1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1781 OF 1989 Poshatti s/o Gangaram, age major, occupation agriculture, resident of Saikheda, Taluka Biloli Petitioner/ori. District Janded. tenant. versus 01. Saibu s/o Baby aged major occupation Agriculture, r/of Saikheda, Tq.Biloli District Nanded. 02. Gangadhar s/o Gangaram, age major, occup. and resident of as above. (since died), through his legal representatives as under: 2-A Smt. Dayabai w/o Gangadhar Arsewad, age 71 years, occupation household. 2 2-B Madhav s/o Gangadhar Arsewad, age 41 years,occup.Agriculture 2-C Koshatti s/o Gangadhar Arsewad age 36 years, occup.agriculture 2-D Laxman s/o Gangadhar Arsewad, age 36 years, occup. Agriculture, All above r/of Village Saikhed, Post Jarikot, Taluka Dharmabad, District Nanded. ..Respondents -------------------------------------------------- Shri R.S.Deshmukh, Advocate, for the Petitioner. Shri M.M.Patil Beedkar for Respondent Nos.2A to 2D -------------------------------------------------- Coram: P. R. Borkar J. Judgment reserved on : 07/08/2009 Judgment pronounced on: 13/08/2009 Judgment 01. By this writ petition, the petitioner challenges the judgment and order passed by the Maharashtra Revenue Tribunal, Bench at Aurangabad 3 in Revision No.108/B/1985-Nanded dated 18.2.1989 whereby the Tribunal set aside the decision and findings recorded by Additional Tahsildar, Degloor in File No.82/TNC/CR-4812 decided on 27.8.1984 declaring the sale deed dated 29.3.1974 executed by present Respondent No.1 in favour of Respondent No. 2 in respect of survey No.57 (Gat No.122) situated at village Saikhed, Taluka Biloli, District Nanded, as null and void under Section 48 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 ("H.T.& A.L. Act" for brevity's sake) which judgment and decree was further confirmed by the Deputy Collector (L.R.), Nanded in Appeal bearing Case No.1984-TNC/CR-97 decided on 30.1.1985. The Tribunal declared that the provisions of Section 48 of the H.T.& A.L. Act are not applicable to the facts of the proceedings. 02. Briefly stated, the present petitioner filed an application under Section 48 of the H.T.& A.L. Act for declaration that the sale deed dated 29.3.1974 executed by Respondent No.1 in favour of Respondent No.2 is null and void and against the 4 provisions of Section 48 of the H.T.& A.L. Act. As per the case of present petitioner, Respondent No. 1 was the original owner of the property survey No.57(Gat No.122) admeasuring 87 R. situated at Saikhed, Taluka Biloli. He was inducted as tenant on batai basis in the year 1972. The entries were made in the V.F. No. 7x12 extract for the period 1972-73 to 1980-81 regarding his cultivation of land as bataidar (tenant cultivating the land on crop share basis.). Respondent No. 1 agreed to sell the land to the petitioner on 5.4.1972 and executed registered sale deed for Rs.5,000/= on 19.6.1974 in his favour. At the time of agreement of sale, the petitioner had paid Rs.1,000/= and subsequently on 5.6.1973 he had paid additional amount of Rs.1,000/= to Respondent No.1. However, after entering into an agreement with the petitioner and when the petitioner was in possession of the land as tenant, Respondent No. 1 sold the said land to Respondent No. 2 by a sale deed executed on 29.3.1974. It was for Rs. 8,000/=. 5 03. Thereafter the Petitioner filed Regular Civil Suit No.111 of 1974 in the Court of Civil Judge, Junior Division, Biloli, for declaration of ownership and injunction against both the Respondents and two other persons, by alleging that Respondent No.2 had obstructed his possession. Respondent No.1 Saibu filed consent written statement and admitted that the land was given to the petitioner for cultivation on crop share basis and that the petitioner was the tenant over the land. Respondent No.2 Gangadhar contested the suit. The trial court dismissed the suit, so far as declaration of ownership is concerned on the ground that the sale deed in favour of the petitioner was subsequent in point of time to the sale deed executed by Respondent No.1 in favour of Respondent No.2, but granted injunction. The said judgment and decree passed by the Civil Judge, Junior Division, Biloli came to be challenged in Regular Civil Appeal No.98 of 1978 in the District Court, Nanded. The Extra Assistant Judge, Nanded by his judgment and order 6 dated 24/02/1981 decided the said appeal, so also cross objections and dismissed both the appeal and the cross objections. Thus, by the judgment of the Civil Court injunction is issued against present Respondent Nos. 1 and 2. The declaration of ownership was refused to the present petitioner. A copy of the judgment in R.C.S. No.98 of 1978 is produced on record and it appears from the same that the District Court has held that the property was in possession of present petitioner-plaintiff Poshatti Gangaram Yamewar. It is held that having sold the land on 29.3.1974 to Respondent No.2, Respondent No.1 was not competent to sell the said land subsequently on 19.6.1974 to the present petitioner and, therefore, he refused to give declaration but granted injunction in favour of the plaintiff i.e. present petitioner. 04. Present petitioner filed application before the Additional Tahsildar, Sub Division, Degloor for cancellation of the sale deed dated 29.3.1974 executed by Respondent No.1 in favour 7 of Respondent No.2 and for a declaration that the same was null and void under Section 48 of the H.T.& A.L. Act. He was in possession of the property as tenant and therefore there could not have been valid sale by Respondent No.1 in favour of Respondent No.2. Additional Tahsildar accepted the case of the petitioner and declared that the sale deed dated 29.3.1974 executed by present Respondent No.1 in favour of Respondent N.2 as void under Section 48 of the H.T.& A.L. Act. Against the said decision, both the Respondents filed appeal before the Deputy Collector, Nanded, who dismissed the same on 30.1.1985 thereby confirming the order passed by the Additional Tahsildar. As against the said dismissal of appeal, Respondent No. 2 preferred revision before the Maharashtra Revenue Tribunal which came to be allowed by the learned Member of the Tribunal thereby setting aside the judgment and orders of both, the Tahsildar and the Deputy Collector. The learned Tribunal held that the provisions under Sec.48 of the H.T.& A.L. Act were not applicable. 8 05. In this case, it is argued that the declaration that the sale deed was void was wrongly given and that there should have been specific issue as to whether the petitioner was tenant of the suit property. It may be noted that in the order passed by the Tahsildar, he has considered oral and documentary evidence and also referred to V.F.7x12 extracts in which present petitioner Poshatti was shown to be cultivating the land on crop share basis. Mode of cultivation was shown as 4 and 3. The petitioner was shown to be in actual cultivation of land from 1972-73 to 1980-81. Moreover, Civil Court has come to a conclusion that the petitioner was in possession of the property and that finding was confirmed by the District Court in Regular Civil Appeal No.98 of 1978 decided on 24.1.1981. 06. Learned counsel for the respective parties have taken me through the judgment of the Tribunal and it appears that the Tribunal has come a conclusion that it was not proved that the land was leased to the petitioner-plaintiff on the 9 date of sale. It is observed that perusal of provisions of Section 48 of the H.T.& A.L. Act shows that the land should be leased out to a tenant and that is a precondition for attracting sub-section (7) of section 48. The court came to a conclusion that though initially the petitioner was a tenant of the land, subsequently by agreement of sale dated 5.4.1972 he continued to be in possession not as a tenant, but under the agreement of sale and, therefore, the sale deed was executed in favour of Respondent No. 2 on 29.3.1974 is valid. 07. Now, it is well settled position in law that an agreement of sale itself does not confer any right in the property and if ingredients of Section 53-A of the Transfer of Property Act are fulfilled, the proposed purchaser is entitled to protection of his possession under the said provision. It cannot be said that the rights of tenancy merge into rights of proposed purchaser under agreement of sale or contract for sale. 10 08. The Maharashtra Revenue Tribunal did come to a conclusion that the petitioner Poshatti was in possession of the land since prior to agreement of sale in his favour executed on 5.4.1972. The V.F. No. 7x12 extract indicated that he was in possession as tenant. Under such circumstances, he continues to be a tenant until the sale deed was executed in his favour. 09. Here, I may refer to the observations of this court in paragraph 13 in the case of Ramprasad Chandulal Brahman vs. Hussain s/o Syed Noor Halwai 2009(1) ALL MR 18 which reads thus: " As stated before, the Trial Court as well as the first Appellate Court came to conclusion that the defendants would continue their possession as tenants and, therefore, relief of decree for possession cannot be granted. A Single Bench of this Court in "Shaikh Usman s/o Shaikh Burahan & others Vs. Shaikh Badruddin s/o Shaikh Bhagan & another" 1994 (1) Bom.C.R.362, held that the tenant can fall back on tenancy 11 rights even though the transaction of sale or contract of sale is invalid or proved to be unavailable. It is observed: "The opening words of section 19 clearly provide that the termination of tenancy shall only be on the specified grounds. Provisions of the Tenancy Act protect the possession of the tenant and unless an application is presented within time to the Tahsildar by the landlord who has accrued right to gain possession, the tenant cannot be dispossessed. Looking to this protection given to the agricultural tenancy by this Act, it cannot be interpreted that the provisions of section 111(d) would be available for the landlord to say that once the sale deed is executed in favour of the tenant and he becomes the landlord, he cannot fall back upon his rights as tenant if the sale fails." 10. The Tribunal committed an error in holding that the petitioner ceased to be tenant after he entered into the agreement of sale. It appears that Respondent No. 1 has taken conflicting stands on different occasions. In the written statement filed on 2.8.1974 in the suit 12 before civil court, he admitted possession of the petitioner as that of tenant; however, but he also filed one letter before the civil court on 2.8.1974 wherein he denied tenancy of the petitioner. The Tribunal has come to a positive conclusion that since prior to 5.4.1972 petitioner Poshatti was in possession of the property and that on 5.4.1972 he entered into an agreement with Respondent No.1. In that case, possession of Poshatti cannot be explained on any other hypothesis than that he was in possession of the property as tenant even after the agreement of sale. The V.F. No. 7x12 extracts right from 1972-73 to 1980-81 clearly prove possession of the petitioner as a tenant of the land and that fact was referred to by all the three authorities. So, considering totality of the circumstances and the facts on record, in my opinion the Tribunal erred in holding that possession of the petitioner Poshatti after 5.4.1972 was not that of tenant. 11. Here, I may also refer that Section 19 of the H.T.& A.L. Act lays down specific procedure 13 for termination of tenancy, including the manner in which tenancy rights can be surrendered by tenant in favour of the landlord. Admittedly, in this case such procedure is not followed and therefore tenancy of the petitioner has not come to an end. In this view of the matter, in my opinion the Tribunal was at an error in interfering with the orders of the Additional Tahsildar and Deputy Collector. However, at the same time it may be noted that as per section 48(7) of the H.T. & A.L. Act, the sale deed becomes invalid and not null and void as held by the Additional Tahsildar and as confirmed by Deputy Collector in appeal. 12. In the circumstances, writ petition is allowed. The order passed by Maharashtra Revenue Tribunal dated 18.2.1989 is hereby set aside. It is declared that the sale deed executed by Respondent No.1 Saibu in favour of Respondent No.2 Gangadhar dated 29.3.1974 is invalid as it is not a sale deed executed as required by section 48 of the HT&AL Act. For that matter, even the sale 14 deed executed by Respondent No.1 in favour of the Petitioner on 19.6.1974 is also not in terms of section 48(1) of the said Act. Tahsildar may, therefore, proceed to take appropriate steps as required under Section 48 read with Section 98-C of the Hyderabad Tenancy and Agricultural Lands Act 1950. pnd/ wp1781.89 (P.R.BORKAR, J.)