bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 3787 OF 1991 PETITION NO. 3787 OF 1991 PETITION NO. 3787 OF 1991 Tatya Vithoba Dethe, (since deceased through his heirs) Dnyanoba Tatya Dethe & ors. ... Petitioners v/s Madhavdas K. Maysurkar (since deceased through his heir) Ramchandra Krishnaji Sawant (since deceased through his heir) Smt.Shantabai Ramchandra Sawant ... Respondent Mr.S.G.Karandikar i/by Mr.G.S.Godbole for petitioner. Mrs.S.S.Deshpande for the respondent. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 18TH NOVEMBER, 2008 18TH NOVEMBER, 2008 18TH NOVEMBER, 2008 ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. The petitioners have challenged the order passed by the Tenancy Awal Karkun, Pandharpur on 30.9.1982 in Tenancy Case No.84/B/Takali, the order passed by the Sub-Divisional Officer (in short, S.D.O.), Pandharpur Division, dated 15.9.1990 in Tenancy Appeal No.1 of 1983 and the order passed by the Maharashtra Revenue Tribunal (in short, M.R.T.) on 21.6.1991. 2. The brief facts giving rise to the present petition are as follows:- 2 . Tatya Vithoba Dethe was the tenant of lands bearing survey Nos.194, 196 and 207 situated in Village Takli, Tal. Pandharpur in District Solapur. Tatya’s son Dnyanoba and his brother Santaram purchased the suit land by a registered sale deed dated 18.4.1956 for a consideration of Rs.7000/- from the owners of the land i.e. Madhavdas Krishnaji Maysurkar, the predecessor in title of the present respondent. In 1985, the Tenancy Mahalkari commenced proceedings under Section 84B of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as "the Act") on the ground that the sale was invalid under Section 64 of the Act as it stood prior to the Amending Act of 1956. According to the Tenancy Mahalkari, the sale in favour of Dnyanoba and Santaram was invalid as it was not in favour of the tenant of the lands. Accordingly, an order was passed on 14.12.1958 by the Tenancy Mahalkari in Tenancy Case No.84/B/5, Takli, declaring the sale invalid. Since no notices were issued to either the landlord or to the petitioners, the respondent’s predecessor in title approached the Tenancy Awal Karkun and sought restoration of possession of the property on the ground that he had inherited the same. By an order dated 15.3.1973, the Awal Karkun, Pandharpur, passed an ex-parte order directing that the possession of the land 3 be restored to him. The petitioners received an intimation directing them to hand over possession of the land to the respondent’s predecessor. It was at this juncture that the petitioners became aware of the order dated 14.12.1958 passed by the Tenancy Mahalkari as also the order passed by the Tenancy Awal Karkun. 3. An appeal was, therefore, preferred by the petitioners to the S.D.O. challenging both the aforesaid orders. The S.D.O. allowed the appeal by observing that Tatya was the tenant of the land on the date of the sale and hence the proper order should have been to restore the land to Tatya and not the landlords assuming the sale was invalid. The S.D.O. also held that the petitioners were in actual possession of the suit lands alongwith Tatya. The proceedings were then remanded to the Trial Court by the S.D.O. for a decision on merits. Revision applications were filed by both, the petitioners and the landlords before the Maharashtra Revenue Tribunal. The petitioners filed their revision application contending that instead of remanding the matter, the S.D.O. ought to have regularised the sale on payment of penalty. The revision filed by the landlords was allowed while the revision of the petitioners was dismissed, thus resulting in restoration of the order of the Tenancy 4 Mahalkari and Tenancy Awal Karkun. The order of the S.D.O. remanding the matter to the Trial Court was set aside. 4. Aggrieved by the decision of the M.R.T. the petitioners preferred Special Civil Application No. 1616 of 1975 before this Court. By an order dated 5.11.1979, this Court set aside the order of the Tribunal and restored the order of the S.D.O. remanding the matter to the Trial Court. The proceedings commenced afresh after remand. The Tenancy Awal Karkun by his judgment and order dated 30.12.1982 declared the sale of 18.4.1956 in favour of Dnyanoba and Santaram, invalid and directed them to hand over the possession of the lands to the respondents herein. 5. An appeal was preferred by the petitioners before the S.D.O., Pandharpur. This appeal was dismissed by him on 15.9.1990. 6. The petitioners then preferred a revision application before the M.R.T., Pune. The revision application was heard and decided on 21.6.1991. The Tribunal dismissed the revision and confirmed the orders passed by the authorities below. The petitioners have therefore preferred the present writ petition 5 challenging all the aforesaid orders passed against them. 7. Mr.Karandikar, learned advocate appearing for the petitioners submits that all the authorities below, including the Tribunal, have not correctly appreciated the law which governs the sale of lands executed by deed of 18.4.1956. He submits that the sale of the lands was between the landlords on the one hand and Dnyanoba and Santaram on the other, who were part of the joint family of Tatya. Tatya was admittedly a tenant of the lands and S.D.O. by his order in Tenancy Appeal No.64 of 1973 had held that Dnyanoba and Santaram were in actual possession of the suit lands with Tatya. According to the learned advocate, the petitioners were cultivating the land personally with Tatya, as part of a joint family and therefore were tenants. The sale between the landlords and tenants was valid and in any event under Section 84B of the Act if the sale was invalid it could have been regularised by paying a penalty of Rs.1/-. The learned advocate submits that as a result of the impugned orders, the lands have been restored to the landlords and they have also benefited by the amount of Rs.7,000/- which was paid to them at the time when the sale took place on 18.4.1956. It is further submitted that the lands cannot be restored to the landlords under 6 any circumstances as Section 84B of the Act contemplates that the lands must be restored to the person from whom they were acquired. The learned advocate points out that in the present case they were acquired from Tatya who was in possession of the land as a tenant and therefore, assuming the sale was invalid, the lands ought to have been restored to Tatya. The learned advocate further submits that Dnyanoba being the son of Tatya was certainly a part of the joint family of Tatya. He urges therefore that Dnyanoba’s rights in the land cannot be extinguished in the manner that they have by the impugned orders. Besides, the learned advocate submits that all the authorities below have accepted the fact that Tatya never ceased to be in possession of the land as a tenant. He submits that the crucial question is whether on the date of the sale on 18.4.1956 Dnyanoba could have purchased the land together with Santaram from the landlords. 8. Per contra, Mrs.Deshpande, learned advocate for the respondent submits that no interference is called for from this Court with the orders of the authorities below. She submits that the writ jurisdiction of this Court should not be exercised when there are three concurrent orders in favour of the respondent which do not contain any infirmities. The learned advocate 7 points out that Tatya has not challenged the order granting possession to the landlords at any point of time when he was alive. She submits that there was no evidence on record as held by the authorities below that Dnyanoba and Santaram were part of the joint family of Tatya. In fact, all the authorities below have held that Tatya was the sole tenant and, therefore, the purchasers i.e. Dnyanoba and Santaram were outsiders and not tenants who had purchased the lands. She submits that there was no material on record in support of the petitioners’ contention that they were tenants by virtue of being part of a joint family of Tatya. She therefore submits that there is no need to interfere with the orders passed. 9. Before considering the submissions of the learned counsel for the parties, it would be appropriate to consider the provisions under which the Tenancy Mahalkar had initiated proceedings against the petitioners. 10. Section 84B was inserted in the Act by the Amending Act on 1.4.1956. It was later amended in 1958 when a proviso was inserted to Section 84B. Both the section and its proviso have a retrospective effect. Section 84B reads thus :- 8 "Section "Section "Section 84B:- 84B:- 84B:- (1) Where in respect of a transfer or acquisition of any land made on or after the 15th day of June, 1955 and before the commencement of the Amending Act, 1955, the Mamlatdar, suo motu or on the application of any person interested in such land, has reason to believe that such transfer or acquisition - (a) was in contravention of section 63 or 64 as it stood before the commencement of the Amending Act, 1955, or (b) is inconsistent with any of the provisions of this Act as amended by the Amending Act, 1955, the Mamlatdar shall issue a notice in the prescribed form to the transferor, the transferee or the person acquiring such land, as the case may be, to show cause as to why the transfer or acquisition should not be declared to be invalid and shall hold an inquiry and decide whether the transfer or acquisition is or is not invalid: Provided that where the transfer or acquisition was in favour of the tenant in possession of the land, such transfer or acquisition shall not be declared to be invalid if the tenant pays to the State Government a penalty of Re.1. Section 63 of the Act as it stood prior to the 1955 Amending Act bars transfers of agricultural lands to non-agriculturists. Section 64 permits sale of agriclutural lands to particular persons in the order of priority stipulated under sub-section (2). Clause A which deals with priority in case of agricultural land other than a dwelling house reads as under:- "A. In the case of agricutural land other than a dwelling house, the site thereof and land appurtenant to such house when such site or dwelling house or land is not used or is not necessary to carry on agricultural operations in the adjoining lands - 9 (i) the tenant in actual possession of the land, (ii) the person or persons personally cultivating any land adjacent to the land to be sold, (iii) a co-operative farming society, (iv) any other agriculturist, (v) any other person who has obtained from the Collector a certificate that he intends to take profession of agriculturist. In order to appreciate the aforesaid provisions of the Act, it will also be necessary to consider certain definitions under the Act which are relevant for the determination of the issues involved in this writ petition: "Section "Section "Section 2(18): 2(18): 2(18):- "Tenant" means an agriculturist who holds land on lease and includes a person who is deemed to be a tenant under the provisions of this Act. The word "landlord" shall be construed accordingly." "Section "Section "Section 2(11):- 2(11):- 2(11):- "Person" includes an undivided Hindu family." "Section "Section "Section 2(7A):- 2(7A):- 2(7A):- "joint family" means an undivided Hindu family, and in the case of other persons a group or unit the members of which are by custom joint in estate or residence." "Section "Section "Section 2(6):- 2(6):- 2(6):- "To cultivate personally" means to cultivate on one’s own account - (i) by one’s own labour, or (ii) by the labour of any member of one’s family, or 10 (iii) by servants on wages payable in cash or kind but not in crop share or by hired labour under one’s personal supervision or the personal supervision of any member of one’s family. There can be no dispute that Tatya, Dnyanoba and Santaram were part of a joint family, Dnyanoba being the son and Santaram, the brother of Tatya. Assuming Santaram was a part of the joint family of Tatya, in any event Dnyanoba would be a member of the joint family of Tatya as defined under Section 2(7A). There are findings of the authorities below which indicate that Tatya and Dnyanoba were cultivating the land personally. The findings of the S.D.O. indicate that Tatya was in actual possession of the lands as the original tenant and that Dnyanoba and Santaram were in actual possession of the land together with Tatya. 11. The learned counsel for the respondent has submitted that when there are three concurrent findings of fact recorded by the Courts below, this Court should not interfere in its writ jurisdiction with the impugned orders. There is no doubt that the High Court in its writ jurisdiction, will not normally interfere with the concurrent findings of fact recorded by the Courts below. However, if these findings are perverse and if there is an error apparent on the face of the record, 11 this Court has a duty to interfere in its writ jurisdiction and set right the injustice caused to a party. The sale was executed on 18.4.1956 when Tatya was the tenant in possession and was cultivating the land personally. There can be no dispute that on 18.4.1956 Tatya’s family, including Dnyanoba and Santaram, was staying together jointly as an Un-divided Hindu Family, with Tatya as the eldest member of the family. The finding of the S.D.O. that Dnyanoba and Santaram were in possession of the land together with Tatya and that they were cultivating the land personally has not been set aside by any subsequent authority nor has the finding been challenged by the respondent. Thus, the possession of Tatya alongwith Dnyanoba and Santaram was never disputed nor is there any material on record to indicate that the tenancy of Tatya was terminated at any point of time or that the possession of the land was taken away from him. Thus, under Section 64(2)(a)(i), the agricultural land is permitted to be sold to a tenant in actual possession of the land. Dnyanoba and Santaram who were in possession of the land as members of the Un-divided Hindu Family of Tatya were also tenants under Section 2(18). Being in actual possession of the land as tenants, they were entitled to purchase the land under Section 64 of the Act. Therefore, in my opinion, the sale of the land to the 12 petitioners cannot be faulted as it is not in contravention with either Section 63 or 64 as they stood before the Amending Act of 1955. 12. Even assuming the sale of the land to the petitioners was in contravention of either of the provisions under Section 63 or 64 or inconsistent with the provisions of the Act as amended by the Amending Act of 1955, the sale could have been regularised under the proviso to Section 84B. In case of the transfer or acquisition in favour of the tenant in possession, the proviso stipulates that the transfer of land need not be declared invalid if the tenant pays the State Government a penalty of Rs.1/-. Once there is a finding of the S.D.O. that Tatya was cultivating the land personally, it includes cultivation of land by the labour of Dnyanoba and Santaram as part of an Un-divided Hindu Family, it obviously means that they were tenants in possession of the land and had a right to acquire the ownership of the land under the Act. 13. In any event, the land could not have been restored to the landlord as Tatya was always in possession of the land as a tenant even after the execution of the sale deed. He was cultivating the land personally and was in actual possession of the property on 1.4.1957. His 13 tenancy was never terminated at any point of time. On his death, the tenancy is deemed to have continued in favour of his heirs. Therefore, looking at the case from any angle, the respondents would not be entitled to restoration of the land. The petitioners being part of the Un-divided Hindu Family, would be entitled to continue with the possession of the land after the death of Tatya in 1975. Although it has been argued on behalf of the respondent that Tatya was the tenant and not the petitioners, Section 2(18) of the Act defines a tenant as one who holds land on lease and also includes a person who is deemed to be a tenant. Under Section 40 of the Act, in any event, the tenancy is deemed to have continued in favour of the petitioners as heirs of Tatya. 14. In my opinion, the findings recorded by all the authorities below with respect to the restoration of the land to the respondent must be set aside. 15. Writ petition allowed.