1 wp-1180.93 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1180 OF 1993 Ganpati S/o. Krishna Kamble. .. Petitioner. Vs Anuradha w/o. Shridhar Potdar & Others. .. Respondents -- Shri G.R. Rege with Shri V.D. Raut for the Petitioner. Shri Vishal Kanade i/by Shri Jai Kamble for Respondent Nos.1 to 5. -- SUBMISSIONS WERE HEARD ON : 21ST OCTOBER, 2010. JUDGMENT PRONOUNED ON : 6TH DECEMBER, 2010 CORAM : A.S.OKA, J. JUDGMENT : By this Writ Petition under Article 227 of the Constitution of India, the Petitioner has taken an exception to the judgment and order dated 7th February, 1989 passed by the Sub-Divisional Officer, Walwa, District – Sangli in an appeal under Section 74 of the Bombay Tenancy and Agricultural Lands Act, 1948 ( hereinafter referred to as “the said Act” ) which has been confirmed in a Revision by the learned Member of the Maharashtra Revenue Tribunal. 2 wp-1180.93 2. The present Petitioner made an application before the Tahsildar under Section 70(b) of the said Act. The contention of the Petitioner is that he is an agricultural tenant in respect of the land bearing Gat No.89 admeasuring 2 Hectares and 45 Ares situated at village Devarde, Taluka – Walwa, District – Sangli. 3. The case made out by the Petitioner is that one Ramchandra Nana Potdar, the predecessor of the Respondents was the owner and the landlord of the said land. It is contended that the said land was cultivated by one Vithu Kondiba Kamble who died in the year 1955 and since then, the Petitioner has been in possession of the said land and has been cultivating the same. It is contended that the said Vithu was a cousin of the Petitioner and that he died issueless. Another contention raised is that during the lifetime of Vithu, the said Vithu along with the Petitioner were cultivating the said land jointly and that they were living in the same house as members of the same family. 4. The said Ramchandra died in the year 1979. His son Shridhar inherited the said land who expired in the year 1982. It is alleged that the 4th Respondent herein dispossessed the Petitioner on 5th July, 1985 and destroyed the crops on the said land. It was contended that at the instance of the Petitioner, the proceedings under Section 145 of the Code of Criminal Procedure, 1973 ( hereinafter referred to as “the said Code” ) were initiated 3 wp-1180.93 and the crop was attached under Section 146(1) of the said code. It is contended that the landlord did not apply under Section 29 of the said Act and has also not obtained the certificate under Section 88(c) of the said Act. The Petitioner filed an application under Section 70(b) of the said Act claiming declaration that he was the agricultural tenant in respect of the said land. 5. The application was contested by the Respondents. The parties adduced evidence, both oral and documentary. The Tahsildar found that the witnesses examined by the Petitioner deposed that the Petitioner has been cultivating the said land for a long time. The Tahsildar came to the conclusion that in view of Section 4 of the said Act, the Petitioner was the tenant in respect of the said land. Therefore, the application was allowed by the Tahsildar by holding that the Petitioner was the tenant in respect of the suit land prior to 1st April, 1957. The Tahsildar directed that the possession shall be handed over to the Petitioner after expiry of the appeal period. 6. The Respondents preferred an appeal before the Sub- Divisional Officer for challenging the order of Tahsildar. The appeal was allowed by setting aside the said order. A finding was recorded that 7/12 extracts show that the Respondents have been cultivating the suit land from the year 1953. The Appellate Authority observed that not a single receipt was produced by the Petitioner showing that he was paying land revenue in 4 wp-1180.93 respect of the said land. The Appellate Authority held that the said Vithu surrendered his tenancy rights in the year 1947 and that by an order dated 9th April, 1948, the Aval Karkun accepted the surrender. The Appellate Authority observed that it was necessary for the Mamlatdar to verify the surrender and Mamlatdar must be satisfied that the tenant understood the nature and consequences of the surrender. The Appellate Authority found that though the landlord applied under Section 24 of the Old Act of 1939, there was no verification and, therefore, the order dated 9th April, 1948 was void ab initio. The Appellate Authority also recorded that the landlord had obtained possession of the said land without taking recourse to Section 29(2) of the said Act. However, the Appellate Authority observed that since the case of surrender was prior to 1948, making an application under Section 24 of the Old Act was sufficient. The Appellate Authority observed that the tenant ought to have made an application under Section 29(1) of the said Act within a period of two years from the date on which the right accrued to him to take possession. The Appellate Authority observed that as the Petitioner has not proved his tenancy rights, he cannot challenge the order of surrender. The Appellate Authority also noted that the original tenant Vithu died issueless but the present Petitioner had not proved that he is a legal heir of Vithu. It was held that there is no material to show that the Petitioner and the said Vithu were jointly cultivating the said land. The Appellate Authority observed that the Tahsildar has not considered the cross-examination of the witnesses and only the examination-in-chief of the witnesses has been considered. Therefore, the Appellate Authority 5 wp-1180.93 proceeded to allow the appeal and set aside the order of Tahsildar. 7. The learned Member of the Maharashtra Revenue Tribunal noted that in the order dated 9th April, 1948 passed by the Aval Karkun, it was noted that Vithu was the tenant who surrendered the tenancy rights. It is noted that the name of Vithu did not appear in 7/12 extracts from the years 1953-1954 till his death. It was observed that there is no evidence to show that the Petitioner was a cousin of the deceased tenant. The learned Member therefore confirmed the judgment of the Appellate Authority. 8. The learned counsel appearing for the Petitioner invited the attention of the Court to the finding recorded by the Appellate Authority that the alleged surrender by Vithu was ab initio void. He submitted that there is no dispute that Vithu was the tenant and the finding of the Appellate Authority which is not disturbed is that the alleged surrender by Vithu is illegal and in fact null and void. He submitted that once it is held that there was no valid surrender by Vithu, in view of Section 40 of the said Act, an inquiry and adjudication is required to be made for determining whether the Petitioner is the legal representative of the said Vithu. He submitted that the inquiry regarding heirship will have to be made and only in the inquiry it can be ascertained whether the Petitioner is the legal representative of the original tenant. 6 wp-1180.93 9. The learned counsel appearing for Respondent Nos.1 to 5 submitted that the Petitioner has no concern with the original tenant Vithu and there is nothing on record to show that he is a legal representative of the original tenant. He submitted that there is no clear finding that the surrender by the original tenant in the year 1948 was illegal. He submitted that in any event, the original tenant or his successor did not apply under Section 29 of the said Act for restoration of possession. He submitted that the remedy under Section 29(1) of the said Act has been lost long back due to bar of limitation and therefore, the rights of the original tenant and/or his legal representatives stand extinguished. He placed reliance on a decision of this Court in the case of Ramchandra Balwantrao Dubal v. Dhondiram Tatoba Kadam & Another ( 1980 Bom.C.R. 826 ). He relied upon a decision of the Apex Court in the case of Dhondiram Tatoba Kadam v. Ramchandra Balwantrao Dubal ( since deceased by his Lrs. & Another [(1994)3 SCC 366 ]. He submitted that unless an application for restoration of possession is made by the tenant within the stipulated period of limitation from the date of surrender which is held to be illegal, the tenant cannot claim status as a tenant and, therefore, the view taken by the Appellate Authority as well as Revision Authority is correct. 10. I have given careful consideration to the submissions. There does not appear to be any dispute that one Vithal alias Kondiba Kamble was the original tenant. Under the order dated 9th April, 1948 passed by the Aval Karkun, the surrender of tenancy of the said Vithu was accepted. The 7 wp-1180.93 Appellate Authority has recorded a categorical finding that before accepting surrender in accordance with the provisions of Section 24 of the Bombay Tenancy and Agricultural Lands Act, 1939, the Mamlatdar was duty bound to satisfy himself that the tenant had understood consequences of surrender and that the surrender was voluntary. It was observed by the Appellate Authority that the record shows that Mamlatdar did not carry out verification. There is a specific finding recorded by the Appellate Authority that the order dated 9th April, 1948 was void ab initio as contended by the Petitioner. It was also observed that the landlord did not make any separate application under Section 29 of the said Act for possession. This finding recorded by the Appellate Authority that the surrender by Vithu was void ab initio has not been disturbed by Maharashtra Revenue Tribunal in revision. Thus, there was no surrender of tenancy by Vithu. 11. It appears that before the Tahsildar, the case made out by the Petitioner was that after the death of Vithu, the Petitioner was cultivating the suit land. It was contended that the said Vithu was a cousin of the Petitioner and the said Vithu died issueless. It was alleged by the Petitioner that he was cultivating the suit land jointly with Vithu and he was residing in the same house with Vithu. It is alleged that after demise of Shridhar Ramchandra Potdar, the 4th Respondent dispossessed the Petitioner on 5th July, 1985 and, therefore, the Petitioner had to approach the Executive Magistrate by filing proceeding under Section 145 of the Code of Criminal Procedure, 1973. The oral evidence was adduced by the Petitioner to prove 8 wp-1180.93 his possession from the year 1955. After considering the oral evidence, the Tahsildar recorded a finding that the Petitioner was cultivating the suit land. The Tahsildar also considered the documentary evidence produced by the Respondent in the form of entries in 7/12 extracts. Thus, the specific case of the Petitioner was that till 1985, he continued to be in possession. In the later part of the judgment of the Appellate Authority, a reference in brief has been made to the oral evidence of the witnesses. The Appellate Authority observed that the witnesses examined by the Petitioner have made contradictory statements, but this fact has not been noticed by the Mamlatdar. The Appellate Authority observed that the statements were unreliable. The Appellate Authority also observed that the same weightage has to be given to the witnesses examined by the Respondents. Therefore, the Appellate Authority relied upon the entries in the revenue record in favour of the Respondents. Only few sentences in the deposition of the three witnesses examined by the Petitioner have been quoted by the Appellate Authority. The portions which are quoted are not inconsistent with the case of the Petitioner that he was in possession. The Maharashtra Revenue Tribunal has made a reference to the entries in the revenue records and has confirmed the finding of the Appellate Authority. However, the Maharashtra Revenue Tribunal has not made any reference to the evidence of the witnesses and the statements of the witnesses extracted in the judgment of the Appellate Authority which were not at all inconsistent with the case of possession pleaded by the Petitioner. 9 wp-1180.93 12. The Appellate Authority observed that the Tahsildar has considered only the examination-in-chief of the witnesses. However, the Appellate Authority has not adverted to any specific admissions which allegedly destroyed the case made out by the witnesses of the Respondents in their examination-in-chief. As stated earlier, the portions which are quoted by the Appellate Authority are only of 4 or 5 sentences from the evidence of the three witnesses. 13. The Appellate Authority has observed that Vithu died issueless. In one sentence, the Appellate Authority has stated that the claim of the Petitioner that he was legal heir of Vithu has not been substantiated. On this aspect, it must be noted that the Tahsildar has not made any inquiry as regards the heirship. Once it is held that Vithu was the tenant and his alleged surrender was void ab initio, the question whether the Petitioner is a legal representative or heir of Vithu could have been decided only after holding an inquiry in that behalf. 14. The submission of the learned counsel appearing for the Respondents based on the decision of this Court in the case of Ramchandra Balwantrao Dubal (supra) is that assuming that the surrender was void, the application for restoration of possession was not made by the original tenant within the stipulated period of limitation and, therefore, the right of the tenant stands extinguished. There cannot be any dispute about the proposition laid down in the decision relied upon by the learned counsel 10 wp-1180.93 appearing for the Respondents. However, in the present case, the factual contention of the Petitioner is that he continued to be in possession from 1955 till 1985 when he was dispossessed by the 3rd Respondent. As pointed out earlier, the finding of the Appellate Authority on this aspect is totally unsatisfactory and consideration of Maharashtra Revenue Tribunal is based only on the entries in the revenue records and there is no consideration of oral evidence. The argument made by the Respondents can be accepted only if there is a proper finding of fact recorded that the case made out by the Petitioner as regards his possession from 1955 is not proved. His case is that during the lifetime of Vithu, he along with the said Vithu were jointly cultivating the suit land. 15. Considering the cryptic findings of the Appellate Authority on the issue of possession and non-consideration of the evidence by the Appellate Authority as well as by the Tribunal, this is a fit case where the order of remand will have to be passed to the first Authority for deciding the issue relating to the possession on the basis of the material which is already placed on record. The Tahsildar will have to also hold an inquiry as regards the heirship of the original tenant Vithu and record a finding whether the Petitioner is entitled to inherit the tenancy. It must be clarified that the finding that the surrender by Vithu was void ab initio stands confirmed. Therefore, inquiry after remand will be confined to the aforesaid two aspects. 11 wp-1180.93 16. Hence, I pass the following order. (a) The impugned orders as well as the order dated 2nd January, 1987 passed by the Tahsildar, Walva (Islampur) are quashed and set aside. (b) The proceedings of the Tenancy Case No.2 of 1985 is restored to Tahsildar. (c) The Tahsildar shall hear the parties on the basis of the evidence which is already on record and shall record a finding on the claim made by the Petitioner that Vithu continued to be in possession till his death in the year 1955, that the Petitioner was cultivating the suit land jointly till death of Vithu and that he continued to be in possession till 1985 when he was dispossessed by the 3rd Respondent. (d) The Tahsildar shall also decide whether the Petitioner was a legal heir of the deceased Vithu and was entitled to inherit tenancy. (e) The Tahsildar shall decide the matter as expeditiously as possible and preferably within a period of six months from the date on which an authenticated copy 12 wp-1180.93 of this order is produced before him. (f) All contentions of the parties on the aforesaid two issues are kept open. (g) Rule is made partly absolute in above terms with no orders as to costs. (h) The record of the case be forthwith sent back to the concerned Authority. (A.S.OKA, J) After the judgment is pronounced, Learned counsel appearing for Respondent Nos.1 to 5 prays for stay of operation of this order. It is directed that the operation of this order will remain stayed for a period of eight weeks from today. ( A.S. OKA, J )