1 wp 1251.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1251 OF 1992 1. Ramrao S/o Yeshwanta Lakkas, Age : 35 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 2. Bhimabai W/o Yeshwanta Lakkas, Age : 60 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 3. Gayabai D/o Yeshwanta Lakkas, W/o Laxman Sonawane, Age : 28 Years, Occu. : Agril., R/o Liha, Tq. Bhokardan, Dist. Jalna. 4. Kesharbai D/o Yeshwanta Lakkas, W/o Laxman Lokhande, Age : 25 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. Through : All General Power of Attorney, Pandurang Laxman Lokhande, Age : 40 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. .. .. Petitioners 2 wp 1251.92 Versus A. Sarfarazkhan S/o Ismailkhan, B. Azizkhan S/o Ismailkhan Both deceased per L. R.s 1. Salamkhatun D/o Ismailkhan, 2. Fazalkhatun W/o Gulam Mohiuddin Both deceased per L.Rs. a. Mohd. Riyazkhan S/o Gulam Mohiuddin, Age : 40 Years, Occu. : Agril., R/o Partur, Tq. Partur, Dist. Jalna. b. G. M. Khan, Age : 50 Years, Occu. : Retired, Govt. Servant, as Police Jamadar, R/o Partur, Tq. Partur, Dist. Jalna. 3. Maharulkhatun D/o Ismailkhan w/o Abbas ali died per L. Rs. a) Akbarkhan S/o Abbas Alikhan, Age : 40 Years, Occu. : Agril., R/o Jafrabad, Tq. Jafrabad, Dist. Jalna. 3 wp 1251.92 b) Azarkhan S/o Abbas Alikhan, Age : 40 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 5. Vithal S/o Balwanta Lakkas, Age : 47 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 6. Laxman S/o Balwanta Lakkas, Age : 45 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 7. Kishan S/o Balwanta Lakkas, Age : 35 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 8. Damodhar S/o Laxman Lakkas, Age : 21 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 9. Ramesh S/o Kishan Lakkas, Age : 29 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 10. Shivaji S/o Govinda Tangade, Age : 50 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, 4 wp 1251.92 Dist. Jalna. 11. Ananda S/o Abaji Tangade, Age : 70 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 12. Member, Maharashtra Revenue Tribunal, Aurangabad. .. .. Respondents Shri M. D. Joshi, Advocate for Petitioners. Shri S. S. Choudhari, Advocate for Respondents. WITH WRIT PETITION NO. 2072 OF 1992 1. Ramrao S/o Yeshwanta Lakkas, Age : 35 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 2. Bhimabai W/o Yeshwanta Lakkas, Age : 60 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 3. Gayabai D/o Yeshwanta Lakkas, W/o Laxman Sonawane, Age : 28 Years, Occu. : Agril., R/o Liha, Tq. Bhokardan, Dist. Jalna. 5 wp 1251.92 4. Kesharbai D/o Yeshwanta Lakkas, W/o Laxman Lokhande, Age : 25 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. Through : All General Power of Attorney, Pandurang Laxman Lokhande, Age : 40 Years, Occu. : Agril., R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. .. .. Petitioners Versus 1. Vithal Balwant Lakas, Age : 45 Years, Occu. : Agril., 2. Laxman S/o Balwanta, Age : 40 Years, Occu. : Agril., 3. Kishan S/o Balwanta, Age : 35 Years, Occu. : Agril., 4. Damodhar S/o Laxman, Age : 26 Years, Occu. : Agril., 5. Ramesh S/o Kishan, Age : 20 Years, Occu. : Agril., All R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 6 wp 1251.92 6. Sarfaraz Khan S/o Ismailkhan (Deceased) L. R. 7. Aziz Khan S/o Ismail Khan, Both deceased L. R.s i. Salimakhatun D/o Ismailkhan, R/o Hisoda (Kh), Tq. Bhokardan. ii. Fazal khatun W/o Gulam Mohiuddin, R/o Partur, Tq. Partur (Deceased) a. Mohd. Riyazkhan S/o Gulam Mohiuddin, b. G. M. Khan, Both R/o Partur, Tq. Partur, Dist. Jalna. 8. Mabara Khatun D/o Ismailkhan w/o Abbas ali (Deceased) L. Rs. a) Akbarkhan S/o Abbas Alikhan, b) Azarkhan S/o Abbas Alikhan, 9. Shivaji S/o Govinda Tangade, 10. Ananda S/o Abaji Tangade, All R/o Paradh (Kh), Tq. Bhokardan, Dist. Jalna. 7 wp 1251.92 11. Member, Maharashtra Revenue Tribunal, Aurangabad. .. .. Respondents Shri M. D. Joshi, Advocate for Petitioners. Shri S. S. Choudhari, Advocate for Respondents. CORAM : S. V. GANGAPURWALA, J. DATE : 18TH AUGUST, 2011. ORAL JUDGMENT : . The present petitioners had filed an application U/Sec. 98 of the Hyderabad Tenancy and Agricultural Lands Act (hereafter referred to as "Tenancy Act" for the sake of brevity) for possession of the land bearing Sy. No. 79/1. The Deputy Collector Land Reforms, Jalna allowed the application of the petitioners to the extent of 03 Acres 24 Guntha. Aggrieved thereby the present petitioners, so also respondent Nos. 1 to 5 of Writ Petition No. 2072/1992 filed separate appeals before the Maharashtra Revenue Tribunal, Aurangabad. The Maharashtra Revenue Tribunal dismissed the appeal filed by the present petitioners and allowed the appeal filed by the present respondents. Aggrieved thereby the petitioners have filed the present writ petitions. 8 wp 1251.92 2. Shri M. D. Joshi, the learned counsel for petitioners submits that the Maharashtra Revenue Tribunal did not take into consideration the provisions of the Tenancy Act in its correct perspective and thereby has arrived at erroneous conclusion. It ought to have been considered that for filing an application U/Sec. 98 of the Tenancy Act no limitation is prescribed and the said application can be filed at any point of time. For the said purpose, the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Mesaji S/o Laxman Ubare Vs. Ramchandra (DR) S/o Laxminarayan Toshniwal and others reported in 2011 (4) Mh. L. J. 668. The learned counsel further contends that Yeshwanta was admittedly tenant of suit property. His name appeared in the protected tenancy register of 1950 so also in the Pahani Patrak. Yeshwanta has not surrendered the tenancy rights as prescribed by the Tenancy Act before the competent authority and there cannot be a valid surrender by any other procedure and protected tenant would get right to claim restoration of possession. The learned counsel relies on the judgment of the Apex Court in a case of Edukanti Kistamma (Dead) Through LRS. and others Vs. S. Venkatareddy (Dead) through LRS. and others reported in (2010) 1 S. C. C. 756. The learned counsel 9 wp 1251.92 further contends that there is no proof that Balwanta was inducted as tenant over the suit land. In view of these factual matrix, the Maharashtra Revenue Tribunal could not have allowed the appeal filed by the respondent and denied the relief of restoration of possession to the petitioners. 3. Per contra, Shri S. S. Choudhari, the learned counsel for respondents submits that if the tenant is dispossessed and wants to seek possession, then only remedy available to him is to file application U/Sec. 32 of the Tenancy Act that too within two years of his dispossession. Yeshwanta was not in possession after 1953 and the application filed by his legal representatives in the year 1988 i. e. after 35 years was not maintainable and could not have been entertained. The learned counsel submits that the name of Yeshwanta never appeared in any of the relevant record after 1954-1955. This fortifies the contention of the respondent that Yeshwanta left the possession in the year 1953. According to the learned counsel, even otherwise the application U/Sec. 98 could not have been made after 35 years. Even if no limitation is prescribed, the same has to be made within a reasonable time. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Radhu Gokul Gawali Vs. 10 wp 1251.92 Mohan Kishan Gawali reported in 2007 (6) Mh. L. J. 117. 4. With the assistance of learned counsel, I have gone through the judgments. The name of Yeshwanta is recorded as tenant and also in the relevant Pahani Patrak till the year 1954-55. The name of Yeshwanta thereafter never appeared in any revenue record, instead the name of Balwanta, the real brother of Yeshwanta appeared in the record from 1955-56 along with Ananda. Even the name of Balwanta was recorded, the name of Ananda also appeared in the relevant record. The name of Yeshwanta was recorded as cultivating the land in mode No. 4 i. e. on Batai basis, whereas the name of Balwanta and Ananda came to be recorded in mode No. 3 i. e. cultivating the land on rent basis. That entry continuously appeared in the revenue record. The Maharashtra Revenue Tribunal has taken into consideration this aspect and has come to the conclusion that after the year 1953 Yeshwanta was not in possession and Balwanta and Ananda were cultivating the land as tenants. It is also pertinent to note that the Yeshwanta during his lifetime never claimed possession of the suilt lands. After his death and after 35 years of the deletion of entry of Yeshwanta as cultivator of the land, the legal heirs of Yeshwanta filed application that too 11 wp 1251.92 invoking Section 98. Section 98 can be invoked against a person who was in unauthorized occupation of the said land. When Balwanta and Ananda were cultivating the land as tenants and had purchased the said land from the original landlord. They could not have been said to be in unauthorized occupation. In view of that the application U/Sec. 98 of the Tenancy Act would not be maintainable against them. 5. Moreover, the Maharashtra Revenue Tribunal after scanning the documentary evidence on record has come to the conclusion that Yeshwanta was never in possession of the suit land after 1953 and the applicants have not been in a position to prove their case of been dispossessed in the year 1981, nor the record supports their contention. Prior to 1954 the surrender of tenancy was not required to be made before the competent authority. Balwanta and Ananda were continuously occupying the said land since 1954-1955 and after them by their heirs and representatives in interest. 6. In the light of above conspectus of the matter, the view taken by the Maharashtra Revenue Tribunal, cannot be faulted with. The evidence cannot be again scanned in the writ 12 wp 1251.92 jurisdiction of this Court under Article 227 of the Constitution of India. The view taken by the Tribunal is a possible and plausible view. 7. In the light of above, the writ petitions are dismissed, however, with no order as to costs. The Rule is discharged. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Aug. 11