*1* wp.2965.10.914.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2965 OF 2010 Shivaji Ganpat Mohite and another. ..Petitioners ­Versus­ Shantaram Ganpati Bhurke and others. ..Respondents .......... Mr.Prakash D. Gharge, for the Petitioners. Mr.A.P.Steenson i/b A.P.Steenson & Associates, for the Respondent Nos.2 and 3. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 11th August, 2011. P.C.: 1 This Writ Petition under Article 227 of the Constitution of India challenges the concurrent orders of the Tahasildar & Agricultural Lands Tribunal (ALT), the Sub­Divisional Officer and that of the Maharashtra Revenue Tribunal. 2 All these orders are made against the present Petitioners on the basis that the Respondent No.1 and the predecessor­in­title of the Respondent Nos.2 and 3, namely, Vijaykant were both minors and since the Petitioners failed to comply with section 32F of the Bombay Tenancy & Agricultural Lands Act, 1948 and particularly sub­section (1A) thereof, that right to purchase has been lost. This finding is rendered on the basis that on the date, namely, tillers day 01.04.1957 both the Respondent No.1 and the predecessor in title of the Respondent Nos.2 and 3, namely, Vijaykant were minors. They were landlords/ owners of the agricultural lands. The right under section 32F could have been exercised, but since they were minors, the Petitioners’ predecessor in title had opportunity to *2* wp.2965.10.914.sxw exercise the said right after expiry of the period prescribed in section 32F. That having not been exercised within the said period, the said right is lost and therefore, the Petitioners’ case has been disbelieved throughout. Mr.Gharge, learned counsel appearing for the Petitioners, submitted that the confusion arises because of the similarity in the names of both, predecessor in title of the Petitioners and that of the Respondents. It is submitted by him that the tenant was Ganpat Mohite. He was in possession and cultivation of the land as on tillers day i.e. 01.04.1957. The Respondents’ predecessor/landlord was one Ganpati Bhurke. Mr.Gharge submits that the foundation upon which the Respondents based their claim is that there was a Gift Deed executed by Ganpati Bhurke in favour of the Respondent No.1 and the predecessor in title of the Respondent Nos.2 and 3, namely, Vijaykant. At that time, both were minors. However, Mr.Gharge points out that the original record would indicate that the Gift Deed is not dated 25.03.1955, but 12.02.1958. He has invited my attention to annexure­A collectively to this Writ Petition and submits that the entries in the record of rights at Sr.No.1333 would show that the Bakshish Patra (Gift Deed) is dated 12.02.1958. All that entry recites is that because of this Gift Deed the lands are transferred to Shantaram Bhurke and Vijaykant Bhurke, however, the date mentioned as 25.03.1955 is not that of the Gift Deed, but alleged payment. The very nature of the right that is claimed by the Respondents herein is that the father Ganpati Bhurke had during his life time gifted this property. Mr.Gharge submits that the term “gift” as defined under section 122 of the Transfer of Property Act, 1882, means the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. It is submitted by him *3* wp.2965.10.914.sxw that this entry does not evidence the execution of the Gift Deed and even if there was Gift Deed, the same is void because it is not in terms of section 127 of the Transfer of Property Act, 1882. My attention is also invited by Mr.Gharge to the remarks in the column “Tapasani” wherein it is stated that the entries have been made without any notice to the Petitioners’ predecessor in title and that they would not affect his rights because he is in possession and cultivating the land on the tillers day. The entries have been made on 25.04.1958. Mr.Gharge submits that all this is to deprive the Petitioners’ predecessor in title of the rights that are conferred by law on the tillers day. If on tillers day, the predecessor in title of the Petitioners was in possession and cultivating the lands, then, section 32F has no applicability. He submits that in none of these orders this aspect has been considered and gone into and therefore, this is a fit case where each of these orders should be set aside and the petition be allowed. 3 On the other hand, Mr.Steenson, learned counsel appearing for the Respondent Nos.2 and 3, submits that the concurrent orders do not require any interference. The concurrent orders record that there was Gift Deed executed on 25.03.1955 and in 1986 there was statement made before the authorities by Ganpat Mohite that he was not a tenant and the land was being cultivated on wages and as servant. According to the learned counsel appearing for the Respondents, this is material admission and based upon which it has been rightly held that the Petitioners’ predecessor in title has lost right, title and interest in the land in question. Further, he submits that the records of the Courts below indicate that at the instance of the present Petitioners, the proceedings were initiated under section 32G and it was registered as Tenancy Case No.32/G/748 and admittedly, the learned Tahasildar by the order dated 22.02.1974 *4* wp.2965.10.914.sxw rejected the claim of the Petitioners on the ground that they failed to comply with the section 32F of the Act. This order has not been challenged by preferring an appeal. For all these reasons, it is stated that the concurrent orders do not require any interference and particularly, because of the partition between Ganpati Bhurke and Sadashiv Bhurke who were predecessors in title of the Respondents, which was effected three years prior to 1956. Once the partition has been recorded and that is why Ganpati Bhurke could gift the property, which has come to his share, to his minor sons that the findings recorded have enough credibility and there is no reason to doubt the same as they are based on the material placed on record. For these reasons, this Writ Petition be dismissed. 4 Ordinarily this Court declines to go into the factual matters and particularly when attempt is to have reappraisal and reappreciation of the said material. This is not a court of appeal nor can writ jurisdiction be utilized for that purpose. However, this is a case of agricultural tenant being deprived of his statutory status and rights which are conferred by agrarian statute, namely, the Bombay Tenancy & Agricultural Lands Act, 1948. The BTAL Act, 1948 is an act to amend the law relating to tenancies of agricultural lands and to make certain other provisions in regard to those lands. The preamble of the BTAL Act itself states that on account of the neglect of a landholder or disputes between a landholder and his tenants, the cultivation of his estate has seriously suffered or for the purpose of improving the economic and social conditions of peasants or ensuring the full and efficient use of land for agriculture, it is expedient to assume management of estates held by landholder and to regulate and impose restrictions on the transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto belonging to or occupied by agriculturists, agricultural labourers and artisans in the Province of *5* wp.2965.10.914.sxw Bombay and to make provisions for certain other purposes appearing in the said Act. 5 The Honourable Supreme Court has time and again observed that the object and purpose of such an enactment should not be defeated by unauthorized acts by unscrupulous persons. It should not happen that a person cultivating the land on the tillers day should be deprived of statutory rights. It is with that intent, I have carefully perused all three orders. From reading thereof, it is apparent that what has been argued before me by Mr.Gharge has not been considered at all. If whole basis is that there was Gift Deed, then, pre­requisites which are mandatory for gift of immovable property under the Transfer of Property Act, 1882 ought to be satisfied. Whether, they are satisfied in this case or not, has not been dealt with and decided at all. Further, whether, a person is cultivating the land on the tillers day could be said to be deprived of his status and protection by virtue of the Gift Deed executed by the landlord in favour of his sons gifting the immovable property. If the Gift Deed is subject to the provisions of law and if the Gift Deed is in favour of minors, that would mean that the statutory protection given by the Act is affected to such an extent that if the Petitioners do not take any steps as required by section 32F, then, their rights would come to an end or not, are all matters which must be decided on the basis that the Gift Deed and factum thereof must be evidenced by the instrument as contemplated under the Transfer of Property Act, 1882. Whether, there was any registered instrument signed by or on behalf of the donor and attested by at least two witnesses, has not been verified at all. Further, an impact of the revenue entries recording the alleged Gift Deed has also not been noticed at all. If the Gift Deed is of 12.02.1958 as claimed, whether, that could be said to be valid as it was executed after 01.04.1957, has not been gone into leave alone *6* wp.2965.10.914.sxw considered. All these facts that are now noted by me, have not been considered. They emerge from the record itself. If they emerge from the record, then, it was incumbent upon the authorities to go into the rival contentions on these aspects and render a conclusive finding. This is not an attempt to reappreciate and reappraise the material, but this is a case of clear error apparent on the face of record. If the record indicates that there are such entries and other relevant documents, then, it was incumbent upon the authorities to have considered the said material and rendered a finding on its legal impact and efficacy. Ultimately, this is a matter of agricultural tenancy. The lands are agricultural lands. Once both the predecessor­in­title of the Petitioners as well as that of the Respondents are not alive and what has been relied upon is their statements in writing, then, careful scrutiny should have been undertaken. Further, whether, the gift is subject to the rights of the Petitioners’ predecessor­in­title in the land is also matter which must be dealt with assuming that there was valid Gift Deed. If the Petitioners’ predecessor has no knowledge of the said Gift Deed, then, to hold that he has not exercised his right within the period prescribed by section 32F is something which is not permissible to be held straightway. It was necessary to probe this aspect little further. 6 In the light of the aforesaid, this is a fit case where this Writ Petition should be allowed and all orders be quashed and set aside. I have adopted this course with the consent of the parties because keeping the petition pending for hearing would have prejudiced them further. It is complained that this is second round and the issues are pending for consideration for past more than two decades. For these reasons, the Writ Petition was taken up for admission and heard finally by consent of the parties. It is now disposed of by this order. While setting aside the *7* wp.2965.10.914.sxw impugned orders and giving opportunities to both sides to place their versions before the authorities a remand is necessitated. It is in these circumstances and with a view to have finality on the aforementioned aspects, it is directed that the revision application before the Maharashtra Revenue Tribunal which is disposed of by the order dated 18.11.2009 shall stand revived. The Maharashtra Revenue Tribunal will now decide this revision application filed by the Petitioners afresh on merits and in accordance with law and without being influenced by the earlier orders. The Maharashtra Revenue Tribunal shall endeavour to dispose of the revision application as expeditiously as possible and before 31st October, 2011. All contentions of both sides are kept open. No opinion is expressed thereon. It is only to highlight the controversy that they have been noted by me. 7 The Writ Petition is, accordingly, disposed of. No costs. (S.C. Dharmadhikari, J)