1 W.P.1503.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1503 OF 2010 WITH CIVIL APPLICATION NO. 6096 OF 2010 1. Tanaji S/o Nivrati Gawade Age 56 Years,Occup.: Agril., R/o Khed Post Khed. Tq. And District Osmanabad. And others. ...PETITIONERS. VERSUS 1. Abdul S/o Fakaruddin Kalwat deceased through L.Rs. And others ...RESPONDENTS. ... Shri. S.S.Choudhary , Advocate holding for Shri. J.S. Gawane,Advocate for petitioner Shri. D.P.Pallodkar,for Respondent Nos.1A to AD Smt. S.D.Shelke, A.G.P. for Respondent Nos 2 to 4. ... CORAM: A.V.NIRGUDE, J. DATE : 6TH APRIL, 2011. PER COURT : 1. As indicated earlier, with the consent of the learned Advocates appearing for the parties, the petition is taken up for final hearing at the admission stage. 2. This Writ Petition challenges judgment and order 2 W.P.1503.10 dated 05th December, 2009, passed by the Member, Maharashtra Revenue Tribunal, Aurangabad, in the case No. 67/B/99/O/TNC. Facts leading to the present case can be narrated in short as under: 3. The petitioners’ father Nivarti, it seems, agreed to purchase the suit land from original respondent Abdul, some time prior to 1959. Some dispute arose between Nivarti and Abdul, which forced Nivarti to file a suit for specific performance of contract against Abdul. The parties arrived at compromise in the suit, and it seems Nivarti gave up his claim to purchase the suit land. He agreed to continue in possession of the suit land for next five years and further agreed to restore the possession of the suit land to Abdul thereafter. However, Nivarti continued in possession, even after 1965. 4. It seems, Abdul tried to take forcible possession of the land and there arose dispute between the parties, which culminated into a case filed under section 145 of the Code of Criminal Procedure. It seems, litigation between the parties under section 145 of Cr.P.C. also continued for some time, and ultimately in 1992 Abdul filed a suit for possession against Nivarti who took up a plea, for the first time that, he was continued in possession and cultivating the suit land, as tenant of Abdul. He said, on Gudipadwa of year 1965, 3 W.P.1503.10 Abdul allowed him to continue the cultivation of the suit land on the basis of Batai. Thus, he became tenant of the land. Issue of tenancy was then referred to Tahsildar, Osmanabad. The then Tahsildar Osmanabad conducted the enquiry as per section 8 and 99(A) of The Hyderabad Tenancy and Agricultural Lands Act, 1950 ( For short “Tenancy Act”) and held that Nivarti has failed to prove his case of tenancy. Nivarti’s Appeal was allowed. Respondent’s revision filed before the leaned Member, Maharashtra Revenue Tribunal was allowed, and impugned Judgment and order was passed. 5. Both the learned Tahsildar as well as the learned Member, Maharashtra Revenue Tribunal held on facts that Legal representatives of Nivarti have failed to prove their case on facts. They did not lead evidence at all. 6. Learned Advocate appearing for petitioners asserted that the entires of Nivruti’s name in the revenue record for the year 1965 on wards would squarely prove that Nivarti was cultivating the land as tenant. He placed reliance on section 8 of the Tenancy Act. He asserted that, as per provisions of Section 7 of the Tenancy Act, Nivarti’s name was entered in record of rights, because Revenue Officer found him cultivating the land during those days, as tenant. He said, those entries, thus would prove his client’s case. This contention was raised before Tahsildar and learned Member, Maharashtra Revenue Tribunal, but it was rejected 4 W.P.1503.10 mainly because legal representatives of deceased Nivarti could not adduce evidence to support their case of tenancy. The Courts below held that in the facts and circumstances of the case L.Rs of deceased Nivarti could not have proved their case of oral tenancy etc. I am not inclined to give importance to entries in record of right for the year 1965-1970. The learned Advocate appearing for petitioners then placed reliance on provisions of section 5 of the Tenancy Act. Section 5 reads as under: “5. Persons deemed to be tenants: A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the land holder and if such person is not- (a) A member of the lad holder’s family, or (b) a servant on wages, payable in cash or kind, but not in crop share or a hired labourer cultivating the land under the personal supervision of the land holder or any member of the land holder’s family, or (c) a mortgage in possession : Provided that if upon an application made by the land holder within one year from the commencement of this Act to the Tahsildar within whose jurisdiction the land is situate- (a) The Tahsildar declares that such person is not a tenant and his decision is not reversed on appeal or revision. or. (b) The Tahsildar refuses to make such declaration but his decision is reversed on appeal or revision, Such person, shall not be deemed to be a tenant. 5 W.P.1503.10 Provided further that a sub-tenant cultivating any land belonging to another persons on the day on which the Hyderabad Tenancy and Agricultural lands (2nd Amendment) Act, 1951 came into force shall notwithstanding the fact that the creation of the subtenancy might have been prohibited by any law for the time being in force, be deemed to be lawfully cultivating the land as tenant for the purposes of this section . Provided also that, any person who, on the date of the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1957 (that is, the 8th day of June, 1958), was cultivating personally belonging to another, and (a) is in possession thereof on the date of commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Ordinance, 1960. (that is , the 18th day of October, 1960) or (b) who has been dispossessed (otherwise than in the manner and by order of the Tahsildar as provided in Section 32) and the land is in actual possession of the land holder or his successor in interest at the date of the commencement of the Hyderabad Tenancy and Agricultural Lands (Re-enactment, validation and further Amendment) Act, 1961 shall, notwithstanding that such person did not hold a lease on conformity with the provisions of sections 6, 7, 8 or 9 as those sections stood immediately before the 8th day of June, 1958, be deemed to be a tenant for the purposes of this section.” 6. This provision would be of no avail to the petitioners, because Nivarti never depended on this deeming provision, he all along asserted that on particular date in 1965, the owner of the land created tenancy in his favour orally. If on facts such claim is not accepted by the Courts below, I am not inclined to give any importance to the submissions. It seems that, the Courts below have not committed any error and so petition should fail. The Writ Petition stands 6 W.P.1503.10 dismissed. 7. In the light of dismissal of Writ Petition, nothing survives for consideration in the Civil Application, the same is disposed of accordingly. Sd/- [ A.V.NIRGUDE, J.] MTK/ok