1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4890 OF 2009 Pandurang Bala Joshi, since deceased, through heirs (a) Smt Mathurabai Krishna Bhoir and ors .. Petitioners Vs Prakash Sitaram Mhatre and ors .. Respondents Mr.N.V.Walavalkar, Senior Counsel, i/b Mr S.N.Gawade, for the petitioners. Mr.P.S.Dani, for Respondent no.1. Mr A.H.Palekar, AGP, for the respondent-State. CORAM : D.B.BHOSALE, J. DATE : 09/12/2009 PC: 1. Heard Mr. Walawalkar, learned senior counsel for the petitioners, Mr Dani, learned counsel for respondent no.1 and Mr Palekar, learned AGP for the respondent-State. 2. This writ petition is directed against the concurrent findings of fact recorded by the authorities below in the proceedings under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948, ( for short, “B.T. & A.L.Act). 3. Mr Walawalkar, learned senior counsel for the petitioners, at the outset, invited my attention to the provision of section T 2 7(2) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act,1947 (for short, “Fragmentation Act”), to contend that that the land in dispute was entered as fragment vide mutation entry no.1334 dated 2.11.1953, and in view thereof respondent no.1 could not have continued as a tenant and that his possession after 2.11.1953, was illegal. He submitted that in view thereof, respondent no.1 cannot become deemed purchaser under section 32-D of the B.T.& A.L.Act. In support, he also invited my attention to non absentee clause in sub-section (2) of Section 7. 4. I have perused the provisions of sub-section (2) of section 7 of the Fragmentation Act so also the provisions of 32-D of the BT & AL Act. Section 32-D also contains non absentee clause and this section being subsequent in point of time, in my opinion, it prevails over the provisions of sub-section (2) of section 7 of the Fragmentation Act. That apart, there is enough material on record, which has been considered and appreciated by all the authorities below, to hold that respondent no1 was tenant since prior to 2.11.1953. It is not the case of the petitioner that the tenancy was either created or claimed after 2.11.1953. In view thereof, the Tribunal has rightly held that respondent no.1 has become deemed purchaser as contemplated by section 32-D of the BT & AL Act notwithstanding anything 3 contained in the Fragmentation Act. Having considered overall facts and circumstances of the case and the concurrent findings recorded by the authorities below and as I do not find any material on record to disturb the findings of fact in exercise of the writ jurisdiction under Article 227 of the Constitution of India, the writ petition deserves to be dismissed. Order accordingly. (D. B. Bhosale, J.)