1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 1802 OF 2002
1 Dattatrays s/o Krishnarao Jagtap
Age 50 years, Occ. Agri.,
2 Sou. Sumanbai Sadashivrao Kate,
Age 38 years, Occ. Agri.,
3. Sou. Leelabai w/o Sonyabapu Shinde,
Age 50 years, Occ. Agri.
4 Sudhir s/o Sonyabapu Shinde,
Age 28 years, Occ. Education,
Through Bajirao Ramdas Wakte
Age 50 years, Occ. Agriculture,
General power of attorney
for petitioner Nos. 1, 3 and 4.
All R/o. Jeur Kumbhari,
Tq. Kopargaon, District Ahmednagar ...Petitioners
Versus
1 Atmaram s/o Krishnarao Jagtap,
Age 45 years, Occ. Agri.,
2. Jagannath s/o Krishnarao Jagtap,
Age 54 years, Occ. Agri.,
3. Sagar s/o Bajirao Wakate,
Age 2 years, Occ. Nil,
Minor through G.A.L.
Bajirao s/o Ramdas Wakate,
Age 50 years,Occ.Agri.,
4. Shreyas s/o Navnath Wakte,
Age 3 years, occ. Nil,
(Minor through G.A.L.)
Navnath s/o Ramdas Wakte,
Age 45 years, Occ. Agri.,
All r/o. Jeur Kumbhari, Tq. Kopargaon
District Ahmednagar
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5 Tenancy Awwal Karkoon, Kopargaon
Tahsil Office, Kopargaon
District Ahmednagar
6 Sub Divisional Officer,
Sangamner Division,
Sangamner, Dist. Ahmednagar ...Respondents
.....
Mr. R.N. Dhorde, h/f Mr. V.S. Bedre, advocate for the petitioners
Mr. S.D. Kulkarni, advocate for respondent Nos. 1 and 2.
Mr. P.P. More, AGP for respondent Nos. 5 and 6.
.....
ig WITH
WRIT PETITION NO. 1800 OF 2002
WITH
CIVIL APPLICATION NO.2048 OF 2004
1. Sagar s/o Bajirao Wakate,
Age 2 years, Occ. Nil,
Minor through G.A.L.
Bajirao s/o Ramdas Wakate,
Age 50 years,Occ.Agri.,
2. Shreyas s/o Navnath Wakte,
Age 3 years, occ. Nil,
(Minor through G.A.L.)
Navnath s/o Ramdas Wakte,
Age 45 years, Occ. Agri.,
All r/o. Jeur Kumbhari, Tq. Kopargaon
District Ahmednagar ...Petitioners
Versus
1 Atmaram s/o Krishnarao Jagtap,
Age 45 years, Occ. Agri.,
2. Jagannath s/o Krishnarao Jagtap,
Age 54 years, Occ. Agri.,
3 Dattatrays s/o Krishnarao Jagtap
Age 50 years, Occ. Agri.,
4 Sou. Sumanbai Sadashivrao Kate,
Age 38 years, Occ. Agri.,
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5. Sou. Leelabai w/o Sonyabapu Shinde,
Age 50 years, Occ. Agri.
6 Sudhir s/o Sonyabapu Shinde,
Age 28 years, Occ. Education,
All r/o. Jeur Kumbhari, Tq. Kopargaon
District Ahmednagar
7 Tenancy Awwal Karkoon, Kopargaon
Tahsil Office, Kopargaon
District Ahmednagar
8 Sub Divisional Officer,
Sangamner Division,
Sangamner, Dist. Ahmednagar ...Respondents
ig .....
Mr. R.N. Dhorde, h/f Mr. V.S. Bedre, advocate for the petitioners
Mr. S.D. Kulkarni, advocate for respondent Nos. 1 and 2.
Mr. P.S. Pawar, advocate for respondent Nos. 3 and 4.
Mr. P.P. More, AGP for respondent Nos. 7 and 8.
CORAM : S. S. SHINDE, J.
DATE OF RESERVATION : 07.10.2009
OF JUDGMENT
DATE OF PRONOUCNEMENT : 16.10.2009
OF JUDGMENT
JUGMENT:-
These writ petitions are filed challenging the order passed by
1
the Designated Member, Maharashtra Revenue Tribunal, (hereinafter
for the sake of brevity referred to as the “MRT”) Nashik in case No.
109 of 2001 on 24.4.2002.
2 The background facts of the case are as under:-
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The dispute in the matter is about agricultural land bearing Gat
No.90 admeasuring 8 H 54 R situated at Jeur Kumbhari, Tq.
Kopargaon, district Ahmednagar. In the suit land Krishnarao Jagtap
was tenant since long. he died on 6.8.1985 leaving behind three sons
and one daughter. Accordingly necessary mutation entry 2575 was
effected in the revenue record.
After death of Krishnarao, his sons partition of the suit land was
took place amongst his sons. The said division was reduced in writing
by way of agreement and accordingly necessary mutation entry No.
2732 was effected and since 10.6.1987 they started cultivating the
land independently and in the crop inspection column the necessary
entires have been separately taken by the revenue authorities.
On 21.12.2000 the petitioner Nos. 1 and 2 have submitted
application under section 25 of the Bombay Tenancy and Agricultural
Lands Act, 1948 (hereinafter for the sake of brevity referred to as the
“Tenancy Act”) requesting for surrender of the suit land to the extent
of their share as they were not in position to cultivate the suit land.
The Tahsildar/Tenancy Awal Karkun recorded the statement of
the respective parties and also given reasonable time to the parties
and also held necessary enquiry. On 29.12.2000 the Tenancy Awwal
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Karkoon verified the surrender and passed the necessary order on
29.12.2000.
On 5.2.2001, respondent No.1 filed R.C.S. No.55 of2001
challenging the orders passed by the Tenancy Awwal Karkoon and
also sought injunction against the petitioners and others. On 7.2.2001
respondent No.1 requested for temporary injunction against the
petitioners and others in R.C.S. No. 55 of 2001, however, no
prohibitory orders were passed against the petitioners and others and
the matter is pending before the Civil Court.
On 9.2.2001, the respondent No.1 filed Tenancy appeal No. 2 of
2001 before the Sub Divisional Officer, Sangamner. On 28.8.2001, the
S.D.O. After hearing the matter on merits pleased to dismiss the
appeal filed by th respondent No.1 Being aggrieved, respondent No.1
preferred revision before the MRT i.e Revision No. 109 of 2001 on
3.9.2001, on various grounds. On 24.4.2002, the Member MRT after
hearing the matter on merits allowed the revision filed by respondent
No.1 and set aide the orders passed by the authorities below. Hence,
this writ petition filed by the petitioners.
3 Learned counsel appearing for the petitioners invited my
attention to the fact that the land in dispute Gat No. 90 is admeasuring
21 Acre which is situated at village Jeur Kumbhari, Tq. Kopargaon,
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District Ahmednagar. Krishnarao Jagtap was the tenant of the said
land. He had four issued viz. i) Atmaram, ii) Jagannath, iii) Dattatraya
and iv) Sumanbai. After death of said Krishnarao Jagtap. Sons
original tenant divided the suit land in three equal shares actually by
metes and bounds as evidence from Exh. A page 15 of the
compilation. It is further submitted that respondent No.1 who is brother
of the petitioner Dattatraya has no right to challenge the said
surrender, as he has no share or interest in the said property, as the
property was already partitioned and he has no challenged the
partition. Therefore, according to the learned counsel, respondent
No.1 who was not party to the surrender and who had no interest or
share in the 7 acres land which was fallen to the share of petitioner
Dattatraya. According to the learned counsel the appeal filed before
the MRT is not maintainable as respondent No.1 was not party to the
proceedings before the Tahsildar.
Learned counsel further submitted that respondent No1 has no
locus standi to challenge the decision of surrender taken by the
petitioner since respondent No.1 has received the property already
partitioned and each party has been cultivating its share separately.
According to the learned counsel respondent No.1 has no interest or
share in the said seven acres of land which is fallen to the share of the
petitioner Dattatraya. According to the learned counsel, even
assuming without admitting that the share of tenant has not been
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separated still one tenant can surrender his share. In support of his
contention learned counsel relied on reported judgment of this court in
the case of Devu Subhana Chamber Vs. Badruddin Hussain
Marwadi, reported in 1959 B.L.R. 192 and therefore, in view of the
judgment of the Division Bench of this Court, respondent No.1 has no
locus standi to challenge the said surrender. Similarly Section 27 has
no application in the facts of the present case in view of the judgment
mentioned above.
Learned counsel further submitted that surrender is valid
because application has been made by the tenant Dattatraya and his
sister Sumanbai on 21.12.2000 which is at Exh.B page 17 of the
compilation of writ petition. Learned counsel submitted that in the said
application tenant Dattatraya has stated that he want to surrender the
land in favour of the landlord. Thereafter, the authorities have verified
the surrender by recording the statement that surrender is valid by
recording the statement of tenant Dattatraya, his sister Sumanbai as
well as statement of landlord, which is at Exh. B (Collectively),
annexed to the petition. According to the learned counsel, the
application was filed by the Tenant and the landlord on 21.12.2000
and thereafter the statement has been recorded by the Tahsildar in
detailed on 29.12.2000 and thereafter the order has been passed and
land has been surrendered, therefore, respondent No.1 has no locus
standi to challenge the surrender on any ground as being invalid or
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otherwise when tenant Dattatraya himself has filed writ petition in this
Hon’ble Court supporting the surrender. According to the learned
counsel, surrender is made under Section 15 and therefore, it is held
by the authorities below that surrender is valid in favour of the landlord.
According to the learned counsel, the provisions of Section 37 are not
attracted in the instant case because the order has been approving
surrender conditions raised in Section 31-A are not applicable,
therefore, the contentions raised by respondent No.1 about Section
31-A r.w. Section 29 are devoid of any substance. The surrender is
voluntarily act by the tenant and made in favour of the landlord,
therefore, under Section 31-A has no application to the facts of the
present case as contended by respondent No.1 I is further submitted
that in the judgment rendered by the Division Bench of this Court
reported in AIR 1975 Bombay 358, it has been clearly mentioned that
the order passed under Section 15 is not under Section 31 and
therefore, relying on para No.7 of the said judgment. Learned counsel
has further submitted that the judgment reported in 2006 (1) Mh.L.J.
776 has no application in the present case. Learned counsel submitted
that Awwal Karkoon has in fact passed an order on 29.12.2000 after
recording the statement of tenant. The tenant has voluntarily
surrendered the land and he has accordingly given application and
considering this, the Tahsildar was satisfied that the tenant has
voluntarily shown his willingness to surrender the land and therefore,
he has allowed the application. The authority has recorded the
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satisfaction, copy of the order is at page 23 of the compilation and
therefore, according to the learned counsel the judgment reported in
2006 (1) Mh.L.J. 776 has no application in the facts of this case.
It is further submitted that though reliance is placed by
respondent No.1 on reported judgment reported in 2003 AIR SCW
6923 in support of his contention that even if there is valid surrender,
the possession must be taken in accordance with Section 29 of the
Tenancy Act. Counsel for the petitioner submitted that the said
judgment has been considered in the subsequent judgments under
Tenancy Act reported in Dnyandeo Ganpat Jadhav Vs. Madhav
Vithal Bhaskar and others reported in AIR 2006 SC 93, and the
Apex Court has held in para 31, 32 and 33 that the possession which
was given to the landlord is valid. Learned counsel further invited my
attention to the reported judgment of the Supreme court in the case of
Bhagwant Pundlik vs. Kishan Ganpat reported in AIR 1971 SC
435. The said judgment which is relied upon by the respondent No.1
was under Vidharbha Region Act which is not applicable in the instant
case. According to the learned counsel, the tenant himself has come
before this Curt by filing writ petition and in the writ petition he has
contended that he himself has surrendered tenancy and therefore, the
same cannot be challenged by the respondent No.1, as he has no
locus standi. According to the learned court, MRT has exceeded
revisional jurisdiction by entering into the findings of facts and more
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particularly when tenant Dattatraya’s statement is recorded, Tahsildar
has recorded the findings and satisfaction, the Appellate authority has
confirmed it, therefore, the MRT has no jurisdiction to enter into the
findings of facts whether the surrender is valid or otherwise? Or
whether the notice was issued backdated when neither respondent
No.1 was present before the authority, nor for the same there is any
basis. Therefore, according to the learned counsel MRT has exceeded
its jurisdiction and has allowed the revision. Learned counsel in
support of his contention relied on the reported judgment of the
Supreme court in the case of Maruti Bala Raut Vs Dashrath Babu
Wathare and Ors. reported in 1974 AIR SC 2051. Therefore,
learned counsel would submit that the writ petitions deserve to be
allowed.
4 Learned counsel appearing for the respondent Nos. 1 and 2 in
writ petition No. 1802 of 2002 submitted that surrender effected by one
of the co-tenant i.e. Dattatraya Jagtap is not verified as required under
Section 15 of the Tenancy Act and while recording the said surrender,
the necessary notice as required u/sec. 14 of the Mamlatdar’s Court
Act are not issued. Though the present respondents are co-tenants
and there is no partition by metes and bounds they are not issued any
notices while recording surrender and as the said order is passed
without following the principles of natural justice, it is void and non est.
While recording the surrender under Section 15of the Tenancy Act it is
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necessary to ascertain what is the holding of the landlord and how
much land he is entitled to resume and also it is necessary to ascertain
whether the landlord satisfies the requirements of section 31, 31A and
31B as contemplated under section 15(2) of the Tenancy Act. It is
further submitted that the judgment of the Full Bench of this Court in
the case of Madhava Vs. Maharashtra Revenue Tribunal, Nagpur
and others, reported in 1970 Mh.L.J. 991, it is specifically observe d
in para 24 to 28 of the judgment that unless and until there is order of
Tahsildar for possession, a tenant does not ceased to be a tenant
even though he has handed over possession of the land to the
landlord and hence the order for possession is a mandatory
requirement while recording surrender. It was further held that consent
or willingness of the tenant to surrender is irrelevant and does not
affect the operation of the law. Learned counsel further placed
reliance on the reported judgment of the Supreme Court in the case of
Bhagwant Pundlik vs. Kishan Ganpat reported in AIR 1971 SC
435, that where a landlord obtain possession of the land from the
tenant representing that he desire to cultivate the land personally
without complying the provisions of Section 20 and 26 of the Tenancy
Act, Vidharbha Region which are analogues to Section 15 and 29 of
the Tenancy Act, the possession without complying the provisions of
the statute is non lawful. It is further submitted that even in the
reported judgment of Babu Parasu Vs. Babu Deceased through
L.Rs. reported in 2004 (3) B.C.R. 350, it is observed by the Hon’ble
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Supreme Court that the procedure prescribed for termination and
surrender of tenancy is mandatory and the possession obtained by
landlord in violation of such mandatory provisions would be illegal.
Although, landlord takes physical possession of the land, the right to
possess the same remained with the tenant.
It is further submitted that out of total land admeasuring 8
Hectare 54 Are from Gat No. 90, which is now demarcated and there
is sugarcane block to the said portion and after surrender, the said
land is already transferred in favour of the petitioner in writ petition No.
1800 of 2002 and hence, the present respondents are deprived of the
water to their land though the disputed land is irrigated. It is further
submitted that in view of the transfer the claim of the landlord that he
needs land for bonafide personal cultivation was not honest and only
with a view to deprive the rights of the present respondents, one of the
co-tenant in collusion with the landlord have surrender the land with a
view to sale it to the third party, which is clearly contrary to the object
of Tenancy Act, which is a beneficial legislation for the benefit of the
tenant. Learned counsel further submitted that the judgment relied
upon by the counsel for the petitioner in the case of Devu Subhana
Vs. Badurddin (supra) will not be applicable in this case because yet
there is no partition by metes and bounds and share of each of the
brother is not ascertained, however, only for convenience of cultivation
by way of family arrangement,it was agreed how three brothers will
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cultivate the land. It is further submitted that there 4 acre 3 gunthas of
joint family’s land at Saswad and that is still joint.. Even in the
document at Exh.A dated 10.6.1987, it is specifically stated that from
1988 rent was to be paid by all brothers jointly. This itself would show
that there is no partition by metes and bounds. Even the order passed
by the learned Tenancy Awal Karkoon only states that the name of
Dattatraya as a tenant for 2 H 85 R should be deleted. But no
boundaries or specific portion is mentioned in the order. The
adjustment made by the parties for the purpose of cultivation cannot
be construed as partition. It is further submitted that the MRT has
allowed the revision only on question of law and not on factual aspects
involved in the matter, hence, submission of the petitioner that MRT
cannot disturb the findings of fact is misconceived. According to the
learned counsel MRT has allowed revision because the courts below
have not follow the mandatory provisions of Section 15, 29 and 31 of
the Tenancy Act and has also not issued notice under Section 14 of
the Mamlatdars Courts Act to all interested parties specifically to the
present respondents who are co tenants and have never consented
for surrender. It is further submitted that Dattatraya has already
transferred the land to the third party, who are petitioners in writ
petition No. 1800 of 2002. Learned counsel further submitted that the
special Government Pleader appearing for the Collector before the
MRT has contended that both the parties have committed error and
illegality and revision has merit and it deserves to be considered in the
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light of the rulings produced by the Tenant. Therefore, learned
counsel would submit that the judgment and order impugned in this
petition deserves to be confirmed. Learned counsel also invited my
attention to the affidavit in reply filed by said respondents.
5 I have heard learned counsel appearing for the petitioners and
and respondents concerned. I have carefully perusal the pleading in
the petition, grounds therein and the annexures thereto. On perusal of
the document at page 15 of the compilation, which is at Exh. A, it is
clearly mentioned that the total land from survey No. 90 is to the extent
of 21 acre 14 gunthas and the same land is being cultivated as tenant.
It is further mentioned that all three brothers have decided
unanimously and with consent to divide the land in equal shares i.e.
seven acres to each brother. It is further stated in the said document
that there are three shares of Sanjivani Sahakari Sakhar Karkhana
which are transferred in the name of three bothers one share to each
of them. It clearly appears from the said document that the tenanted
land got divided into three brothers in equal share and they started
cultivating the said land. On careful reading of the said document itself
would reveal that all three brothers together have decided and divided
the total land between themselves. Therefore, said partition, copy of
which is placed at Exh. A is clear evidence of seven acres land fallen
to the share of petitioner Dattatraya. The said seven acres land which
fallen to the share of Dattatraya is the subject matter of the petitions.
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Said Dattatraya has surrendered the said land to the land lord.
Therefore, the land to the extent of seven acres which came to the
share of Dattatraya is his exclusive share. Other two brothers viz.
Atmaram and Jagannath have got their shares to the extent of seven
acres each. Therefore, to the extent of seven acres of land of
Dattatraya it cannot be said that Atmaram has share or interest in the
said property. In this background it is to be held that respondent
Atmaram had no locus standi to challenge the surrender of land by
Dattatraya, of his share in favour of the landlord.
6 The Apex Court in the case of Ramchandra Keshav Adke Vs.
Govind Joti Chavare (1975) 1 SCC 559 has held that the surrender
of tenancy by a tenant in order to be valid and effective must fulfill the
following requirements;
i) It must be in writing,
ii) It must be verified before the Mamlatdar;
iii) While making such verification the Mamlatdar must
satisfy himself in regard to two things viz. –
a) that tenant understands the nature and
consequences of the surrender, and
b) that it is voluntary.
iv) Mamlatdar must endorse his findings as to such
satisfaction upon the document of surrender.
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In the present case on careful perusal of the documents placed
on record it clearly reveals that all requirements have been fulfilled
while surrender of the land by the tenant Dattatraya in favour of
landlord. Therefore, since all requirements are fulfilled it has to be held
that the surrender was valid surrender. Two authorities have
concurrently held that all requirements have been fulfilled.
7 Though learned counsel for the respondent No.1 has submitted
that there was no partition by metes and bounds in view of the
pronouncements by this Court in the case of Smt. Krishnabai Anaji
Ghule and Ors. Vs. Nivrutti Ramchandra Raykar and Anr.
Reported in AIR 1983 SC 1213, it has to be held that question of
bonafides of partition could not be reopened. If the respondent No.1
is aggrieved by the act of partition, it is open for him to challenge the
same in the Civil Court. There is no reason to disbelieve Exh.A i.e.
partition deed between three brothers. The Awwal Karkoon as well as
the Sub Divisional Officer have approved the said documents.
Therefore, there is no reason to question authenticity of the said
document. Therefore, there is no substance in the contention of
respondent No.1 that there is no partition by metes and bounds.
The petitioner Dattatraya has surrendered his land which was
fallen to his share and in the said land, it cannot be said that the other
two brothers have share or interest, they have also got equal portion of
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land. This Court in the case of Devu Subhana Chamber Vs.
Badruddin Hussain Marwadi reported in Vol. LIX B.L.R. 1959 page
192, has held that one of the joint tenants can surrender his interest in
favour of the landlord. Therefore, surrender of land by the petitioner
Dattatraya in favour of the landlord cannot be questioned and same
cannot be challenged by the respondent No.1 since seven acres of
land is exclusively fallen to the share of petitioner Dattatraya.
8
This Court in the case of Vitthal Rangnath Gaikwad and
others Vs. Murlidhar Vaman Dhawale and another reported in AIR
1975 Bombay 358 in para 7 held as under:-
” It is true that sub section (2) makes a reference to
Ss. 31 and 31-A, but the mere reference to Sections 31 and 31-
A or the further fact the landlord’s right to retain land has been
subjected to certain restrictions mentioned therein. Viz. He canretain the land subject to the like purposes or the like extent or
the like conditions as are mentioned in sections 31 and 31-A
cannot convert an order passed under Section 15 into an orderpassed under Section 31 of the Act. In our view, all that sub
section (2) of Section 15 does is to incorporate by reference the
conditions of termination of tenancy embodied in Sections 31
and 31-A of the Act, but because of that the order under
Section 15 cannot be regarded as one having been passed
under Section 31 or Section 31-A of the Act. The provision is
terms speaks of termination of tenancy brought about by
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18Section 31. It is only the consequences of a surrender of
tenancy made by a tenant that are enjoined to be worked outhaving regard to such of the conditions as may be applicable as
mentioned in Sections 31 and 31-A. That is the only effect of
sub-section (2) making a reference to Sections 31 and 31-A.
The view expressed in Sarubai’s case therefore, cannot beregarded as correct.”
Therefore, the arguments advanced by the counsel for
respondent No.1 so far applicability of provisions of Section 31 and 31-
A and Section 15 of the Tenancy Act are answered in the aforesaid
pronouncement of this Court.
9 The Hon’ble Supreme court in the case of Dnyandeo Ganpat
Jadhav Vs. Madhav Vithal Bhaskar and others reported in AIR
2006 SC 93, in para 33 has held thus;-
” In our opinion, however, from the statement of Ganpat
recorded on November, 15, 1959, of Vitthal recorded on thesame day and the order passed by the Mamlatdar and
Agricultural Lands Tribunal, it was clear that the requisites
procedure had been followed. The tenant was told about his
right and the effect and consequences of his unwillingness to
purchase the land ans surrender of tenancy. Thereafter an order
was passed by the authority on November 16, 1959. It is also
clear that even in 1962, when the possession was handed over
to the landlord, again statement of the tenant was recorded and::: Downloaded on – 09/06/2013 15:14:26 :::
19he reiterated what he had stated in 1959. he had stated that on
‘second thought’ also, he was not willing to purchase the land. “
On careful reading the observations made in para 33, as
reproduced herein above, in the facts of that case the court was
satisfied that the proper procedure was followed and after following
proper procedure, the tenant surrendered his tenancy rights and the
Mamlatdar and the Agricultural Land Tribunal after following the
procedure have allowed the tenant to surrender the land in favour of
the landlord. Int he instant case also, as stated in earlier para of this
judgement, the proper procedure is followed by the Mamlatdar as well
as the by the Tahsildar, which is required to be followed under Section
15 and other relevant provisions of the said Act and thereafter, the
petitioner tenant was allowed to surrender his land to the landlord.
Since the other two brothers have got their share in the land, there is
no question of issuing any notice to them as co tenant. Since three
brothers were in possession of seven acres of land each which was
equally divided, there was no question of issuing them notices.
Therefore, Awwal Karkoon has rightly concluded the proceedings
which were approved by the superior officers. The Awwal Karkoon as
well as Sub Divisional Officer have concurrently held in favour of the
petitioner.
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10 The MRT has to some extent entered into the appreciation and
reappreciation of the facts. So far as the findings recorded by the MRT
that ‘application of respondent Nos. 1 and 2 in the revision dated
21.12.2000 appears to he have been accepted in back date by putting
the date of 15.12.2000,’ is the finding recorded by the MRT by entering
into the appreciation of facts of the case which is not permissible in the
revisional jurisdiction. There is no basis for the findings recorded by
the MRT. So far another finding recorded by the MRT i.e. no
reasonable time was given to the tenant for reflection and
consequences of surrender is concerned, if the statement of tenant
Dattatraya and his sister is perused carefully, it seems that there is no
room to suspect that it was necessary to grant further time for
reflection and consequences of surrender. In fact the SDO has
recorded the findings on this point and any comments on this issue by
the MRT were wholly unwarranted. Further the findings recorded by
the MRT that identification of the application not made through the
advocate or application has not been verified by the Tahsildar himself,
was not any body’s case and there was no necessity to record the
findings on the said issue. The further findings of the MRT that it was
necessary to grant opportunity to the co-tenant is not sustainable since
each of the brother has got their independent share of seven acres of
land and they were cultivating the land fallen to their share and
therefore, there was no question of issuing notice to the co-tenant. The
possession of the share fallen to each of the brother was independent
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and independently three brothers were cultivating the land fallen to
their share. The findings of the MRT that proper verification before the
Mamlatdar is not done is also falsified by the document placed on
record by the petitioner. It clearly appears that there was proper
verification and authority has recorded the statement of the tenants as
well as the landlord. The findings recorded by the MRT that the land
is not divided by metes and bounds which is wholly unwarranted in
view of the document which is placed on record at Exh. “A” page 15 of
the compilation of the writ petition. As already stated the partition
cannot be reopened in tenancy proceedings and if the respondent No.
1 is aggrieved then the remedy lies somewhere else. In fact the land
is surrendered and possession is also given to the landlord and during
pendency of this writ petition this Court granted interim orders in favour
of the petitioner. For the aforesaid reasons writ petition deserved to be
allowed.
11 Since already I have taken a view that the respondent No.1 has
no locus standi to challenge the act of the petitioner in surrendering
the land fallen to his share to the landlord, in view of the fact that
seven acres of land was fallen to the share of the petitioner Dattatraya
and it exclusive possession was also with him and he was cultivating
the land and other two brothers have also got their respective shares
of the land and they are also in possession of seven acres land each,
therefore, other two brothers have no share or interest in the land in
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22
question. Therefore, all other arguments and points raised by
respondent No.1 are not necessary to be gone into.
Therefore, for all these reasons, stated herein above and in
view of the various pronouncements by this Court as well as the
Hon’ble Apex Court on the point involved in the matters, the judgment
and order passed by the MRT is not sustainable. To some extent the
MRT while exercising revisional jurisdiction has entered into the
appreciation/reappreciation of the evidence by upsetting the
concurrent findings of facts, which is not permissible in the revisional
jurisdiction. Therefore, the impugned judgment and order of the MRT
is quashed and set aside. The judgment and order passed by the
Awwal Karkoon and Sub Divisional Officer, Sangamner is confirmed.
Both the writ petitions are allowed. Rule made absolute in terms of
prayer clause “B” in both the petitions. The order of interim relief stand
merged in this final judgment and order.
12 Civil application No. 2048 of 2004 pending in writ petition No.
1800 of 2002, stands disposed of in view of the disposal of main writ
petition.
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