1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2590 OF 1991. Venkat Sonappa Sagar, Age 50 years, Occ.Agril., R/o Gavsud, Tq. and District Osmanabad. ... Petitioner. Versus 1. The State of Maharashtra., 2. Limbaraj Apparao Bhosale died by his L.Rs. 2A. Rajendra Limbaraj Bhosale, Age major,Occ.Nil, R/o Gavsud, Tq. and District Osmanabad. 2B. Godawaribai W/o Limbaraj Bhosale, Age major, R/o Singoli, Tq.and District Osmanabad. 2C. Vimalbai W/o Prabhakar Patil, Age major, Occ.Nil, R/o Singoli, Tq. and Dist.Osmanabad. 2D. Rajeshri W/o Shridhar, Age major, Occ.Nil, R/o Sarola, Tq. and Dist.Osmanabad. 3. Nutaqnpuri Guru Dhanrajpuri deceased by his L.Rs. 3A. Kailash Guru Nutanpuri, minor u/g of his real father 2 Devidas Jhumbargiri R/o Osmanabad. ... Respondents. ... Mr.G.N.Chincholkar, advocate for the petitioner. Mr.N.H.Borade, A.G.P. for the Respondent No.1. Miss.Surekha Mahajan, advocate for the Respondent Nos.2A to 2D. ... CORAM : V.R.KINGAONKAR,J. Reserved on : 20.01.2010. Pronounced on : 02.02.2010. JUDGMENT 1. By this petition, the petitioner challenges judgment and order dated 4.5.1985, rendered by learned Tahsildar, Osmanabad in file No.1986/TNC/WS/223 and that of learned Additional Commissioner, Aurangabad in Revision Case No. 1991-REV/R/1 dated 2.5.1991. 2. S.No.465 and S.No.468 situated at Osmanabaqd were allegedly service inam lands. They were granted in favour of a Math for rendering religious services. Nutanpuri was the Inamdar. 3. One Apparao Bhosale was father of 3 Respondent NO.2 Limbaraj. Said Apparao had filed a suit (RCS No.75/1983) for relief of perpetual injunction against said Nutanpuri and the petitioner, who were defendant Nos.1 and 3 respectively, wherein issue of tenancy was framed. The tenancy issue was referred to Tenancy Tribunal. Likewise plaintiff Apparao, defendant No.2 i.e. present petitioner also had set up issue of tenancy in respect of the said two lands. The competent Tenancy Tribunal answered the issues. It was held that neither Apparao nor the petitioner were tenants in respect of the said lands. The petitioner had also alleged that the lands were the properties of the Trust (Math) and were service inams. An issue was framed in this behalf. The Civil Court gave finding that the lands were service inams. 4. While the previous suit (RCS No.375/73) was pending, said Apparao died. The name of Respondent NO.2 Limbaraj was substituted in his stead, being his sole surviving son. The suit was dismissed. Needless to say, the respondent No.2 (Limbaraj) was unsuccessful in claiming 4 injunction and status of a tenant. 5. In the next round of litigation, Respondent No.2 Limbaraj @ Limbaji filed an application before learned Deputy Collector (L.R.), Osmanabad seeking declaration regarding nature of the inam and clamping injunction on inamdar i.e.Nutanpuri, restraining him from causing unlawful obstruction in his possession. It was the case of Respondent No.2 Limbaraj that he was in actual possession of both the lands since 1975 on basis of oral agreement between deceased Apparao and Nutanpuri. Respondent NO.3 Nutanpuri denied all the material averments made by the Respondent No.2 - Limbaraj in the said application. The application was dismissed by the learned Deputy Collector (L.R.) on 3l.5.1983. Feeling aggrieved, Respondent No.2 Limbaraj preferred an appeal (No.1983/WTN/AUR.430) which was allowed by the learned Additional Commissioner, Aurangabad by judgment and order dated 3l.5.1983. The learned Additional Commissioner held that Respondent No.2 Limbaraj was entitled to get back possession of the lands 5 in question. The learned Additional Commissioner also granted injunction against the Inamdar i.e. Nutanpuri while allowing the appeal. 6. The petitioner filed an objection petition before the Tahsildar, Osmanabad, alleging that he was not a party to the proceedings initiated by Respondent No.2 Limbaraj before the Deputy Collector (L.R.) and that of the appeal before the learned Additional Commissioner, Aurangabad and, therefore, he was not bound by the directions regarding restoration of possession of the lands in question. He opposed execution of the said order alleging that he was in actual possession of the lands at the relevant time. He further raised dispute regarding status of Respondent No.2 Limbaraj @ Limbaji as a person entitled to get back possession of the lands in question. He submitted that the tenancy issue was concluded by the Civil Court against the Respondent No.2 Limbaraj and that there was no legal right available to him for seeking restoration of the possession. By order dated 4.5.1985, the learned 6 Tahsildar dismissed objection petition filed by the petitioner. The learned Tahsildar held that the petitioner was not a necessary party being third person in the context of earlier proceedings. The learned Tahsildar noticed that previously direction was given to Respondent No.2 Limbaraj @ Limbaji to deposit the annual rent for the year 1986-87 and the same was deposited by him. Feeling aggrieved, the petitiner preferred appeal which was allowed by the learned Sub Divisional Officer, in file No.1986/ROR/A/22. The order of learned Tahsildar was set aside and the matter was remanded for afresh inquiry. Respondent No.2 Limbaraj filed an appeal before the Additional Collector against such order of remand dated 14.9.1987. The appeal was dismissed and the remand order was confirmed. By filing Revision Case No.1991/REV/R/1, the Respondent No. 2 Limbaraj @ Limbaji challenged the order rendered by the Additional Collector, Osmanabad confirming the remand order of the S.D.O. The learned Additional Commissioner allowed the Revision Petition and set aside the orders of the SDO and the Additinal Collector. The learned 7 Additional Commissioner confirmed the Tahsildar's order dated 4.5.1986, whereby objection petition filed by the petitioner had been dismissed. The net result was that the petitioner's objection regarding execution of the order for restoration of the land was repelled and it was concluded that Respondent No.2 Limbaraj @ Limbaji was entitled to occupancy rights in respect of the lands in question under provisions of the Hyderabad Abolition of Inam and Cash Grants Act, 1954. It is said order rendered by the learned Additional Commissioner which gave rise to the present Writ Petition. 7. Heard learned counsel. 8. The questions involved in the instant petition are thus : "(i) Whether in the facts and circumstances of the present case, the learned Additional Commissioner exceeded the revisional jurisdiction while upsetting the two concurrent 8 orders rendered by the learned SDO and learned Additional Collector, Osmanabad.? (ii) Whether in the facts and circumstances of the present case, the objection petition filed by the petitioner ought to have been entertained and decided on merits and that it could not have been dismssed only because he was a third party to the earlier litigation i.e. Appeal No. 1983/WTN/AUR.430.? 9. At the threshold, let it be noted that the learned Additional Commissioner, interfered with the order of the Sub-Divisional Officer and the Addl. Collector in the exercise of Revisional jurisdiction U/s 257 of the Maharashtra Land Revenue Code, 1966. The impugned judgment does not reflect as to how the judgment and order of the learned SDO was found arbitrary or perverse. The learned SDO had directed afresh inquiry regarding eligibility of the deceased Respondent 9 No.2 - Limbaji to claim occupancy rights in respect of the lands in question i.e. S.No.468 and 469. The learned SDO noticed that possession decree was rendered in favour of the petitioner in previous suit (Spl.C.S.No.4/1973) and he was put in possession through the process of Court. The learned SDO further noticed that the petitioner was not a party to the earlier litigation between the deceased Respondent No.2 and the deceased Respondent No.3. Therefore, the learned SDO came to the conclusion that the deceased Respondent No.2 - Limbaraj could not be regarded as occupant of the lands in question and at any rate afresh decision on the objections raised by the petitioner was necessary. It may be noticed that the said judgment of the learned SDO was confirmed by the learned Additional Collector while dismissing the appeal in file No. 38/RTS-59/87-88 on 3l.10.1990. Thus, there were concurrent findings rendered by the two Tribunals. The learned Additional Collector, while dismissing the appeal preferred by the deceased Respondent No.2 - Limbaraj held that in view of the findings of the Civil Court that 10 deceased Respondent No.2 Limbaraj utterly failed to prove his possession over the lands in question, the declaration of occupancy rights could not be granted in his favour without examination of all the pros and cons. So, it was held that he was not entitled to claim possession of the said lands. 10. The impugned judgment and order reveals that the learned Additional Commissioner was much impressed by the fact that the High Court had accepted the fact that possession of deceased Respondent No.2 Limbaraj was continuous and long standing. This main plank of the impugned judgment is apparently unavailable. There appears factual inaccuracy committed by the learned Additional Commissioner while observing that possession of the deceased Respondent No.2 was held as continuous and long standing, vide judgment of this Court. In fact, the fact situation is different. The father of the deceased Respondent No.2 i.e. Apparao had filed Civil Suit (RCS No.75/1973) for injunction on basis of his alleged cultivating possession as a 11 tenant of the lands in question. His contention in the said suit was that on basis of oral agreement of tenancy in the year 1957, the lands in question were delivered to him by deceased Respondent No.3 Nutanpuri (Inamdar). The Civil Court held that deceased Apparao, predecessor of the deceased Respondent No.2 Limbaraj, was not tenant nor was in actual possession of the lands in question. It need not be reiterated that the tenancy issue was referred to the Tribunal for decision. The Tenancy Tribunal held that neither deceased Apparao nor the petitioner were tenants of the lands in question. Such finding attained finality because the challenge to such finding had been repelled by the appellate Tribunal, MRT and the High Court. The findings of the Civil Court indicated that the deceased Respondent No.2 (Limbaraj) was not in possession of the lands in question. The impugned judgment shows that the learned Additional Commissioner was of the opinion that the proceedings under the Hyderabad Abolition of Inams and Cash Grants Act, 1954 had been terminated in favour of deceased Respondent No.2 and, therefore, the remand order was 12 uncalled for. It is important to note that the petitioner was not a party to the proceedings between the deceased Respondent No.2-Limbaraj and the deceased Respondent No.3-Nutanpuri. Obviously, he was not bound by judgments in the said proceedings. The reasoning of the learned Additional Collector, Osmanabad and that of the SDO, Osmanabad was reasonable and there was no much reason to interfere with their judgments in the exercise of revisional jurisdiction. 11. What transpires from the record is that after his failure to seek relief of perpetual injunction in the Civil suit, on strength of alleged oral agreement of tenancy, deceased Apparao, i.e. father of deceased Respondent No.2 Limbaraj submitted an application to the learned Deputy Collector (L.R.), Osmanabad on 20.9.1982, with a request to decide nature of the inam and restraining deceased Respondent No.3 Nutanpuri from disturbing his possession. In the said proceedings, deceased Respondent No.3 Nutanpuri had offered denial to the averment regarding oral agreement and status of said Apparao as occupant. 13 12. The application filed by deceased Respondent No.2 Limbaji (File No.82/Desk-Inam/70 was dismissed by the Deputy Collector (L.R.),Osmanabad. The learned Deputy Collector held that the lands in question were service inam lands granted for performance of services to the religious institutions i.e. "Math" and there was exemption granted under provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954 to such religious institutions. Therefore, deceased Respondent No.2 Limbaraj @ Limbaji could not be declared as occupant and hence, his application came to be rejected. He preferred an appeal which was allowed by the learned Additional Commissioner, Aurangabad Division. The learned Additional Commissioner directed that deceased Respondent No.2 Limbaraj @ Limbaji shall be inducted in possession of the lands in question if he was not in possession thereof. So also, deceased Respondent No.3 Nutanpuri was directed not to disturb possession of the deceased Respondent No.2 Limbaji. It is pertinent to note that the appellant was not a party to the said litigation between the deceased 14 Respondent Nos.2 and 3. There is nothing on record to show that after such order rendered by the learned Additional Commissioner, deceased Respondent No.2 Limbaraj @ Limbaji was inducted in actual possession through the process of law. On the other hand, there is tangible evidence to show that the petitioner was put into possession in pursuance to decree rendered in Special Civil Suit No.4/1973. There is hardly any reliable evidence to show that he was dispossessed after 1973 in lawful manner at any point of time before commencement of the second round of revenue litigation by deceased Respondent No.2 Limbaraj @ Limbaji for recovery of possession on allegation that he was occupant of the service inam lands. Needless to say, the observations of the learned Additional Commissioner about the High Court's confirmation of possession of the deceased Respondent NO.2-Limbaraj is incorrect. The Writ Petition No.218/1986 was filed by deceased Respondent No.3 Nutanpuri against deceased Respondent No.2 Limbaji, challenging the order rendered by the Additional Commissioner on 23.1.1986 regarding restoration of possession and 15 injunction. It appears that interim relief was denied in the said Writ Petition and subsequently that Writ Petition was disposed of as abated. The High Court held that the legal representative of deceased Respondent No.3 Nutanpuri was not brought on record. The learned Single Judge (Hon'ble Justice R.G.Deshpande), held that though attempt was made to substitute present Respondent No.3-A Kailas as legal representative of deceased Respondent No.3-Nutanpuri, who was the petitioner in the said Writ Petition, yet, the relationship between the said L.R. and his guardian was not clear from the affidavit filed on record. The Writ Petition was not decided on merits. It was held as abated. So, there was no reason for learned Additional Commissioner to infer or assume that the High Court accepted the fact of possesson of deceased Respondent No.2-Limbaraj @ Limbaji. 13. The learned Additional Commissioner observed : "There are two separate proceedings 16 between the parties in two different enactments. The proceedings under the Hyderabad Abolition of Inams and Cash Grants Act, 1954 are decided in favour of the present revision petitioner and the important point is that his possession in whatever capacity, has been accepted by the Court of the Addl. Commissioner as well as in Watan matter by the Hon'ble High Court. I, therefore, come to the conclusion that the possession issue has been finally decided in favour of the present revision petitioner. The order of the Trial Court in C.No.85-TNC-WS-223 decided by the Tahsildar on 4.5.1986 is valid, correct and legal....... ........possession of the revision petitioner as a tenant is not material for all purposes in this revision petition. Hence, I come to the conclusion that the order of the 17 Trial Court is correct and that order should not be interpreted as coming in clash with the tenancy orders passed by the different Courts." The above observations would show that the learned Additional Commissioner was cognizant of the fact that the tenancy issue was decided against the deceased Respondent No.2 Limbaraj @ Limbaji. The learned Additional Commissioner seems to have over-looked the impact of litigation in respect of the tenancy issue, findings of the Civil Courts and other relevant material. It need not be reiterated that the findings rendered in the proceedings under provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954 were not binding on the present petitioner because he was not a party to such a litigation between the deceased Respondent No.2-Limbaraj and deceased Respondent No.3 Nutanpuri. In this view of the matter, the learned Additional Commissioner should not have summarily reached the conclusion that deceased 18 Respondent No.2 Limbaraj was entitled to seek restoration of possession as lawful occupant of the lands in question. The impugned judgment reveals that various contentions raised by the petitioner were not duly considered. Considering these aspects, it will have to be said that the impugned judgment is unsustainable. The concurrent judgments of the learned SDO, Osmanabad in appeal (File No.1986-ROR-A-22) dated 14.9.1987 and by Additional Collector, Osmanabad in Second Appeal (File No.38/RTS-59/87-88) dated 3l.10.1990 should not have been interfered with. Both the appellate authorities had rightly remanded the matter for afresh inquiry because several aspects were required to be considered. 14. For the reasons aforestated, I am inclined to hold that the learned Additional Commissioner exceeded the revisional jurisdiction and that Objection Petition filed by the petitioner ought to have been entertained and decided by the Tahsildar on merits and the same could not have been dismissed only because he was a third party to the previous litigation between 19 deceased Respondent No.2 Limbaraj and deceased Respondent No.3 Nutanpuri. Hence, the impugned judgment is unsustainable and will have to be set aside. The petition is, therefore, allowed. The impugned judgment is set aside. The appellate judgments rendered by the SDO and Additional Collector, Osmanabad on 14.9.1987 and 3l.1.1990 are maintained. Rule made absolute. No costs. (V.R.KINGAONKAR,J.) asp/office/wp259091