1 wp3016-85.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3016 OF 1985 Baburao Mhatarba Pingale .. Petitioner versus Pandurang Mhatarba Pingale & Ors .. Respondents Mr.P.K.Hushing for the petitioners. Mr.R.S.Apte, Sr.Advocate with Mr.Dipali Patil i/by Mr.A.A.Garge for respondent Nos.1A to 1F, 2A, 2C and 3A to 3C. CORAM : S.C.DHARMADHIKARI, J. 12th August 2011. JUDGMENT: . By this writ petition under Article 227 of the Constitution of India, the original petitioner Baburao Mhatarba Pingale, has challenged the orders passed by the Sub Divisional Officer, Junnar dated 4th July 1984 and that of the Maharashtra Revenue Tribunal, dated 26th December 1984 dismissing a Revision Application. 2 Since this writ petition is pending in this Court from the year 2 wp3016-85.doc 1985, the parties would be referred to as the original petitioner and the original respondent Nos.1 to 4. 3 It was the case of the original petitioner that a suo motu enquiry under section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short “the Act”) was held in respect of land bearing Survey No.99/2 admeasuring 9 Acres and 8 Gunthas at village Narodi, Taluka Ambegaon, District Pune. The respondent No.5 was the landlord and he sold half portion of the land in 1953 to the tenants, viz., the original petitioner and respondent Nos.1 to 4. The remaining land of 4 Acre and 24 Gunthas is involved in this proceeding. That portion remained as tenanted land. In the year 1959, there was a partition amongst the petitioner and original respondent Nos.1 to 4. The registered Partition Deed is referred to and it is stated that this portion came to the share of the original petitioner. Therefore, there was an application made by the petitioner wherein he contended that he is the only tenant as per this Partition Deed. The Agricultural Land Tribunal ordered that he alone could pay the purchase price. There was an appeal preferred to the Special Deputy Collector and he remanded the matter. 3 wp3016-85.doc Against this order of remand, the petitioner approached the Maharashtra Revenue Tribunal who held that the Partition Deed was irrelevant as relevant date is tillers date, viz., 1st April 1957. On this date, there was a joint family and, therefore, the remand was unnecessary and the price must be tendered by all tenants together and not alone by the petitioner Baburao Pingle. This order was passed on 16th August 1974. 4 Subsequent to this order, the Tahsildar directed the Tenancy Awal Karkun to hand over possession of the lands to the petitioner and respondent Nos.2,3 and 4. 5 Against this order, an appeal was filed under section 74 of the Act before the Assistant Collector, Junnar and he dismissed the same. However, the petitioner approached the Additional Collector by filing Tenancy Appeal No.118 of 1976. The Additional Collector upheld the appeal and the order of handing over possession was quashed. 6 In the meanwhile, the original respondent No.1 Pandurang 4 wp3016-85.doc Mhatarba Pingle filed an application under section 84 of the Act, requesting that the petitioner has forcibly taken possession of the land in the year 1961-62 and he be summarily evicted therefrom. The application was sent to Tahsildar for recording necessary evidence and submit his findings to Sub Divisional Officer vide memo dated 23rd May 1978. The Tahsildar made enquiry and sent all the papers to the Sub Divisional Officer together with his opinion under his letter dated 17th September 1981. Relying upon this opinion, the Sub Divisional Officer allowed the application by passing order in Tenancy Appeal No.5 of 1978 dated 21st January 1982. The petitioner-applicant filed revision application before the Maharashtra Revenue Tribunal on 6th May 1982. This revision application was admitted and the matter came to be remanded to the Sub Divisional Officer for conducting proper enquiry on the ground that the Sub Divisional Officer was in error in not conducting the enquiry himself and directing the Tahsildar to record evidence and so also in error in relying upon the opinion expressed by the Tahsildar. After remand, the Sub Divisional Officer conducted the enquiry and he passed an order to the effect that the petitioner Baburao Pingle is in possession of the land bearing Survey No.99/2 5 wp3016-85.doc admeasuring 4 Acres and 24 Gunthas, western side, unauthorisedly and wrongfully and he should be evicted summarily. The possession be handed over to respondent Nos.1 to 3 to the extent of 1.6 Acres each on the western side. Being aggrieved and dissatisfied with this order, the original petitioner preferred an application to the Maharashtra Revenue Tribunal on 26th December 1984. That application was summarily dismissed on 8th April 1985 and that is how the present petition. 7 Mr.Hushing, appearing on behalf of the petitioner submitted that this was not a case for invoking section 84 of the Act to summarily evict a co-sharer or a member of a joint family from the agricultural lands. The eviction could be ordered of a person who is in unauthorised occupation and possession. The original petitioner can never be said to be in unauthorised occupation. There was a partition in the joint family. If there was a joint family and there was joint cultivation and if the land is allotted to the share of Baburao Pingle in such partition, then, it is illogical to term his occupation as unauthorised and illegal, so as to have evicted him summarily. In such circumstances, the very foundation of the claim is untenable in 6 wp3016-85.doc law. Consequently, both orders must be set aside on this ground alone. 8 On the other hand, it is contended by Shri. R.S.Apte, learned senior advocate on behalf of the respondent Nos.1 to 4 that the order passed on 16th August 1974 by the Maharashtra Revenue Tribunal had gained finality. That order hold that the original petitioner Baburao Pingle alone had no right in the land. The Lease Deed is dated 14th November 1951. The lessor was respondent No. 5 and the lessees were respondent Nos.1 to 3. In these circumstances and when Baburao Pingle handed over possession willingly and without any pressure in the year 1985, he could not have continued in occupation and his summary eviction by resorting to section 84 of the Act, is proper. In these circumstances, there is no error of law apparent on the face of record or any perversity in the impugned judgments, so as to call for interference in the writ jurisdiction. Writ petition be, therefore, dismissed. 9 Section 84 of the Act is a provision enabling the eviction of any person unauthorisedly occupying or wrongfully in possession of 7 wp3016-85.doc the land. This provision of summary eviction postulates that a person is unauthorisedly occupying or wrongfully in possession of the land when, (a) the transfer or acquisition of which either by the act of parties or by the operation of law is invalid under the provisions of this Act, (b) the management of which has been assumed under the said provisions, or (c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such persons, may be summarily evicted by the Collector. It is, therefore, clear that unauthorisedly occupying or wrongfully in possession of any land is a cause for summary eviction by the Collector. 10 In the facts and circumstances of the present case, the relief respondent Nos.1 to 3 sought was that they are all tenants in the entire land admeasuring 9 Acres and 8 Gunthas. There is registered Lease Deed dated 14th November 1951 in their favour. The original petitioner Baburao Pingle and these persons were members of a joint family and the joint family was tenant in respect of the lands. Half portion on the eastern side of the suit land was sold to the joint family in the year 1953 and remaining half portion was left with joint 8 wp3016-85.doc family, as tenant from 1954. Clearly, this is the position emerging as on 1st April 1957. It is stated that on 1st April 1957, both Baburao Pingle and original respondent Nos.1 to 3 were members of the joint family and, therefore, they became deemed purchasers. From 1st April 1957 to 1959, the joint family was in actual possession of the land as the deemed purchasers. In the year 1959, there was partition in the joint family under a registered Partition Deed and it was the case of Baburao Pingle that he got the remaining land of 4 Acres and 24 Gunthas to his share. He also got share in the land which is covered by sale and the Lease Deed in favour of the joint family. He started cultivating the land as a principal owner. The partition was challenged by minor son of original respondent No.1- Pandurang Mhatarba Pingle, but, it came to be confirmed by the Civil Court. It is clarified that the civil suit was filed by the two minor sons of Pandurang Pingle (original respondent No.1) and of Ganpat Pingle (original respondent No.3) and both, Pandurang Pingle and Ganpat Pingle were parties thereto. Thus, the partition was held to be valid and it was held that the original petitioner Baburao Pingle was in possession in terms of such a partition. It was the case of the said Baburao Pingle, that he is the exclusive owner. 9 wp3016-85.doc 11 While it is true that in earlier round of litigation the enquiry under section 32G was started and Baburao Pingle lost the proceedings, where the possession was claimed from him but in the instant case, one is concerned with the proceedings under section 84 of the Act. 12 The Sub Divisional Officer in the impugned order so also the Maharashtra Revenue Tribunal has held that it is true that there was a partition in a joint family and the petitioner Baburao Pingle was in joint possession and such a arrangement cannot be said to be contrary to the Bombay Tenancy and Agricultural Lands Act, 1948. However, it was held that the partition between the parties took place in the year 1959, but the relevant date of exercising the right of purchase by tenants is 1st April 1957 and, therefore, the Partition Deed cannot be taken into consideration. Even if this Partition Deed is binding on the parties, yet, the same has been ignored and it is held that the petitioner Baburao Pingle was in unauthorised possession. 10 wp3016-85.doc 13 In para 13 of the order of the Maharashtra Revenue Tribunal, this is what is held: “13 I have carefully gone through the papers which are available on record and it appears to me that there is no dispute between the parties that on 1st April 1957 the land in dispute was cultivated jointly by the applicant and opponents 1 to 4 and accordingly the M.R.T has held that the purchase price is payable by the joint family. It is pertinent to note that the partition between the parties took place in the year 1959 and as per the provision of the tenancy act. The relevant date for exercising the purchase right by the tenant is 1st April 1957 and therefore such as partition deed cannot be taken into consideration, not with and the fact that it was held to be valid by the district court. Admittedly, no writ application was preferred against the decision of the M.R.T and therefore it is binding on the parties concerned. The main contention which was raised before me on behalf of the applicant was to the effect that as the partition deed was declared to be valid by the district court, it is required to be taken into consideration, but in this respect it is pertinent to note that as such partition took place after 1st April 1957, the same can be ignored as far as the tenancy rights between the parties are concerned, so under the provisions of the Tenancy Act, the applicant cannot be claim the exclusive ownership or possession of the suit land and therefore it was rightly held by the lower court that the applicant was in possession of the suit land/unauthorisedly and his possession was wrongful and therefore, he was liable to be evicted. In the instant case, as the position about the joint family and subsequent partition which took place in the year 1959 is admitted, and as the price fixed under section 32G of the Tenancy Act was ordered to be paid by the joint family by the M.R.T the applicant does not seem to 11 wp3016-85.doc have any valid right to challenge the impugned decision. This revision application, therefore, has got on force and it fails and accordingly, I pass the following order: ORDER The revision application is summarily dismissed. No order as to costs.” 14 Upon reading of para 13 of the order of the Maharashtra Revenue Tribunal, so also the conclusion drawn by the Sub Divisional Officer, it is clear that what both of them have considered is the relevant date and i.e tillers day i.e. 1st April 1957. It is with reference to that date, that they have considered the claim made for summary eviction. 15 I have reproduced all the ingredients of section 84 of the Act. A plain reading of the same would indicate that in the present facts and circumstances, the Partition Deed could not have been ignored. Even if one is taking the position as emerging on 1st April 1957, still that was a case of all persons cultivating the lands jointly. This was a joint family which was cultivating the lands and the joint family was adjudged as a tenant. Once the rights fructify in favour of the joint family, then, merely because under section 32G, the purchase price was fixed and that was directed to be paid by the original 12 wp3016-85.doc petitioner Baburao Pingale and the original 1st respondent, Pandurang Mhatarba Pingle, who challenged it by way of appeal, but, it is pertinent to note that the same was confirmed. It is also clear that the revision application challenging said order was dismissed with direction that the purchase price be recovered from the joint family as joint family was tenant and deemed purchaser on 1st April 1957. Later on a notice was issued by the Tenancy Awal Karkun to the original petitioner Baburao Pingle to hand over the possession to original respondent No.1 Pandurang Pingle. However, no proceedings were initiated and, therefore, an appeal was preferred challenging that notice, but, it came to be dismissed on the ground that the Assistant Collector had no jurisdiction. It is pertinent to note that the original petitioner Baburao Pingle, therefore, preferred an appeal before the Additional Collector who quashed the notice of possession issued by the Tenancy Awal Karkun on 12th January 1978. If that is the factual position emerging from the record and as noticed by the Maharashtra Revenue Tribunal so also the Sub Divisional Officer, then, to my mind, how the original petitioner could be said to be unauthorised occupant or wrongfully in possession, is not clarified at all. Ultimately, the joint 13 wp3016-85.doc tenants succeeding to these lands after the tillers day, had entered into a partition. That partition was held to be binding on all. Once that was held to be a binding arrangement and that is found not to be contravening the Act as is clear from para 9 of the Maharashtra Revenue Tribunal’s order, then, the proceedings for summary eviction was not the remedy open for the original respondent Nos.1 to 3. The remedy was somewhere else and the Tenancy Act could not have been utilised so as to evict a co-sharer even on the basis that name of his wife has been shown in the record at the some stage. Even if there was a statement made that he was ready and willing to hand over possession, that is of no consequence because one has to scrutinise the legality and validity of the orders in proceedings under section 84 of the Bombay Tenancy and Agricultural Act initiated at the instance of Pandurang Mhatarba Pingle. An order was made thereon and the legality of the said order itself is under challenge. Having found that none of the ingredients of section 84 are satisfied and assuming that the act of parties is also covered by the provision in question, but, that act must be found to be invalid under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. Thus, clause (a) of 14 wp3016-85.doc section 84 which contemplates a transfer or acquisition of any land either by the act of parties or by operation of law, is invalid by provisions of the Tenancy Act and that case for summary eviction is made out in the present facts and circumstances, is not proved by the reasoning of the Maharashtra Revenue Tribunal in this case. 16 As a result of the above discussion, the writ petition succeeds. The Rule is made absolute and both orders of the Sub Divisional Officer and the Maharashtra Revenue Tribunal, impugned in this writ petition are quashed and set aside, but, without any order as to costs. 17 Needless to state that in this case, I have only considered as to whether the proceedings under section 84 at the instance of the original respondent Nos.1 to 3 were maintainable and that was the proper remedy of these parties or not. If during the course of the said proceedings any ‘Tabe Pavti’ or possession receipt executed and particularly of 26th June 1985 is brought on record and in terms of that, it is asserted that the original petitioner Baburao Pingle was not in possession atleast from that date, nothing prevents the heirs 15 wp3016-85.doc and successors of the said Baburao Pingle from initiating such proceedings as are permissible in law, if they are aggrieved by the fact that this possession receipt/Tabe Pavti has been utilised by respondent Nos.1 to 3 or the successors in title to defeat their claim. All contentions in that behalf are kept open. (S.C.DHARMADHIKARI, J)