1 W.P.No.2198/92 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2198 OF 1992. 1. Vithal Gyana Surwase. 2. Nivrutti Naga Kedari (Landage) since deceased per L.Rs. 2A) Maruti Nivrutti Kedari (Landage), Age 35 years, Occ.Agriculture, R/o Bhatangalli Tal.& Dist. Latur. 3. Digamber Satwa Jadhav, since deceased per L.Rs. 3A) Balaji Digamber Jadhav, Age 38 years, Occ.Agriculture, R/o Bhatangalli Tal.and Dist.Laltur. 3A) Balaji Digamber Jadhav since deceased per L.Rs. 3Ai) Alka Balaji Jadhav, Age 32 years, Occ.Household, R/o Belpimpalgaon, Tq.Newasa, Tal.Ahmednagar. 3Aii)Suvarna Balasaheb Jadhav, Age 17 years, Occ.Student, R/o as above. 3Aiii) Swati Balaji Jadhav, Age 15 years, Occ.Student, R/o as above. 2 W.P.No.2198/92 3Aiv) Amruta Balaji Jadhav, Age 13 years, Occ.Student, R/o as above. 3Av) Yogesh Balaji Jadhav, Age 11 years, Occ.Student, R/o as above. Petitioners Nos.3Aii to 3Av are minor their u/g petitioner No.3Ai. 4. Maqbool Qasim Saidani, All major, Occ.Agriculturists, R/o Bhatangali, Tq.and Dist. Latur. ... Petitioners. Versus 1. Malikarjun Bhimrao Patil. 2. Ramrao Yeshwantrao Patil, deceased through L.Rs. 2a) Gunwant Ramrao Patil, Age 45 years. 2b) Rajkumar Ramrao Patil, Age 38 years, 2c) Babruwan Ramrao Patil, Age 33 years, All Agriculturists and R/o Bhatangali, Taluka and Dist. Latur. 3. Chander Yeshwant Patil. All major, Occ.Agriculturists, Respdt.No.1 in service), all R/o Bhatangali, Taluka and Dist. Latur. 3. Chander Yeshwantrao Patil, 3 W.P.No.2198/92 since deceased L.Rs. 3A) Vadanbai Chandarrao Patil, Age 72 years,Occ.Household, R/o Bhatangali,Tal. Latur, Dist.Latur. 3B) Balwantrao Chandarrao Patil, Age 52 years, Occ.Agriculture, R/o Bhatangali, Tal. Latur, Dist.Latur. 3C) Urmila Suresh Munchate, Age 44 years, Occ.Agril., R/o Bhatangali, Tal. Latur, Dist.Latur. 3D) Aanant Chandarrao Patil, Age 35 years, Occ.Agril., R/o Bhatangali, Tal. Latur, Dist.Latur. 4. Hon'ble Member, Maharashtra Revenue Tribunal, Aurangabad. ... Respondents. ... Mr.S.S.Bora, advocate for the petitioners. Mr.V.G.Mete, advocate for Respondent No.1. Mr.S.V.Chandole, advocate for Respondent Nos.3A to 3D and 2a to 2c. ... CORAM : S.V.GANGAPURWALA,J. Date : 21.07.2011. ORAL JUDGMENT : 1. Heard. 4 W.P.No.2198/92 2. The proceedings were initiated by the present Respondent No.1 before the Civil Court by filing a suit for partition and separate possession. The decree was passed in favour of the present Respondent No.1 that he has 1/4th share in the suit property. In execution the present petitioners filed objections contending that they are protected tenants and declaration U/s 38-G has been made in their favour. The matter came upto this Court. This Court in W.P.No.100/1983 held that so long as declaration US 38-G is in force, it is conclusive evidence of the fact that the present petitioners are the owners of the suit land. The declaration of ownership is not challenged by anybody, anywhere and the question of validity of the declaration U/s 38-G can not be gone into this petition. After the aforesaid decision, the present Respondent No.1 filed appeal/proceedings before the Deputy Collector, Land Reforms, Latur on 16.3.1988. The same was dismissed. The matter was taken up before the MRT who remanded it to the Deputy Collector. After remand the Deputy Collector vide its judgment dated 28.2.1991, 5 W.P.No.2198/92 dismissed the appeal on the ground that the matter is barred on the principle of res-judicata in view of the judgment of the High Court in W.P.No.100/1983. The present Respondent No.1 challenged the said judgment before the MRT, Aurangabad who allowed the said revision vide its judgment and order dated 3.4.1992 and held that the present petitioners are not the tenants of the disputed land. Aggrieved thereby, the present Writ Petition is filed. 3. Mr.Bora, learned counsel for the petitioners submits that in fact, the appeal challenging the declaration U/s 38-G itself was not maintainable before the Deputy Collector. The declaration U/s 38-G is an administrative/ministerial act and as such no appeal lies. For the said purpose the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Bharatlal Hemraj Vs. Kondiba Govinda Jadhav and others" reported in 2002 (Supp.) Bom.C.R.216 and another judgment of the learned Single Judge of this Court in a case of "Babusing Vithalsing 6 W.P.No.2198/92 Rajput Vs. Bhagirathibai Bhagwansing Thakur" reported in 2004 LawSuit(BOM) 1669. 4. The learned counsel further contends that the proceedings were barred by res-judicata in view of the judgment of the High Court in W.P.No.100/1983. It was further contended that if the Revisional Court was of the view that the matter was not hit by principle of res-judicata then it should have remanded the matter back to the authority. 5. Per contra, Mr.Mete, learned counsel for the Respondent No.1 submitted that the MRT rightly came to the conclusion that the proceedings before the Deputy Collector did not operate as res-judicata in view of the judgment of the High Court in W.P.No.100/1983, inasmuch as in the said Writ Petition No.100/1983, the validity of the declaration U/s 38-G was not an issue and the declaration U/s 38-G was assailed before the Deputy Collector. Even the High Court had observed that the validity of the declaration U/s 38-G is not an issue before it. According to 7 W.P.No.2198/92 the learned counsel, the tenant is defined U/s 34 of the Hyderabad Tenancy and Agricultural Lands Act. Yeshwanta was not the owner of the property, as such the certificate issued showing Yeshwanta as the owner of the property can not be said to be legal and proper. The notified date for getting declaration U/s 38-G is 21.6.1965. The certificate which is issued and relied by the petitioners could not have been issued for declaration U/s 38-G of the Act. The certificate is shown to have been issued in form No.13 under Rule 22. If the declaration would have been U/s 38-G then the certificate has to be issued in form No.16 Rule 23(4). This fact shows that the certificate is not at all legal and valid. The learned counsel further contends that the names of the petitioners were not included in the provisional list of tenants. This fact ipso- facto goes to show that the petitioners were not the tenants of the property. There is no fixation of price U/s 34(4) if there is any certificate U/s 38(6). The MRT has considered all these anomalies and has rightly come to the conclusion. According to Mr.Mete, learned 8 W.P.No.2198/92 counsel, when the certificate is illegal, null and void then the same can be challenged before any forum. For the said purpose, learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Vaijnath Yeshwant Jadhav since deceased by L.Rs. and others Vs. Afsar Begum Nadimuddin Kazi since deceased by L.Rs. and others" reported in 2010(6) Bom.C.R. 787. The learned counsel further contends that U/s 91 of the Hyderabad Tenancy and Agricultural Lands Act, the MRT in exercise of its revisional powers has every authority and jurisdiction to consider all these aspects which were not considered by the Deputy Collector, Land Reforms, Latur. In view of the aforesaid facts, the learned counsel contends that the judgment delivered by the MRT is legal and proper and needs no interference. Mr.Chandole, learned counsel adopts the arguments of Mr.Mete, learned counsel for Respondent No.1. 6. With the assistance of the learned counsels, I have gone through the judgments. The Deputy Collector, Land Reforms had dismissed the 9 W.P.No.2198/92 proceedings/appeal filed by the present Respondent No.1 solely on the ground of res- judicata. No other facet of the matter was considered by the Deputy Collector. The said order dismissing the appeal on the ground of res- judicata was assailed by the present Respondent No.1 before the MRT. The MRT considering the arguments of the present Respondent No. 1/petitioner therein and considering the factual matrix allowed the revision. The grounds on which the said Revision was allowed was not a subject matter dealt with by the Deputy Collector, Land Reforms while dismissing the appeal. It is the Court of first instance who has to deal with all the factual matrix and the Revisional Court can thereafter determine the legality of the said findings. The Revisional Court would not be a proper Court to make an inquiry or investigation in respect of the factual matrix for the first time. The parties should have opportunity before the first Court to deal with the complete matter and findings on each and every aspect of the matter is required to be given by the Court of first instance and 10 W.P.No.2198/92 thereafter the Revisional Court can decide upon the legality of the judgment passed by the appellate Court. 7. In the present case, the first appellate Court has not dealt with any of the legal or factual aspect of the matter and solely on the ground of res-judicata has dismissed the appeal. The Revisional Court should have remitted the matter to the first Court where the appeal was filed to consider the same on merits when the Revisional Court came to the conclusion that the judgment of this Court in W.P.No.100/1983 does not operate as res-judicata. 8. Upon considering the judgment of this Court in W.P.No.100/1983, it can safely be concluded that the validity of declaration U/s 38-G was not a subject matter of issue before the Writ Court nor any finding was given about the validity of the declaration U/s 38-G. As such the judgment of this Court in W.P.No.100/1983 would not operate as res-judicata for the proceedings taken up by the Respondents assailing 11 W.P.No.2198/92 the validity of the declaration U/s 38-G of the Hyderabad Tenancy and Agricultural Lands Act. 9. In light of the above conspectus of the matter, I quash and set aside the order passed by the Deputy Collector, Land Reforms and the order of the MRT in Revision impugned in this petition and relegate the parties before the Deputy Collector, Land Reforms, Latur, wherein present Respondent No.1 had filed the proceedings challenging declaration U/s 38-G and the certificate U/ss 38(6), 38-A and 38(4) of the Hyderabad Tenancy and Agricultural Lands Act. It is made clear that all points which are agitated in the present petition are kept open, save and except the point of res-judicata which is concluded. The parties agree to appear before the Deputy Collector, Land Reforms, Latur on 17.8.2011 in File No.88/TNC/A-16. 10. Rule accordingly made absolute with aforesaid observations and directions. However, there shall be no order as to costs. 11. The Deputy Collector,Land Reforms, 12 W.P.No.2198/92 Latur shall decide the proceedings as expeditiously as possible and preferably within a period of six (6) months from date of their appearance before it. (S.V.GANGAPURWALA,J.) asp/office/wp219892