JUDGMENT
M.S. Deshpande, J.
1. This matter has come before us, as the Single Bench of this Court in its judgment delivered on 20th November, 1987 found that the position of law regarding the extent of the finality under Sub-section (2) of Section 8 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 on which there were two conflicting views taken by two Single Judges, should be settled, the Single Bench held that the order passed by the Maharashtra Revenue Tribunal otherwise called for no interference and the writ petition would stand disposed of, in the light of the view that may be taken by the Division Bench.
2. The facts as are apparent from the judgment of the Single Bench are that field survey No. 23, area 39.40 acres belonged to one Nanaji Deshmukh and was sold to 4 persons Balaji, Sitaram, Sheoram and Ghulba for Rs. 7500/- In a partition of the year 1925, 7.30 acres constituting survey No. 23/3 was allotted to Ghulba, survey No. 23/2 admeasuring 19.50 acres was allotted to Sheoram and the remaining land went to the other sharers. Pandurang who was Ghulaba’s brother, was in cultivating possession of survey No. 23/3 since 1925 and cultivated it until his death in 1948, though Ghulba had died in 1934. Pandurang’s name came to be recorded in the record of rights as the person in cultivation and after the Bombay Tenancy and Agricultural Lands (Vidarbha Region ) Act, 1958 (“Vidharbha Tenancy Act” for short) came into force the names of Bhaurao and Deorao were entered in the list prepared under Section 8 of the Act as deemed tenants in place of Pandurang. Ghulba was survived by his two widows Yamunabai and Radhabai. Respondent No. 1 Ziblabai is the daughter of Radhabai, while respondent No. 2 Vasant is Ziblabai’s son. There was a litigation between Yamunabai and Radhabai in respect of the lands and Ziblabai was also a party to it and by a compromise effected on December 3, 1934, the litigation came to an end. Field Survey No. 23/3 however, was excluded from that partition. No objections were raised to the list prepared under Section 8 of the Vidarbha Tenancy Act.
3. In the suo motu proceedings initiated by the Additional Tahsildar and Agricultural Lands Tribunal under Section 46 read with Section 49A of the Vidarbha Tenancy Act, notices were issued to the present petitioners and the respondents. The respondents contended that the petitioners were never in possession of the disputed land as tenants and as their possession was unauthorised, the suo motu proceedings should be dropped. The petitioners contended that the land was allotted to their father Pandurang in 1925 by Ghulba and after Pandurang’s death in 1948 the petitioners continued in possession of the land as owners and that their possession was adverse. The plea of adverse possession was not pursued before the Single Bench. The Additional Tahsildar held that there was no legal contract between the parties and the tenancy was not proved and as Pandurang was Ghulba’s brother, and therefore a member of his family, his cultivating possession would not enable him to claim to be a deemed tenant. He, therefore, declared under Section 100(2) of the Vidarbha Tenancy Act, that the petitioners were not the tenants of the suit land and the question whether they had purchased the land from Ghulba was not an issue which could be decided by him and the matter would be required to be settled by a competent Court.
4. An appeal was taken to the Sub-Divisional Officer who on 29th December, 1978 reversed the finding of the Additional Tahsildar and held that the petitioners were deemed to be tenants under Section 6 of the Vidarbha Tenancy Act, Relying upon the effect of Sections 6 and 8 of the Act. In the revision application filed against this order, the Maharashtra Revenue Tribunal, upon consideration of the entries in Khasras for the year 1932-33 found that Ghulba was the landlord and Pandurang cultivated his land and since there was no mention that Pandurang cultivated the land on lease and there was no evidence to show that he was cultivating as tenant. The Maharashtra Revenue Tribunal pointed out that the finality given to the tenants’ list under Section 8 of the Vidarbha Tenancy Act, was only for the purpose of requirements of that section so that the entries in the tenants’ list confirmed after the disputes were settled, could be transferred to the record of rights and the entries in the record of rights had only presumptive value and they were presumed to be correct so long as the contrary was not proved and if the parties were at issue in the proceedings on the point of tenancy the matter could be decided by the Tahisildar under Section 100(2) of the Vidarbha Tenancy Act. The Maharashtra Revenue Tribunal printed out that as Ghuiba and Pandurang belonged to the same family, there could not be any deemed tenancy in the present case under Section 6 of the Act.
5. While dealing with the contention raised before it, the Single Bench was of the view that the enlarged meaning given to the term “family” in Amrit Ganpat Shinde v. Maroti Amritrao Shinde 1984 Mh.L.J. 195 was wide enough to include the two brothers’ descendants.
6. It is not necessary for answering this reference now to go into that question so far as we are concerned and it must be taken to be the basis on which reference will have to be decided. The two conflicting views upon the extent of the finality of the list prepared under Section 8 of the Vidarbha Tenancy Act, are to be found in Sambha v. Mukhtyarkhan 1975 Mh.L.J. Note No. 24, Special Civil Application No. 1445 of 1971 decided on March, 20, 1974 by D.B. Padhye, J. and the view taken by N.L. Abhyankar, J. in Raghoji Hiraji v. Jesa Jemla Civil Revision Application No. 62 of 1961 decided on 3.4.1962, 1962 N.L.J. Note No, 65 and in Hanutmal Asaram Mandha v. Nathu Venkoba 1963 Mh.L.J. 557. Justice D.B. Padhye took the view that if the list was hot challenged by the party, it became final and the landlords would not be able to contend that the persons named in the list were not the tenants of the land. The view taken by Justice Abhyankar was that the finality that is given under Sub-section (2) of Section 8 to the entry made in the list is so far as proceedings required to be taken under Section 8 are concerned. The evidentiary value to be attached to an entry or absence of entry in such a list is of a limited character and in no case that is conclusive of the rights of the parties and even entry in the record of rights raises only a rebuttable presumption.
7. It is necessary to notice the relevant provisions for resolving the controversy. Section 6(1) reads as follows :
6(1) 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 owner and if such person is not –
(a) a member of the owner’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 owner or any member of the owner’s family.
(c) a mortgagee in possession.
8. Sections 8 runs as follows :
8(1) As soon as may be after this Act comes into force the Tahsildar shall cause a list of persons, other than occupancy tenants, and protected lessees, who are deemed to be tenants under Sub-section (1) of Section 6 to be prepared for entry in the Record of Rights in accordance with the provisions of Chapter IX of the Code.
(2) After such list is prepared it shall be published in the prescribed manner and if no application is made by the landlord or the tenant or any other person interested within a period of six months of the date of such publication disputing the correctness or omission of any entry, such list shall be final.
(3) If an application is made to the Tahsildar by the landlord or the tenant or any other person in the prescribed manner within the aforesaid period, disputing the correctness or omission of such entry, the Tahisildar shall decide the dispute in accordance with the provisions of Sub-section (2) of Section 100 of this Act and such decision subject to appeal or revision under this Act shall, notwithstanding Section 106 of Code be, final.
(4) In deciding the question referred to in Sub-section (3), the Tahsildar shall, notwithstanding anything contained in Section 92 of the Indian Evidence Act, 1872, or in Section 49 of the Indian Registration Act, 1908 or in any other law for the time being in force, have power to inquire into and determine the real nature of the transaction and shall be at liberty, notwithstanding anything contained in any law as aforesaid, to admit evidence of any oral agreement or a statement or unregistered document with a view to such determination.
9. Shri Lambat, the learned counsel for the respondents, contended that since the purpose of Section 8(1) is only to prepare a list for being entered in the Record of Rights in accordance with Chapter IX of the Madhya Pradesh Land Revenue Code, 1954, the list would be open to the same challenges as would the entries in the Record of Rights under that Code. Under Section 2(7) of the Vidarbha Tenancy Act, “Code” means the Madhya Pradesh Land Revenue Code, 1954. Chapter IX of that Code Deals with land records. Section 99 provides for formation of patwari circles, Section 100 for formation of revenue inspectors circles, Section 101 for the appointment of revenue inspectors, Section 102 for the preparation of the field map and Section 103 for the preparation of Record of Rights. Section 103 mentions the particulars which are to be recorded in the record of rights, Section 104 deals with the manner of reporting the acquisition of rights, Section 105, which is material, deals with the register of mutations and register of disputed cases. Sub-section (6) of Section 105 says that an entry in the record of rights shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. Section 106 provides that the Civil Court shall have jurisdiction to decide any dispute to which the State Government is not a party relating to any right which is recorded in the record of rights. It is precisely Section 106 of the Code which has been superseded by Sub-section (3) of Section 8 which we have extracted above, and which makes the enquiry by the Tahsildar or a preliminary enquiry because the dispute is to be decided by the Tahsildar in accordance with the provisions of Sub-section (2) of Section 100 of the Vidarbha Tenancy Act and such decision subject to appeal or revision under the Vidarbha Tenancy Act shall, notwithstanding Section 106 of the Code be, final. This provision has to be read in the context of Section 124 of the Act which bars the jurisdiction of the Civil Court to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Tahisildar or Tribunal, or Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control. Sub-section (4) of Section 8 clothes the Tahsildar with the power to decide the question notwithstanding anything contained in Section 92 of the Evidence Act, or Section 49 of the Indian Registration Act, or any other law for the time being in force while enquiring into and determining the real nature of the transaction and to admit any oral evidence or a statement or unregistered document with a view to such determination. Reading the provisions which have such a wide sweep, it is obvious that the enquiry which is to be conducted by the Tahsildar is not a mere enquiry analogous to one under Chapter IX of the Madhya Pradesh Land Revenue Code only for the purpose of making an entry in the right of records.
10. Shri Lambat contended that what becomes final under Sub-section (2) of Section 8 is the list and not the character or the status of the person who is entered in the list prepared under Sub-section (1) of Section 8. The exercise of powers under Sub-section (1) of Section 8 is for preparing a list for ordinary tenants who are deemed to be tenants under Sub-section (1) of Section 6 for entry in the record of rights. Sub-section (2) gives a finality to that list if the correctness or omission is not challenged within six months from the publication of the list. The words “correctness or omission of any entry” are important because they convey that not merely a tentative list is prepared but a list which has to be correct and comprehensive and is open to challenge only by an application to the Tahsildar under Sub-section (3). We have already referred in detail to the provisions of Sub-sections (3) and (4). The argument that the finality to the status or the character of the person named in the entry would attach only after the decision is rendered by the Tahsildar under Sub-section (3), does not impress because the authority which has to prepare the list under Sub-section (1) is also the same authority viz. the Tahsildar. Section 100(2) of the Vidarbha Tenancy Act enjoins the Tahsildar with the duty to decide whether a person is or was at any time a protected lessee or occupancy tenant. Considering that the list has to be prepared by a responsible officer such as the Tahsildar who is clothed with exclusive power under Section 8(2), that the list so prepared is open to challenge within six months when a dispute is raised about the correctness or omission of that entry, and that it is only then that the finality is attached to that entry and further that wide powers have been conferred on the Tahsildar in making the enquiry under Sub-section (3), it is not possible to equate the enquiry under Section 8(3) of the Vidarbha Tenancy Act with the enquiry under Chapter IX for the purpose of preparing the record of rights. Sub-section (4) of Section 105 of the Madhya Pradesh Land Revenue Code only contemplates some investigation into the particulars of objections raised, while Section 8 of the Vidarbha Tenancy Act provides for an elaborate enquiry. Sub-section (6) of Section 105 of the Madhya Pradesh Land Revenue Code raises only a presumption the entries in the record of rights, while finality is attached to the entries in the list prepared under Sub-section (1) of Section 8 of the Vidarbha Tenancy Act.
11. The contention on behalf of the respondents was that what is prerequisite under Section 6 is that a person lawfully cultivating the land belonging to another person shall not be a member of the owner’s family, or a servant, or a mortgagee in possession and if these requirements are not fulfilled then a person cannot be deemed to be a tenant under Section 6. Obviously this is so, but a forum is provided for investigating into this question and the decision of the Tahsildar is subject to appeal or revision under the Act. It would be this forum which will adjudicate upon the challenges raised to the deemed tenancy under Section 6. If the entries are allowed to go unchallenged, they become final and no proceedings can be taken elsewhere for setting aside those entries. We would, therefore, prefer the view taken by D.B. Padhye, J. in Special Civil Application No. 1445 of 1971 decided on March 20, 1974. We respectfully differ from the contrary view taken by N.L. Abhyankar, J. considering the various provisions to which we have referred above.
12. Since there was a finality attached to the entries made under Section 8(1) and they went unchallenged we find that the view taken by the Maharashtra Revenue Tribunal in revision, contrary to the one taken by the Sub-Divisional Officer, while affirming the order passed by the Additional Tahsildar is not correct. Since the Single Bench has otherwise decided the matter finally and no other point remained to be decided except the one which is the subject matter of the reference, the writ petition No. 3192 of 1980 would have to be allowed and the order passed by the Maharashtra Revenue Tribunal will have to be quashed and that passed by the Sub-Divisional Officer affirmed. Rule made absolute in terms of prayers (i) and (ii) of the petition. In the circumstances of the case there will be no order as to costs throughtout.