: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. 1067 OF 1983 WRIT PETITION NO. 1067 OF 1983 WRIT PETITION NO. 1067 OF 1983 Baburao Sukdeo Patil @ Kakade Baburao Sukdeo Patil @ Kakade Baburao Sukdeo Patil @ Kakade since deceased, by his heir since deceased, by his heir since deceased, by his heir and legatee Shri Bhaskar Baburao and legatee Shri Bhaskar Baburao and legatee Shri Bhaskar Baburao Kakade @ Patil ... Petitioner Kakade @ Patil ... Petitioner Kakade @ Patil ... Petitioner versus versus versus 1) Pratap Ganpat Pawar, since 1) Pratap Ganpat Pawar, since 1) Pratap Ganpat Pawar, since deceased, by his heirs and legal deceased, by his heirs and legal deceased, by his heirs and legal representatives : representatives : representatives : A) Bapu Pratap Pawar, A) Bapu Pratap Pawar, A) Bapu Pratap Pawar, B) Smt.Bhagirathibai Pratap B) Smt.Bhagirathibai Pratap B) Smt.Bhagirathibai Pratap Pawar, Pawar, Pawar, C) Mohansingh Pratap Pawar, C) Mohansingh Pratap Pawar, C) Mohansingh Pratap Pawar, D) Miss Mangal Pratap Pawar, D) Miss Mangal Pratap Pawar, D) Miss Mangal Pratap Pawar, E) Miss Bharati Pratap Pawar, E) Miss Bharati Pratap Pawar, E) Miss Bharati Pratap Pawar, F) Mrs. Vimal Govinda Dhoke, F) Mrs. Vimal Govinda Dhoke, F) Mrs. Vimal Govinda Dhoke, G) Mrs. Asha Dilip Rajput, G) Mrs. Asha Dilip Rajput, G) Mrs. Asha Dilip Rajput, 2) Smt. Nathyabai w/o Yadavrao 2) Smt. Nathyabai w/o Yadavrao 2) Smt. Nathyabai w/o Yadavrao Pawar, since deceased, by her Pawar, since deceased, by her Pawar, since deceased, by her heir and legal representative heir and legal representative heir and legal representative A) Sou. Rukhmabai Dhansing A) Sou. Rukhmabai Dhansing A) Sou. Rukhmabai Dhansing Rajput, Rajput, Rajput, :2: 3) Smt. Chandrabhagabai w/o 3) Smt. Chandrabhagabai w/o 3) Smt. Chandrabhagabai w/o Yadavrao Pawar, Yadavrao Pawar, Yadavrao Pawar, 4) The Maharashtra Revenue 4) The Maharashtra Revenue 4) The Maharashtra Revenue Tribunal at Bombay. ... Respondents Tribunal at Bombay. ... Respondents Tribunal at Bombay. ... Respondents ... ... ... Mr. M.V. Sali, for the Petitioner. Mr. M.V. Sali, for the Petitioner. Mr. M.V. Sali, for the Petitioner. Mr. K.S. Bhadti with Mr. N.S. Shastri, for Mr. K.S. Bhadti with Mr. N.S. Shastri, for Mr. K.S. Bhadti with Mr. N.S. Shastri, for Respondents Nos. 1(A) to 1(G). Respondents Nos. 1(A) to 1(G). Respondents Nos. 1(A) to 1(G). Mr. P.N. Karlekar, for Respondents Nos.2 and 3. Mr. P.N. Karlekar, for Respondents Nos.2 and 3. Mr. P.N. Karlekar, for Respondents Nos.2 and 3. Respondent No.4 - formal party. Respondent No.4 - formal party. Respondent No.4 - formal party. ... ... ... CORAM : A.M.KHANWILKAR,J. CORAM : A.M.KHANWILKAR,J. CORAM : A.M.KHANWILKAR,J. 7th June 2004 7th June 2004 7th June 2004 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This writ petition under Article 227 of 1. This writ petition under Article 227 of 1. 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 passed by the Maharashtra judgment and order passed by the Maharashtra judgment and order passed by the Maharashtra Revenue Tribunal, Bombay, dated July 5, 1982, in Revenue Tribunal, Bombay, dated July 5, 1982, in Revenue Tribunal, Bombay, dated July 5, 1982, in Revision Application No. Ten.A.366 of 1981. A Revision Application No. Ten.A.366 of 1981. A Revision Application No. Ten.A.366 of 1981. A piquant situation has arisen in this matter. The piquant situation has arisen in this matter. The piquant situation has arisen in this matter. The land bearing Survey No. 50, Gut No. 80, land bearing Survey No. 50, Gut No. 80, land bearing Survey No. 50, Gut No. 80, admeasuring 5 H. 01 R. at village Morane admeasuring 5 H. 01 R. at village Morane admeasuring 5 H. 01 R. at village Morane :3: Sandus, taluka Bagalan, District Nasik, belonged Sandus, taluka Bagalan, District Nasik, belonged Sandus, taluka Bagalan, District Nasik, belonged to the three Respondents herein. Out of them, to the three Respondents herein. Out of them, to the three Respondents herein. Out of them, Respondents Nos. 2(A) and 3 have entered into a Respondents Nos. 2(A) and 3 have entered into a Respondents Nos. 2(A) and 3 have entered into a compromise with the Petitioner. It is not in compromise with the Petitioner. It is not in compromise with the Petitioner. It is not in dispute that the said land originally belonged to dispute that the said land originally belonged to dispute that the said land originally belonged to Respondents Nos. 1, 2 and 3 and they were joint Respondents Nos. 1, 2 and 3 and they were joint Respondents Nos. 1, 2 and 3 and they were joint owners thereof. The Petitioner was inducted as owners thereof. The Petitioner was inducted as owners thereof. The Petitioner was inducted as tenant in the said land in the year 1967-68 by an tenant in the said land in the year 1967-68 by an tenant in the said land in the year 1967-68 by an agreement for a period of 11 years. It is the agreement for a period of 11 years. It is the agreement for a period of 11 years. It is the case of the Petitioner that on expiry of the said case of the Petitioner that on expiry of the said case of the Petitioner that on expiry of the said 11 years’ period, the Petitioner wanted to 11 years’ period, the Petitioner wanted to 11 years’ period, the Petitioner wanted to surrender the suit land to the Respondents, but surrender the suit land to the Respondents, but surrender the suit land to the Respondents, but it is the Respondents, who insisted that the it is the Respondents, who insisted that the it is the Respondents, who insisted that the Petitioner should continue to occupy the same and Petitioner should continue to occupy the same and Petitioner should continue to occupy the same and carry on agricultural activities thereon. On the carry on agricultural activities thereon. On the carry on agricultural activities thereon. On the other hand, it is the case of the Respondent No. other hand, it is the case of the Respondent No. other hand, it is the case of the Respondent No. 1, who is the sole contesting Respondent in this 1, who is the sole contesting Respondent in this 1, who is the sole contesting Respondent in this case, that on expiry of the said 11 years’ period case, that on expiry of the said 11 years’ period case, that on expiry of the said 11 years’ period as per the original agreement, the Petitioner did as per the original agreement, the Petitioner did as per the original agreement, the Petitioner did not hand over possession of the suit land, for not hand over possession of the suit land, for not hand over possession of the suit land, for which reason legal notice was issued. Even which reason legal notice was issued. Even which reason legal notice was issued. Even thereafter, the Petitioner continued to occupy thereafter, the Petitioner continued to occupy thereafter, the Petitioner continued to occupy the suit land. The Petitioner thereafter the suit land. The Petitioner thereafter the suit land. The Petitioner thereafter preferred an application under section 32O of the preferred an application under section 32O of the preferred an application under section 32O of the Bombay Tenancy and Agricultural Lands Act before Bombay Tenancy and Agricultural Lands Act before Bombay Tenancy and Agricultural Lands Act before :4: the Tahsildar, Bagalan. The Tahsildar by the Tahsildar, Bagalan. The Tahsildar by the Tahsildar, Bagalan. The Tahsildar by judgment and order dated August 1980 allowed the judgment and order dated August 1980 allowed the judgment and order dated August 1980 allowed the application preferred by the Petitioner rejecting application preferred by the Petitioner rejecting application preferred by the Petitioner rejecting the contention of Respondent No. 1 that the the contention of Respondent No. 1 that the the contention of Respondent No. 1 that the application was barred, as it was not filed application was barred, as it was not filed application was barred, as it was not filed within the statutory period from the date of within the statutory period from the date of within the statutory period from the date of first agreement inducting the Petitioner as first agreement inducting the Petitioner as first agreement inducting the Petitioner as tenant in the suit land in the year 1967-68. The tenant in the suit land in the year 1967-68. The tenant in the suit land in the year 1967-68. The Tahsildar, on the other hand, found that after Tahsildar, on the other hand, found that after Tahsildar, on the other hand, found that after expiry of the lease period in terms of the expiry of the lease period in terms of the expiry of the lease period in terms of the agreement of 1967-68, the landlords approached agreement of 1967-68, the landlords approached agreement of 1967-68, the landlords approached the Petitioner and requested him to cultivate the the Petitioner and requested him to cultivate the the Petitioner and requested him to cultivate the land on the condition that he should pay land on the condition that he should pay land on the condition that he should pay Rs..3,001/- per annum and the landlords did not Rs..3,001/- per annum and the landlords did not Rs..3,001/- per annum and the landlords did not intend to take back possession of the suit land. intend to take back possession of the suit land. intend to take back possession of the suit land. On this finding, the Tahsildar proceeded to hold On this finding, the Tahsildar proceeded to hold On this finding, the Tahsildar proceeded to hold that fresh tenancy was created in favour of the that fresh tenancy was created in favour of the that fresh tenancy was created in favour of the Petitioner after expiry of the first agreement in Petitioner after expiry of the first agreement in Petitioner after expiry of the first agreement in the year 1978 and the present application having the year 1978 and the present application having the year 1978 and the present application having filed in the year 1979 was within time and ought filed in the year 1979 was within time and ought filed in the year 1979 was within time and ought to be granted in favour of the Petitioner. to be granted in favour of the Petitioner. to be granted in favour of the Petitioner. Against this decision, Respondent No. 1 carried Against this decision, Respondent No. 1 carried Against this decision, Respondent No. 1 carried the matter in appeal before the Sub-Divisional the matter in appeal before the Sub-Divisional the matter in appeal before the Sub-Divisional Officer. The first appellate authority upheld Officer. The first appellate authority upheld Officer. The first appellate authority upheld the finding and conclusion reached by the the finding and conclusion reached by the the finding and conclusion reached by the :5: Tahsildar. Naturally, the Respondent No. 1 Tahsildar. Naturally, the Respondent No. 1 Tahsildar. Naturally, the Respondent No. 1 carried the matter in revision before the carried the matter in revision before the carried the matter in revision before the Maharashtra Revenue Tribunal. The Tribunal was Maharashtra Revenue Tribunal. The Tribunal was Maharashtra Revenue Tribunal. The Tribunal was pleased to reverse the finding and the conclusion pleased to reverse the finding and the conclusion pleased to reverse the finding and the conclusion reached by the authorities below on the reasoning reached by the authorities below on the reasoning reached by the authorities below on the reasoning that there was no reliable evidence to support that there was no reliable evidence to support that there was no reliable evidence to support the finding that fresh tenancy was created in the finding that fresh tenancy was created in the finding that fresh tenancy was created in favour of the Petitioner in the year 1978 in favour of the Petitioner in the year 1978 in favour of the Petitioner in the year 1978 in respect of the suit land. Having recorded that respect of the suit land. Having recorded that respect of the suit land. Having recorded that finding, the Tribunal proceeded to hold that the finding, the Tribunal proceeded to hold that the finding, the Tribunal proceeded to hold that the application as filed in the year 1979 was application as filed in the year 1979 was application as filed in the year 1979 was obviously beyond time. Accordingly, the revision obviously beyond time. Accordingly, the revision obviously beyond time. Accordingly, the revision preferred by Respondent No. 1 came to be allowed preferred by Respondent No. 1 came to be allowed preferred by Respondent No. 1 came to be allowed by setting aside the concurrent view taken by the by setting aside the concurrent view taken by the by setting aside the concurrent view taken by the two authorities below. two authorities below. two authorities below. 2. Mr. Sali, for the Petitioner, submits 2. Mr. Sali, for the Petitioner, submits 2. Mr. Sali, for the Petitioner, submits that having regard to the developments taken that having regard to the developments taken that having regard to the developments taken place during the pendency of this writ petition, place during the pendency of this writ petition, place during the pendency of this writ petition, the appropriate course is to set aside the the appropriate course is to set aside the the appropriate course is to set aside the impugned order and restore the conclusion reached impugned order and restore the conclusion reached impugned order and restore the conclusion reached by the authorities below. According to him, if by the authorities below. According to him, if by the authorities below. According to him, if such a course is not adopted, it will result in such a course is not adopted, it will result in such a course is not adopted, it will result in inconsistent orders being passed in respect of inconsistent orders being passed in respect of inconsistent orders being passed in respect of the same land jointly owned by the Respondents. the same land jointly owned by the Respondents. the same land jointly owned by the Respondents. :6: It is next contended that, at any rate, the It is next contended that, at any rate, the It is next contended that, at any rate, the Tribunal’s decision cannot be sustained because Tribunal’s decision cannot be sustained because Tribunal’s decision cannot be sustained because the Tribunal has interfered with the finding of the Tribunal has interfered with the finding of the Tribunal has interfered with the finding of fact recorded by the two authorities below, which fact recorded by the two authorities below, which fact recorded by the two authorities below, which is impermissible in view of the limited scope of is impermissible in view of the limited scope of is impermissible in view of the limited scope of interference provided for under section 76 of the interference provided for under section 76 of the interference provided for under section 76 of the Bombay Tenancy and Agricultural Lands Act. He Bombay Tenancy and Agricultural Lands Act. He Bombay Tenancy and Agricultural Lands Act. He further submits that the finding reached by the further submits that the finding reached by the further submits that the finding reached by the two authorities below is supported by the two authorities below is supported by the two authorities below is supported by the evidence on record and it is not possible to even evidence on record and it is not possible to even evidence on record and it is not possible to even remotely suggest that the same is manifestly remotely suggest that the same is manifestly remotely suggest that the same is manifestly wrong or error apparent on the face of record. wrong or error apparent on the face of record. wrong or error apparent on the face of record. According to him, therefore, the decision of the According to him, therefore, the decision of the According to him, therefore, the decision of the Tribunal deserves to be set aside. Tribunal deserves to be set aside. Tribunal deserves to be set aside. 3. On the other hand, Counsel for Respondent 3. On the other hand, Counsel for Respondent 3. On the other hand, Counsel for Respondent No. 1 submits that no infirmity can be attached No. 1 submits that no infirmity can be attached No. 1 submits that no infirmity can be attached to the approach or the view taken by the to the approach or the view taken by the to the approach or the view taken by the Tribunal. He submits that the Tribunal has Tribunal. He submits that the Tribunal has Tribunal. He submits that the Tribunal has rightly held that there is no reliable evidence rightly held that there is no reliable evidence rightly held that there is no reliable evidence to support the finding of surrender of the first to support the finding of surrender of the first to support the finding of surrender of the first tenancy on expiry of 11 years’ period and tenancy on expiry of 11 years’ period and tenancy on expiry of 11 years’ period and thereafter creation of fresh tenancy in favour of thereafter creation of fresh tenancy in favour of thereafter creation of fresh tenancy in favour of the Petitioner. He further submits that merely the Petitioner. He further submits that merely the Petitioner. He further submits that merely because Respondents Nos. 2(A) and 3 have entered because Respondents Nos. 2(A) and 3 have entered because Respondents Nos. 2(A) and 3 have entered :7: into settlement with the Petitioner, for reasons into settlement with the Petitioner, for reasons into settlement with the Petitioner, for reasons best known to them, that cannot be the basis for best known to them, that cannot be the basis for best known to them, that cannot be the basis for setting aside the well-reasoned decision of the setting aside the well-reasoned decision of the setting aside the well-reasoned decision of the Tribunal, which is sound both on facts and in Tribunal, which is sound both on facts and in Tribunal, which is sound both on facts and in law. In his submission, therefore, this petition law. In his submission, therefore, this petition law. In his submission, therefore, this petition deserves to be dismissed. deserves to be dismissed. deserves to be dismissed. 4. Counsel for Respondents Nos. 2(A) and 3 4. Counsel for Respondents Nos. 2(A) and 3 4. Counsel for Respondents Nos. 2(A) and 3 is supporting the submission advanced on behalf is supporting the submission advanced on behalf is supporting the submission advanced on behalf of the Petitioner. of the Petitioner. of the Petitioner. 5. Having considered the rival submissions, 5. Having considered the rival submissions, 5. Having considered the rival submissions, I find substance in the argument advanced on I find substance in the argument advanced on I find substance in the argument advanced on behalf of Respondent No. 1 that merely because behalf of Respondent No. 1 that merely because behalf of Respondent No. 1 that merely because the Petitioner and Respondents Nos. 2(A) and 3 the Petitioner and Respondents Nos. 2(A) and 3 the Petitioner and Respondents Nos. 2(A) and 3 have entered into settlement during the pendency have entered into settlement during the pendency have entered into settlement during the pendency of this petition, will be of no avail and that by of this petition, will be of no avail and that by of this petition, will be of no avail and that by itself cannot be the basis for setting aside the itself cannot be the basis for setting aside the itself cannot be the basis for setting aside the well-reasoned decision of the Tribunal. It is well-reasoned decision of the Tribunal. It is well-reasoned decision of the Tribunal. It is made clear that even though this Court (my made clear that even though this Court (my made clear that even though this Court (my predecessor) vide order dated 2nd April 2004 has predecessor) vide order dated 2nd April 2004 has predecessor) vide order dated 2nd April 2004 has taken on record the consent terms entered into taken on record the consent terms entered into taken on record the consent terms entered into between the parties, the Petitioner on the one between the parties, the Petitioner on the one between the parties, the Petitioner on the one hand and Respondents Nos. 2(A) and 3 on the hand and Respondents Nos. 2(A) and 3 on the hand and Respondents Nos. 2(A) and 3 on the other, that may not be construed as approval of other, that may not be construed as approval of other, that may not be construed as approval of :8: or validating the same, but that is obviously or validating the same, but that is obviously or validating the same, but that is obviously subject to the legal mandate and would be binding subject to the legal mandate and would be binding subject to the legal mandate and would be binding between the parties if law so permits. between the parties if law so permits. between the parties if law so permits. 6. Insofar as the view taken by the Tribunal 6. Insofar as the view taken by the Tribunal 6. Insofar as the view taken by the Tribunal is concerned, to my mind, there is no infirmity is concerned, to my mind, there is no infirmity is concerned, to my mind, there is no infirmity in the conclusion reached that there is no in the conclusion reached that there is no in the conclusion reached that there is no reliable evidence to support the finding reliable evidence to support the finding reliable evidence to support the finding regarding the factum of surrender after the regarding the factum of surrender after the regarding the factum of surrender after the expiry of 11 years’ period from the first expiry of 11 years’ period from the first expiry of 11 years’ period from the first agreement, or, for that matter, of creation of agreement, or, for that matter, of creation of agreement, or, for that matter, of creation of new tenancy in favour of the Petitioner in new tenancy in favour of the Petitioner in new tenancy in favour of the Petitioner in respect of the suit land on or after 1978. respect of the suit land on or after 1978. respect of the suit land on or after 1978. Indeed, the first authority has held that new Indeed, the first authority has held that new Indeed, the first authority has held that new tenancy was created in favour of the Petitioner tenancy was created in favour of the Petitioner tenancy was created in favour of the Petitioner on and from 1978, but in reaching this on and from 1978, but in reaching this on and from 1978, but in reaching this conclusion, it has not adverted to any specific conclusion, it has not adverted to any specific conclusion, it has not adverted to any specific evidence on record, but proceeded on surmise that evidence on record, but proceeded on surmise that evidence on record, but proceeded on surmise that since the Petitioner continued to occupy the suit since the Petitioner continued to occupy the suit since the Petitioner continued to occupy the suit land even after the expiry of 11 years’ lease land even after the expiry of 11 years’ lease land even after the expiry of 11 years’ lease period, that means fresh tenancy was created in period, that means fresh tenancy was created in period, that means fresh tenancy was created in his favour.