1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5883 OF 1991 Shri Shamu Datta Dhere ... Petitioner v/s Shri Ganpati Balwant Desai ... Respondent Mr.N.D.Hombalkar for the petitioner. Mr.N.J.Patil for the respondent Nos.1A to 1D. CORAM: SMT.NISHITA MHATRE, J. DATED: 10TH JUNE, 2009 ORAL JUDGMENT: 1. By this petition, the petitioner has challenged the order of the Sub-Divisional Officer, Karvir, declaring that he is not the heir of the original tenant Bhagoji. The Maharashtra Revenue Tribunal by the impugned order dated 29.6.1991 has confirmed this order. 2 2. The facts giving rise to the present petition are as follows:- . One Bhagoji was the tenant of the lands bearing R.S.No.51 (Gat No.177A) admeasuring 0-6 ares and R.S.No.52 (Gat No.177B) admeasuring 1 Acre and 6 gunthas, situated at Village Teraswadi in Karvir Taluka of Kolhapur District. Bhagoji married Akkubai after his first wife Rajabai expired. According to the petitioner, he is the son of Akkubai from her first husband. Bhagoji was in possession of the lands as a tenant on 1.4.957. After the death of Bhagoji, Akkubai became the tenant and subsequently on her death, the petitioner continued in possession of the lands as the tenant. His name was entered into the revenue records as the tenant in respect of the aforesaid lands. 3. The proceedings under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 were initiated but as Bhagoji had expired in 1966, notice could not be served on him. His heirs were also not served with the notice. 3 4. It appears that the proceedings under Section 32G were held to be ineffective by the order passed by the Agricultural Lands Tribunal (in short, “A.L.T.”), because the notice issued to Bhagoji had been returned unserved as he had expired. Since the proceedings under Section 32G were held to be ineffective, proceedings under Section 32P were initiated. 5. After a gap of almost nine years, the Additional Tahsildar and A.L.T., Kolhapur initiated fresh proceedings under Section 32G. It was observed that since the original tenant Bhagoji had expired in 1966, all the proceedings under Section 32G, in his absence and without notice to his legal heirs, were void ab initio. This order was passed on 25.3.1986, re-opening the proceedings under Section 32G. 6. Aggrieved by this order, the landlord preferred Tenancy Appeal No.61 of 1986 before the Sub- Divisional Officer (in short “S.D.O.”), Karvir Division, Kolhapur. By an order dated 22.1.1990, the appeal was allowed and the order passed by the A.L.T. was set aside on the ground that it had no 4 jurisdiction to pass such an order. The S.D.O. directed the A.L.T. to proceed with the enquiry under Section 32P(2) of the Bombay Tenancy and Agricultural Lands Act, 1948 (in short, “Tenancy Act”). The Sub- Divisional Officer, while passing the aforesaid order, observed that there was no marriage between Bhagoji and Akkubai and, therefore, the petitioner could not claim any right to the land as heir of the deceased Bhagoji. 7. Being aggrieved by the order of the S.D.O., the petitioner preferred a revision application before the Maharashtra Revenue Tribunal, Kolhapur (in short, “the Tribunal”) being revision No.MRT/KP/34 of 1990. The Tribunal dismissed the revision application on 29.6.1991 confirming the order passed by the S.D.O. 8. Mr.Humbalkar, the learned advocate for the petitioner submits that the impugned orders are incorrect and must be set aside. He submits that the S.D.O. being a revenue authority could not have made any observations regarding the legitimacy of the petitioner or the validity of the marriage between Bhagoji and Akkubai. He further submits that the 5 proceedings could not have been re-opened under Section 32G by the A.L.T. once an order had been passed on 25.9.1977 making the tenant’s purchase ineffective. According to the learned advocate, the A.L.T. had no jurisdiction to re-open the earlier order passed by his predecessor. The learned advocate submitted that the A.L.T. had directed that notice be issued to Akkubai i.e. the petitioner’s mother for a hearing, to establish her right as a successor. It was held that the applications under Sections 32G and 32P could be decided only thereafter. He submitted that the Tenancy Court had no jurisdiction to decide whether the petitioner was a legal heir of the original tenant Bhagoji. The learned advocate submits that instead of passing the impugned orders hurriedly, the Tenancy Court could have directed the petitioner or the respondent landlord to obtain necessary orders from the Civil Court. Instead it had usurped the jurisdiction of the Civil Court and decided that the petitioner was not the legitimate son of Bhagoji. 9. On the other hand, Mr.Patil, appearing for the respondent submits that there is no infirmity in the 6 impugned orders. He submits that the respondent is not the legal heir of Bhagoji, who was recognised as a tenant of the respondent. He submits that the petitioner being the son of Akkubai from her first marriage, was not the son of Bhagoji, who was the second husband of Akkubai. The learned advocate therefore submits that the petitioner has no locus at all to claim the property. Apart from this, he submits that Bhagoji had expired in 1966 and, therefore, the initial order passed by the A.L.T. on 25.9.1977 under Section 32G(3) was correct. He further submits that the A.L.T. re-opened the case after 9 years and passed the order dated 25.3.1986 directing the notice to be issued to Akkubai before any decision was taken under Section 32G. He submits that there was no power vested with the A.L.T. to re- open the case and, therefore, the S.D.O. in the tenancy appeal and the Maharashtra Revenue Tribunal in the revision application had rightly set aside the order passed by the A.L.T. on 25.3.1986. 10. The order dated 25.9.1977 passed under Section 32G(3) making the purchase by the tenant ineffective was not challenged by the petitioner at any point of time. There is no material on record to indicate the 7 reason for the A.L.T. to re-open the case in 1986. The A.L.T. had directed notice to be issued to Akkubai to prove her right as a successor. It is true that the Tenancy Court could not have decided the heirship or the legitimacy of the marriage of Bhagoji with Akkubai; neither could the Tenancy Court decide whether the petitioner was the heir of Bhagoji. Such aspects can only be adjudicated upon by the Civil Court. However, there is no material on record to indicate as to how the tenancy case was re-opened at all. Once the purchase by the tenant was held to be ineffective in 1977, and the order had not been challenged, the question of considering the relationship between Bhagoji and Akkubai did not arise. 11. Apart from this, the Revenue Tribunal has observed that, from the record available, the petitioner had been served with a copy of the order dated 25.9.1977, despite which no appeal was filed by the petitioner against that order. 12. The order of 25.9.1977, in fact, attained finality in view of the fact that it had not been 8 challenged by either Akkubai or the petitioner. The lower authorities have rightly held that the A.L.T. could not have re-opened the case, and in any event, not after a period of 9 years. Moreover, there was no application on record for re-opening the case and, therefore, the A.L.T. did not have powers to suo-moto re-open the tenancy case. 13. Writ petition dismissed. Rule discharged. No order as to costs. ..... 9