ORDER
B.H. Marlapalle J.
1. One Bhimraj Nana Tarade was the owner of agricultural land, admeasuring 3 Acres 23 Gunthas, located in Survey No. 124/ 1 of Village Aradgaon, Taluka Rahuri, District Ahmednagar and on his death sometimes in 1945 the said property was succeeded by his second wife Vithabai who was issueless and Bhimraj had sons from his first wife, who were perhaps minor at the relevant time. The present petitioner was inducted as a tenant by Vithabai by way of oral lease and he was cultivating the said land on the basis of the said lease. On the tiller’s day i.e. on 1st April, 1957 he was in possession of the said land as a cultivator and it appears from the record
that proceedings under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Tenancy Act, for short), were instituted suo motu by the A.L.T. and Additional Mamlatdar, Rahuri sometimes in the year 1960. Though the tenant’s statement was recorded on 22nd July, 1960 in these proceedings, the proceedings were closed by order dated 20th November, 1962 on the ground that there was no relationship of landlord and tenant in respect of the suit land.
2. Karbhari Pandhari Tarade, who is one of the grandsons and Sukhalal Bhimraj Tarade, the son of the original landlord, jointly approached the Civil Judge, Junior Division at Rahuri in Regular Civil Suit No. 7 of 1974 claiming resumption of land from the petitioner tenant, who was impleaded as defendant No. 1 and other heirs of Bhimraj were impleaded as defendant Nos. 2 to 5. In fact, this was a suit for redemption of mortgage of the suit property. The defendant No. 1 tenant filed his written statement and contended that he was a tenant as contemplated under the Bombay Tenancy Act over the suit land and he desired to purchase the said lands. The suit appears to have been filed on 19th December, 1973 and the written statement was filed on 25th September, 1974. By an order dated 21st August, 1976, the learned Judge of the Civil Court framed the following issues:
(1) Are plaintiffs entitled for possession of the suit land ?
(2) Are they entitled for mesne profits.
(3) Does defendant No. 1 prove that he is tenant in the suit land ?
(4) What order and decree ?
On the same day i.e. 21st August, 1976 the learned Civil Judge passed an order referring Issue No. 3 to be decided by the Tenancy Court under section 85-A of the Bombay Tenancy Act.
3. The Tahsildar, Rahuri instituted the proceedings for enquiry on the issue referred by the Civil Court and in addition to the documents, such as record of rights, 7/12 extracts etc., oral depositions of the plaintiff Karbhari Pandharinath and the Mukhtiyar holder of defendant No, 1 as well as two witnesses in support of the said defendant No. 1, were also recorded. The plaintiff relied upon the statement of the defendant No. 1 allegedly recorded in an inquiry under section 32-G of the Bombay Tenancy Act on 22nd July, 1960 and the order passed on 20th November, 1962 by the A.L.T. The A.L.T., by order dated 31st July, 1978, answered the reference in favour of the defendant No. 1 and held that he was a tenant in respect of the suit land before 1st April, 1957, after 1st April, 1957 and even in the year when the order was passed i.e. 1977-78. The plaintiffs, therefore, filed Tenancy Appeal No. 50 of 1978 before the Sub Divisional Officer at Rahuri and the said appeal came to be dismissed by order dated 26th November, 1979 confirming the order passed by the A.L.T. Both these orders were taken up in challenge in Revision Application before the Maharashtra Revenue Tribunal (M.R.T.) and the revision came to be allowed by the judgment and order dated 11th January, 1983. The Tribunal held that the earlier order passed in an inquiry under section 32-G of the Bombay Tenancy Act remained unchallenged and subsequent Mutation Entry No. 2594 also remained unchallenged and, therefore, these proceedings operated as res judicata against the defendant No. 1. It was solely on this ground that the M.R.T, held that the present petitioner was not a tenant on the suit land and the orders passed by both the authorities below
came to be reversed. The petitioner tenant has brought in question the legality of the order passed by the M.R.T.
4. The learned Counsel for the petitioner submitted that in a Revision Application the M.R.T. had a limited jurisdiction and it was totally erroneous for the learned Member of the M.R.T. to disturb the concurrent findings of fact recorded by both the authorities below i.e. the A.L.T. and the S.D.O. Even otherwise the statements recorded in the inquiry under section 32-G of the Bombay Tenancy Act cannot be treated to be binding per se and if it was possible to show that the order passed in the said inquiry was a nullity in the eyes of law, there was no question of res judicata operating against the tenant. The learned Counsel for the plaintiff-respondent on the other hand supported the order passed by the M.R.T. and contended that so long as the order passed under section 32-G was not challenged by way of an appeal under section 74 of the Bombay Tenancy Act, it was not open for the petitioner-tenant to challenge the legality of the proceedings as well as the order therein which had become final. The learned Counsel further submitted that it was not appropriate for the revenue authorities i.e. A.L.T. and the S.D.O. to dwell upon the issue of legality of these proceedings and the order passed by the Additional Mamlatdar closing these proceedings on the ground that there was no relationship of landlord and tenant and specially when the Mutation Entry No. 2594 had remained unchallenged, had become final.
5. In the case of (Bhikubai Bhima Gaidhane and another v. Khandu Daji Pagar and another], Court, inter alia, held that the statement of a tenant recorded in a proceeding under section 32-G of the Bombay Tenancy Act before the Mamlatdar does not stop the operation of social legislation which is for the benefit of tenants and which is to safeguard their interest. This Court more particularly observed:
“Even if, therefore, the respondent-tenant says that he had surrendered his possession, things ought to have taken place according to law. Termination of tenancy by virtue of surrender should be in accordance with section 15. Possession by a landlord should be in accordance with section 29. It cannot be in any other way. It cannot certainly be merely as a result of the statement of a tenant in section 32-G proceedings. It, therefore, cannot be said that the alleged statement of the tenant in the instant case leads only to one inference and that is that he ceased to be a tenant and that he ceased to be in possession of the land.”
A similar issue was also considered by the Apex Court in the case of Amrit Bhikaji Kale and others v. Kashinath Janardhan Trade and another, of the said judgment it is observed that a measure whereby tenant was to be made the owner of the land cannot be permitted to be defeated by such jugglery of orders by low-level revenue officers who hardly knew what they were doing. On the part of reliability of the statements made by the tenant, the Apex Court stated :
“.. … We are not unaware of the landed gentry exercising such influence over the tenants that in the absence of legal literacy they may make any statement contrary to their legally protected interest. The measure of agrarian reform cannot be permitted to be defeated by such devious means of the landlords.”
6. In the case at hand, perusal of the proceedings instituted suo motu by the Mamlatdar under section 32-G of the Bombay Tenancy Act lead to the following conclusions :
(a) The proceedings were not tenable as the landlady was a widow in 1960;
(b) The proceedings were vitiated as the mandatory requirements were not followed inasmuch as there was no notice issued to the landlady or any of her legal representatives;
(c) Once the statement was recorded on 22nd July, 1960 it is so obvious that subsequently one more sentence has been added purporting that the tenant stated he was cultivating the suit land as a owner for the last 15-20 years;
(d) Though the statement of the tenant was recorded on 22nd July, 1960 it is not known why the A.L.T. waited for a period of more than two years to close the proceedings by observing that the relationship of landlord and tenant was not established.
The statement purportedly made by the tenant that he was the owner of the suit land could not, per se, lead to a conclusion that he was a owner and such a statement ought to have been examined on the basis of the supporting documents.
7. There is nothing on record to show that the order dated 20th November, 1962 was ever communicated to the tenant and the 7/12 extracts, which were on record, right from 1953-54 to 1977-78 indicated that the petitioner was cultivating the suit land as a tenant. In his oral depositions Karbhari Pandharinath Tarade admitted that the petitioner-defendant No. 1 was a tenant over the suit land and that it was leased out to him by oral agreement. He also admitted that the entries in 7/12 extracts for the period from 1955-56 to 1977-78 in “Kul” and “Khand” columns were correct. The plaintiffs had filed the civil suit seeking possession of the suit land from defendant No. 1 and this was one more factor which clearly indicated an admission on the part of the plaintiffs that the petitioner defendant No. 1 was in possession of the suit land when the suit was filed. The A.L.T., on perusal of the record, rightly observed that the order in the proceedings under section 32-G of the Bombay Tenancy Act had been passed without complete inquiry and by fraud. The findings recorded by the A.L.T. and confirmed by the S.D.O. the lower Appellate Authority, are duly supported by the documents on record and, therefore, the observation by the M.R.T. that the concept of res judicata operated against the tenant renders unsustainable. It is apparent that the learned Member of the M.R.T. has committed manifest errors so glaring on the face of the record and this Court would be, therefore, justified in interfering with such findings by exercising its supervisory powers under Article 227 of the Constitution.
8. In the result, the writ petition is allowed and the impugned order passed by the M.R.T. is hereby quashed and set aside. The order passed by the A.L.T. on the reference made by the Civil Court is hereby confirmed. The Civil Court is directed to proceed with the trial of the Regular Civil Suit No. 7 of 1994 as expeditiously as possible and complete the trial preferably within a period of six months from the date of receipt of writ from this Court. Writ to go forthwith. Rule made absolute accordingly with no orders as to costs.
9. Petition allowed.