1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1679 OF 2002 WITH CIVIL APPLICATION NO. 4207 OF 2009 AND CIVIL APPLICATION NO. 4209 OF 2009 Jamla s/o Lacchu Lamani, Age 70 years, Occ. Agriculture R/o Aliyabad, Post. Jalkt, Taluka Tuljapur, District Osmanabad ...Petitioner Versus 1. Iqbal Begum w/o Khurshid Hussain Age 71 years,Occ. Household, 2 Tahezib Bee d/o Bashiruddin Age 60 years,Occ. Household, Both R/o. At and post Naldurg, Tq. Tuljapur, District Osmanabad Through GPO Shaikh Mohd. Abdul Sattar s/o Sk. Mohd. Abdul Gaffar Age 47 years, Occ. Agriculture, R/o. At present Naldurg, Tal.Tuljapur District Osmanabad ...Respondents ..... Mr. R.N. Borulkar, advocate for the petitioner Mr. S.M. Kulkarni, advocate for respondents ..... CORAM : S. S. SHINDE, J. DATE OF RESERVATION : 08.09.2009 OF JUDGMENT DATE OF PRONOUCNEMENT : 14.09.2009 OF JUDGMENT 2 JUDGMENT:- 1 This writ petition is directed against the judgment and order dated 24.4.2001 passed by the Maharashtra Revenue Tribunal at Aurangabad in Case No. 42/B/96/Osmanabad. 2 The background facts of the case are as under:- One Lacchu Lamani, father of the present petitioner viz. Jamla was a protected tenant of the land survey No. 99, 100 and 101 of village Aliyabad, Tq. Tuljapur, District Osmanabad from 1961-62. Lacchu Lamani was owner of land survey No. 99 and 100 of village Aliyabad, Tq. Tuljapur, District Osmanabad under Section 38-E of the Hyderabad Tenancy and Agricultural Lands Act, 1950. Being aggrieved by the action of not declaring Lacchu Lamani as owner of the land survey No.101, the present petitioner filed case before the Additional Tahsildar, Tenancy, Tq. Tuljapur, praying that he should be declared as owner of the land survey No.101 (now Gat No.144) of village Aliyabad, as he is son of Lacchu Lamani. The petitioner found that a false mutation entry in respect of survey No. 101 was taken in the year 1984 by the Talathi, at the instance of landowner and name of the father of the petitioner was deleted from 7x12 extract and on that basis mutation entry No. 102/84 came to be entered on record. 3 The Tahsildar, Tenancy relying on the false mutation entry No. 102 and subsequent entries in the 7x12 extract held that the protected tenant Lacchnu Lamani had surrendered his tenancy right in favour of the landlord and so the petitioner Jamla cannot be declared owner of the land survey No.101, vide his judgment and order dated 14.12.1995. An appeal was filed on behalf of the petitioner before the Deputy Collector, Osmanabad file 1996/TNC.A.1/1996 challenging the judgment and order of the Tahsildar. Tuljapur. The said appeal came to be allowed by remanding the matter back to the Tahsildar for disposal. The respondents herein filed revision petition before the Maharashtra Revenue Tribunal Aurangabad against the judgment and order passed by the Deputy Collector, Land Reforms Osmanabad. The member Maharashtra Revenue Tribunal set aside the judgment and order passed by the Deputy Collector, land Reforms. Hence, this petition. 3 Learned counsel appearing for the petitioner submitted that he was aggrieved by the findings of the Additional Tahsildar that the father of the petitioner had surrendered his tenancy right in respect of the land survey No.101 (Gat No. 144) during his life time in favour of the land owner. According to the learned counsel, there is no any 4 documentary proof or base to hold that his father surrendered his tenancy rights in favour of the landlord. Learned counsel further submitted that the mutation entry was mutated without the knowledge of the petitioner and without making any inquiry whatsoever by the authorities and therefore, the said mutation entry was illegal. It is further submitted that the findings by M.R.T. that protected tenant was declared as owner under Section 38-E of the Hyderabad Tenancy and Agricultural Lands Act 1950 to the extent of 30 acres are totally new findings which were not recorded either by the Tahsildar or Deputy Collector. Therefore, in submission of the learned counsel, in revisional jurisdiction, it was not open for the M.R.T. to record new findings of facts, therefore, counsel submits that the judgment and order of the M.R.T. deserves to be quashed and set aside. Learned counsel further invited my attention to the grounds taken in the petition and submitted that the writ petition deserves to be allowed. 4 Learned counsel appearing for the respondent has invited my attention to the averments in the affidavit in reply and submitted that the M.R.T., after taking into consideration the record, which was summoned from the office of Tahsildar as well as from the Deputy Collector, arrived at the definite conclusion that the petitioner's father already has rightly declined ownership of survey No.101 because the father of the petitioner was declared as owner of 30 acres of land i.e. equal to holdings of one family unit and therefore, the petitioner 5 cannot ask declaration for more than 30 acres of land. According to learned counsel, the MRT has not travelled beyond the pleading or documents and has not arrived any new findings but has arrived to the conclusion on the basis of record available that the father of petitioner is already declared as owner or one family holding i.e. 30 Acres and therefore, he was not entitled to be declared as owner of the survey No.101, therefore, the judgment and order passed by the M.R.T. does not call for any interference. 5 After hearing counsel appearing for the respective parties, I am of the considered view that the MRT has entered into exercise of appreciation and reappreciation of evidence and has recorded new findings based upon the facts that the petitioner's father has already declared as owner of one family unit i.e. 30 acres. On perusal of the order passed by the Tahsildar, it clearly appears that the Tahsildar has rejected application filed by the petitioner by recording that, father of the petitioner has surrendered his tenancy right in favour of the landlord, and therefore, the petitioner Jamla cannot be declared as owner of survey No.101. This is the only finding recorded by the Tahsildar while rejecting the application filed by the present petitioner for declaration of survey No.101. 6 Aggrieved by the judgment and order of the Tahsildar, the petitioner herein filed appeal before the Deputy Collector under section 6 90 r.w. Section 38 of the Hyderabad Tenancy and Agriculture Lands Act, 1950. The Deputy Collector, Land Reforms Osmanabad, by his judgment and order dated 4.6.1996 partly allowed the appeal filed by the petitioner and set aside the order of the Tahsildar and the matter was remanded back to the Tahsildar for deciding the issue of title i.e. title of land Gat No.144 as provided under Section 38 of the Hyderabad Tenancy and Agriculture Land Act 1950. While deciding the appeal filed by the petitioner, the Deputy Collector, has recorded the findings that the order passed by the Tahsildar is not based upon any documentary evidence and there is no basis for the observations by the Tahsildar that Lacchu Lamani father of the present petitioner, has surrendered his tenancy rights in respect of the land survey No. 101 to the extent of 24 acres 22 Gunthas to the land owner. Therefore, the Deputy Collector, remanded the matter back to the Tahsildar for fresh consideration. 7 Being aggrieved by the judgment and order of the Deputy Collector, the present respondent filed revision before the M.R.T. which came to be allowed by judgment and order dated 24.4.2001. On careful perusal of the said judgment, it appears that the Member M.R.T. has entered into the appreciation and re-appreciation of evidence and reached to the new findings that, "Hence I am of the opinion that the present respondent, therefore, cannot claim any 7 tenancy rights over the suit land since his father was already declared as owner of the suit land No. 99 and 100 to the extent of 30 Acres under Section 38E of the Tenancy Act. As provided in Tenancy law, no Tenant can be declared as owner more than one family holding u/s. 38E of the Tenancy Act." It appears that the Tribunal has reached to the conclusion that in Tuljapur Taluka, a family holding prescribed land to the extent of 30 acres. It clearly prescribed that MRT has accepted the statement of the counsel for the respondents herein and reached to the conclusion that there is holding of 30 acres in Tuljapur Taluka. 8 In my considered view, it was not permissible for the Member, MRT to appreciate or re-appreciate the evidence in revisional jurisdiction and come to the different conclusion than the lower court. In fact, in revisional jurisdiction the learned Member can interfere only when there is error of law apparent on the face of record. The Hon'ble Apex Court in the case of Maruti Bala Raut Vs. Dashrath Babu Wathare, reported in AIR 1974 SC 2051, has clearly held that while entertaining revision, the MRT has no power to appreciate the evidence and come to its own conclusion. Yet in another judgment the Apex Court held that in revisional jurisdiction the revisional court can interfere only when there is error of law on the face of record. The view taken by the Hon'ble Apex Court is reiterated by this Court in 8 various judgments. Therefore, the impugned judgment and order of the Maharashtra Revenue Tribunal is not sustainable and the same is quashed and set aside. The matter is remanded back to the Maharashtra Revenue Tribunal for fresh consideration leaving all points open to the respective parties to agitate before the learned Member, Maharashtra Revenue Tribunal. 9 Writ petition is partly allowed. Rule is partly made absolute to the extent above. There shall be no order as to costs. Interim relief, if any, stands vacated. 10. In view of disposal of writ petition, civil application Nos. 4207 of 2009 and 4209 of 2009, do not survive and the same stand disposed of. *****