( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 889 OF 1991 1. Mahada s/o Kashiba Pandhavle Since deceased, by L.Rs. 1A. Rukhminbai w/o Mahadu @ Mahadeo 1B. Lahu s/o Mahadu @ Mahadeo Both r/o Deolali, Tq. and Dist. Osmanabad. 1C. Mirabai w/o Sitaram Sontakke, R/o Keshegaon, Tq. and District Osmanabad. 2. Dagdu s/o Kashiba Pandhavle, R/o as above. 3. Baban s/o Kashiba Pandhavle, R/o as above. 4. Apparao Kashiba Pandhavle, R/o as above. 5. Bali s/o Kashiba Pandhavle, R/o as above. PETITIONERS VERSUS 1. Murlidhar s/o Narhari Mundhe, R/o Khot-Galli, Osmanabad. 2. Ashok s/o Narhari Mundhe, R/o as above. 3. Chandrakant s/o Narhari Mundhe, R/o as above. 4. Baban s/o Narhari Mundhe, R/o as above. 5. Vyankat s/o Vithoba Mali Since deceased, by L.Rs. 5-i Vatsalabai w/o Vyankatrao Mali 5-ii Janardhan Vyankatrao Mali 5-iii Suresh @ Anna Vyankatrao Mali 5-iv Sou. Sunanda w/o Digambarrao Mule 5-v Sou. Revita w/o Suryakant Pange ( 2 ) 5-vi Sou. Jaishri w/o Chandrakant Gore, R/o Deolali, Post. Ruibhar, Tq. and District Osmanabad. 6. The State of Maharashtra, through Maharashtra Revenue Tribunal, Aurangabad. RESPONDENTS WITH WRIT PETITION NO. 895 OF 1991 1. Mahada s/o Kashiba Pandhavle, R/o Deolali, Post Ruibhar, Tq. and District Osmanabad. 2. Dagdu s/o Kashiba Pandhavle, R/o as above. 3. Babu s/o Kashiba Pandhavle, R/o as above. 4. Apparao Kashiba Pandhavle, R/o as above. 5. Bali s/o Kashiba Pandhavle, R/o as above. PETITIONERS VERSUS 1. Murlidhar s/o Narhari Mundhe, R/o Khot-Galli, Osmanabad. 2. Ashok s/o Narhari Mundhe, R/o as above. 3. Chandrakant s/o Narhari Mundhe, R/o as above. 4. Baban s/o Narhari Mundhe, R/o as above. 5. Vyankat s/o Vithoba Mali Since deceased, by L.Rs. 5-i Vatsalabai w/o Vyankatrao Mali 5-ii Janardhan Vyankatrao Mali 5-iii Suresh @ Anna Vyankatrao Mali 5-iv Sou. Sunanda w/o Digambarrao Mule 5-v Sou. Kavita w/o Suryakant Pange 5-vi Sou. Jaishri w/o Chandrakant Gore, R/o Deolali, Post. Ruibhar, Tq. and District Osmanabad. ( 3 ) 6. The State of Maharashtra, through Maharashtra Revenue Tribunal, Aurangabad. RESPONDENTS ..... Mr. Suresh M. Kulkarni, advocate for the petitioners in both the writ petitions. Mr. V.G. Mete, advocate for respondents No. 1 to 4 and 5 (i) to 5 (vi), in both the writ petitions. Mr. N.H. Borade, AGP for the respondent No. 6/State in both the writ petitions. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 25th February, 2010] ORAL JUDGEMENT : 1. Both these petitions are being decided together in as much as they arise out of common judgement and order rendered by the Maharashtra Revenue Tribunal, Aurangabad, in revision application Nos. 73/B/89-O and No. 74/B/89-O. 2. A few background facts may be noticed. Admittedly, Narhari Nagoba Mundhe owned the land Survey No. 69/3, admeasuring 8 acres 11 gunthas, situated at village Deolali, under Taluka and District Osmanabad. ( 4 ) The petitioners are legal representatives of deceased Kashiba Pandhavle. Allegedly, said Kashiba was cultivating the land in question as a tenant prior to his dispossession which had occurred somewhere before 1956. He died on 26th October, 1978. It is undisputed that he never was in possession of the said land till he was alive, after the dispossession prior to 1956. The petitioners too were dormant for a long-drawn period. The deceased respondent No. 5 Venkat Vithoba Mali was in possession of the land in question as an ordinary tenant, for some period before 1985. He and the landlord jointly filed an application under section 38 (6) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (for short, “the HT&AL Act”) for determination of price of the land in question and effecting of sale of the said land in his favour. The Tahsildar determined the price of the land. The amount of price was deposited by said Venkat. Consequently, statutory purchase certificate was issued in his favour under section 38 (6) of the HT&AL Act on 3rd March, 1986. The petitioners thereafter commenced proceedings by filing ( 5 ) an application dated 05-06-1987 for issuance of sale certificate. They submitted that they wanted to purchase the land in question under section 38 (6) on basis of their tenancy rights which were inherited by them from deceased tenant Kashiba. They also preferred an appeal against the sale certificate granted in favour of the deceased respondent No. 5Venkat. The application of the petitioner was allowed by the Tahsildar. Being aggrieved thereby, deceased respondent No. 5 Venkat preferred an appeal. His appeal was allowed by the learned Deputy Collector (L.R.). The appeal preferred by the petitioners against issuance of certificate to the deceased respondent No. 5 Venkat was dismissed on the ground that no appeal can lie against mere issuance of certificate under section 38 which was only an administrative act and could not be treated as judicial order. The petitioners were aggrieved by both judgements and orders rendered by the Deputy Collector (L.R.), one by which the appeal preferred by deceased respondent No. 5 Venkat was allowed and another by which their appeal against issuance of certificate under section 38 (6) of the HT&AL Act was dismissed. Both the revision ( 6 ) applications were jointly considered and heard by the Maharashtra Revenue Tribunal (M.R.T.). The learned Member of the M.R.T. dismissed both the revision applications vide the impugned judgement and order. Hence, the two separate petitions. 3. Heard learned counsel. 4. The questions of significance involved in these petitions are as follows : (i) Whether the petitioners could have challenged mere issuance of certificate of sale under section 38 (6) issued in favour of deceased respondent No. 5 Venkat without challenging the relevant order whereby the proceedings of enquiry were determined ? (ii) Whether the application filed by the petitioners for issuance of sale certificate in the exercise of their alleged right to purchase the land in question as tenants, was ( 7 ) maintainable or that it was barred by limitation and, therefore, was rightly dismissed by the impugned orders of the M.R.T. and the Deputy Collector (L.R.) ? 5. Mr. Kulkarni submist that rights of the tenancy were inherited by the petitioners and since deceased Kashiba Pandhawle was the protected tenant, such rights could not be taken away unless he was shown to have been dispossessed in due course of law. He invited my attention to certain observations in “Apparao Manaji v. Sadhu s/o Sambhaji and others” 1972 Rev. R. 217. A Single Bench of this Court observed in the given case that the application of the tenant for restoration of possession could not be held as barred because of presumption of continuity of possession. The fact situation in the given case was altogether different. The tenant was found in possession up-till 1958-59 as per the revenue record and the application for restoration of possession was filed in June, 1961. There was no scintilla of evidence to show that the tenant was ( 8 ) lawfully dispossessed during the interim period between 1959 till June, 1961 and that the landlord had taken over possession by taking recourse to the law. It is in the wake of such circumstances that the presumption of continuity in respect of his possession could be drawn. In the present case, however, it is an admitted fact that for long-drawn period, deceased Kashiba Pandhawle was not in actual possession of the land in question, nor the petitioners were ever in possession thereof. 6. At this juncture, it may be noticed that during his lifetime, said Kashiba Pandhawle was not declared as a protected tenant. His name did not appear in the register of protected tenants which is required to be prepared under Rule 14 (2) of the Hyderabad Tenancy and Agricultural Lands Rules, 1958 (for short, “the HT&AL Rules). The procedure contemplated under Rule 14 was never followed. It is provided under Rule 14 (1) that the Tribunal is required to hold necessary enquiry and to prepare a provisional list in Form-VIII containing the details enumerated therein. Obviously, a provisional list is required to be prepared and is ( 9 ) required to be published as contemplated under sub-rule (2) of Rule 14 and after considering the objections, if any, it has to be made final as contemplated under sub- rule (3) of Rule 14. Needless to say, unless such due procedure is followed and name of the tenant appears in the register of protected tenants, it cannot be positively said that he was the protected tenant, within the meaning of section 37A of the HT&AL Act. 7. The petitioners heavily rely upon entries in the relevant revenue record which purport to show that deceased Kashiba was the dispossessed tenant. The relevant entry is indicated in copy of the register which was prepared for implementation of sections 37A, 38E, 43C and 43G of the HT&AL Act. The relevant column No. 14 of the said register provides for entry pertaining to the tenant in possession as on 12th June, 1956. This column is kept blank. In other words, as on 12th June, 1956, nobody was in possession as a tenant of the land in question. Name of deceased Kashiba Pandhawle (Dhangar) is indicated in column No. 10, which shows that he was a dispossessed tenant. There is no ( 10 ) evidence to show as to when had he been dispossessed and in which manner he had been dispossessed. This aspect is rather important. For, deceased Kashiba Pandhawle never applied for restoration of his possession during his lifetime. He died after more than 20 years after preparation of the relevant record and obviously, after much more period than that of his dispossession. In the fact situation of the present case, assuming that said Kashiba had some rights to claim statutory ownership in view of the provisions of the HT&AL Act, it must be said that his rights were extinguished in view of section 27 of the Limitation Act. Section 27 of the Limitation Act reads as follows : “27. Extinguishment of right to property. - At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.” The impact of section 27 of the Limitation Act is not restricted to only the contractual or personal rights. A plain reading of section 27 of the Limitation Act ( 11 ) would make it manifestly clear that all the rights, may be even contemplated statutory rights, will stand extinguished by lapse of the statutory period enumerated in the said section. The extinguishment of rights is the gradual process which could be stalled if deceased Kashiba had taken any step to assert his rights during the lifetime and within the given span of period. That he never had done. As stated before, even the petitioners did not show signs of awakening till the certificate of ownership was issued in favour of the deceased respondent No. 5 – Venkat. Their actions were belated and the intention was to put spokes in the relevant certificate of purchase as issued in favour of deceased respondent No. 5 Venkat. 8. Mr. Mete invited my attention to observations in “Radhu Gokul Gawali and others v. Mohan Kishan Gawali and others” 2007 (6) Mh.L.J. 117. A Single Bench of this Court held that it would not be justified for a person, who has purchased the property in the year 1966, to face proceedings under section 98 after about lapse ( 12 ) of 18/19 years, though no limitation is provided for such action. The petitioners failed to explain delay and latches. The view taken by the Maharashtra Revenue Tribunal cannot be regarded as perverse or arbitrary. Needless to say, in the exercise of supervisory jurisdiction under Article 227 of the Constitution, it is difficult to interfere with concurrent findings of the Deputy Collector (L.R.) and the Maharashtra Revenue Tribunal. Considering these aspects, I do not find any substance in the petitions. 9. In the result, the petitions are dismissed with no order as to costs. Rule discharged. [ V.R. KINGAONKAR ] JUDGE NPJ/wp889-895-91