1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 1003 OF 1991 Vaijnath Karpure died through L.R. i] Jijabai W/o Vaijanth Karpure, Age 70 years, Occu. Household, R/o Anjansonda, Taluka, Bhoom, Dist. Osmanabad. ii] Rukminibai w/o Vithal Kale, Age 52 years, Occu. Household, R/o Shivajinagar No.2, Gawandi Mumbai No. 43. iii] Shila d/o Prakash Jadhav, Age 35 years, Occu. Household, R/o Nerul Sector, 10, Vrindavan Apartment, First floor E-1 B-5, New Mumbai. iv] Shoba Manohar Mohite, died through L.R. Akash S/o Manohar Mohite, Age 20 years, Occu. Labourer, R/o Vishnunagar, Gadkari Chal, Chembur, Mumbai. V] Shkuntala d/o Vijainath Karpure, Age 24 years, Occu. Household, R/o as above. 2] Satyabhamabai w/o Bhanudas Jagtap, Aged 40 years, Occu. Household work, R/o Tokwadi, Post and Taluka Ambajogai, Dist. Beed. ..PETITIONERS. VERSUS 2 Mahadeo S/o Maruti Mote, Aged 40 years, Occu. Agriculture, r/o Anjansonda, Post : Ghatpimpri, Tq. Bhoom, District : Osmanabad ..RESPONDENT ... Smt. M.A. Kulkarni, Advocate for petitioners. Shri S.K.Chavan, Advocate h/f Shri V.D. Salunke, Advocate for respondent. CORAM :- S.V. GANGAPURWALA JJ. Judgment Reserved on : 2nd July,2010. Judgment pronounced on : 6th August, 2010. JUDGMENT: The petitioner assails the Judgment passed by the Maharashtra Revenue Tribunal dated 3rd August, 1990, thereby dismissing the revision filed by the present petitioner against the order passed by the Deputy Collector (Land Reform), Osmanabad dated 5th September,1989 who had allowed the appeal filed by the present respondents by setting aside the Judgment and Order of the Additional Tahasildar, Bhoom dated 8th February, 1988. 3 2. The present respondent has filed Regular Civil Suit No.89 of 1978 for perpetual injunction, in which the present petitioner’s are party defendants. The present respondents claim to be the tenants of the suit land survey No. 114/A and 115/A situated at Anjansawada, Tq. Bhoom. The present petitioners denied the tenancy, as claimed by the respondents in the said suit. As such the Civil Judge Junior Division, Bhoom referred the said issue to the tenancy Court for adjudication as per the provisions of the Hyderabad Tenancy and Agricultural Lands Act (here-in-after referred as ‘Tenancy Act”). The present respondents had also independently filed an application under section 8 of the Tenancy Act for declaring him as a tenant. 3. The Tahasildar clubbed both the proceedings i.e. the proceedings initiated by the present respondents under section 8 of the Tenancy Act, for declaring it as a tenant and the proceedings pursuant to the issue of tenancy being referred by the Civil Court. Initially, the 4 Tahasildar,allowed the application of the present respondent declaring him as a tenant. The present petitioner preferred an appeal, the Deputy Collector (Land Reform) remanded the matter back to the Tahasildar,for deciding the matter afresh, after giving opportunity to adduce evidence to the parties. After remand the Tahasildar, vide its Judgment dated 6th February, 1988 dismissed the claim of tenancy of the present respondents. The Deputy Collector (Land Reform), Osmanabad in the appeal preferred by the present respondent against the order of Tahasildar, allowed the appeal in absence of the appellant. The present petitioner, thereafter filed a revision before the Maharashtra Revenue Tribunal, at Aurangabad, who dismissed the said revision. The said order assailed before this Court. 4. Mrs. M.A. Kulkarni, the learned counsel for the petitioner vehemently made following submissions. I] As the issue of tenancy was referred by the Tahasildar to the Civil Court, the independent proceedings under Section 8 of 5 the Tenancy Act were not maintainable. ii] Respondent has not laid any evidence either oral or documentary to prove his tenancy. The Courts below have erroneously relied on the revenue entry which is only meant for fiscal purposes. There is no basis for such entry. iii] The reliance on the alleged fraudulent written statement was erroneous. The petitioner has given an explanation about the same. When the tenancy was denied in Civil proceedings, there was no question of admitting tenancy before the Tahasildar. Immediately within 15 days fresh written statement was filed explaining the circumstance, about filing of earlier written statement. Moreover, the alleged admission in the alleged written statement cannot be conclusive. To buttress her submission the learned counsel relies on the Judgment of the Apex Court, in a case of “Sitaram Bhau Patil V/s. Ramchandra Nago 6 Patil (dead) by Lrs and another, reported in AIR 1977 SC 1712”. iv] When the authorities have committed an error of jurisdiction, the same can be corrected by this Court, exercising its powers under Article 227 of the Constitution of India. So also the relevant evidence has not been considered, as such, same deserves to be set aside, for the said purpose relies on the Judgment of this Court, in a case of “Devidas Govindrao Dankh V/s. Sudhakar s/o Annasaheb Deshpande & another, reported in 1980 BCR 356” and also in case of “Chandavarkar Sita Ratna Rao V/s. Ashalata S. Guram, reported in 1986(3) BCR 304”. v] The details of the tenancy has not been given, nor the documents of alleged tenancy have been produced on record as such no case of tenancy is made out, for the said purpose relied on the Judgment of the Apex Court, in a case of “ Hanmanta Daulaappa Nimbal, since 7 deceased by his heirs and L.R.S. V/s. Babasaheb Dajisaheb Londhe, reported in 1996(2) BCR 162” and the Judgment of this Court in a case of “Ramchandra Akram Patil V/s. Parshuram Krishna Irale & others, reported in 2002(6) BCR,733”. vi] The petitioner is not exclusive owner of the property, it is a joint property and as such no tenancy claim in respect of undivided share in any particular piece of land, could have been claimed, for the said purpose relies on the Judgment of this Court, in a case of “ Ashok Dwarkanath Ghurye & another V/s. Narayan vasudev Dhond, reported in 1989 (1) BCR, 625”. 5. Per contra Shri Chavan, the learned counsel holding for Shri V.D. Salunke, contended that a] The appellate Court and the revisional Court have concurrently come to the conclusion that the respondent is the tenant. This Court cannot act as an appellate 8 Court and re-appreciate the evidence, for the said purpose relied on the Judgment of the Apex Court in a case of “ Ratansingh V/s. Raviprakash reported in AIR 2004 SC, 3892”. b] The petitioner has categorically admitted in the written statement that the respondent is the tenant. The said admission would act as an estopple and the said admission is admissible, it is a substantiative evidence and the onus shifts on the maker and the petitioner has not discharged the said onus, for the said purpose relies on the Judgment of the Apex Court in a case of “ Thiru Jhon V/s. The Returning Officer & others, reported in AIR 1977 SC 1724”. c] The name of the respondent has been recorded in the relevant revenue record at the relevant time. The presumption would arise in favour of the respondent. d] The document of Batai i.e. tenancy 9 was submitted to the Talathi while recording the entries in the revenue record and as such the same was not produced. 6. I have heard respective counsels for the parties at length and with their assistance also gone through the record. 7. The petitioner had examined himself and also examined one witness. The respondent has also examined himself and witness. It is fact that the respondent has not produced on record any document of batai patra to substantiate his contention. The terms of lease are also not detailed by the respondent. The respondent is only harping on the entry in 7/12 extract and the initial written statement of petitioner in the tenancy proceedings. The Appellate Court, so also the revisional Court, while reversing the judgment of the Tahasildar has not considered the subsequent written statement filed by the petitioner. The petitioner in his deposition and written 10 statement has tried to explain the circumstances that initial written statemtnt was fraudulently obtained by respondent. The said facts have not been dealt by the authorities. The Apex Court in a case of “Sita Ram Bhau Patil V/s. Ramchandra Nago Patil dead) by LRs & another, reported in AIR 1977 SC 1712” has in para No. 16 held thus :- “ If admission is proved and if it is thereafter to be used against the party who has made it the question comes within the provisions of Section 145 of the Evidence Act. The provisions of the Indian Evidence Act that ‘admission is not conclusive proof are to be considered in regard to two feathers of evidence. First, what weight is to be attached to an admission? In order to attach weight it has to be found out whether the admission is clear, unambiguous and is a relevant piece of evidence. Second, even if the admission is proved in accordance with the provisions of the evidence Act and if it is to be used against the party who has made it, “it is sound that if a witnesses is under cross-examination on oath, he should be given an opportunity, if the documents are to be used against him, to tender his explanation and to clear up the 11 point of ambiguity or dispute. This is a general salutary and intelligible rule” ( See Bal Gandhar Tilak V. Shrinivas Pandit, 42 Ind App 135 at P. 147 : (AIR 1915 PC 7 at p. 11)). The judicial Committee in that case said “it has to be observed with regret and with surprise that the general principle and the specific statutory provisions have not been followed”. The general principle is that before any person is to be faced with any statement he should be given an opportunity to see that statement and to answer the same. The specific statutory provision is contained in Section 145 of the Indian Evidence Act that “ A witness may be cross examined as to previous statements made by him in writing or reduced into writing,and relevant to matters in question, without such writing being shown to him or being proved, but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no avail and cannot be utilised 12 against him.” The petitioners immediately, after the first written statement, filed a detailed written statement, explained the circumstances in which earlier written statement was got executed, so also in the evidence explained the same. The authorities have not dealt with the said aspect and have failed to exercise the jurisdiction vested in them. The respondent has relied on the Judgment of the Apex Court in a case of “ Thiru Jhon V/s. The Returning Officer and others, reported in AIR 1977 SC 1724”, referred supra which lays down that parties admission as held in Para No. 15 thus :- “ It is well settled that a party’s admission as defined in Secs 17 to 20 fulfilling the requirement of section 21, Evidence Act is substantive evidence proprio vigore. An Admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shift the onus on to the makers on the principle that “what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact 13 admitted must be taken to be established”. Even Apex Court in the said case has held that admission is the best evidence against the party making it, and though not conclusive shifts the onus on maker. As such, even in the said Judgment, the Apex Court has held that an admission is not a conclusive as against the party but it shifts the onus on the maker. The petitioner has explained the circumstances, in his deposition so also in his subsequent written statement. But the authorities below have not discussed, evidence in that regard. 8. Mere relying on the revenue entry without any proof as to on what basis, the said entry has been made, would not be sufficient to come to the conclusion regarding factum of the tenancy as claimed by the respondent. 9. Tenancy cannot be proved by mere entry in the revenue record, as observed above, the filing of written statement, in which the admission as held by the Courts below are made 14 could not have been sufficient to prove tenancy because the circumstances, in which the written statement was filed has been explained in the evidence and the subsequent written statement which has not been considered by the authorities below. The authorities ought to have discussed the evidence and then should have come to any conclusion. The basis upon which entry in the revenue record is recorded is also not clear. The terms and conditions of the said tenancy are also not detailed by the respondents, in absence of the same it would not be proper to come to the conclusion merely on the revenue entries that the respondent has proved that he is a tenant. The Apex Court in a case of “Hanmanta Daulaappa Nimbal, since deceased by his heirs and L.R.S. V/s. Babasaheb Dajisaheb Londhe, reported in 1996(2) BCR 162” referred supra, in para No. 6 has observed thus :- “ Except the oral tenancy, no other evidence was brought on record. Entries in the revenue records cannot establish lawful possession, when admittedly, no notice was given to the respondent before making those entries.” 15 10. The authorities below have also not considered the case put forth by the present petitioners that no tenancy can be claimed in respect of undivided share. The petitioner had contended that their father had undivided share in the land and Dattu was the other shareholder. The respondent claims to be tenant of petitioner predecessor. This Court in case of “Ashok Dwar V/s. Narayan Vasudev, reported in 1989(1), B.C.R. 625 has held that no tenancy either contractual or statutory can be claimed in respect of undivided share in any particular piece of land. The Courts below have thus failed to discussed this aspect. 11. When initially, the Tahasildar, “had decided the proceedings, the present petitioner had challenged it before the appellate forum, who had remanded the matter to the Tahasildar with a direction to giving opportunity to parties to lead further evidence. After the matter was remanded back, the present respondent had filed applications seeking time to adduce the evidence, but could not lead the evidence. 16 12. The matter involving substantial and vital rights of the parties, consideration and appreciation of evidence oral and documentary evidence, so also pleadings was necessary for correct and just approach. In view of non consideration of material aspect and evidence I feel it appropriate, to remand the matter to the Tahasildar, Bhoom to determine the proceeding afresh, by setting aside the orders impugned in the present proceeding. 13. In the result, the Writ Petition is partly allowed. The impugned orders are set aside, the matter is remitted back to the Tahasildar, Bhoom for deciding the same afresh by giving opportunity to both the parties to lead any further evidence, if they so desire. Rule made partly absolute in above terms with no order as to cost. [S.V. GANGAPURWALA, J ] SDM* 1003.91 WP(J)