IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 5909 OF 1991. WRIT PETITION NO. 5909 OF 1991. WRIT PETITION NO. 5909 OF 1991. Vijay Dashrath Kognole ..Petitioner. Vs. Shiva Dadu Papit and Ors ..Respondents. Mr A. L. Desai, Advocate for the Petitioner. Mr S. V. Sadavarte, Advocate for respondent Nos. 1 (A) to 1 (F). CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 19th January,2009. DATED: 19th January,2009. DATED: 19th January,2009. P.C.: P.C.: P.C.: ---- ---- ---- 1. Heard the learned counsel for the Petitioner and the learned counsel for the Respondents. Perused petition. 2. This petition, under Article 227 of the Constitution of India, is directed against the order dated 30-8-1991 passed by the President, Maharashtra Revenue Tribunal, Bombay (M.R.T.for short) in Revision No.MRT.KP-102-1990, whereby the revision filed by the Petitioner came to be dismissed and the order dated 27.7.1990 passed by the Sub-Divisional Officer (S.D.O.) directing the Petitioner-landlord to seek negative declaration that Respondent No.1 is not a tenant and thereafter apply for restoration of possession. The Additional Tahsildar, Karveer by an order dated 7-12-1977 had declared Respondent No.1 (Shri Shiwa Dadu Parit) as a trespasser and directed his eviction from the suit lands. 3. The factual matrix reveal that the Petitioner is owner of the subject land of which Respondent No.2, Shri Bapu Bhau Gavli was a tenant. The Additional Tahsildar initiated proceeding under Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (Tenancy Act for short) and by his order dated 30-3-1960 declared Respondent No.2 to be the tenant of the suit land and determined the purchase price and instalments for payment thereof were granted. 4. The learned S.D.O. Kolhapur confirmed the said order in Appeal filed before him. The Respondent No.2 Shri Bapu Bhau Gavli failed to pay the said fixed price, hence the learned Tahsildar initiated proceedings under Section 32-G of the Tenancy Act. The Tahsildar held that Respondent No.2 committed defaults and despite grant of time, he could not pay ( 3 ) purchase price. Respondent No.2 was held not entitled to continue the possession and hence it was ordered that the suit land shall be delivered to the Petitioner in accordance with the provision of Section 32-P(2)(b) of the Tenancy Act. The factual matrix reveal that Respondent No.2 put Respondent No.1 in possession of subject land. It was, thus, prayed that Respondent No.1 is a trespasser and should be summarily evicted. 5. Respondent No.1 Shri Shivappa Dadu Parit refused to deliver possession of the suit land to the petitioner. The petitioner, therefore, filed R.C. Suit No. 277 of 1973 for possession of the suit lands. Respondent No.1 raised a plea of tenancy in the suit. The Civil Court was pleased to frame an issue of tenancy and ordered it to be referred to the Tenancy Authority for decision. 6. The Petitioner challenged the aforesaid order of reference in the Special C.A. No. 2397 of 1978, which was decided on 13-11-1981, holding that in view of decision in 32-P proceedings, the issue is not ( 4 ) required to be framed and decided. Since Respondent No.1 has already been declared as not a tenant, he was held as a trespasser. 7. The aforesaid suit was heard and it was held that the lands being covered under the Tenancy Act and the Petitioner having obtained an order under Section 32-P for possession, the civil court will have no jurisdiction to grant decree for possession of the suit lands. The suit was dismissed. The appeal against the order is pending. 8. The Petitioner applied to the Tahsildar, Karveer for execution of the order dated 7-12-1977 passed in the 32-P proceedings. A notice fixing the date of possession was served on the Respondents. Respondent No.1 Shivappa Dadu Parit filed Tenancy Appeal No. 71/1989 before the S.D.O. challenging the delivery of possession which was issued by the Tahsildar. The said Appeal came to be allowed holding that although summary eviction of the Respondent No.1 was ordered, he was held to be a trespasser still it was necessary to have a negative declaration under ( 5 ) Section 70-B of the Tenancy Act that the Respondent No.1 is not a tenant. 9. Against this order revision being No. MRT.KP-102 of 1990 was filed before the M.R.T. by the Petitioner. The M.R.T. dismissed the said revision vide order dated 30-8-1991 and confirmed the findings of the S.D.O. Karveer. 10. The Petitioner has now invoked writ jurisdiction of this Court under Article 227 of the Constitution of India challenging the said order dated 30-8-1991 passed by the President M.R.T. on the various grounds raised in the petition. CONSIDERATION:- CONSIDERATION:- CONSIDERATION:- ------------- 11. Having heard the learned counsel for the Petitioner, having seen the order of the M.R.T. wherein the Respondent No.1 was held not to be a tenant of the suit land, Respondent No.2 was ordered to hand over possession of the suit land to the Petitioner. Instead of handing over possession to the ( 6 ) Petitioner by Respondent No.2, it appears that Respondent No.1 was allowed to trespass in the suit property. Under these circumstances, it was well within the power of the Petitioner to ask for possession of the said land through the Tenancy Authorities. 12. In the above view of the matter, order passed by the Tahsildar, Karveer dated 7-12-1977 was legal and valid. The view taken by the S.D.O. Karveer directing the petitioner to obtain negative declaration is not legal and valid. He was held to be a trespasser and not a tenant by the competent Court. The impugned order thus cannot be sustained being perverse. Respondent No.1 being trespasser, has no legal right to resist delivery of possession in favour of the petitioner. The petition is, therefore, allowed. The impugned order of M.R.T. is set aside and the order of the Tahsildar dated 7-12-1977 is restored. Rule is made absolute in terms of this order. No order as to costs. ( 7 ) (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)