1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1441 OF 2011 1 Kashinath s/o Dada Mule, Age 90 years, Occupation Agriculture, Resident of Lanjeshwar, Taluka Bhoom, District Osmanabad Petitioners 2 Parmeshwar s/o Kashinath Mule, Age 51 years, Occupation Agriculture, Resident of as above 3 Vishnu s/o Kashinath Mule, Age 42 years, Occupation Agriculture, Resident of as above V E R S U S Malku s/o Santu Mahakale, Age 38 years, Occupation Agriculture, Resident of Lanjeshwar, Taluka Bhoom, District Osmanabad Respondent Shri C.R. Deshpande, Advocate for the petitioners Smt M.A. Mulkarni, Advocate, holding for Shri A.M. Kulkarni, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 16th September, 2011 ORAL JUDGMENT : 1. Heard. 2. Rule. Rule made returnable forthwith. By consent of the parties, the writ petition is taken up for final hearing and heard finally. 3. This writ petition is challenging the order dated 11th January, 2011, passed by the learned Member, Maharashtra Revenue Tribunal, Aurangabad, in Case No. 13-B-2005-O, allowing revision application filed by the respondent. 4. The respondent was the applicant before the trial Court of the Tahsildar of Osmanabad. He went before the Tahsildar with a case that the 2 disputed land ad-measuring 24 acre 11 guntha belonged to petitioner No.1. But, he said that since prior to 1948, his father Santu cultivated the same as his tenant. He said, since then his father continued in possession, and after the death of his father, he said, he is in possession. He said that pursuant to the rules made under the provisions of Hyderabad Tenancy and Agricultural Lands Act, 1950 (for short the Act), the Government made a list of protected tenants, and, he said, in the final list, his father’s name is shown as protected tenant in respect of the disputed land. He said, despite of such entry, his father did not take steps for claiming ownership of the land. He said that he was ready to complete the formality seeking ownership of the land and requested the Tahasildar to complete the procedure. 5. The learned Tahsildar rejected this application mainly on the ground that the entry in the name of his father as protected tenant is a stray entry. In appeal also, the respondent failed, because the learned Deputy Collector held that there is nothing on record to show that the respondent’s father Santu was in possession since 1950. She observed that it was the petitioner No. 1, who was shown to be in possession since 1950, and so, she rejected the plea of the respondent. 6. The matter then went to the Revenue Tribunal, and this time, it seems, the learned Member appreciated the case properly. He held that though the name of respondent’s father was not entered in 7/12 extract of the land as cultivator, yet the entry in the final list of tenants, clearly establishes the fact that the respondent’s father was protected tenant of the suit land. He also observed that in view of this entry, petitioner No. 1 can be said to have knowledge about this entry, and since he did not make any application for declaration that he did not challenge such an entry made in 3 the final list of tenant, the entry became final and binding. He further observed that though the respondent did not mention in the application that his father was not in possession of the land in question, there is nothing on record to show that the petitioners obtained possession of the suit land from respondent’s father by following due process of law. He therefore observed that though the respondent’s father had lost possession of the land, his rights as tenant are still protected. He further mentioned that admittedly there is no decision between the parties under Section 35 of the Act. After recording this finding, the learned Member went on to observe that explanation to Section 38-E (1) provided that a protected tenant who has been dispossessed otherwise than in a lawful manner and by order of Tahsildar as provided under Section 32 of the Act, he is entitled to purchase the land under the provisions of the Act. He also placed reliance on the Judgments of this Court in the cases of Tukaram Bakshu & amptjer v/ Dhondiba Baliram & others (2004 B.C.I. 647) and Malaji Nira (D) by LRs. v. Bai Maroti Kamble & others (2004 B.C.I. 686). I too went through these Judgments with the help of learned counsel for the parties. The only difference in the cases of reported Judgments and this case is that in the cases of reported Judgments, the dispossessed protected tenant had gone before the Tahsildar for restoration of possession and this Court in both the Judgments categorically held that such a tenant is entitled to possession in view of explanation to sub-section (1) of Section 38-E of the Act. This Court further held in those Judgments that unless the possession is restored to a protected tenant, the question about his entitlement of ownership cannot be decided. Such a question can be decided subsequent to restoration of possession. 7. Unfortunately in this case, the respondent did not admit that he was 4 not in possession and he wanted restoration of possession. But, as mentioned above, the Courts below categorically held that he was not in possession at all, neither his father was in possession. The final list of protected tenants also clearly mentioned that the father of respondent was not in possession though he was a protected tenant. 8. In this background, one must examine the correctness of the final order passed by the learned Member of the Tribunal, which reads as under : “Revision Case No. 13-B-2005-O is allowed. The impugned decision/order dt. 17/1/2005 rendered by the learned Dy. Collector, L.Rs., Osmanabad in File No. 2002/TNC/A/29 is hereby set aside. The applicant is held entitlerd to purchase the suit land subject to provisions of Sec.38/38-E of H.T. & A.L. Act, 1950. The authority below i. e. the Additional Tahsildar, Tenancy, Osmanabad shall determine the purchase price of the suit land after hearing the parties. He shall further decide the extent of the area which the applicant is entitled to purchase subject to the provisions of the law. Parties shall appear before the authority below on 7-3-2011. ‘R” & ‘P’ of the authority below be sent back forthwith. Inform the parties, the authority below; close the case and consign to record.” In my view, the impugned order is innocuous in nature and it did not direct restoration of possession mostly because such a relief was not sought by the respondent. The learned Advocate for the petitioner contended that such an order was not plausible and cannot be said to be valid, because 5 the respondent did not seek possession and admittedly is not in possession. He said that provisions of explanation to sub-section (1) of Section 38-E of the Act is available only to such protected tenants who are dispossessed prior to the date of notification. Unfortunately, this submission is devoid of merit, because the learned Member did not direct restoration of possession. He simply said that the Tahsildar shall examine as to how much land the respondent as protected tenant is entitled to purchase. If such an inquiry is undertaken, I think, the petitioner is not likely to be prejudiced at all. I think, the petition should therefore fail. The writ petition stands dismissed. Rule is discharged. 9. At the request of learned counsel for the petitioner, the interim relief shall continue for six weeks. ( A.V. NIRGUDE, J. ) SRM/wp/1441/11/16/9/11ok