1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2681 OF 1989 Santabai w/o Jaisingh ( deceased through LRs) Sayawa Bhujanga Golewar age major, occ. agril & household r/o Rudrapur, Tq. Billoli Dist. Nanded. .. PETITIONER VERSUS 1 Ramsingh s/o Lalu age 40 years, occ. agril r/o Juna, Tq. Mukhed, Dist. Nanded. 2 Horisingh s/o Lalu age 37 years, occ. & r/o as above. 3 Hamlu s/o Lalu age 34 years, occ. agri r/o Juna, Tq. Mukhed Dist. Nanded. 4 Tolba s/o Lalu age 31 years, occ. & r/o as above. 5 Umaji s/o Lalu minor u/g of respondent no. 3 Hemla 6 Kishan s/o Lalu minor, u/g of respondent no. 3 Hemla 2 7 Yada s/o Lalu minor, u/g of respondent no. 3 Hemla. 8 Narayan s/o Ramrao age 35 years, occ. agril r/o Mukhed, Dist. Nanded. .. RESPONDENTS Mr. H.K. Mundhe, Advocate for the petitioner. Mr. V.C. Solshe, Advocate for respondents. ===== CORAM : R. M. BORDE, J. RESERVED ON : 3 rd FEBRUARY, 2010. PRONOUNCED ON : 6 th MAY, 2010. ORAL JUDGMENT : 1 Petitioner / original tenant is raising exception to the order passed by the Designated Member, Maharashtra Revenue Tribunal, Aurangabad decided on 15-10-1987 whereby the revision application presented by the petitioner came to be rejected thereby confirming the order passed by the Deputy Collector, Land Reforms, Nanded dt. 29-6-1985. 2 Petitioner herein claims that she is the declared owner of land survey no. 130 and protected tenant of land survey no. 114 situate at village 3 Mukhed and that she is in possession over the disputed lands. She further claims that she was actually possessing land survey no. 113A admeasuring 10 acres and 9 gunthas, survey no. 113 C admeasuring 10 acres and 9 gunthas and also remaining land portion of survey no. 113 and whole of survey no. 114. According to the petitioner, respondents herein / non-applicants succeeded in manipulating the entries in revenue record and have entered their name in the record. On the basis of change effected in mutation entries, she was dispossessed from survey no. 113 B and 114. She contends that the respondents / non-applicants have no right to occupy the land bearing survey no. 113 B and 114 and further that sale transaction effected between the alienee and the respondents is without her consent and as such is liable to be set aside. Petitioner also claims preferential right to hold the land. With these contentions, the petitioner has tendered a request to declare the sale transaction effected between original owner Maruti and the respondents as invalid and also requests for issuing directions for recovery of possession. 3 Respondents have controverted the contentions raised by the petitioner on the ground that the petitioner cannot claim herself to be the declared owner of the land. Petitioner / tenant is dispossessed in the year 4 1956-1957 and as such, the application tendered seeking recovery of possession is beyond prescribed period of limitation. So far as the relief claimed in respect of recovery of possession as well as for invalidating the sale transaction is concerned, it is contended that the petitioner being out of possession, the provisions of section 48 of the Hyderabad Tenancy and Agricultural Lands Act are not attracted. It is also pointed out that land is sold in favour of one Sk. Mehboob S/o Sk. Khaja Miya and he has not been made party to the proceeding. In the absence of the person in whose favour the property is alienated, the relief claimed by the petitioner / original tenant in respect of invalidation of sale and recovery of possession is not liable to be granted. 4 Considering the relevant contentions raised by the parties, the Additional Tahsildar, Sub-Division, Degloor by his judgment and order dt. 31-5-1984 was pleased to allow the application. The Additional Tahsildar directed that the petitioner be put in possession of land survey no. 113A admeasuring 10 acres and 9 gunthas, survey no. 113 B admeasuring 4 acres and 9 gunthas and survey no. 114 to the extent of 11 acres and 13 gunthas by evicting the persons occupying the aforesaid lands. Respondents being aggrieved by the order passed by the Additional Tahsildar, approached the 5 appellate forum i.e. the Deputy Collector, Land Reforms, Nanded. The appellate authority after extending opportunity of hearing to all the parties concerned, was pleased to allow the appeal presented by the respondents herein and the order passed by the Tahsildar came to be quashed. Further challenge was raised by the petitioner / tenant to the order passed by the Deputy Collector in appeal by presenting revision petition to the Maharashtra Revenue Tribunal. The revisional authority, after considering the rival contentions raised by the parties was pleased to dismiss the revision petition. 5 I have perused the order passed by the authority below and Maharashtra Revenue Tribunal. On perusal of the orders passed by the Deputy Collector and the Maharashtra Revenue Tribunal, it transpires that the application tendered by the petitioner was for recovery of possession as contemplated by provisions of section 32(1) of the Hyderabad Tenancy Act as well as for invalidation of the sale transaction and for possession of the property as contemplated by section 48 of the Act. Petitioner comes to the court with a contention that she is protected tenant as well as declared owner of the property in question. Landlord namely Maruti was not entitled to alienate the property in favour of respondents and as such the 6 transactions are hit by the provisions of tenancy law. On perusal of the record, it transpires that the land belongs to one Maruti s/o Hulappa. Petitioner was the sister of Hulappa. On demise of Hulappa, Santabai was cultivating the property. Although Santabai claims herself to be the protected tenant, however, it appears from record that she was not in possession over the disputed property since 1953 -1954 onwards. It also appears from record that Santabai was declared as the owner of land survey no. 113 admeasuring 10 acres and 9 gunthas and a certificate to that effect as contemplated by section 38(g) of the Act was issued in her favour. It further transpires that land survey no. 113 admeasuring 10 acres and 9 gunthas was transferred in favour of Sk. Mehboob s/o Sk. Khajamiya. Mutation to that effect has been recorded which has been sanctioned on 25-11-1985. Although the petitioner in the instant petition is seeking recovery of possession of the land survey no. 113, she has failed to make Sk. Mehboob as party to the proceedings. In his absence, therefore, relief in respect of invalidation of sale or recovery of possession cannot be granted. It is also contended by the petitioner that she was tenant in respect of the concerned property, however, as stated above, it transpires from record that petitioner Santabai was not in possession over the disputed property since 1953-1954 onwards. Section 32 of the Hyderabad Tenancy Act prescribes 7 limitation of two years for presenting application for seeking recovery of possession of the tenanted land by the tenant who has been wrongfully dispossessed. In the instant matter, application appears to have been presented by the petitioner long after her dispossession. It is therefore rightly recorded by the revenue tribunal as well as the Deputy Collector, Nanded that the application seeking recovery of possession has been presented beyond prescribed period of limitation. Relief claimed by the applicant / petitioner under section 48 of the Tenancy Act requesting for invalidation of the sale as well as holding the petitioner entitled to purchase the property also cannot be granted in her favour as she was admittedly out of possession of the property. 6 On perusal of the original record, it transpires that there was some settlement reached between the original land holder Maruti and the petitioner who was his father’s sister and under the settlement she was held entitled only for an area to the extent of 10 acres and 9 gunthas out of survey no. 113. Copies of the statements of Santabai and Maruti recorded before the Tahsildar find place in the record. Statements appear to have been recorded on 9-3-1962 and 6-3-1962. Thus, it appears that the claim by the petitioner is restricted only to the extent of land survey no. 113 8 admeasuring 10 acres and 9 gunthas. In view of the settlement, it appears that the petitioner is declared as owner of land survey no. 113 only to the extent of 10 acres and 9 gunthas. Said land also appears to have been sold in favour of Sk. Mehboob. However, in the absence of the person in whose favour the property is transferred, no relief can be claimed in the proceeding. The Maharashtra Revenue Tribunal was therefore justified in dismissing the revision application thereby confirming the order passed by the Deputy Collector, Land Reforms, Nanded. I am convinced that there is no merit in the petition and the same deserves to be dismissed. Writ petition therefore stands dismissed. Rule discharged. In the facts and circumstances of the case, there shall be no order as to costs. 7 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/2681.89.odt