1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6948 OF 2008 Digambar Vithal Shete (Kanadi) } Through his General Power of } Attorney Holder - } Rajendra Digambar Shete } Age : 28 Years, Occ. : Agriculture, } R/o : Loni, Tq. Rahata, } District : Ahmednagar. } .... PETITIONER V E R S U S 1. Smt. Hirabai Ganpat Loharkar } Age : 68 Yrs.,Occ. : Household, } ( Name of respondent no. 1 is } deleted as per Court’s order } dated 12/10/2009). } 2. Shalivahan Ganpat Loharkar } Age : 43 Yrs., Occ. : Business, } R/o : Lasalgaon, Tq. Niphad, } Dist. Nashik. } 3. Raju @ Vishwambhar Loharkar } Age : 38 Yrs., Occ. : Business, } R/o : Lasalgaon, Tq. Niphad, } Dist. Nashik. } 4. Vilas Ganpat Loharkar } Age : 35 Yrs., Occ. : Business, } R/o : Lasalgaon, Tq. Niphad, } Dist. Nashik. } 2 5. Sanjeevani Revanappa Hingamire } Age : 35 Yrs., Occ. : Household, } R/o : Lasalgaon, Tq. Niphad, } Dist. Nashik. } 6. Balasaheb Ganpat Loharkar } Age : 33 Yrs., Occ. : Service, } R/o : Lasalgaon, Tq. Niphad, } Dist. Nashik. } .... RESPONDENTS Mr. V.S.Bedre, Advocate for petitioners. Mr. Amol Gandhi, Advocate for respondent Nos. 2 to 6. CORAM : V.R.KINGAONKAR, J. DATE OF JUDGMENT : 10/02/2010 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally. 2. By this petition, the petitioner impugns order rendered by the learned Additional Commissioner, Nashik Division, Nashik in RTS/Revision No. 261/2006 dated 9/7/2008, concerning order of the Sub Divisional Officer, Shrirampur in R.T.S. Appeal No. 88 of 2004. 3. The dispute lies in a narrow compass. The respondents are admittedly owners of agricultural land bearing G.No. 633 admeasuring 3 1 H. 27 Rs. and agricultural land bearing G.No. 632 admeasuring 0 H. 4 Rs. situated at village Loni (Kh.), Tq. Rahata, Dist. Ahmednagar. The lands in question were given to the petitioner on crop sharing basis for the purpose of cultivation. He cultivated the said land up till 1954-55. The respondents alleged that after 1955, the deceased respondent no. 1 took over cultivation of the lands in question and cultivated the same continuously till 1967-68. They further asserted that after death of her husband, the deceased respondent no. 1 was unable to cultivate the lands in question and as such again handed over the same to the petitioner’s father for cultivation on rental basis. The petitioner’s father used to give the rent to them. After death of his father, the petitioner cultivated the lands in question on same terms. However, for the year before filing of the application, the respondent nos. 2 to 6 took over cultivation from the petitioner and are cultivating the said lands. On the basis of such allegations, they submitted application dated 11/7/2003 to the Tahsildar, Rahata for recording their names in the cultivation column of the revenue record. By Order dated 12/11/2003, their application was dismissed by the Tahsildar. They preferred an Appeal which was allowed by the Sub Divisional Officer. The petitioner preferred Revision Application, which came to be dismissed vide the impugned order. 4. Question involved in the petition is, : “ Whether the appellate and the revisional authorities rendered perverse findings 4 without their being cogent evidence or reason to infer taking over of actual possession by the respondents from the petitioner in the agricultural year of 2003 – 04 ? ” 5. Heard learned counsel for the parties. 6. It is pertinent to note that the application filed by the respondents was scheduled for hearing on 3/12/2003. The respondents remained absent. They did not adduce any evidence in support of the averments regarding their actual possession. The Tahsildar considered the entries in the 7/12 record and the fact that the respondents did not adduce any tangible evidence about their actual possession and, therefore, dismissed their application. There is nothing on record to show that the respondents thereafter adduced any reliable material on record so as to infer that the petitioner had surrendered his possession in respect of the suit lands in their favour. The name of the petitioner appeared in the concerned revenue record through out the relevant period after 1967-68 till filing of the application by the respondents. There is legal presumption available regarding continuity of the same state of affairs. It is well settled that one who alleges that there is change in the fact situation after considerable years, is required to prove with convincing evidence that there was change effected. Unless there is some reliable material to infer that the petitioner had surrendered his possession in favour of the respondents for the 5 agricultural year 2003 – 04, the appellate and the revisional authorities had no reason to allow the application which was dismissed by the Tahsildar. In fact, the orders rendered by the appellate authority i.e. Sub Divisional Officer and the revisional authority i.e. Additional Commissioner are passed on mere surmises and rather far-fetched. The change of mutation entry can not be mechanically effected. For the purpose of recording the names of the respondents, it was necessary to give notice to the petitioner and call upon the parties to adduce evidence in support of the rival contentions. There was no proper enquiry conducted in order to assume that the petitioner gave up his actual possession in the agricultural year 2003 – 04. The authorities also did not consider as to why the petitioner would surrender his possession in favour of the respondents without some reason for such kind of change in his attitude. Needless to say, both the orders are perverse and are unsupported by any tangible evidence. 7. For the reasons afore stated, I am of the opinion that the impugned orders are liable to be interfered with. Hence, the petition is allowed. Rule made absolute accordingly. The impugned orders are set aside. No costs. [ V.R.KINGAONKAR ] JUDGE knp/WP 6948.08