1 WRIT PETITION NO.: 918 OF 2000 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 918 OF 2000 *** 1. Prakash S/o Raosaheb Pawade, Age: 34 years, Occu.: Agril., R/o at Post Wadi Bk. Tq. & Dist. Nanded. 2. Gulab S/o Raosaheb Pawade, Age: 32 years, Occu.: Agril., R/o at Post Wadi Bk., Tq. & Dist. Nanded. 3. Sanjiv S/o Raosaheb Pawade, Age: 30 years, Occu.: Agril., R/o as above. 4. Manik S/o Shriniwasrao Deshmukh, Age: 38 years, Occu.: Agril., R/o as above. ... PETITIONERS. [ORI. NON- APPLICANT NOS.3 TO 6]. Versus 1. Deorao S/o Hari Pawade, Age: 65 years, Occu.: Agril., R/o as Post Wadi Buzurg, Tq. & Dist. Nanded. (L.R. of Hari S/o Tukarm Pawade). 4. The Tahsildar, Nanded, Taluka Nanded. 2 WRIT PETITION NO.: 918 OF 2000 5. The Additional Collector, Nanded, Dist. Nanded. 6. The President, M.R.T., Mumbai. Camp at Aurangabad. ... RESPONDENTS [NO.1 ORIG. APPLIC- ANT 7 NOS.2 & 3 ORIIGINAL NON- APPLICANT NOS.1 AND 2] [RESPONDENT NOS.2 AND 3 ARE DELETED AS PER COURTS ORDER DATED 2ND JULY, 2002] *** Mr. R. S. Deshmukh, Advocate for the Petitioner. Mr. S. M. Kulkarni, Advocate for the Respondent. *** CORAM: B. P. DHARMADHIKARI, J. DATED:- 26th APRIL, 2011. ORAL JUDGMENT: 1. By this petition, filed under Article 227 of the Constitution of India, the petitioners who claim to be subsequent purchasers of tenanted land are assailing the judgment dated 1st December, 1999 delivered by Maharashtra Revenue Tribunal in Revision Case No.31/B/94/A under section 91 of Hyderabad Tenancy & Agricultural Lands Act, 1950 (hereinafter referred to as 1950 Act). By said order, the Maharashtra Revenue Tribunal has allowed revision filed by present Respondent no.1, has quashed and set aside the judgment and order of Tahsildar as also of Additional Collector and has 3 WRIT PETITION NO.: 918 OF 2000 directed Tahsildar to proceed under section 38 (2) (3)(4)(5)(7) and (8) of 1950 Act for determination of purchase price and for its recovery from Respondent No.1 Deorao. It is not in dispute that this Court, while issuing rule in the matter, had granted rule on interim relief and thereafter on 23rd July, 2002 also granted ad-interim relief in terms of prayer clause (C) of the writ petition. 2. The facts are not much in dispute. The lands in dispute located in Nanded District initially belonged to one Samdani Khatun and after her death same devolved upon Yusuf Khan i.e. present Respondent No.2. The father of Respondent No.1 viz. Hari (deceased) was protected tenant in possession of these lands. The lands were disposed of by sale deed dated 3rd November, 1970 by Yusuf Khan to one Ramnath Gangusingh Rawal i.e. present Respondent No.3. This was after a public notice dated 20th October, 1970 declaring intention to sale and inviting objections from all. It was claimed that no objection was raised even by Hari at that time. The mutation entry No.873 then reflected name of Respondent No.3 Ramnath. Said Respondent along with others then sold those lands to petitioner No.1 and Petitioner No.2 on 15th 4 WRIT PETITION NO.: 918 OF 2000 October, 1983. On 19th October, 1983 the remaining suit lands were also sold to all the petitioners. The relevant mutation entries were then sanctioned on 10th August, 1990. 3. Protected tenant Hari Tukaram had filed Regular Civil Suit No.189 of 1970 contending that he was in possession and Respondent No.3 Ramnathsing had no interest in the suit lands. This suit was filed on 6th November, 1970 and was decided on 21st July, 1983. It is not in dispute that original owner viz. Yusuf Khan was not party to it and present petitioners were not in picture at that time. 4. The fact that deceased Hari was declared as protected tenant in 1980 i.e. in case No.92/B/77/N dated 7th April, 1980 in possession over disputed land is also not in dispute. In this background, deceased Hari in 1985 moved Tahsildar by filing application under section 150 of Maharashtra Land Revenue Code for obtaining a mutation entry in his name. Thereafter, in 1988 he filed another application under section 38 (3) of 1950 Act for determination of purchase price and for issuance of ownership certificate. During pendency of these proceedings, he expired on 12th October, 1988. 5 WRIT PETITION NO.: 918 OF 2000 5. Both these applications filed by deceased Hari were prosecuted by his son Deorao and have been decided by common order on 7th January, 1993 by Tahsildar. Tahsildar found status of Hari as tenant undisputed but then further noted that Hari was not in possession and he had no preferential right to purchase. The other issues i.e. issue No. 3 on limitation, issue No.4 about cause of action or issue No.5 about jurisdiction were, therefore, not answered. Deorao then challenged this order of Tahsildar in appeal before the Additional Collector, Nanded. That authority decided the appeal on 30th April, 1994. It maintained the order of Tahsildar and found that Hari should have approached Yusuf Khan immediately after he learnt about the proposed sale. It was also found that he was negligent in exercising his preferential right to claim ownership and though there was no express period of limitation stipulated, his inaction for considerable period dis-entitled him to such ownership. It was also noted that the tenancy rights in suit land were given by Hari to his son but that will appeared to have not been acted upon. Properties were therefore mutated in the name of Deorao, his mother and sister after death of Hari. 6 WRIT PETITION NO.: 918 OF 2000 Hence non-joinder of said mother and sister was found fatal. Reliance was also placed on spot inspection by Tahsildar to conclude that lands were not in possession and under cultivation of Respondent No.1. The Additional Collector ultimately found that Deorao therefore could not establish that the disputed lands were under his cultivation and he wanted to purchase them for his bonafide personal cultivation. The appeal, therefore, came to be dismissed. Maharashtra Revenue Tribunal in revision filed by Deorao vide its judgment dated 1st December, 1999 reversed all these findings. This reversing judgment of Maharashtra Revenue Tribunal is questioned by Advocate Mr. Deshmukh for petitioners. 6. According to learned counsel, the concurrent findings reached by Tahsildar and Additional Collector after appreciation of evidence on record could not have been distinguished or disturbed by Maharashtra Revenue Tribunal as under section 91 of the 1950 Act it has very limited jurisdiction. He has relied upon judgments of Supreme Court in the case of "Sita Ram Bhau Patil V/s Ramchandra Nago Patil" reported in 1977 AIR (SC) 1712; in the case of "Maruti Bala, Raut V/s Dashrath Babu Wathare and 7 WRIT PETITION NO.: 918 OF 2000 others" reported in AIR 1974 SC 2051 and judgment of this Court in the case of "Gulabrao Sahebrao Shinde V/s Sayaji Shankar Shinde" reported in 2004 (1) Mh.L.J. 873 to point out the scope of jurisdiction available to Maharashtra Revenue Tribunal in such matters. He contends that this facet is over looked and material looked into by Tahsildar or Additional Collector has also not been considered. For instance, the visit of Tahsildar to spot and his findings thereon are not appreciated by the Maharashtra Revenue Tribunal at all. 7. Attention is invited to discussion on the aspect of non-joinder of necessary parties by Additional Collector, with contention that Maharashtra Revenue Tribunal has totally ignored this aspect. Judgment of Honourable Apex Court in the case of "Khetrabasi Biswal V/s Ajaya Kumar Baral and others" reported in (2004) 1 SCC 317, and in the case of "Jagtu V/s Suraj Mal & Ors." reported in 2011 ALL SCR 162 and judgment of this Court in the case of "Smt. Nakubai Walu Dhokane (Since Deceased through L.Rs.) V/s Shri. Bhagwansingh Prakash Chandra Kapoor" reported in 2008 (5) ALL MR 1 are pressed into service for said 8 WRIT PETITION NO.: 918 OF 2000 purpose. Learned counsel invites attention to the reliefs claimed in application moved in the year 1985 and in the year 1988 by deceased Hari to urge that reliefs claimed are mutually inconsistent. 8. Attention is invited to provisions of section 38 (1) read with section 38 (7) of 1950 Act to point out conditions in which right to purchase can be exercised by a tenant like Hari. Provisions of section 46-D of 1950 Act are also pressed into service to show how the tenant can exercise that right to purchase. The silence of tenant from the year 1970 till 1988 or then in any case from the year 1980 till 1988, according to him, in this respect is very significant. Deceased tenant Hari was aware of all sale deeds and, therefore, changes in ownership and hence though law does not expressly stipulate any limitation on said right to purchase, he should have acted within reasonable time. Reliance is being placed upon judgment in the case of "Mohamad Kavi Mohamad Amin V/s Fatmabai Ibrahim" reported in (1997) 6 SCC 71, in the case of "Janba (Dead) Through L.Rs. V/s Smt. Gopikabai" reported in 2000 (5) SRJ 131, in the case of "Radhu Gokul Gawali, Died, Through L.Rs. and others V/s Mohan Kishan Gawali, Died through L. Rs. and 9 WRIT PETITION NO.: 918 OF 2000 others" reported in (2007 MCR 1029), in the case of "Waman Atmaram Lavand and another V/s Dattatraya @ Dattu Baba Lavand and others" reported in 2009 (5) Mh.L.J. 442 and in the case of "Santoshkumar Shivgonda Patil and others V/s Balasaheb Tukaram Shevale and others" reported in 2010 (2) Mh.L.J. 150. According to him, a person like Hari not in possession, therefore, cannot aspire to purchase the property at all and even if it is presumed that Hari had any such right, he did waive the same because of his inaction for long time. 9. Lastly attention is invited to consideration of various sale deeds executed by Yusuf Khan in favour of petitioners in 1983 and to the application of doctrine of lis-pendens and provisions of section 48 (7) of 1950 Act. Learned counsel states that first sale deed is dated 3rd November, 1970 i.e. before filing of civil suit and the other sale deeds are after final adjudication in that civil suit. Therefore, the concept of lis- pendens is not at all attracted. Support is being taken from judgment of this Court in the case of "Smt. Sarita Gopalkumar Chand V/s Madgu S/o Sitaram Ramteke and others" reported in 2010 (5) ALL MR 843. It is further contended that neither before 10 WRIT PETITION NO.: 918 OF 2000 Tahsildar nor before Additional Collector the question of application of section 48 (7) was raised either by Hari or than by Deorao. Before Maharashtra Revenue Tribunal also the question was not raised and cognizance of said provision by Maharashtra Revenue Tribunal for the first time directly in revisional jurisdiction is, therefore, unsustainable. 10. Advocate Mr. Kulkarni appearing for Respondent no.1 has supported the impugned order. He has invited attention to previous history of litigation and then to various sale deeds. He contends that status of deceased Hari as protected tenant was never in dispute and has not been questioned at any point of time. The protected tenant, therefore, must be presumed to be in possession till his tenancy is duly determined and is evicted therefrom in accordance with law. Support is being taken from judgment of this Court in the case of "Apparao Manaji V/s Sadhu S/o Sambhaji and others" reported in 1972 Rev. R. 217. 11. He further states that the earlier landlord viz. Samdanibegum had initiated proceedings for resumption against Hari and those proceedings failed on 30th December, 1961. In this background, 11 WRIT PETITION NO.: 918 OF 2000 he relies upon express language of section 38 of 1950 Act to urge that it does not stipulate any limitation. The procedure prescribed for sale by landlord is also relied upon and for that purpose attention is invited to section 48 of same Act. The learned counsel states that all subsequent sale deeds whether during pendency of suit before it or thereafter, are rightly held bad and non-est because of violation of said section, by Maharashtra Revenue Tribunal. 12. On the issue of limitation, learned counsel has contended that Tahsildar has expressly decided that issue against present petitioners and petitioners did not challenge that finding in appeal before Additional Collector. The appeal was filed by Respondent No.1 Deorao only. Hence, petitioners have given up the said challenge. It is contended that the defect of non-joinder noticed by Additional Collector is also irrelevant because the internal dispute (if any) between Respondent no.1, his sister or mother has got no bearing on adjudication of controversy. The Maharashtra Revenue Tribunal has correctly appreciated the controversy and in fact the jurisdictional errors at the hands of Tahsildar and Additional Collector 12 WRIT PETITION NO.: 918 OF 2000 are corrected by that authority. Judgment of this Court in the case of "Limbaji Shankar Munde (deceased through L.Rs.) V/s Bhaurao Baliram Munde (deceased through L.Rs.) and others" reported in 2010 (3) Mh.L.J.138 is pressed into service to urge that no limitation as such is prescribed under section 38E of 1950 Act. Judgment of Division Bench in the case of "Ganpat Sakharam Deshmukh V/s Yeshwant Digambar Deshmukh" reported in 2000 (1) Mh.L.J. 126 is again relied upon for very same purpose. To explain the scope of revision, judgment in the case of "Rangrao Ganpatrao Kulkarni V/s Syed Hakim S/o Syed Jafar and another" reported in 2000 (2) Mh.L.J. 659 and in the case of "Ananda Dattu Patil since deceased through his LRs. Nivrutti Ananda Patil and others V/s Ramesh Anandrao Patil and another" reported in 2003 (5) Mh.L.J. 622 are relied upon. 13. It is urged that under Article 227 of the Constitution, the jurisdiction available to this Court is very limited and as order of Maharashtra Revenue Tribunal does not suffer any jurisdictional error or perversity this Court should not interfere. Support is being taken from judgment of 13 WRIT PETITION NO.: 918 OF 2000 Honourable Apex Court in the case of "Radhy Shyam and another V/s Chhabi Nath and others" reported in 2009 (5) SCC 616, in the case of "Jai Singh and others V/s Municipal Corporation of Delhi and another" reported in 2010 (9) SCC 385, and in the case of "Sneh Gupta V/s Devi Sarup and others" reported in 2009 (6) SCC 194. 14. In reply arguments, Advocate Mr. Deshmukh has contended that in Regular Civil Suit no.189 of 1970 or then the order of Additional Tahsildar dated 26th July, 1977 there was no adjudication of title of Respondent No.3 Ramnath or his predecessor. In this background learned counsel further states that when on account of spot inspection fact of absence of possession is brought on record, the alleged presumption of possession of protected tenant is not available. It is further urged that the petitioners have purchased the land from Ramnath in 1983 and they have been always contesting the matters before various Courts. Hence, there is no presumption of giving up of the plea of limitation. It is lastly urged that in present facts provisions of section 48 (7) are not violated as there is no tenant on the land. 15. After hearing respective counsel and after 14 WRIT PETITION NO.: 918 OF 2000 perusal of records, I find that status of deceased Hari as protected tenant is not in dispute. The said status crystalised in the year 1988 and in absence of any further challenge thereto has attained finality. The perusal of provisions of Chapter IV-A of 1950 Act show that it deals with rights of protected tenants, ordinary tenants and land holders. The rights of protected tenant to purchase land are given in section 38 (1). As per that provision, such protected tenant like Hari is entitled to purchase the land holders interest in the land held by former as a protected tenant. This provision has been given an overriding effect and it operates notwithstanding anything to the contrary in any law, usage or contract subject to provisions of subsection (7). Subsection (7) puts ceiling upon the extent of area which can be purchased by such protected tenant and is not relevant in present matter, at this stage. Section 38E confers ownership upon such protected tenants statutorily from a notified date. It is not in dispute that said provision has come into force in Nanded District on 25th May, 1957. The said provision operates notwithstanding anything contained in Chapter IV-A or then notwithstanding 15 WRIT PETITION NO.: 918 OF 2000 any law for the time being in force or any custom or usage or decree or contract or grant to the contrary. Thus, from the date of notification, ownership of all lands held by protected tenants which they are entitled to purchase from their land holders, stands transferred to and vested in protected tenant holding it and from that date the protected tenant is deemed to have become full owner of such lands. The position emerging is very clear. Original landlord here had filed presumption proceedings against protected tenant Hari and those proceedings met with failure on 30th December, 1961. The date of notification under section 38E (1) is 25th May, 1957. In view of clear statutory provision, it is apparent that Hari statutorily become owner on 25th May, 1957 itself. In other words, Samdanibegum or then Yusuf Khan ceased to be owners of said land from same date. With the result, sale deed dated 3rd November, 1970 executed by them in favour of Respondent No.3 Ramnath has no legal existence because Yusuf Khan did not possess or own any transferable interest in suit lands on said date. It was not necessary for Hari to file any suit against Yusuf Khan and as Ramnath was trying to interfere with his poesssion, 16 WRIT PETITION NO.: 918 OF 2000 he filed suit only against Ramnath. In that suit, trial Court framed an issue to find out whether Hari proved his juridical possession on suit land on the date of suit. It is not in dispute that suit has been filed on 6th November, 1970 and trial Court has answered that issue in favour of deceased Hari. The other issues are consequential and not very relevant. However, issue No.6 was about the status of protected tenant and trial Court has attempted to find out whether Hari was protected tenant or then Ramnath was that protected tenant. From facts discussed above, it is clear that Ramnath had obtained a sale deed in his favour on 3rd November, 1970 i.e. before institution of suit and hence on that day he was not the tenant at all. Still the issue was referred to Tahsildar for adjudication and Tahsildar has after considering relevant material found Hari to be protected tenant. As already noted above, this finding has not been questioned by anybody and has attained finality. 16. These findings, therefore, squarely show that Hari was in possession as against Ramnath after 6th November, 1970 and even on 21st July, 1983 when Regular Civil Suit No.189 of 1970 filed by him, 17 WRIT PETITION NO.: 918 OF 2000 came to be decided. The sale deeds by Ramnath in favour of the petitioners are dated 15th October, 1983 and 19th October, 1983. In the light of discussion above, it is clear that Ramnath who himself had no marketable title to suit lands could not have conferred any title upon petitions and those sale deeds are therefore inconsequential. 17. The question of possession has been gone into by Tahsildar firstly. The proceedings in which that question has been gone into were instituted in 1985 and 1988. Hari died on 12th October, 1988. An application for spot inspection was made on 27th July, 1992 and spot has been inspected on 27th August, 1992. The perusal of observations in his report by Tahsildar reveal that he found both the fields not under cultivation and fallow. However, he has qualified it by stating that at few patches of land few seeds of hybrid jowar were found sprinkled and a very thin crop of jawar was seen standing in about 3 to 4 Gunthas of land and here and there, and between these patches of thin crop of jawar land was grassy covered by shrubs and trees. It is important to note that Tahsildar was concerned with status of Hari and possession of Hari. On the date of spot inspection Hari was not 18 WRIT PETITION NO.: 918 OF 2000 alive and these remarks, therefore, are not sufficient to show that Hari was not in possession during his life time. Possession of Hari during his life time was sufficient to answer the controversy. Tahsildar has not taken any pains to find out that position. Residence or service of Deorao elsewhere was not at all relevant in this matter. 18. Even otherwise, it can be said that if Hari was in possession, after him his son Deorao would have come in possession. In other words, if Deorao is not found in possession, it may imply that Hari also was not in possession. The spot inspection does not show an assertion by petitioners that the thin crop of jawar was raised by them. The facts, therefore, clearly show that it is Deorao who had been in cultivating possession on the date of spot inspection. This spot inspection report is further looked into by Additional Collector while deciding appeal. Said authority has found that after death of Tenant Hari his son (Deorao) had not cultivated the lands because of his service with Pune Municipal Corporation for long time. It also noticed that in future he was not in position to cultivate the lands personally because of same 19 WRIT PETITION NO.: 918 OF 2000 service. Additional Collector has also noticed the finding of Tahsildar that Jawar crop was standing in 3 to 4 Gunthas and rest of the land was uncultivated. So, both the authorities have accepted that about 3 to 4 Gunthas of suit land was under cultivation. The appreciation of spot inspection by Additional Collector and Tahsildar to record a finding of absence of possession of Hari is, therefore, unsustainable. Spot inspection does not support any such conclusion. In any case, Maharashtra Revenue Tribunal has not expressly relied upon it. Maharashtra Revenue Tribunal has noted protected status of Hari and then noted provisions of section 48(7). Though reference to provisions of section 52 of Transfer of Properties Act by Maharashtra Revenue Tribunal in present circumstances is misconceived, still it is apparent that the Maharashtra Revenue Tribunal also did not notice absence of title in Ramnath or then the consequently absence of title in purchasers from Ramnath i.e. present petitioners. All the three authorities did not realise the scheme of Section 38E and effect of deeming fiction in it. Judgment in Smt. Sarita Gopalkumar Chand V/s Madgu S/o Sitaram Ramteke and others (supra) need not 20 WRIT PETITION NO.: 918 OF 2000 therefore be looked into. 19. Section 48 (1) of 1950 Act stipulates that where a land holder intends to sell any land leased to a tenant, he has to apply to Tribunal for determination of reasonable price thereof. Tenant is given first right to purchase it. Under provisions of section 48 (7) any sale made in contravention thereof is invalid. Here, after 25th May, 1957 lands had vested in Hari and thereafter there was no land holder as such and hence when Yusuf Khan sold lands on 3rd November, 1970 to Ramnath he was not a land holder. When Remnath sold lands in 1983 to present petitioners, Ramnath or his brothers were again not land holders. The provisions of section 48, therefore, were not relevant at all. 20. The provisions of section 38 (1) show that a protected tenant is entitled to purchase the land holder's interest "at any time" after the commencement of Hyderabad Tenancy & Agricultural Lands (Amendment) Act, 1954. Thus,