JUDGMENT
R.G. Deshpande, J.
1. The petitioner, who alleges himself to be a tenant on the field Survey No. 403, situated at village Daithana Gunjal with an area of 1 Hectare and 59 Acres, has approached this Court challenging the order, passed by the Maharashtra Revenue Tribunal on 23rd of January, 1984, in Revision Application MRT-AH-IX-1/81 (TNC-B-361/81), whereby the learned Member of the Maharashtra Revenue Tribunal set aside the order, dated 13th October, 1981, passed by the Sub-Divisional Officer in appeal and restored the order, dated 10-11-1980, passed by the Additional Tahsildar and Agricultural Lands Tribunal, Parner, whereby the learned Additional Tahsildar had declared that the present petitioner-Rama Patil Gunjal is not a tenant on the field in question. The initiation of the present proceedings was on the basis of an application under section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as ‘the Act’ for the purposes of brevity). The respondent-landlord-Vithal Tulshiram Gunjal moved the abovesaid application under section 70(b) of the Act for a declaration that the petitioner was not a tenant on the field in question. While making the application, which is on record, it is seen that the respondent-landlord did make a reference to the earlier application, dated 8-9-1976, on the basis of which much hue and cry was tried to be made on behalf of the petitioner-tenant, to which I will make a reference in the subsequent paragraphs of the judgment.
2. The abovesaid application was registered as Case No. TNC/7013/Daithana-Gunjal (which is hereinafter referred to as ‘the village concerned’ for the purposes of convenience). On notice, necessary evidence was recorded by the learned Additional Tahsildar and on having considered the evidence and documents on record, reached to the conclusion that the application made by the respondent-landlord was liable to be allowed declaring that the petitioner-tenant could not be declared as a tenant on the field in question.
3. Dissatisfied with the judgment given by the Additional Tahsildar, the petitioner-tenant approached before the Sub-Divisional Officer, Parner Division, Ahmednagar, by way of an appeal, which was registered as Tenancy Appeal No. 41/80 and the Appellate Authority disagreeing with the finding arrived at by the additional Tahsildar and after appreciating the evidence on record, reached to the conclusion that the Additional Tahsildar was not justified in holding that the petitioner was not a tenant on the field in question. The Appellate Authority, therefore, set aside the order, passed by the Additional Tahsildar and declared that the present petitioner happened to be a tenant on the field in question. Thereafter, naturally it was the turn of the landlord to approach before the Maharashtra Revenue Tribunal against the judgment of the Appellate Authority. The Revision preferred by the landlord before the Maharashtra Revenue Tribunal came to be decided on 23rd January, 1984 and the learned Member of the Maharashtra Revenue Tribunal, Pune set aside the order of the Appellate Authority, restoring the order passed by the Additional Tahsildar with a finding that the present petitioner was not a tenant on the field in question. It is now the unsuccessful alleged tenant, who has approached this Court by way of present writ petition assailing the order of the Maharashtra Revenue Tribunal on various grounds, and the main amongst them being, the original application under section 70(b) of the Act could not be said to be maintainable at the instance of the landlord and further that the declaration as is sought by the landlord could be said to be in the negative nature and such a negative declaration could not be granted by the Authority below under section 70(b) of the Act.
4. Advocate Shri C.V. Korhalkar, appearing on behalf of the petitioner has argued that the Authority below did commit an error in granting the declaration and, therefore, according to him, since it was not well within the jurisdiction of the Authority concerned, the said declaration could be said to be totally ineffective, nor could the said order in any manner be executed and, according to him, an order which cannot be executed, could not have been passed by the Revenue Authorities. The sum and substance of his argument on this point is that the application itself was not maintainable and naturally the declaration in pursuance of such an application is null and void, rather it is nullity. I am afraid if this argument can be accepted and I find it difficult myself to agree with the contentions raised by the learned Counsel for the petitioner. The learned Counsel for the petitioner took me through the provisions of section 70(b) of the Act and pointed out that section 70(b) of the Act only says that it is the duty of the Mamlatdar, “to decide whether (a) (person is or was at any time in the past a tenant) or a protected tenant (or a permanent tenant)”. According to the learned Counsel, the only declaration could be given under section 70(b) of the Act is that to say whether a person is or was a tenant, and according to the learned Counsel, it was not open for the Authority below to declare that a particular person was not a tenant. The interpretation, which is tried to be made of this provision by the learned Counsel for the petitioner really appear to be strange. Section 70(b) of the Act when grants power to the Authority concerned to declare a particular person to be a tenant, according to me, it also includes the power to declare that a particular person is not a tenant. The contention of the learned Counsel for the petitioner that negative declaration could not be given or that the Authority had no power to give such a negative declaration is very hard to conceive. I do find that no illegality whatsoever is committed by the Authorities below in granting such a negative declaration or to the effect that the petitioner is not or was not the tenant on the field in question.
5. Shri C.K. Shinde, learned advocate appearing on behalf of the respondent-landlord, while replying the argument of the petitioner, pointed out that there was no prohibition whatsoever in giving such declaration under any of the provisions of the relevant Act. Shri Shinde also brought to my notice two decisions, wherein it is held that a declaration in the negative form could be given by the Revenue Authorities. The first decision cited by Shri Shinde is the decision given by this Court in Special Civil Application No. 1890/65, decided on 10-2-70 by the Single Judge of this Court in the matter of (Balwant Jadhav v. V.P. Kulkarni, 1. This was a matter, wherein a point arose as to whether the provisions of Tenancy Act were applicable to a particular field or not and in the said proceeding, an application was made under section 70(b) of the Act, for declaration that the Land Survey No. 483, measuring 14 acres and 13 gunthas should be declared to be not governed by the provisions of the Tenancy Act. While discussing the point, His Lordship of the High Court, who dealt with the matter, as he then was, held that it was open for the Revenue Authority to entertain an application under section 70(b) of the Act for an appropriate declaration. I am in full agreement with the observations of His Lordship given in the abovesaid judgment and I do not find any difficulty in observing that section 70(b) of the Act do confer jurisdiction on the Revenue Authority to give a declaration in the negative form also.
6. The next point argued by the learned Counsel Shri Korhalkar for the petitioner is that the petitioner was in cultivating possession of the field in question right from the year 1961-62 to 1966-67, wherein he has been shown to be in cultivating possession as a tenant. This position is not disputed by the learned advocate Shri Shinde for the respondent-landlord also. As according to him, the record do contain evidence to that effect. The learned Counsel for the petitioner further tried to show that though for the rest of the years he is not shown to be in cultivating possession as a tenant, however, his name appeared in the entries in 7/12 extract indicating that the mode of cultivation by the petitioner-tenant was mode No. 1. It is argued that there are three modes or methods of cultivation and which are generally known by its numbers i.e. mode Nos. 1, 2 and 3. The petitioner has clarified this position showing that mode No. 1 is a mode of cultivation by the person concerned in his capacity as a owner thereof and the mode of cultivation is personally. Mode No. 2 is said to be a method of cultivation by the landlord through his servant and mode No. 3 is the method of cultivation by a person in his capacity as a tenant. In the instant case, the learned Counsel for the petitioner has tried to show that even for the years 1986-87 to 1994-95 he has been shown to be in cultivating possession, however, not as a tenant, but by mode No. 1 i.e. as if he was the owner of the field in question. At this juncture only, I would like to observe that the entry of 7/12 extract, which is tried to be shown before this Court, could not have been shown before the Authorities below, naturally for the simple reason that these documents were not in existence at that time. So I do not take these documents into consideration for any purposes, much less when there is no application on behalf of the petitioner-tenant for taking into consideration the subsequent events. Even if that would have been made, these events were not liable to be taken into consideration at all. A pointed question was put to the learned Counsel for the petitioner-tenant that as to whether was there any evidence on the record to show that the petitioner-alleged tenant was in cultivating possession of the field in question as a tenant in between the period 1967-68 to 1978-79 and a specific reply to this question was that the record was otherwise. However, the Counsel for the petitioner tried to explain, though not in the capacity as a tenant, in some capacity or the other the name of the petitioner appeared on the record as regards field in question. The learned Counsel for the petitioner tried to argue that it could be presumed that he was a tenant on the field in question. I do not hesitate to say that this argument of the learned Counsel is absolutely unfounded. Before the learned Additional Tahsildar, in his deposition, the petitioner-tenant was not even definite as to what stand he should take and in that confused state of mind, it is clear from the record that the petitioner-tenant tried to show that he was a tenant on the field in question in pursuance of the contract between himself and the landlord. In support of this, he deposed that there was a contract between himself and the landlord in the nature of payments of lease-money at the rate of Rs. 25/- and that too yearly. At the same time, he tried to depose that there was a contract in the nature that the tenant would give half the produce to the respondent-landlord in lieu of his cultivation as a tenant thereon. The third story, which the petitioner tried to put before the Revenue Authority was that there was an agreement of sale between himself and the respondent-landlord and in pursuance of this contract he had already paid Rs. 5,000/- to the respondent-landlord. Shri Korhalkar, the learned Counsel for the petitioner tried hard to convince that in any case the first two stories definitely lead to the conclusion that he was a tenant on the field in question. The learned Additional Tahsildar, who dealt with the matter, rightly discussed the evidence on record and has observed that the petitioner-alleged tenant has totally failed to make out the case of tenancy and simultaneously totally failed to prove that he was a tenant on the field in question. The record do indicate that but for this bare statements as regards the contract of tenancy, no evidence, muchless cogent is produced by the petitioner-tenant in support of his story. Needless to mention that this story appear to be totally concocted one and developed just to suit the interest of the petitioner. The learned Tahsildar, who dealt with the matter, rightly observed that the petitioner was not a tenant on the field in question. The learned Member of the Maharashtra Revenue Tribunal also is justified in reversing the order of the Appellate Authority and confirming the order of the Tahsildar.
7. It would not be proper to skip over the observations made by the learned Appellate Authority, who held in favour of the petitioner-alleged tenant. The learned Counsel for the petitioner has tried to rely on the observations made by the Appellate Authority i.e. Sub-Divisional Officer, Parner. The Counsel for the petitioner Shri Korhalkar invited my attention to page 14 of the paper book, wherein the learned Sub-Divisional Officer has observed that Rama-petitioner did produce extract of 7/12 for the years 1955-56 to 1975-76, in which the name of Rama-petitioner is shown as a tenant for the years 1961-62 to 1966-67 under mode No. 3 and for the years 1967-68 to 1975-76 under mode No. 1. The learned Sub-Divisional Officer further observed that the respondent-landlord failed to show that he cultivated the land personally and further observed that the respondent-landlord resided about 15 miles away from where the field is situated. On the basis of this, the learned Sub-Divisional Officer observed that in any case the petitioner was in cultivating possession of the field in question and so he could be declared to be a tenant on the field in question. The observations and the reasonings given by the Sub-Divisional Officer to reach to the conclusion that the petitioner was a tenant on the field in question are absolutely cryptic. The learned Sub-Divisional Officer further tried to rely on the provision of sub-section (18) of section 2 of the Act, which is a definition clause, and on the basis of the same, with the help of Clause (b) of section 4, the learned Sub-Divisional Officer reached to the conclusion that the petitioner was a tenant on the field in question. The learned Sub-Divisional Officer, just referred to the definition clause, which defines the word ‘tenant’. However, he tried to take help to demonstrate that the petitioner was a tenant under section 4(b) of the Act observing that the petitioner was giving crop share to the respondent-landlord. The learned Sub-Divisional Officer while dealing with the case, failed in appreciating properly the evidence on the record, particularly when there was nothing to show that the petitioner was cultivating the land on the alleged contract or understanding, to which he made a reference in his deposition. It is already observed that the petitioner totally failed to show that he was paying the lease money or any rent as agreed at the rate of Rs. 25/-. He has failed to show that he was giving crop share to the landlord. He has also failed to develop and prove his case of the alleged sale at Rs. 5,000/-. In spite of these facts on record, the learned Sub-Divisional Officer simply, on the basis of definition clause and section 4(b) of the Act, just declared the petitioner as a tenant on the field in question and the learned Member of the Maharashtra Revenue Tribunal was, therefore, justified in reversing the order passed by the Sub-Divisional Officer and simultaneously restoring that of the Additional Tahsildar.
8. Shri Korhalkar, the learned Counsel for the petitioner then argued that it was for the respondent-landlord to prove that the petitioner was not the tenant and according to him, landlord failed to prove his case. Shri Korhalkar further pointed out that, in his deposition, the landlord did admit that he knew since last about 15 years the name of the petitioner was recorded in the revenue records in relation to the field in question. Taking the advantage of this statement, Shri Korhalkar further argued that if at all the petitioner was in no way concerned with the land in question, muchless as a tenant, why did the respondent-landlord kept silent all these years. Shri Korhalkar, therefore, tried to suggest that silence on the part of the landlord for all these years is nothing but acceptance of the case of the petitioner-tenant by the landlord, rather according to Shri Korhalkar, it was with the consent of the landlord that his name continued for all these years on record.
9. Shri Shinde, the learned Counsel for the respondent-landlord while replying the argument of the petitioner pointed out that there appeared to be a close relationship between the petitioner and the respondent-landlord. In fact, from the record, it is clear that the petitioner and the respondent are cousins. It is also pointed out by Shri Shinde, the learned Counsel for the respondent that the field of the petitioner is towards the north side adjacent to the field of the respondent-landlord and that initially there was no occasion for the respondent-landlord to entertain any doubt about the bona fides of his cousin. However, when the respondent-landlord realised that undue advantage of his absence was being taken by the cousin, he had no other alternative than to make necessary application before the Authority concerned for correcting the entries in the revenue record, which he initially filed in the year 1976. Shri Shinde further pointed out that the matter had taken ugly shape when the petitioner tried to interfere in cultivating possession of the respondent-landlord. Shri Shinde, therefore, tried to contend and brought to my notice that there was a civil litigation between them, vide Regular Civil Suit No. 137/75, which was initiated by Vithal alias Vithoba and he was required to obtain injunction against the petitioner. A passing reference is made by Shri Shinde to this litigation and the learned Counsel for the petitioner could not dispute the same, though the learned Counsel for the petitioner further pointed out that subsequently the injunction was vacated. Not only this, the learned Counsel for the petitioner pointed out that there was an appeal in that matter, which ultimately came to be dismissed. However, both the Counsel before me are unable to say as to at what stage the said proceedings are pending. However, the order-sheet, dated 17-8-1984 on this file indicates that the said civil proceedings have been stayed by this Court by the abovesaid order. However, nothing turns on the same as it was just pointed out by Shri Shinde to show that as to why the respondent-landlord did not immediately proceed against the petitioner. The learned Counsel Shri Korhalkar further tried to rely on two judgments, and the other one reported in 32 Bom.L.R. 368, in the case of Vishwa Vijay Bharati v. Fakhrul Hassan and others, and Gangabai Baswantrao Desai v. Fakirgowda Somappagowda Desai, respectively, in support of his contention that the entries in the revenue record have a presumptive value and are presumed to be correct unless rebutted. There cannot be two opinions about this proposition. However, the question is when the revenue record does not indicate the name of the petitioner as a tenant during the relevant period and when the name of the petitioner is indicated nowhere, then exactly what the petitioner is claiming and could in such a case, the revenue entries be held to be true and correct. Statement made by the landlord-respondent, in his deposition, ‘that the tenant in connivance with the revenue officers got recorded his name in the revenue record’, was the sentence which instigated the learned Counsel for the petitioner to argue this point that the entries are true and correct unless rebutted. The question to be considered is that, is the name of the petitioner shown as a tenant constantly except for the period 1961-62 to 1966-67, though the name of the petitioner is shown in the revenue record not as a tenant but in other capacity, could it be said that was the conclusive proof for reaching to the conclusion that the petitioner was a tenant on the field in question. As observed above, there could not be two opinions as regards the proposition of the presumptive value of the revenue record. However, in the instant petition the facts are otherwise and hence the question of holding the petitioner as tenant on the field in question simply on the basis of those documents for the years 1961-62 to 1966-67, cannot be accepted. Shri Korhalkar further tried to rely on the judgment of Gangabai v. Fakirgowda, referred to above and he relied on this judgment in support of his contention again as regards the presumptive value and presumption of correctness in the revenue record. I do not feel that the abovesaid two judgments are of any help to the petitioner, particularly in view of the facts of the present case.
10. Shri Shinde, the learned Counsel for the respondent has brought to my notice a judgment reported in 1993 Mah.L.R. Pg. 821, in the case of Mohammad Yusuf Haji Amir v. Smt. Kusumbai Gangasagar Tiwari. Shri Shinde, in support of his contention that the entry in the extract of 7/12 could not be considered as a sufficient evidence to establish tenancy, has tried to take the advantage of this judgment. I have no hesitation in accepting the contention of Shri Shinde that merely because the 7/12 extract indicates the name of the person, it does not confer any tenancy rights to show that the tenant is in possession. It is not a sufficient or conclusive evidence to establish the tenancy of a party claiming the same.
11. In view of the observations, the present petition deserves to be dismissed and the same is accordingly dismissed. Rule is discharged. Needless to mention that the interim order stands vacated. However, in the circumstances of the case, no order as to costs.
