:1: IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5829 OF 1988 WRIT PETITION NO. 5829 OF 1988 WRIT PETITION NO. 5829 OF 1988 1. Bhima Bhagoji Redekar; 1. Bhima Bhagoji Redekar; 1. Bhima Bhagoji Redekar; 2. Smt. Shivubai Annappa 2. Smt. Shivubai Annappa 2. Smt. Shivubai Annappa Redekar; Redekar; Redekar; 3. Nana Bhagoji Redekar, 3. Nana Bhagoji Redekar, 3. Nana Bhagoji Redekar, deceased, by his heirs : deceased, by his heirs : deceased, by his heirs : A) Pandurang Nana Redekar; A) Pandurang Nana Redekar; A) Pandurang Nana Redekar; B) Dadu Nana Redekar; B) Dadu Nana Redekar; B) Dadu Nana Redekar; C) Sou.Avubai Vithoba C) Sou.Avubai Vithoba C) Sou.Avubai Vithoba Kokitkar; Kokitkar; Kokitkar; D) Sou. Muktabai Parsu D) Sou. Muktabai Parsu D) Sou. Muktabai Parsu Chavan; Chavan; Chavan; E) Sou. Gangubai Shankar E) Sou. Gangubai Shankar E) Sou. Gangubai Shankar Jadhav; Jadhav; Jadhav; 4. Ishwara Balu Powar ... Petitioners 4. Ishwara Balu Powar ... Petitioners 4. Ishwara Balu Powar ... Petitioners versus versus versus 1. Sarladevi Keshavrao Desai 1. Sarladevi Keshavrao Desai 1. Sarladevi Keshavrao Desai deceased, by her heirs : deceased, by her heirs : deceased, by her heirs : A) Ravindra Keshavrao A) Ravindra Keshavrao A) Ravindra Keshavrao Desai; Desai; Desai; B) Narendra Keshavrao B) Narendra Keshavrao B) Narendra Keshavrao :2: Desai; Desai; Desai; C) Virendra Keshavrao C) Virendra Keshavrao C) Virendra Keshavrao Desai; Desai; Desai; D) Suniladevi Satwashil D) Suniladevi Satwashil D) Suniladevi Satwashil Gaikwad; Gaikwad; Gaikwad; E) Sou. Anjaladevi Narendra E) Sou. Anjaladevi Narendra E) Sou. Anjaladevi Narendra Gaikwad; Gaikwad; Gaikwad; 2. Vijaysinha @ Dadasaheb 2. Vijaysinha @ Dadasaheb 2. Vijaysinha @ Dadasaheb Balasaheb Desai, since Balasaheb Desai, since Balasaheb Desai, since deceased, by his heirs : deceased, by his heirs : deceased, by his heirs : A) Shambhosingh Vijaysinha A) Shambhosingh Vijaysinha A) Shambhosingh Vijaysinha Desai; Desai; Desai; B) Shivasingh Vijaysinha B) Shivasingh Vijaysinha B) Shivasingh Vijaysinha Desai; Desai; Desai; C) Priyanka Vijaysinha C) Priyanka Vijaysinha C) Priyanka Vijaysinha Gaikwad. ... Respondents Gaikwad. ... Respondents Gaikwad. ... Respondents ... ... ... Mr. N. D. Hombalkar, for the Petitioners Mr. N. D. Hombalkar, for the Petitioners Mr. N. D. Hombalkar, for the Petitioners Mr. P. S. Dani withMr. S.M. Kamble and Mr. F.A. Mr. P. S. Dani withMr. S.M. Kamble and Mr. F.A. Mr. P. S. Dani withMr. S.M. Kamble and Mr. F.A. Mulla, for Respondents Nos. 1A to 1C. Mulla, for Respondents Nos. 1A to 1C. Mulla, for Respondents Nos. 1A to 1C. Respondents Nos. 1D to 1E and 2A to 2C served. Respondents Nos. 1D to 1E and 2A to 2C served. Respondents Nos. 1D to 1E and 2A to 2C served. :3: ... ... ... CORAM : A.M. KHANWILKAR,J. CORAM : A.M. KHANWILKAR,J. CORAM : A.M. KHANWILKAR,J. 18th JUNE 2004 18th JUNE 2004 18th JUNE 2004 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 01. This writ petition under Article 227 of 01. This writ petition under Article 227 of 01. This writ petition under Article 227 of the Constitution of India takes exception to the the Constitution of India takes exception to the the Constitution of India takes exception to the judgment and order dated 3rd February 1984 passed judgment and order dated 3rd February 1984 passed judgment and order dated 3rd February 1984 passed by the Maharashtra Revenue Tribunal, Kolhapur, in by the Maharashtra Revenue Tribunal, Kolhapur, in by the Maharashtra Revenue Tribunal, Kolhapur, in Revision No.MRT-KP-24/1981. Briefly stated, the Revision No.MRT-KP-24/1981. Briefly stated, the Revision No.MRT-KP-24/1981. Briefly stated, the land in question is Survey No. 65 admeasuring 15 land in question is Survey No. 65 admeasuring 15 land in question is Survey No. 65 admeasuring 15 acres 18 gunthas situated at village Sule, taluka acres 18 gunthas situated at village Sule, taluka acres 18 gunthas situated at village Sule, taluka Ajara, district Kolhapur. The Petitioners claim Ajara, district Kolhapur. The Petitioners claim Ajara, district Kolhapur. The Petitioners claim to be tenants in respect of the suit land. The to be tenants in respect of the suit land. The to be tenants in respect of the suit land. The Respondents are the landlords of the suit land. Respondents are the landlords of the suit land. Respondents are the landlords of the suit land. This matter has chequered history. Suffice it to This matter has chequered history. Suffice it to This matter has chequered history. Suffice it to mention that earlier round of litigation mention that earlier round of litigation mention that earlier round of litigation culminated with the order passed by this Court in culminated with the order passed by this Court in culminated with the order passed by this Court in Special Civil Application No. 586 of 1965 Special Civil Application No. 586 of 1965 Special Civil Application No. 586 of 1965 decided on June 14, 1967. The order reads thus : decided on June 14, 1967. The order reads thus : decided on June 14, 1967. The order reads thus : :4: " By consent the orders of the Tribunal, " By consent the orders of the Tribunal, " By consent the orders of the Tribunal, the Collector and the A.L.T. are set the Collector and the A.L.T. are set the Collector and the A.L.T. are set aside and the matter is remanded to aside and the matter is remanded to aside and the matter is remanded to A.L.T., Ajra. The A.L.T. shall proceed A.L.T., Ajra. The A.L.T. shall proceed A.L.T., Ajra. The A.L.T. shall proceed with the enquiry under Section 32-G and with the enquiry under Section 32-G and with the enquiry under Section 32-G and the A.L.T. shall give both the sides the A.L.T. shall give both the sides the A.L.T. shall give both the sides sufficient opportunity to put in their sufficient opportunity to put in their sufficient opportunity to put in their say and adduce additional evidence if say and adduce additional evidence if say and adduce additional evidence if they so desire. A.L.T. shall then they so desire. A.L.T. shall then they so desire. A.L.T. shall then decide the matter considering the decide the matter considering the decide the matter considering the evidence already recorded and such fresh evidence already recorded and such fresh evidence already recorded and such fresh evidence as may be adduced by the evidence as may be adduced by the evidence as may be adduced by the parties. parties. parties. There will be no order as to costs." There will be no order as to costs." There will be no order as to costs." The present petition emanates from Section 32-G The present petition emanates from Section 32-G The present petition emanates from Section 32-G proceedings, which were directed to be proceeded proceedings, which were directed to be proceeded proceedings, which were directed to be proceeded with in terms of the above order. It is, with in terms of the above order. It is, with in terms of the above order. It is, however, relevant to note that while the said however, relevant to note that while the said however, relevant to note that while the said section 32-G proceedings were in progress, section 32-G proceedings were in progress, section 32-G proceedings were in progress, application was filed by the Petitioners-tenants application was filed by the Petitioners-tenants application was filed by the Petitioners-tenants under section 70(b) of the Act for declaration under section 70(b) of the Act for declaration under section 70(b) of the Act for declaration :5: that they are tenants in respect of the suit land that they are tenants in respect of the suit land that they are tenants in respect of the suit land and for incidental relief. That application has and for incidental relief. That application has and for incidental relief. That application has been answered against the Petitioners-tenants by been answered against the Petitioners-tenants by been answered against the Petitioners-tenants by the Tenancy authority by holding that the the Tenancy authority by holding that the the Tenancy authority by holding that the Petitioners were not tenants in the suit land. Petitioners were not tenants in the suit land. Petitioners were not tenants in the suit land. That decision was carried in appeal and, later That decision was carried in appeal and, later That decision was carried in appeal and, later on, in revision, but the view taken by the on, in revision, but the view taken by the on, in revision, but the view taken by the Tenancy authority that the Petitioners are not Tenancy authority that the Petitioners are not Tenancy authority that the Petitioners are not tenants has been affirmed and the same has tenants has been affirmed and the same has tenants has been affirmed and the same has attained finality. The section 32-G proceedings, attained finality. The section 32-G proceedings, attained finality. The section 32-G proceedings, which were required to be proceeded with in terms which were required to be proceeded with in terms which were required to be proceeded with in terms of order passed by this Court, referred to above, of order passed by this Court, referred to above, of order passed by this Court, referred to above, were conducted by the A.L.T., Ajra. The said were conducted by the A.L.T., Ajra. The said were conducted by the A.L.T., Ajra. The said authority by judgment and order dated September authority by judgment and order dated September authority by judgment and order dated September 30, 1978, proceeded to determine the purchase 30, 1978, proceeded to determine the purchase 30, 1978, proceeded to determine the purchase price in respect of the suit land. It was price in respect of the suit land. It was price in respect of the suit land. It was contended on behalf of the Respondents before the contended on behalf of the Respondents before the contended on behalf of the Respondents before the said authority that the issue of tenancy has been said authority that the issue of tenancy has been said authority that the issue of tenancy has been answered against the Petitioners, and if it is answered against the Petitioners, and if it is answered against the Petitioners, and if it is so, the question of determining purchase price in so, the question of determining purchase price in so, the question of determining purchase price in respect of the suit land does not arise. The respect of the suit land does not arise. The respect of the suit land does not arise. The said authority, however, took the view that since said authority, however, took the view that since said authority, however, took the view that since the High Court has directed further proceedings the High Court has directed further proceedings the High Court has directed further proceedings to be held under section 32-G of the Act and that to be held under section 32-G of the Act and that to be held under section 32-G of the Act and that order was passed by consent of the parties, the order was passed by consent of the parties, the order was passed by consent of the parties, the :6: question as to whether the Petitioners were question as to whether the Petitioners were question as to whether the Petitioners were tenants in the suit land cannot be gone into and tenants in the suit land cannot be gone into and tenants in the suit land cannot be gone into and was not open. This decision was carried in was not open. This decision was carried in was not open. This decision was carried in appeal by the Respondents. The appellate appeal by the Respondents. The appellate appeal by the Respondents. The appellate authority reversed the decision of the A.L.T. by authority reversed the decision of the A.L.T. by authority reversed the decision of the A.L.T. by judgment and order dated December 1, 1980. The judgment and order dated December 1, 1980. The judgment and order dated December 1, 1980. The appellate authority found that merely because the appellate authority found that merely because the appellate authority found that merely because the High Court directed continuation of section 32-G High Court directed continuation of section 32-G High Court directed continuation of section 32-G proceedings does not mean that the decision of proceedings does not mean that the decision of proceedings does not mean that the decision of the competent authority on the issue of tenancy the competent authority on the issue of tenancy the competent authority on the issue of tenancy between the parties can be ignored; and if that between the parties can be ignored; and if that between the parties can be ignored; and if that finding was to prevail, the question of finding was to prevail, the question of finding was to prevail, the question of continuing section 32-G proceedings, or, for that continuing section 32-G proceedings, or, for that continuing section 32-G proceedings, or, for that matter, determine the purchase price of the suit matter, determine the purchase price of the suit matter, determine the purchase price of the suit land does not arise. This view was questioned by land does not arise. This view was questioned by land does not arise. This view was questioned by the Petitioners before the Maharashtra Revenue the Petitioners before the Maharashtra Revenue the Petitioners before the Maharashtra Revenue Tribunal by way of revision, which, in turn, has Tribunal by way of revision, which, in turn, has Tribunal by way of revision, which, in turn, has been dismissed by the impugned judgment and been dismissed by the impugned judgment and been dismissed by the impugned judgment and order. order. order. 02. According to Mr. Hombalkar, for the 02. According to Mr. Hombalkar, for the 02. According to Mr. Hombalkar, for the Petitioner, since all earlier orders passed by Petitioner, since all earlier orders passed by Petitioner, since all earlier orders passed by the tenancy authorities between the parties were the tenancy authorities between the parties were the tenancy authorities between the parties were set aside by consent as is noted in the decision set aside by consent as is noted in the decision set aside by consent as is noted in the decision :7: of this Court in the earlier round, it of this Court in the earlier round, it of this Court in the earlier round, it presupposes that the Respondents landlords presupposes that the Respondents landlords presupposes that the Respondents landlords conceded the relationship between the parties to conceded the relationship between the parties to conceded the relationship between the parties to be one of landlord and tenant and the question of be one of landlord and tenant and the question of be one of landlord and tenant and the question of tenancy was no more open to be examined by any tenancy was no more open to be examined by any tenancy was no more open to be examined by any authority. He further submits that the record authority. He further submits that the record authority. He further submits that the record would indicate that the Petitioners were in would indicate that the Petitioners were in would indicate that the Petitioners were in lawful possession of the suit land on 1st April lawful possession of the suit land on 1st April lawful possession of the suit land on 1st April 1957 and in that view of the matter, the 1957 and in that view of the matter, the 1957 and in that view of the matter, the Petitioners became deemed purchasers by operation Petitioners became deemed purchasers by operation Petitioners became deemed purchasers by operation of law and, as a consequence of that, the process of law and, as a consequence of that, the process of law and, as a consequence of that, the process of determination of purchase price was of determination of purchase price was of determination of purchase price was inevitable. Reliance is placed on the decision inevitable. Reliance is placed on the decision inevitable. Reliance is placed on the decision of the Apex Court reported in A.I.R. 1983 S.C. of the Apex Court reported in A.I.R. 1983 S.C. of the Apex Court reported in A.I.R. 1983 S.C. 643 in the case of Amrit Bhikaji Kale v. 643 in the case of Amrit Bhikaji Kale v. 643 in the case of Amrit Bhikaji Kale v. Kashinath Janardhan Trade to buttress the above Kashinath Janardhan Trade to buttress the above Kashinath Janardhan Trade to buttress the above submission. submission. submission. 03. On the other hand, Counsel for the 03. On the other hand, Counsel for the 03. On the other hand, Counsel for the Respondents, Mr. Dani, contends that merely Respondents, Mr. Dani, contends that merely Respondents, Mr. Dani, contends that merely because earlier orders passed by the tenancy because earlier orders passed by the tenancy because earlier orders passed by the tenancy authorities have been set aside by consent, that authorities have been set aside by consent, that authorities have been set aside by consent, that does not presuppose that the Respondents accepted does not presuppose that the Respondents accepted does not presuppose that the Respondents accepted the relationship between the parties that of the relationship between the parties that of the relationship between the parties that of :8: landlord and tenant. He submits that in any case landlord and tenant. He submits that in any case landlord and tenant. He submits that in any case it is the Petitioners who themselves took out it is the Petitioners who themselves took out it is the Petitioners who themselves took out formal application, which is a substantive formal application, which is a substantive formal application, which is a substantive proceedings, under the provisions of section proceedings, under the provisions of section proceedings, under the provisions of section 70(b) of the Act for declaration that they were 70(b) of the Act for declaration that they were 70(b) of the Act for declaration that they were tenants. It is not open to the Petitioners now tenants. It is not open to the Petitioners now tenants. It is not open to the Petitioners now to contend that the said issue could not have to contend that the said issue could not have to contend that the said issue could not have been examined by the tenancy authorities. He been examined by the tenancy authorities. He been examined by the tenancy authorities. He further submits that the Petitioners questioned further submits that the Petitioners questioned further submits that the Petitioners questioned the decision rendered against them by the tenancy the decision rendered against them by the tenancy the decision rendered against them by the tenancy authorities right upto the revisional Court and authorities right upto the revisional Court and authorities right upto the revisional Court and that decision has become final. If it is so, it that decision has become final. If it is so, it that decision has become final. If it is so, it is too late in the day for the Petitioners to is too late in the day for the Petitioners to is too late in the day for the Petitioners to contend that the issue of tenancy was no longer contend that the issue of tenancy was no longer contend that the issue of tenancy was no longer open for examination of any authority. He open for examination of any authority. He open for examination of any authority. He further submits that as the issue of tenancy has further submits that as the issue of tenancy has further submits that as the issue of tenancy has been answered against the Petitioners by been answered against the Petitioners by been answered against the Petitioners by Competent Court, that decision will be binding on Competent Court, that decision will be binding on Competent Court, that decision will be binding on the parties having attained finality. In his the parties having attained finality. In his the parties having attained finality. In his submission, therefore, the status of the submission, therefore, the status of the submission, therefore, the status of the Petitioners is not of tenants in occupation on Petitioners is not of tenants in occupation on Petitioners is not of tenants in occupation on the Tillers’ Day, for which reason the question the Tillers’ Day, for which reason the question the Tillers’ Day, for which reason the question of determination of purchase price under section of determination of purchase price under section of determination of purchase price under section 32-G of the Act does not arise. He submits that 32-G of the Act does not arise. He submits that 32-G of the Act does not arise. He submits that reliance placed on the decision of the Apex reliance placed on the decision of the Apex reliance placed on the decision of the Apex :9: Court, referred to above, by the Petitioners is Court, referred to above, by the Petitioners is Court, referred to above, by the Petitioners is wholly misplaced and inapposite to the fact wholly misplaced and inapposite to the fact wholly misplaced and inapposite to the fact situation of the present case. situation of the present case. situation of the present case. 04. Having considered the rival submissions, 04. Having considered the rival submissions, 04. Having considered the rival submissions, I have no hesitation in accepting the submission I have no hesitation in accepting the submission I have no hesitation in accepting the submission canvassed on behalf of the Respondents. In my canvassed on behalf of the Respondents. In my canvassed on behalf of the Respondents. In my opinion, the earlier decision of this Court, opinion, the earlier decision of this Court, opinion, the earlier decision of this Court, which is reproduced in extenso above, nowhere which is reproduced in extenso above, nowhere which is reproduced in extenso above, nowhere concludes the issue of tenancy between the concludes the issue of tenancy between the concludes the issue of tenancy between the parties, nor it can be inferred that the issue of parties, nor it can be inferred that the issue of parties, nor it can be inferred that the issue of tenancy was not open for examination. Obviously, tenancy was not open for examination. Obviously, tenancy was not open for examination. Obviously, therefore, the Petitioners were advised to take therefore, the Petitioners were advised to take therefore, the Petitioners were advised to take out application under section 70(b) of the Act out application under section 70(b) of the Act out application under section 70(b) of the Act for declaration that they were tenants in respect for declaration that they were tenants in respect for declaration that they were tenants in respect of the suit land on the Tillers’ Day. Those of the suit land on the Tillers’ Day. Those of the suit land on the Tillers’ Day. Those proceedings having concluded against the proceedings having concluded against the proceedings having concluded against the Petitioners, the same will be binding between the Petitioners, the same will be binding between the Petitioners, the same will be binding between the parties and in proceedings under section 32-G of parties and in proceedings under section 32-G of parties and in proceedings under section 32-G of the Act, it was open to the authority to decide the Act, it was open to the authority to decide the Act, it was open to the authority to decide the matter relying on the said declaration. As the matter relying on the said declaration. As the matter relying on the said declaration. As the proceedings under section 70(b) of the Act the proceedings under section 70(b) of the Act the proceedings under section 70(b) of the Act have ended against the Petitioners, and it has have ended against the Petitioners, and it has have ended against the Petitioners, and it has been declared that the Petitioners are not