Shivaji Badkar ... Petitioners C) Malabai Shivaji Badkar ... Petitioners C) Malabai Shivaji Badkar ... Petitioners versus versus versus Mahadeo Gopal Javandar ... Respondent Mahadeo Gopal Javandar ... Respondent Mahadeo Gopal Javandar ... Respondent ... ... ... Mr. P. D. Dalvi, for the Petitioners. Mr. P. D. Dalvi, for the Petitioners. Mr. P. D. Dalvi, for the Petitioners. Mr. N. J. Patil, for the Respondent. Mr. N. J. Patil, for the Respondent. Mr. N. J. Patil, for the Respondent. ... ... ... CORAM : A.M.KHANWILKAR,J. CORAM : A.M.KHANWILKAR,J. CORAM : A.M.KHANWILKAR,J. 11th June 2004 11th June 2004 11th June 2004 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : . This writ petition under Article 227 of . This writ petition under Article 227 of . This writ petition under Article 227 of the Constitution of India takes exception to the the Constitution of India takes exception to the the Constitution of India takes exception to the judgment and order dated 12th November 1987 in judgment and order dated 12th November 1987 in judgment and order dated 12th November 1987 in Revision No. MRT-KP-181/84 passed by the Revision No. MRT-KP-181/84 passed by the Revision No. MRT-KP-181/84 passed by the :2: Maharashtra Revenue Tribunal at Camp Kolhapur. Maharashtra Revenue Tribunal at Camp Kolhapur. Maharashtra Revenue Tribunal at Camp Kolhapur. Briefly stated, the Petitioner claims to be the Briefly stated, the Petitioner claims to be the Briefly stated, the Petitioner claims to be the owner in respect of land bearing Survey No. 610 owner in respect of land bearing Survey No. 610 owner in respect of land bearing Survey No. 610 admeasuring 36 gunthas situated at village admeasuring 36 gunthas situated at village admeasuring 36 gunthas situated at village Wadange, taluka Karveer, district Kolhapur. Wadange, taluka Karveer, district Kolhapur. Wadange, taluka Karveer, district Kolhapur. Proceedings under section 32G of the Bombay Proceedings under section 32G of the Bombay Proceedings under section 32G of the Bombay Tenancy and Agricultural Lands Act were commenced Tenancy and Agricultural Lands Act were commenced Tenancy and Agricultural Lands Act were commenced in the year 1960, but were dropped on the finding in the year 1960, but were dropped on the finding in the year 1960, but were dropped on the finding that there was no relationship of landlord and that there was no relationship of landlord and that there was no relationship of landlord and tenant between the parties. Against the said tenant between the parties. Against the said tenant between the parties. Against the said decision, the tenant carried the matter in decision, the tenant carried the matter in decision, the tenant carried the matter in appeal. The appellate authority, in turn, appeal. The appellate authority, in turn, appeal. The appellate authority, in turn, remanded the matter for further enquiry by its remanded the matter for further enquiry by its remanded the matter for further enquiry by its decision dated 29th February 1964. While the decision dated 29th February 1964. While the decision dated 29th February 1964. While the remand proceedings were pending, in the meantime, remand proceedings were pending, in the meantime, remand proceedings were pending, in the meantime, action under section 145 of the Code of Criminal action under section 145 of the Code of Criminal action under section 145 of the Code of Criminal Procedure was commenced wherein the suit land Procedure was commenced wherein the suit land Procedure was commenced wherein the suit land stood attached on 21st January 1963. The stood attached on 21st January 1963. The stood attached on 21st January 1963. The Sub-Divisional Magistrate made reference to the Sub-Divisional Magistrate made reference to the Sub-Divisional Magistrate made reference to the Civil Court for its decision being Criminal Civil Court for its decision being Criminal Civil Court for its decision being Criminal Reference No. 1 of 1963. In the said reference, Reference No. 1 of 1963. In the said reference, Reference No. 1 of 1963. In the said reference, issue was framed by the Civil Court as to which issue was framed by the Civil Court as to which issue was framed by the Civil Court as to which party was in actual possession of the disputed party was in actual possession of the disputed party was in actual possession of the disputed land on the relevant date, i.e., 23-2-1963. The land on the relevant date, i.e., 23-2-1963. The land on the relevant date, i.e., 23-2-1963. The trial Court answered the said issue in favour of trial Court answered the said issue in favour of trial Court answered the said issue in favour of :3: the Petitioner. Later on, the Respondent the Petitioner. Later on, the Respondent the Petitioner. Later on, the Respondent instituted suit against the Petitioner for instituted suit against the Petitioner for instituted suit against the Petitioner for injunction. In the said suit, issue of tenancy injunction. In the said suit, issue of tenancy injunction. In the said suit, issue of tenancy was raised on account of which the Civil Court was raised on account of which the Civil Court was raised on account of which the Civil Court made reference to the tenancy authority under made reference to the tenancy authority under made reference to the tenancy authority under section 85A of the Act. The said reference was section 85A of the Act. The said reference was section 85A of the Act. The said reference was numbered as Tenancy Case No. 30/1965, which was numbered as Tenancy Case No. 30/1965, which was numbered as Tenancy Case No. 30/1965, which was heard and finally decided by the Agricultural heard and finally decided by the Agricultural heard and finally decided by the Agricultural Lands Tribunal by judgment and order dated Lands Tribunal by judgment and order dated Lands Tribunal by judgment and order dated December 15, 1965. The said authority positively December 15, 1965. The said authority positively December 15, 1965. The said authority positively found on appreciation of materials on record that found on appreciation of materials on record that found on appreciation of materials on record that the Respondent failed to prove his possession and the Respondent failed to prove his possession and the Respondent failed to prove his possession and wahiwat in respect of the suit land as tenant. wahiwat in respect of the suit land as tenant. wahiwat in respect of the suit land as tenant. It is not in dispute as has been found by the It is not in dispute as has been found by the It is not in dispute as has been found by the Courts below that this decision was allowed to Courts below that this decision was allowed to Courts below that this decision was allowed to attain finality, as the Respondent did not attain finality, as the Respondent did not attain finality, as the Respondent did not question correctness thereof. However, the question correctness thereof. However, the question correctness thereof. However, the remand proceedings under section 32G of the Act remand proceedings under section 32G of the Act remand proceedings under section 32G of the Act in terms of order passed by the Sub-Divisional in terms of order passed by the Sub-Divisional in terms of order passed by the Sub-Divisional Officer dated February 20, 1964, continued Officer dated February 20, 1964, continued Officer dated February 20, 1964, continued further notwithstanding the aforesaid finding further notwithstanding the aforesaid finding further notwithstanding the aforesaid finding recorded against the Respondent. In view of the recorded against the Respondent. In view of the recorded against the Respondent. In view of the above finding, in fact, no further proceedings above finding, in fact, no further proceedings above finding, in fact, no further proceedings under section 32G of the Act were warranted. Be under section 32G of the Act were warranted. Be under section 32G of the Act were warranted. Be that as it may, the first authority, by judgment that as it may, the first authority, by judgment that as it may, the first authority, by judgment :4: and order dated November 21, 1974, took the view and order dated November 21, 1974, took the view and order dated November 21, 1974, took the view that the Respondent was tenant and entitled to that the Respondent was tenant and entitled to that the Respondent was tenant and entitled to purchase the suit land being deemed purchaser. purchase the suit land being deemed purchaser. purchase the suit land being deemed purchaser. Against this decision, the Petitioner filed Against this decision, the Petitioner filed Against this decision, the Petitioner filed appeal, being Appeal No. 34 of 1975. The appeal, being Appeal No. 34 of 1975. The appeal, being Appeal No. 34 of 1975. The appellate Court by its judgment and order dated appellate Court by its judgment and order dated appellate Court by its judgment and order dated July 30, 1976, allowed the appeal and held that July 30, 1976, allowed the appeal and held that July 30, 1976, allowed the appeal and held that the Respondent was not tenant. That order was the Respondent was not tenant. That order was the Respondent was not tenant. That order was challenged by the Respondent by way of revision challenged by the Respondent by way of revision challenged by the Respondent by way of revision application before the Tribunal, which was, application before the Tribunal, which was, application before the Tribunal, which was, however, allowed by the Tribunal on December 18, however, allowed by the Tribunal on December 18, however, allowed by the Tribunal on December 18, 1977. What is relevant to note is that the 1977. What is relevant to note is that the 1977. What is relevant to note is that the Petitioner moved by way of review petition before Petitioner moved by way of review petition before Petitioner moved by way of review petition before the Tribunal for recall of order dated December the Tribunal for recall of order dated December the Tribunal for recall of order dated December 18, 1977. The Tribunal, upon re-examination of 18, 1977. The Tribunal, upon re-examination of 18, 1977. The Tribunal, upon re-examination of the order, allowed the said review application by the order, allowed the said review application by the order, allowed the said review application by judgment and order dated June 15, 1978. In the judgment and order dated June 15, 1978. In the judgment and order dated June 15, 1978. In the said decision, the Tribunal observed that the said decision, the Tribunal observed that the said decision, the Tribunal observed that the matter deserves to be remanded to the trial Court matter deserves to be remanded to the trial Court matter deserves to be remanded to the trial Court for further examination to find out whether the for further examination to find out whether the for further examination to find out whether the original Petitioner landlady was widow on the original Petitioner landlady was widow on the original Petitioner landlady was widow on the relevant date, for which reason the proceedings relevant date, for which reason the proceedings relevant date, for which reason the proceedings under section 32G should be dropped. The review under section 32G should be dropped. The review under section 32G should be dropped. The review order passed by the Tribunal was challenged by order passed by the Tribunal was challenged by order passed by the Tribunal was challenged by the Respondent before this Court by way of the Respondent before this Court by way of the Respondent before this Court by way of :5: Special Civil Application No. 3145 of 1978. It Special Civil Application No. 3145 of 1978. It Special Civil Application No. 3145 of 1978. It will be apposite to reproduce the order as passed will be apposite to reproduce the order as passed will be apposite to reproduce the order as passed by this Court on October 18, 1982 in the said by this Court on October 18, 1982 in the said by this Court on October 18, 1982 in the said writ petition. The same reads thus : writ petition. The same reads thus : writ petition. The same reads thus : " There is no merit in the present " There is no merit in the present " There is no merit in the present petition. The order impugned now is petition. The order impugned now is petition. The order impugned now is reviewed by the Member, Maharashtra reviewed by the Member, Maharashtra reviewed by the Member, Maharashtra Revenue Tribunal, Kolhapur (hereinafter Revenue Tribunal, Kolhapur (hereinafter Revenue Tribunal, Kolhapur (hereinafter called "The Tribunal") on the basis that called "The Tribunal") on the basis that called "The Tribunal") on the basis that the land-holder one Dadu died on December the land-holder one Dadu died on December the land-holder one Dadu died on December 8, 1956 and because of that the 8, 1956 and because of that the 8, 1956 and because of that the determination under section 32-G of the determination under section 32-G of the determination under section 32-G of the Bombay Tenancy and Agricultural Lands Bombay Tenancy and Agricultural Lands Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called "the Act") Act, 1948 (hereinafter called "the Act") Act, 1948 (hereinafter called "the Act") had to be made all afresh. had to be made all afresh. had to be made all afresh. Mr. Naik submitted that the observations Mr. Naik submitted that the observations Mr. Naik submitted that the observations made by the Tribunal that if Kamlabai is made by the Tribunal that if Kamlabai is made by the Tribunal that if Kamlabai is his widow the proceedings should be his widow the proceedings should be his widow the proceedings should be dropped does not further the ends of dropped does not further the ends of dropped does not further the ends of justice. justice. justice. That is no reason to interfere with the That is no reason to interfere with the That is no reason to interfere with the order. What the order directs is to find order. What the order directs is to find order. What the order directs is to find :6: out the position after the death of Dadu out the position after the death of Dadu out the position after the death of Dadu who, as is found, admittedly died on who, as is found, admittedly died on who, as is found, admittedly died on December 8, 1956. The authority December 8, 1956. The authority December 8, 1956. The authority concerned will have to find out who are concerned will have to find out who are concerned will have to find out who are the legal heirs of Dadu and then, the legal heirs of Dadu and then, the legal heirs of Dadu and then, applying the provisions of the law, will applying the provisions of the law, will applying the provisions of the law, will have to consider the proceedings under have to consider the proceedings under have to consider the proceedings under section 32-G of the Act. section 32-G of the Act. section 32-G of the Act. This being the clear position, no This being the clear position, no This being the clear position, no interference is called for. Rule interference is called for. Rule interference is called for. Rule discharged with no order as to costs." discharged with no order as to costs." discharged with no order as to costs." In the circumstances, the remand proceedings In the circumstances, the remand proceedings In the circumstances, the remand proceedings continued before the first Court, which, in turn, continued before the first Court, which, in turn, continued before the first Court, which, in turn, by judgment and order dated August 1, 1983, found by judgment and order dated August 1, 1983, found by judgment and order dated August 1, 1983, found that the Respondent was not a tenant in respect that the Respondent was not a tenant in respect that the Respondent was not a tenant in respect of the suit land on the Tillers’ Day, i.e., 1st of the suit land on the Tillers’ Day, i.e., 1st of the suit land on the Tillers’ Day, i.e., 1st April 1957. The relevant portion of the April 1957. The relevant portion of the April 1957. The relevant portion of the reasoning in the said decision needs to be reasoning in the said decision needs to be reasoning in the said decision needs to be adverted to at this stage. The same reads thus : adverted to at this stage. The same reads thus : adverted to at this stage. The same reads thus : " Fresh notices are issued and are served " Fresh notices are issued and are served " Fresh notices are issued and are served upon both the parties. On the date of upon both the parties. On the date of upon both the parties. On the date of :7: enquiry the opponent tenant given written enquiry the opponent tenant given written enquiry the opponent tenant given written pursis and states that he has already pursis and states that he has already pursis and states that he has already given his say earlier in this case and given his say earlier in this case and given his say earlier in this case and further do (does) not want to add or say further do (does) not want to add or say further do (does) not want to add or say more. The applicant landlords say has more. The applicant landlords say has more. The applicant landlords say has been recorded. She says that case u/s been recorded. She says that case u/s been recorded. She says that case u/s 85-A of the B.T. and A.L. Act was 85-A of the B.T. and A.L. Act was 85-A of the B.T. and A.L. Act was already decided in her favour and further already decided in her favour and further already decided in her favour and further it is ordered therein that the opponent it is ordered therein that the opponent it is ordered therein that the opponent was not a tenant on 1.4.1957. On going was not a tenant on 1.4.1957. On going was not a tenant on 1.4.1957. On going through the case papers, statements it is through the case papers, statements it is through the case papers, statements it is revealed that the applicant was a widow revealed that the applicant was a widow revealed that the applicant was a widow on 1.4.1957 as her husband’s father on 1.4.1957 as her husband’s father on 1.4.1957 as her husband’s father expired on 8.12.56. This date of death expired on 8.12.56. This date of death expired on 8.12.56. This date of death is supported by death extract issued by is supported by death extract issued by is supported by death extract issued by the Competent Authority. Moreover a the Competent Authority. Moreover a the Competent Authority. Moreover a Court reference u/s 85-A of the B.T. and Court reference u/s 85-A of the B.T. and Court reference u/s 85-A of the B.T. and A.L. Act 1948 was instituted between the A.L. Act 1948 was instituted between the A.L. Act 1948 was instituted between the parties. The Tenancy A.K. Karvir under parties. The Tenancy A.K. Karvir under parties. The Tenancy A.K. Karvir under his Case No. 30/65 dt. 15.12.65 decided his Case No. 30/65 dt. 15.12.65 decided his Case No. 30/65 dt. 15.12.65 decided that the Opponent tenant was not a tenant that the Opponent tenant was not a tenant that the Opponent tenant was not a tenant on the tillers day. The opponent Tenant on the tillers day. The opponent Tenant on the tillers day. The opponent Tenant has not challenged this order. So it is has not challenged this order. So it is has not challenged this order. So it is finally decided that Opponent is not a finally decided that Opponent is not a finally decided that Opponent is not a tenant. tenant. tenant. :8: Moreover the applicant was a widow on Moreover the applicant was a widow on Moreover the applicant was a widow on tillers day so the provisions of 32-G are tillers day so the provisions of 32-G are tillers day so the provisions of 32-G are not applicable. So the proceeding is not applicable. So the proceeding is not applicable. So the proceeding is required to be dropped. ..." required to be dropped. ..." required to be dropped. ..." Accordingly, the authority ordered that Accordingly, the authority ordered that Accordingly, the authority ordered that proceedings under section 32G of the said Act proceedings under section 32G of the said Act proceedings under section 32G of the said Act needs to be dropped. Against this decision, the needs to be dropped. Against this decision, the needs to be dropped. Against this decision, the Respondent carried the matter in appeal. Even Respondent carried the matter in appeal. Even Respondent carried the matter in appeal. Even the appeal came to be dismissed. The appellate the appeal came to be dismissed. The appellate the appeal came to be dismissed. The appellate authority more or less reiterated the view taken authority more or less reiterated the view taken authority more or less reiterated the view taken by the first authority as reproduced above. by the first authority as reproduced above. by the first authority as reproduced above. . Insofar as the issue as to whether the . Insofar as the issue as to whether the . Insofar as the issue as to whether the Respondent was lawful tenant in respect of the Respondent was lawful tenant in respect of the Respondent was lawful tenant in respect of the suit land is concerned, the appellate authority suit land is concerned, the appellate authority suit land is concerned, the appellate authority observed thus : observed thus : observed thus : "In order to establish relationship of "In order to establish relationship of "In order to establish relationship of tenant and landlord between the two tenant and landlord between the two tenant and landlord between the two parties, there should invariably be a parties, there should invariably be a parties, there should invariably be a lease deed and rent receipts. A person lease deed and rent receipts. A person lease deed and rent receipts. A person who has got tenancy rights in an who has got tenancy rights in an who has got tenancy rights in an agricultural land according to law is agricultural land according to law is agricultural land according to law is :9: required to pay the assessment and other required to pay the assessment and other required to pay the assessment and other Govt. cesses, but on perusal of the Govt. cesses, but on perusal of the Govt. cesses, but on perusal of the proceeding of this case, I have observed proceeding of this case, I have observed proceeding of this case, I have observed that Shri Mhadu Javandal has totally that Shri Mhadu Javandal has totally that Shri Mhadu Javandal has totally failed to produce any type of such failed to produce any type of such failed to produce any type of such document in order to prove his tenancy in document in order to prove his tenancy in document in order to prove his