ORDER
D.G. Deshpande, J.
1. Heard Mr. V.D. Salunke, Advocate for the petitioners and Mr. Suresh Kulkarni, Advocate for the respondents.
2. The facts of the case in brief are as under.
3. The subject matter of the petition is Survey No. 45 admeasuring 8.36 acres now Gut No. 72 and Survey No. 29 admeasuring 12.36 acres now Gut
No. 59 situated at village Rajegaon, Tq. Ambad, District Jalna. This land was owned by one Sakharam Bhimrao Deshpande. The respondent was the tenant of the said land. He sold the lands to Shivaji Raosaheb Deshmukh and Mandakini w/o Dattaji Deshmukh by sale deed dated 7-5-1966, copies of which are filed at Exhibit “C”. Both these lands were thereafter purchased by the present petitioners on 26-2-68 vide sate deeds at Exhibit “D” for a sum of Rs. 30,000/- in all. It appears from the record that the original tenant was one Sk. Hussain s/o. Sk. Farid and after his death during the proceedings his L.Rs. have been brought on record.
4. The original tenant filed application on 17-1-85 under section 98 of the Hyderabad Tenancy and Agricultural Lands Act, before the Deputy Collector, Land Records, Jalna, on the ground that he was a protected tenant of Sakharam Bhimrao Deshpande that he was declared owner under section 38(E) of the Tenancy Act, in the year 1986. But he was forcibly evicted from those lands by Raosaheb Deshmukh in 1964-65. It was also his case that he had filed suit for restoration and possession against said Deshmukh under section 98, however, under their pressure, he was required to compromise the matter and surrender his rights in favour of the said Deshmukh. According to him, the present petitioners who had purchased land from Shivaji and Mandakini Deshmukh do not get any legal right in respect of the land and the sale deed executed by Shivaji and Mandakini Deshmukh in favour of the present petitioners is illegal and invalid.
5. The Deputy Collector decided the case against respondent holding that the respondent had lost his tenancy rights and rejected the respondent’s application under section 98. The original respondent thereafter filed appeal before the M.R.T. This appeal was allowed by the M.R.T. on 11-9-89 vide Appeal No. 16/A/88 of Jalna. The petitioners have filed present petition against the said order of the M.R.T.
6. I heard both the advocates for the petitioner and the respondent at length. It was contended by Mr. Salunke that original respondent had no right to file application under section 98 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as the Tenancy Act of 1950) firstly because even if the original respondent was the tenant he has sold his lands to Shivaji and Mandakini Deshmukh on 7-5-68 and has lost his possession since that date. Further the petitioners have purchased the lands by sale deed dated 26-2-68 and are in continuous possession thereof. Mr. Salunke contended that petitioners are bonafide purchasers for valuable consideration and the sale deeds in their favour or the earlier sale deed in favour of Deshmukh were not illegal for any reason whatsoever. Further, according to Mr. Salunke, original respondent’s application under section 98 was filed after 19 years of the first sale deed and 17 years of the second sale deed and no reasons were given by the respondent why he remained silence for such a long time of about 2 decodes.
7. Mr. Salunke further contended that the original respondent/tenant had filed application under section 98 against Mr. Deshmukh, his purchasers but in that matter, the original respondent entered into compromise, filed the compromise before the competent Court and surrendered his rights in favour of his purchasers Mr. Deshmukh and therefore, according to Mr.
Salunke, the respondent having surrendered his rights in favour of Deshmukh, the petitioner’s sale deeds from Shivaji and Mandakini Deshmukh were perfectly legal and they were required to recognised. It was also contended by Mr. Salunke that the only objection available for the tenant was under section 32 of the Tenancy Act, but since original tenant did not file his application under section 32 for which, period of limitation was 2 years, the original respondent/tenant filed his application under section 98 with a view to overcome bar of limitation. Mr. Salunke has also urged that surrendering of tenancy rights by the original respondent in favour of Shivaji Deshmukh and Mandakini Deshmukh in the earlier proceedings operate as a bar under the principles of res judicata and consequently, respondent was not entitled to any such reliefs. So far as the order of M.R.T. is concerned, Mr. Salunke pointed out that certain observations and findings of the M.R.T. were totally contrary to the facts of the record and therefore, for all these reasons, the order of the M.R.T. was liable to be quashed and order of the Deputy Collector was liable to be restored.
8. On the other hand, it was argued by the respondent’s advocate that original tenant got declaration of ownership on 19-12-83 also got the certificate of ownership, issued by Tahsildar and therefore, he was justified in filing his application under section 98 of the Tenancy Act in the year 1985. Counsel for the respondent relied upon findings of the M.R.T. and relied upon certain facts in support of his contention that sale by original respondent in favour of Shivaji and Mandakini Deshmukh was void and invalid because no permission was obtained from the Collector or the competent authority regarding compromise entered into by original respondent in favour of Shivaji and Mandakini. It was contended by the respondents advocate that signature on compromise was taken by force and that Tahsildar did not record his satisfaction regarding the genuineness of the compromise entered into by the original tenant, as they are required to be done under section 19(1) of the Tenancy Act.
9. Record page 123 of the Deputy Collector shows that the xerox copy of the order sheet of Case No. 4/1963 dated 7-5-66 and 2-9-66 which was a case initiated by original tenant Sk. Hussein against Mandakini. This is an order passed by the Deputy Collector on the compromise filed by Sk. Hussein against Mandakini and the Deputy Collector has accepted the compromise after recording the admission given by Sk. Hussein in the said compromise. In view of this, it does not lie in the month of the original tenant that the compromise was obtained by coercion or pressure.
10. I have given my anxious consideration to the respective submissions made by Counsel for petitioner and respondent. So far as the order of the M.R.T. is concerned, there are patent irregularities in the said order inasmuch as it is observed by M.R.T. on internal page 5 of its order that Shivaji and Mandakini have purchased the disputed lands from original owners Sakharam s/o. Bhimrao Deshpande. This observation on the basis of the submission made by Advocate A.R. Khan for original respondent, Sk. Hussein is contrary to the record. Shivaji and Mandakini did not purchase the lands from landlord Sakharam Deshpande, but the lands were purchased from the original respondent. Ordinarily, such observation would not affect the entire order of the M.R.T., however, the objection of the present petitioner before
the M.R.T. regarding operation of the principles of res judicata was rejected by M.R.T. on the basis of aforesaid wrong assumption of facts and hence it is clear that the order of the M.R.T. suffered from patent irregularities and illegality.
11. If the original application under section 98 of the Tenancy Act filed by original respondent Sk. Hussein is seen, it is clear that though it is alleged by the original tenant that Deshmukh brothers had forcibly dispossessed the original tenant from the suit lands in 1964-65 and though original tenant had filed application for taking back possession. There is no plausible explanation why the original tenant agreed to sell the lands to Deshmukh brothers or to Shivaji and Mandakini, if at all he was forced to enter into compromise. The entire case of the original tenant about his being forcibly dispossessed, he being coerced or pressurised to enter into compromise in the proceedings under section 98 and being forced to execute the sale deed, is-after thought and appears to be bogus one. It is true that the proceedings are under the Tenancy Act, and not a civil suit, however that does not absolves the tenant of his responsibility of proving his case regarding all the serious allegations of force, fraud and pressure.
12. If original tenant was dispossessed forcibly (as is alleged in his application under section 98 referred to above) there was no reason for him to agree to compromise with the said Deshmukh, further if he was pressurised to enter into compromise, it was not expected from him to succumb to the pressure again and to execute the sale deed in favour of Shivaji and Mandakini.
13. The entire case of the tenant in this regard is to be rejected as unbelievable because there is not a single document in the form of a complaint to the police, complaint to the revenue authorities or notice or any application or suit before the Civil Court for declaration that the sale deed executed by the original respondent or the compromise entered into by him, was liable to be quashed or set aside on the ground of coercion, undue influence and pressure.
14. If at all the said compromise and the sale deeds were obtained by Deshmukh by undue influence and coercion, it was open to the original tenant to challenge them either before the Civil Court of competent jurisdiction or before the revenue authorities, but it is pertinent to note that from 1966 i.e. the date of the sale deeds in favour of Shivaji and Mandakini till today no application, proceedings or suit is filed by the original tenant in this regard. To the contrary, what the original tenant did was to allow Shivaji and Mandakini to sell the property in 1968 to the present petitioners, allow the petitioners to enjoy and possess the said property upto 1985 when for the first time, he filed his application under section 98 against the present petitioners. This inaction on the part of the original respondents can be only equated with his acquisence in the sale deed or compromise with Deshmukh and the present petitioners. In this behalf Counsel for the respondent drew my attention to section 19(1) of the Tenancy Act and section 50(B) of the said Act. Section 19(1) lays down that no tenancy shall be terminated otherwise than A) by the tenant by surrender of his rights to the land holder atleast a month before commencement of the year. Proviso of this sub section lays down that the surrender should be in writing, should be admitted by the tenant and should be made in good faith to the satisfaction of Tahsildar. Records page 219, contains on application i.e. compromise filed by the original tenant Sk. Hussein in the case against Madhukar. In that compromise, the original tenant admitted that he was never in possession as protected tenant at any time before declaration was made under section 38-E that the original tenant was never in possession of the disputed land as protected tenant, when the declaration was made and consequently the original tenant had no objection for dropping the case initiated by him under section 98 of the Tenancy Act. This compromise seals the case of the original tenant permanently. There is no dispute that this compromise was accepted by the Deputy Collector, Jalna and the proceedings under section 98 initiated by the original tenant were dropped. The compromise fulfills the requirements of proviso to this section that the surrender should be in writing, should be admitted by him. In fact, this is not a surrender under section 19(1) because the original tenant in unequivocal terms admitted that he was never a protected tenant, was not in possession as a protected tenant any time before the declaration was made under section 38-E.
15. If at all it was the case of the original tenant that the Tahsildar has not recorded his satisfaction regarding the good faith in which this declaration cum compromise was made and filed by the tenant, it was for the tenant to prove this fact. In the instant proceedings before the Deputy Collector under section 98, admittedly the tenant did not discharge his burden in this behalf. The good faith in which the compromise was entered into can be presumed on account of the lapse of a period of 19 years, which the tenant allowed to be lapsed before filing the present proceedings under section 98 against the present petitioners. If it was the case of the original tenant that this compromise was not in good faith, but was the result of coercion exerted upon him nothing prevented the tenant from making complaint immediately or within a reasonable time in that regard to the Deputy Collector. Good faith in the compromise on the part of the original tenant can also be presumed because of the subsequent sale deeds which were executed by original tenant in favour of Shivaji and Mandakini.
16. Therefore, the defence now raised by the tenant or case tried to be made out by him in his present application under section 98 against the present petitioners is liable to be rejected outright. Though it is true that the Tenancy Act has been in acted to give full protection to the tenant, I cannot refrain myself from observing that this is a case where the original tenant is trying to take advantage of every situation and of all his wrongs when his case is totally dishonest. The original tenant has firstly entered into compromise with Shivaji and Mandakini and withdrawn his case under section 98 filed against them thereafter, he sold his property to Shivaji and Mandakini for Rs. 5000/- each i.e. for Rs. 10,000/- and he received benefit from the sale transaction thereafter. He did not take any action for 17 to 19 years and woke up regarding his rights only in 1985 i.e. after 17 years of the sale deeds in favour of the petitioners, under which the petitioner paid Rs. 30,000/- in all to Shivaji and Mandakini. Therefore, in view of this conduct of the petitioner, I am Constrained to hold that even though tenant gets protection under different provisions of the Tenancy Act, the conduct of the original tenant being totally dishonest, cannot be overlooked.
16A. There is a strong force in the argument of Mr. Salunke that the original tenant failed to take any action against the persons in possession under
section 32 of the Tenancy Act within the period stipulated thereunder and then after having lost the right to take the action under section 32 he initiated proceedings under section 98 which do not apparently provide any period of limitation. Section 32 of the Tenancy Act provides that a tenant may within 2 years from the date of commencement of the Tenancy Act or within 2 years of getting right to possession may file application before the Tahsildar for getting back such possession. If at all the compromise entered into by the original tenant was a result of coercion and undue influence or if at all the sale deed executed by him on 7-5-66 in favour of Shivaji and Mandakini were illegal and he was dispossessed on account of sale deed, it was open to the original tenant to file application under section 32(1) of the Tenancy Act within 2 years of his dispossession. Admittedly, no such application was filed by the original tenant and consequently, it has to be held that the application of the original tenant under section 98 of the Tenancy Act against the present petitioners is a malafide application and it is filed to overcome bar of limitation prescribed by section 32 of the Tenancy Act.
17. I am also in agreement with the submission made by Mr. Salunke that once the original tenant entered into compromise and admitted in the said compromise that he was never a protected tenant of the suit land and was not in possession of the suit land at any time as a protected tenant then this admission and subsequent withdrawal of the petition under section 98 by the original tenant filed against Shivaji and Mandakini operates as res judicata between the original tenant and present petitioners. Admittedly the original application under section 98, filed against Shivaji and Mandakini was in respect of the same land (which is the subject matter of the application under section 98 against the present petitioners) and further because the present petitioners are purchasers from Shivaji and Mandakini. If in the earlier proceedings and in the compromise filed therein, original tenant gave an admission that he was not the protected tenant then that admission also not binds the original tenant so far as the present petitioners are concerned. Therefore, the disposal of original application under section 98 against Shivaji and Mandakini by the Deputy Collector on the basis of the said compromise operates as res judicata and the original tenant or his legal heirs who are before this Court now cannot be allowed to agitate and open the same points again.
18. It was contended by the respondent’s Counsel that the sale deed executed by the original tenant in favour of Shivaji and Mandakini was void and illegal for want of prior permission under section 50-B of the Tenancy Act. He also relied upon a judgment reported in Jam Shwetambar Sthanak v. Chintamani Bajirao 1984 M.L.J. page 736. A bares reading of section 50-B shows that this submission of the respondent’s advocate does not hold water. Section 50-8 lays down that no land purchased by a tenant under sections 38, 38-A, 38-E, 38-F, 38-G, 38-H or 46-D or 48 or sold to any person under section 53-F, 53-G, 53-H, or 98-C shall be transferred by sale, gift exchange, mortgage, lease, or assignment without the previous sanction of the Collector and if any such transfer is made in contravention of the above provision, it shall be invalid. Admittedly in this case, the original tenant sold the lands to Shivaji and Mandakini before purchasing them under any of the aforesaid
provisions. The section therefore, does not apply in the instant case and consequently the sale deeds of 1966 in favour of Shivaji and Mandakini are not hit by the provisions of section 50-B. The authority reported in 1984 M.L.J. page 836 cannot come to the rescue of the petitioner.
19. It was also contended by the respondent’s advocate that respondent got sale certificate in 1985 as per record page 103 and therefore, he was justified in filing application under section 98 in the year 1985. At record page 103 of the trial Court, there is a certificate issued under section 38 sub section (6) by the Agricultural Lands Tribunal cum Tahsildar in favour of original tenant Hussein and that he is declared as a owner for a price of Rs. 2375/-.
20. Ordinarily, the Court would have accepted the certificate at record page 103 issued by the competent authority under section 38(6) of the Tenancy Act in favour of the protected tenant, however, in the peculiar circumstances of the case, particularly when the conduct of the original tenant is found to be totally dishonest. Such certificate cannot be accepted.
21. For all these reasons, the order of the M.R.T. is required to be quashed being perverse and on account of non consideration of all the important aspects of the case and the petition is required to be allowed. Hence order :
22. Rule made absolute. The order of the M.R.T. dated 11-9-89 is quashed and set aside and the order of the Deputy Collector dated 25-1-88 is maintained. Consequently, the application under section 98 filed by the original tenant before the Deputy Collector stands dismissed.
23. Application dismissed.