*1* wp.5149.10.940.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5149 OF 2010 Ashok Moreshwar Patil and others. ..Petitioners -Versus- Rajani Prabhakar Patil and others. ..Respondents .......... Mr.Satyajeet M. Mirajkar, for the Petitioners. Mr.S.G.Karandikar, for the Respondent Nos.1 to 4. Mr.Sudhir Prabhu, for the Respondent No.5. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 27th July, 2011. P.C.: 1 Heard both sides. Perused the impugned orders. The Petitioners are the original revision applicants before the Maharashtra Revenue Tribunal. They challenged an order dated 21.11.2008 passed by the Sub-Divisional Officer, Dahanu in Tenancy Appeal No.1/2008. The Sub-Divisional Officer set aside the order of the Tahasildar & ALT, Palghar dated 27.11.2007 in Tenancy Case No.6/2005. 2 The subject lands in dispute are agricultural lands being part of Survey Nos.9 and 115/4 situate at village Kudan, Taluka : Palghar, District : Thane. The Petitioners had filed an application under Section 70(b) of the Bombay Tenancy & Agricultural Lands Act, 1948 for declaration of their status as tenants of the disputed lands. The Respondents were impleaded on the basis that they are owners. The landlords denied the tenancy. After considering the evidence, initially the Petitioners’ claim was granted by an order dated 30.06.2003. That order was challenged by preferring Tenancy Appeal No.1/2004. The Sub- *2* wp.5149.10.940.sxw Divisional Officer allowed this appeal and set aside the order passed by the Tahasildar and remanded the matter. After remand, the case was registered as Tenancy Case No.6/2005. Once again the Petitioners were declared to be tenants by the Tahasildar. The Sub-Divisional Officer reversed that order on the basis that the lands were jointly owned by the Petitioners and the Respondents. Though the Petitioners are cultivating the lands belonging to the Respondents, they being the members of the same family cannot be held to be tenants and therefore, there was no question of any tenancy. 3 The only contention which was pressed throughout and before me is that the Respondent No.5 admitted the possession of the Petitioners as well as receipt of rent from them by way of share in crops and therefore, this admission is sufficient to create the presumption of tenancy. 4 The Sub-Divisional Officer has considered this matter in its entirety. He has held that the property was jointly owned by the Petitioners and the Respondents. One Shantaram was the father of the Respondent No.5 (Madhav) and the deceased Prabhakar. The Respondent Nos.1 to 4 are the legal heirs of the said Prabhakar. Along with the application under section 70(b), the Petitioners produced the copies of 7/12 extracts for the years 1987-88 onwards. The land was shown as owned by the Respondents and it was shown in cultivation of one Yashoda Moreshwar Patil. Later on, it was shown as possessed by the Respondents. The stray entries for three years showing the cultivation of the Petitioners cannot be accepted to be a proof of cultivation in capacity as tenants because the mutation entry No.305 shows that the lands were owned by one Janardhan Patil who died on 03.06.1942 and on his death, the lands were entered in the name of his son Shantaram Patil and that is how the *3* wp.5149.10.940.sxw mutation entry No.1156 was recorded on 29.01.1981. There was partition between the brothers and the land was in actual possession of Shantaram and Moreshwar and each one was having share in the disputed lands. Therefore, the property was recorded in the name of Shantaram in 1943 and there being division of the lands by way of partition, the properties were recorded in the name of two branches. In the year 1982, another mutation entry No.1188 was sanctioned. On the death of the Petitioners’ father (Moreshwar), the names of the present Petitioners came to be recorded in capacity as the legal representatives not for whole survey numbers, but for part of the survey numbers which were found in their possession. Thus, the lands were owned by the common predecessor of both the Petitioners and the Respondents and they got divided the lands and as per actual division, the portions of the lands in actual possession of each one of them came to be recorded in the names of the respective parties in 1981. Once the status after 1981 shows that the lands were partitioned, then, it was difficult to accept the argument that the Petitioners herein were recognized as tenants. There is nothing to show that before 1982 at any point of time, the lands were possessed exclusively by the Petitioners’ family excluding the co-sharer i.e. Respondents. There is also nothing on record to show that the lands to the share of the Respondents were leased out to the co-sharer at any point of time. Only one co-sharer i.e. Respondent No.5 in the written statement filed before the Tahasildar admitted the possession of the Petitioners. This admission, without anything more and particularly in the light of the mutation entry, was found to be of no assistance to the Petitioners, it cannot be said that the Petitioners are tenants. This is the concurrent finding of fact recorded by the Sub-Divisional Officer and the Tribunal. The reasoning in paragraphs 5 and 6 of the Tribunal’s order is thus *4* wp.5149.10.940.sxw consistent with the materials which have been produced on record. In these circumstances, there is no reason to interfere with the impugned orders as they are not vitiated by perversity. 5 The judgment of the learned Single Judge of this Court reported in 2010(5) Bom.C.R. 187 (Deusdado Antonio Xavier do Rosario Pompeia Valadares (decd.) and others v/s Perpetua Valadares Lobo and others), cannot be of any assistance because in that case what had happened was that the order dated 04.06.2007 referring the claim of tenancy to the Mamlatdar for his decision, came to be challenged. Upholding that order, an ultimate finding that is recorded by this Court is that it is for the Mamlatdar to decide as to whether, the claim of tenancy has been substantiated for agricultural lands. As a broad proposition, this Court held that there is no prohibition in law that one co-owner cannot be tenant of other co-owner cultivating his undivided share of property. Once co-owner can certainly lease out his share in the property to be cultivated by another on payment of rent. This proposition of law may be sound and correct, but its application would depend upon the facts of each case. This Court only enunciated that proposition of law and it is only to justify the final conclusion, this judgment has been referred. It cannot be of any assistance to the Petitioners in this case. Therefore, reliance is misplaced. 6 In such circumstances, no interference is called for in the impugned order. The Writ Petition is dismissed. No costs. (S.C. Dharmadhikari, J)