1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1421 OF 1989. 1. Syed Ibrahim Baban, died through L.Rs. 1A. Smt.Sugrabi W/o Syed Ibrahim, Aged 53 years, Occ.Household, R/o Bidkin, Tq. Paithan, Dist. Aurangabad. 1B. Syed Azam S/o Syed Ibrahim, Age 29 years, Occ.Agri., R/o as above. 1C. Syed Firoz S/o Syed Ibrahim, Age 25 years, Occ.Agri., R/o as above. 1D. Mrs. Jamilabi W/o Shaikh Atiq, Age 22 years, Occ.Household, R/o as above. 1E. Syed Irfan S/o Syed Ibrahim, Age 20 years, Occ.Agri., R/o as above. 2. Syed Ahmed S/o Baban, Age 50 years, Occ. & R/o as above. 3. Syed Ismail S/o Baban, Age 47 years, Occ. & R/o as above. ... Petitioners. Versus 2 1. Motya S/o Hassu Rathod, died through L.Rs. A- Soma S/o Hasu Rathod (died L.Rs.) A-1. Pohnabai W/o Soma Rathod, Age 50 years, A-ii Vankar S/o Soma Rathod, Age 30 years. A-iii) Dnyaneshwar S/o Soma Rathod, Age 28 years. No.i), ii) iii) occupation Agril., R/o Bongli Tanda, Tq. Paithan, A-iv) Mancabai d/o Soma, Age 25 years, A-v) Mandabai W/o Phulsing Chavan, Aged 29 years, Occ. Household, R/o Aadul, Tq. Paithan, Dist. Aurangabad. B- Chagan S/o Hasu, Age 77 years, Occ.Agril., R/o Bangla Tanda, Bidkin, Tq.Paithan. c- Balu S/o Hasu, Age 55 years,Occ.Agril., R/o as above. D- Rupa S/o Hasu, Age 50 years, Occ.Agril., R/o as above. E- Mohan S/o Hasu, Age 48 years, Occ.Agril. R/o as above. F- Sitabai d/o Hasu and W/o Tukaram Rathod, Age major, Occ.Agril., R/o Jethwada Tq. & Dist. Aurangabad. 3 G- Gobibai d/o Hasu & W/o Bhura, Age major, Occ.Agril., R/o Jambhali, Tq. Paithan. H- Kondabai d/o Hasu & w/o Gopinath, Age 60 years, Occ. Agril., R/o Dongaon, Tq. Paithan, Dist. Aurangabad. I- Kesarbai d/o Hasu & W/o Manu, Age 92 years, Occ.Agril., R/o Jamkhed, Tq. Ambad. J- Mangilal Rathod, Age 25 years, Occ.Nil., R/o Bidkin, Tq.Paithan. 2. Kailas S/o Uttamrao, minor, u/g Saraswatibai W/o Uttamrao Kedare, R/o Padegaon, Tq. Paithan. 3. Maharashtra Revenue Tribunal, Aurangabad. 4. State of Maharashtra ... Respondents. ... Mr.P.V.Mandlik, Sr.Counsel, instructed by Mr.A.S.Gandhi, advocate for the petitioners Mr.N.N.Jadhav, A.G.P. for Respondent No.4. Mr.P.P.Khandagale, advocate for Respondent No.2. Mr.H.T.Joshi, advocate for Respondent No.1-J. ... CORAM : V.R.KINGAONKAR,J. Date : 02.02.2010. ORAL JUDGMENT 1. By this petition, the petitioners impugn order dated 12.4.1989 rendered by the 4 Maharashtra Revenue Tribunal (MRT) in Revision Petition No.90-B-1986-A arising out of judgment and order rendered by learned Deputy Collector (L.R.) in Appeal No.86/LR/TNC/A/11 arising out of order rendered by Additional Tahsildar, Paithan in Case No.1983/TNC/Cr.18. 2. By the impugned common order, applications filed by deceased Respondent No.1 Motya for restoration of possession in respect of land S.No.364 (Gat No.646) admeasuring 19 acres 35 gunthas was allowed. 3. The deceased Respondent No.1 Motya filed application U/s 32(1) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 alleging that he was tenant in respect of land in question. He alleged that the petitioners herein had dispossessed him during course of proceedings filed before the Revenue Authority. He contended that certificate of tenancy U/s 34 of the HT & AL Act was issued in his favour. According to him, the petitioners had forcibly dispossessed him after the earlier round of litigation. His 5 tenancy rights were never determined as required under the law. He submitted that he was entitled to seek restoration of the possession U/s 32(1) of the HT & AL Act. His application was allowed by the Additional Tahsildar vide judgment and order dated 27.12.1988. The petitioners preferred appeal No.86/LR/TNC/A/11 which came to be dismissed as per judgment rendered by the Deputy Collector (L.R.) on 4.7.1986. They preferred Revision Application No.90/B/1986-A which came to be dismissed by the impugned judgment and order dated 12.4.1989 rendered by the MRT. Hence, the petition. 4. Heard learned counsel. 5. It is important to notice that deceased Respondent No.1 Motya was treated as ordinary tenant.The statutory ownership certificate as contemplated U/s 38-E was not issued in his favour. It is not in dispute that there took place earlier round of litigation between the parties. Deceased Respondent No.1 Motya and others had filed suit (RCS No.23/1978) for 6 injunction against the petitioners. The case put forth by them was that they were in lawful possession of the land in question. They submitted that the petitioners had obstructed their lawful possession. The suit for injunction came to be dismissed as per the judgment rendered by the Civil Court. It appears that Second Appeal No.204/1966 and a Second Appeal No. 1410/1967 were preferred by deceased Respondent NO.1 Motya and others against judgment and decree in Civil suit (RCS No.48/1963) and Civil suit bearing (RCS No.38/1963). The Second Appeal preferred by Motya and others was dismissed. The observations in the copy of judgment (Exh.B) would show that the tenancy rights claimed by Motya and others had not been approved by this Court. 6. On consideration of the previous pleadings of deceased Respondent NO.1 Motya and others, it is manifestly clear that he had adopted a specific stand that he was not tenant of the land in question. He alleged that the petitioners had executed an Isar Pawati 7 (agreement of sale) in his favour and, therefore, he was not tenant but was purchaser of the land in question. It is true, no doubt that the Civil Court could not have decided the issue about the tenancy. It is also true that reference ought to have been made U/s 99-A of the HT & AL Act by the Civil Court if such issue was raised. Still, however, it can not be overlooked that the previous plea of deceased Respondent No.1 Motya was to the effect that he was not at all tenant but was in actual possession of the land in question on basis of Isar Chithi dated April 11, 1967. 7. The matter does not stop here. The petitioners had filed an application U/s 44 and 32(2) of the HT & AL Act, for restoration of possession. The learned Deputy Collector observed that the relationship of landlord and tenant had ceased to exist. The order dated 19.2.1963 rendered by the MRT in Revision Case No.159/B/62/Aurangabad (Exh.A) shows that the application of the petitioners was rejected for the reason that there was no landlord tenant 8 relationship between them and the Respondents. The observation of the MRT may be quoted, for useful reference as below : "The advocate for the Respondent (Motya) also contended before me citing AIR 1959 Madras 354, that on the land holder's execution of an Isar Pawati in respect of a land in favour of its tenant, the relationship of landholder and tenant ceases to exist between them. The advocate for the Revision Petitioners (land holders) conceded before me that the contention of the Respondent advocate was correct. The lower Courts have held that the Isar Pawati was executed and relationship of land holder and tenant, therefore, ceased to exist between the Revision Petitioners and the Respondents. Hence, I see no need to interfere in the orders passed by the lower Courts. Revision Petition dismissed." 9 The above observations of the MRT clearly show that the previous stand of deceased Respondent No.1 Motya and others was that there was no landlord and tenant relationship between them and the petitioners. That plea was conceded to by the present petitioners. Thus, there is findings of the MRT to the effect that there was no landlord - tenant relationship between the petitioners and Respondent No.1 Motya. 8. It is undisputed that the petitioners were inducted in possession of the land in question through process of law. The previous litigation between the parties ended as per order of the MRT, on 19.2.1963. The Civil litigation also came to an end by order of this Court dated 16.3.1970 (Exh.B). Needless to say, the issue regarding tenancy rights of deceased Respondent No.1 Motya was decided long back prior to filing of application dated 4.1.1985 before the learned Additional Tahsildar, Aurangabad, Sub-Division Paithan. In the earlier two round of litigations, it was held that he was not tenant. 10 The Tahsildar noticed that the previous litigation was terminated by the MRT in favour of the petitioners. The learned Additional Tahsildar held that tenancy of deceased Respondent No.1 - Motya was not terminated as required U/s 19 of the HT & AL Act. It was for such a reason that his application for restoration of the land was allowed. The appellate Tribunal as well as MRT endorsed the same findings. 9. The Tenancy Tribunal did not consider the impact of previous litigation and the order dated 19.2.1963 rendered by the MRT. Though, the Civil Court had no jurisdiction to decide the question of tenancy, yet, the MRT had such jurisdiction. As pointed out earlier, the counsel for the deceased Respondent No.1 then had conceded to the position that deceased Respondent No.1 Motya could not have claimed tenancy because the relationship between the parties as landlord and tenant had come to an end. Under these circumstances, the impugned judgments are unsustainable. For, the same issue is allowed to 11 be reagitated and reconsidered by the Tribunals. The application filed by the deceased Respondent No.1 Motya for restoration of the possession was liable to the dismissed in view of the previous finding that there was no landlord - tenant relationship between the parties. 10. For the reasons aforestated, the petition is allowed. The impugned judgments and orders are set aside. The application filed by deceased Respondent No.1 - Motya be deemed as dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/wp142189