1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3512 OF 1990 Gyanoba s/o Appaji Korde Deceased L.Rs. a) Vishwanath s/o Gyanoba Korde Age:49 Yrs., occu.Agril. R/o Rokdewadi, Raorajur, Tq. Gangakhed, District Parbhani. b) Dasrath s/o Gyanoba Korde Age: Major, occu. Agril. R/o as above. c) Annusayabai w/o Gyanoba Korde Age:Major, occu. Agril. R/o as above. ..PETITIONERS VERSUS 1) The State of Maharashtra 2) Maharashtra Revenue Tribunal At Aurangabad. 3) Dy.Collector, Land Reforms, Parbhani. 4) Ahilyabai alias Laxmibai w/o Dattopant Deshpande (abated) 5) Gayabai alias Ramabai w/o Ramrao Patil Age: 67, occu. Household, R/o Parwa, Tq. Gangakhed, Dist. Parbhani. 6) Balasaheb s/o Nagorao Kulkarni (abated) 2 7) Manik s/o Nagorao Kulkarni (deleted) 8) Balasaheb s/o Vishwanath Korde Age: 29 Yrs. Occu. Agril. r/o Rokdewadi Post Raorajur, Tq. Gangakhed, Disstrict Parbhani. 9) Shankar Dashrath Korde Age: 28 Yrs., occ. And r/o as above. 10) Additional Tahsildar Gangakhed, Dist.Parbhani. ..RESPONDENTS --- Mr.S.V.Mundhe, Advocate for Petitioners; Respondent Nos. 1 to 3, 8 and 9 served; Respondent nos. 4 and 6 abated; Mr.Jayant Chitnis, Adv. For Resp.No.5; Respondent No. 7 deleted; Mrs.R.R.Mane,AGP for Resp.No.10 --- CORAM : K.U.CHANDIWAL, J. DATE : 16th June, 2009 *** ORAL JUDGMENT : 1) Heard learned Counsel for the parties extensively. 2) The writ petition assails the order passed by learned Member of Maharashtra Revenue Tribunal, Aurangabad, where the learned Membmer answered the tenancy issue in the negative by order dated 27.6.1989 in Revision Application No. 71/B/1987-Parbhani. The grounds assigned by the 3 learned Member of the Tribunal for negativing the contentions of tenancy rights of Gyanoba more flow while dealing with the Issue No.6/9. The observation to the extent of lapse of right as a tenant by virtue of Section 32 itself calls for interference. 3) The facts to be put in nutshell, are Shri Vishwanath Narayan Kulkarni was absolute owner and possessor of the land in question. He died in the year 1928. During his life time, he transfered the suit land in name of his daughter – Subhadrabai under Civil Court decree No.213 dated 20.10.1936. Subhadrabai died in the year 1961, leaving behind two daughters and two sons. It is canvassed that the legal representatives of Subhadrabai were enjoying the suit property in joint up to 1976, but in the very year, Respondent Nos. 1 and 2, Balasaheb and Manik deprived from the enjoyment of the suit land to the appellant, thereby appellant constrained to bring a suit for partition of suit land in the Court of Civil Judge, Gangakhed. In the civil suit, deft.no.5 – Gyanoba, claimed that he is tenant of the suit land and consequently, the learned Judge, formulating the issue no.9, referred the same to the revenue authorities. There is long drawn chain of litigation on the adjudication of this issue. However, for the purpose of the present writ petition, same need not be reproduced and repeated. 4 4) The short point, which emerged in the matter is, in the old record of Pahani Patrak for the years 1951-1952 to 1957-1958, name of Gyanoba was shown in possession of the suit land as a tenant;and this has also endorsed from the tenancy register of the year 1950 that his status is that of protected tenant of entire suit land. The tenancy has been confirmed under Section 7 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. There is no record produced by the parties that Gyanoba at any time has surrendered his rights, nor the landholder has obtained possession from him by taking recourse to Section 32 of the Tenancy Act. 5) The sale deed dated 3rd January, 1963 to the extent of 11 Acres and 7 Gunthas from disputed land from Dyanoba by itself will not absolve the status of Gyanoba to be tenant either of entire land or to the extent of left over land. 5) His status, even if he was tenant for the entire land, to the extent of half of purchased land by virtue of permission accorded in terms of Section 38(6), will be merged in his ownership. 6) Since the controversy is pending before the civil court, this Court is not required to deal with that document in more detail, as any observation of this Court may influence the learned Judge in either way. The fact remains, 5 the tenancy of Gyanoba is not come to an end by virtue of any documentation and he was and is stated to be in possession of the property, which possession, without following due process of law, could not have been disturbed. The issue of tenancy, as has been referred, is erroneously decided by the learned Member of the MRT. The judgment of the Deputy Collector, Land Reforms, Parbhani is in tune to the record and the documents, the judgment of the Deputy Collector, Land Reforms, Parbhani is maintained, the issue of tenancy needs to be answered in the affirmative. Writ Petition allowed in above terms. 7) The request of both the sides for early hearing of the civil suit cannot be said to be unjust as the matter is pending since 1978. The learned Judge will ensure to complete the trial within a year from the date of receipt of the writ of this Court. sd/- ( K.U.CHANDIWAL) JUDGE agp/bdv/wp3512.90 Authenticated copy (BD VADNERE) PS