1 HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 196 OF 1992. Maruti Balu Patil, Post-Adulr Kond Karul, Dist: Ratnagiri. ..Petitioner. Versus. Smt. Sulbha Prabhakar Patil, Post- Adur, Kond Karul, Tal: Guhanagar, Dist: Ratnagiri. ..Respondent. --- Shri. S. P. Thorat for the petitioner. Shri. C.G. Parulekar for the respondent. CORAM: S.B.MHASE,J. DATE : MARCH 18, 2006. Oral Judgment.: 1.? This writ petition is directed as against judgment and order passed by the Maharashtra Revenue Tribunal (Hereinafter referred to as "the MRT") on 30th September 1991 in a proceeding No. TNA -46 / 1991 whereby the said revision application was allowed and both the orders, ie., Order passed by the Sub-Divisional 2 Officer (Hereinafter referred to as "the SDO".) and Order passed by the Tahasildar, Chiplun were set aside, and the respondent who was revision petitioner before the MRT was declared to be the tenant of the suit land under section 70(b) of the Bombay Tenancy & Agricultural Land Act, 1948. (Hereinafter, in short referred to as "the Tenancy Act."). 2.? The proceeding arises from Tenancy Case 19 of 1986 (Number was wrongly quoted as 19 of 1987 by the Tahasildar). Respondent - Sulbha filed a tenancy case bearing No. 19 of 1986 under section 70(b) of the Tenancy Act seeking a declaration that the respondent is tenant of land - Survey No. 108/37 admeasuring 0-H, 3.3-R assessed at 48 paise, situated at Guhagar, Taluka- Guhagar, District- Ratnagiri. The said application was filed on 29th September 1986. By order dated 20.7.1987, Tahasildar, Guhagar allowed the said application and declared that the respondent is tenant of the said land. The said order of the Tahasildar was challenged by the petitioner - alleged landlord by filing tenancy appeal No.13 3 of 1987 before the SDO, Chiplun. The tenancy appeal No.14 of 1987 was decided on 20.12.1989 by the SDO, Chiplun. The said appeal was allowed and the order passed by Tahasildar in tenancy case No.19 of 1986, referred to above, was set aside and the matter was remanded for fresh inquiry in the light of the observations made in the said judgment. After remand of case to Tahasildar, instead of continuing the case on previous number, it was re-numbered as Tenancy Case No.9 of 1990. After fresh inquiry, Tahasildar Guhagar by judgment dated 26.4.1990 decided Tenancy Case No.9 of 1990 (Original Tenancy Case No. 19 of 1986). By the said judgment, Tahasildar dismissed claim of the respondent that respondent is tenant of the suit land.The respondent, therefore, filed an appeal under section 74 of the Tenancy Act before the SDO, Chiplun being Tenancy Appeal No. 8 of 1990. The SDO, Chiplun by order dated 4 31.12.1990 dismissed the said appeal confirming the order of Tahasildar. The respondent, therefore, being aggrieved by both the judgments preferred Revision Application under section 76 of the Tenancy Act before the MRT which was numbered as TNA–46/1991. It was decided on 30th September 1991, as stated above. The revision application filed by the respondent before the MRT was allowed by the MRT by setting aside the judgment of Tahasildar, Guhagar and judgment of SDO, Chiplun,referred to above,and further declared that the respondent is tenant of the suit land. Therefore, the writ petitioner- owner of the said land has approached this Court invoking the jurisdiction of this Court under Article 227 Constitution of India. 3.? The respondent who initiated the proceeding under section 70(b), as stated above, has contended in Application that, since 55 years the suit land was/is openly and continuously in possession of her father-in-law as tenant, and that there are old coconut trees, newly planted 5 two Alphanso Mango trees, 10 trees of Bittle nuts in the said land. The respondent further contended that, in the said land there was/is a hut which bears Grampanchayat No.1276 and said hut stands in the name of Prabhakar Keshav Patil, who is husband of the respondent. The respondent has also claimed that the father-in-law of respondent had excavated a well in the said land. Respondent has further contended that on 24.9.1986 respondent's possession was obstructed, and therefore respondent made an inquiry as to whether the name of respondent was/is recorded in the record of rights, and it was found by the respondent that name of respondent was/is not in 7/12 extract. Therefore, respondent has filed application for declaration that the respondent is the tenant of the said land. 4.? Said application was opposed by the revision petitioner by filing a reply on 16.2.1987. (Wrongly stated on reply as 16.2.1986, however, from the roznama it is found to be 16.2.1987). Revision petitioner has contended that neither the father-in-law of respondent nor the husband of respondent was in possession and/or 6 in cultivation of the said land, and they were not the tenants of the suit land. It is specifically stated that the said land was cultivated by his deceased brother – Vithoba Baluba Patil during his lifetime and said land has been allotted by deceased Vithoba in the year 1960 to the petitioner in their family partition, and since then the suit land was/is in possession and cultivation of the petitioner and coconut trees, bittle nut trees and mango trees were planted by the petitioner. Petitioner has further stated that there is no well in the said land, but there is one ditch upto 2-3 feet deep which has water and the said water is used to irrigate the above referred to trees. The petitioner has further averred that there is a hut of 10-hands X 7-hands (length & breadth) and it has no grampanchayat number. It is used only to keep the fire-wood and similar material needed for cooking and the respondent has no concern with the said hut. It is specifically averred by the petitioner that grampanchayat number 1276 is/was not of the hut, but it is a number of a bathroom constructed by the respondent and the said bathroom is not in the 7 suit land but it is in the adjoining land, namely, Survey No. 108/38 wherein the respondent is having his common house. It is further averred that the respondent was not in possession of the suit land and, therefore, there was no cause to obstruct the possession on 24th September 1986 and application is false. 5.? Learned counsel for the petitioner submitted that MRT has committed a gross error in setting aside the concurrent judgments and findings of fact given by the Courts below, wherein it has been held that respondent - Sulbha is not a tenant of the suit land. He submitted that the findings of fact which have been arrived at by the Tahasildar and SDO were binding on the MRT and unless and until MRT finds those findings of fact are perverse, revisional jurisdiction could not have been exercised to disturb the decisions given by the Tahasildar and SDO. Learned counsel has taken this Court through the various documents and evidence on record and submitted that, if the evidence is taken into consideration it will be established that the respondent is 8 not tenant of the suit land and respondent has no concern with the suit land. The learned counsel for the petitioner emphathetically submitted that the case made out by the respondent and her witnesses is a conspiracy to grab the land of petitioner. He submitted that there is no evidence to show that the respondent was ever in possession of the suit land, and much more in the capacity of tenant. The learned counsel submitted that this is not a case wherein the provisions of Section 4 of the Tenancy Act are applicable, namely, the provisions for deemed tenancy. According to learned counsel it is a case wherein the respondent has tried to bring on record rent receipts, alleged to have been executed on 10.4.1957. Learned counsel submitted that the said rent receipt is/was got exhibited - by the petitioner to demonstrate that it is not a receipt in respect of payment being accepted by the revision petitioner. He also submitted that the disputed land was purchased by the brother of petitioner in auction which was conducted in view of an execution of Special Darkhast No. 101 of 1954, dated 23.3.1957 and Mutation Entry No. 2378 to 9 that effect has made in the record of rights. He further submitted that the land was transferred in the name of petitioner by Mutation Entry No. 2423 dated 27.11.1963 by his brother Govind. Thus, he submitted that, had there been a tenant in the suit land mutation entry would have been different. He further submitted that the land in question was in possession of the brother of petitioner, namely, Govind, as a tenant, and he heavily relied upon 7/12 extract which is on record from the year 1958 to 1986-87, i.e., till the date of filing of application by the respondent. Learned counsel for the petitioner submitted that 7/12 extracts have been misconstrued by MRT. He further submitted that the respondent has tried to make a show that bathroom bearing Grampanchayat No.1276 is in the suit land. However, learned counsel pointed out that Grampanchayat has issued certificate to the effect that the said bathroom has been constructed in view of a permission given by Resolution No. 2(3), dated 18.6.1985, and it is located in Survey No. 108/38 and it admeasures 12X7. Therefore, he submitted that the claim of the respondent that the 10 said bathroom is located in Survey No. 108/37 is/was incorrect one. Learned counsel submitted that the importance given by the MRT to Grampanchayat tax being paid by the respondent in respect of the said bathroom was unwarranted. All those tax receipts are of the years 1985 onwards, and, therefore it cannot be said that the said bathroom is located in the suit land. ? So far as oral evidence is concerned, learned counsel for the petitioner has taken me through the oral evidence of respondent and her witnesses and submitted that the evidence itself shows that there is an attempt to grab the property of the petitioner by making a false claim of tenancy in respect of the suit land. Learned counsel further submitted that application filed by respondent-Sulbha is misconceived one. According to the learned counsel, tenancy is being claimed by respondent being the heir of deceased Keshav, who was father-in-law of the respondent and who according to respondent was tenant of said land. He further pointed out that husband of the respondent, namely, Prabhakar, is alive and he is also having a 11 brother. He further submitted that the husband of the respondent is in service at Bombay and, therefore Sulbha (respondent No.1) not being a legal heir of Keshav who was father-in-law of respondent no.1, cannot claim and prosecute the tenancy rights. He submitted that Sulbha (Respondent No.1) is not a power of attorney holder for her husband and/or other heirs of deceased- alleged tenant Keshav, and,therefore, application itself is incompetent and misconceived and the attempt made by respondent no.1 in her statement before the Tahasildar after remand that respondent no.1 is prosecuting application for the joint family is after-thought. He further submitted that, even though it is assumed that she is prosecuting the application on behalf of the joint family she has no authority in law to continue such litigation. Therefore, he ultimately submitted that all these aspects have not been properly looked into by MRT and MRT has committed an error in relying upon the provision of Section 4 of the Tenancy Act which is pertaining to the deemed tenancy thereby learned counsel claimed that declaration of tenancy in favour of respondent is 12 thus bad, improper and unjust. 6. Learned counsel appearing for the respondent supported the judgment of MRT. He submitted that the Tahasildar and the SDO had committed an error in giving an undue importance to the receipt dated 10.4.1957 and the discrepancies in the said receipt to come to a conclusion that the respondent is not a tenant of the said land. The learned counsel for the respondent submitted that the respondent has examined the witnesses from the vicinity and adjoining lands who have deposed to that the respondent is in possession of the said land from years together and especially from the time of her father-in- law , and thus has proved the actual possession of the respondent in the suit land. He submitted that, since the possession of the respondent is not of the owner and/or as a labourer or member of the joint family of the petitioner, the only inference follows that it is a case of "deemed tenancy". Learned counsel submitted that, even though the rent was/is fixed and paid by the father-in-law of the 13 respondent and after him by the respondent, the rent receipts were not given by the landlord. Only one receipt was given which has been placed on record. Therefore, he submitted that the petitioner is trying to take advantage of the fact that rent receipts were/are- not given to the respondent and thereby to deny the tenancy of the respondent. Learned counsel submitted that MRT has rightly relied upon the judgment of this Court reported in Vol. 25-I of T.L.,pages-6 & 7 in Special C.A.479 of 1972 dated 20.11.1975 and submitted that the ratio of the said judgment has been rightly applied by the MRT to the facts and circumstances of the case. Therefore, there is no substance in the writ petition and writ petition be dismissed. Learned counsel further submitted that the tax receipts - are in favour of the respondent in respect of house No. 1276 and those receipts have been properly appreciated by MRT. He submitted that said house no. 1276 is a bathroom and it is located in the suit land. He submitted that the oral evidence corroborates the documentary evidence, and therefore the decision given by MRT is just and proper and no 14 interference is required to be caused by this Court. 7.? It is to be mentioned in the beginning that so far as the record of rights is concerned, there is 7/12 extract of Survey No. 108/37 on record from the year 1958 to 1986-87. In the said 7/12 extract the name of petitioner, namely, Maruti, appears in the occupancy column. It is to be noted that Survey No.108/37 along with Survey No.108/36 and Survey No.108/40 and along with other Survey Nos. were purchased by Govind Balu Patil in an auction sale dated 23.3.1957 which was conducted by the Tahasildar in DCR No. 1/1954 in view of Special Darkhast No.101/1954. In all 8 lands were purchased by Govind. Out of these 8 lands, 3 lands are the sub-divisions of Survey No. 108, namely, Survey Nos. 108/36, 108/37 & 108/40. These three sub-divisions from Survey No. 108, were purchased by Govind. The above information is reflected from mutation entry no. 2378 made on 15.5.1963. It is further revealed by mutation entry no.2423 dated 27.11.1963, that all the lands which were purchased by Govind, brother of the petitioner, 15 in above referred auction sale were transferred in the name of the petitioner, since the petitioner was Karta of the family and was looking after said Govind. It appears from the evidence that the said land was initially owned by Bhalchandra Ganpat Tawsalkar and thereafter his heirs and it was subsequently purchased by the brother of the petitioner, namely, Govind, and thereafter it was transferred in the name of the petitioner as stated above. So far as 7/12 extract is concerned, since the same has been taken on 14.10.1986, the occupancy column shows the name of the petitioner. In the crop inspection column the said extract shows the details about the crop inspection from the year 1957-58 upto the year 1986-87. In the year 1957-58, name of Vithoba Balu Patil, who was one of the brothers of the petitioner, like that of Govind, was/is shown as a cultivator of the land by Mode No.-"3", that means said Vithoba (brother of the petitioner) was cultivating the land on crop share basis. There are entries in favour of Vithoba till the year 1961-63 by Mode 16 No-"3". Thus, it becomes evident that while Vithoba, one of the brothers of the present petitioner and Govind, was in possession of the said land as a tenant on the basis of crop share, the said property was purchased by Govind in auction sale. It appears that there was joint family of the petitioner, Vithoba & Govind. When in the year 1963 mutation entry no. 2378 was effected in favour of Govind the name of Govind was entered in occupancy column and equally in crop inspection column the entry was effected for the year 1962-63 as "Khud", that means-"the owner himself cultivates the land". Mode of cultivation was shown as "1". Said "Khud" entries are there in favour of Govind and thereafter in favour of Maruti till the year 1986-87 and the Mode of cultivation from the year 1962-63 is continuously "1", namely the owner himself is cultivating the land. It is further required to be stated that the entries from the year 1978-79 onwards have been misconstrued by MRT. From the year 1977-78the entry shows khud area - 0-H. 03.3- R. However, it is to be noted that the area of the land is 0-Hectare, 3.3-R, while writing 17 the area Number "point three" (i.e., 0.3) has gone into the Mode of cultivation column, and therefore in that column the figures "3" and "1" appear from the year 1978-79. The MRT has tried to construe this to the effect that the Mode of cultivation is shown as crop basis and/or as owner himself cultivating, and thereby there is uncertainty in respect of the Mode of cultivation. However, the said appreciation of the Mode of cultivation is erroneous if those entries in 7/12 extract are properly read. It reads as Khud 0-3.3 R. Therefore, the correct reading of those entries is that since the year 1962-63 till the year 1986-87, the mode of cultivation is "Khud", area 3.3-R and mode of cultivation is "1". This is elaborately dealt with for the purpose of proper analysis and understanding of the record. In other columns the crops have been shown, namely, Coconut tree, bittle nut trees, etc. However, what is pertinent to be noted is that the hut or bathroom has not been shown in the said 7/12 extract anywhere as the area occupied for the said purpose. On the contrary, total 0-H, 3.3-R area of the said 18 land has been shown under cultivation. Only in the year1986-87, coconut, mango and banana trees, well and hut, as alleged by the respondent, have been mentioned. It is required to be mentioned at this stage that the said 7/12 extract has been obtained by the respondent and produced by the respondent along with the application. However, what is pertinent to note is that, even in the last year 1986-87 the entries in the cultivation column show that the owner is cultivating the land, and therefore 7/12 extract is in favour of the petitioner and petitioner's family. There is no documentary evidence to show that the suit land was at any point of time was in possession of the respondent and/or her father-in-law. 8.? So far as bathroom is concerned, respondent has produced a certificate given by the Grampanchayat to the effect that in Grampanchayat House No. 1276 there is a bathroom of Mangalori tiles, admeasuring 12X7 ft, assessed at 2.25 and said bathroom belongs to Prabhakar Keshav Patil. The said certificate states that the said bathroom has been constructed in the year 19 1985-86. What is pertinent to be noted in respect of this certificate is that, this certificate does not show that the said bathroom,Grampanchayat House No.1276 is in Survey No.108/37, i.e., in the suit property. On the contrary, the petitioner has produced a certificate dated 13.3.1987 issued by Grampanchayat. It is stated in the said certificate that in Survey No.108/38 there is bathroom admeasuring 12X7 having Mangalori tiles and by ResolutionNo.2(3)dtd 18.6.1985 the permission to construct, has been given subject to the rights of the revenue department. Thus, from this certificate it will be seen that the Grampanchayat has certified that the said bathroom is not in Survey No.108/37, but it is located in Survey No.108/38. The assessment extract of House No.1276 given by the Grampanchayat shows the name of Prabhakar Keshav Patil, assessment, etc., but it does not show that the said bathroom is located in the suit land. Even the tax receipts which are produced on record does not show that the bathroom is located in the suit land. 9.? There is one more aspect which requires to 20 be taken into consideration is that, in the record, map of the suit land and adjoining lands has been produced by respondent. The said map is in accordance with scale of 1 inch = 21 /2 Sakhali, and One Sakhali means 33 feet. Therefore, 21 /2 Sakhali means 821 /2 feet, i.e., 1 inch distance = 821 /2 feet. To the north-west side of Survey No.108/37, Survey No.108/38 is located and in the said land there is house of respondent no.1 which stands in the name of her father-in-law Keshav along with three others, who are the co- owners of the said house. Location of house is shown in the map Bathroom bearing House No.1276 is admittedly adjoining to the said house. According to the respondent the said bathroom is adjoining to the said house but it is in the suit land bearing Survey No. 108/37. I have measured said distance and it is found that the distance between the house located in Survey No. 108/38 and the boundary of Survey No. 108/37 on west-north side is admeasuring 0.3 inches, and if the said 0.3 inches are converted into feet, it comes to 25 feet approximately. As against that the area of the said bathroom is only 12X7, and, therefore the case made 21 out by the respondent that the said bathroom is located in Survey No. 108/37 is falsified and the oral evidence to that effect cannot be said to be convincing and acceptable. On the contrary, the distance as calculated from the map and Certificate issued by the Grampanchayat on 13.3.1987 referred to above establishes that bathroom is located in Survey No. 108/38, and the oral evidence of the petitioner and her witnesses in this respect is not true and cannot be accepted. ? From the map which is at page 9 of the papers produced by the respondent, referred to above, it appears that to the south side of Survey No.108/37 the land Survey No.108/36 is located, while Survey No.108/35, 108/38 are located towards the western side. Towards the north side of Survey No. 108/37 there is Survey No. 108/39. And from the eastern side of Survey Nos. 108/36, 108/37 and 108/39, there is a streamlet. This position has been analysed for the purpose that Survey Nos. 108/36, 108/40 were also purchased in auction along with suit land as discussed above and Survey 22 No.108/36 is immediately adjoining to the suit land on the southern side and the said land is being cultivated by the petitioner and there is no dispute over that. The said land is approximately 3-R. It is, therefore, unlikely that Survey No. 108/36 is cultivated personally by the petitioner as against that Survey No.108/37 is cultivated through respondent. In the result the case made out by the respondent appears to be improbable one. 10.? Much importance appears to have been given by MRT to the report of Talathi, Adur. On perusal of the said report it is revealed that on the said report there is no date. Alongwith the said report there is a statement of respondent so also the statement of panchas. Both these documents (i.e.,statements) were prepared on 16.10.1986, i.e., after the presentation of the application under section 70(b) of the Tenancy Act, dated 29.9.1986. In a statement which was recorded by the Talathi, the respondent had stated