JUDGMENT
A.M. Khanwilkar, J.
1. This writ petition takes exception to the
order passed by the Maharashtra Revenue Tribunal,
Pune dated June 30, 1986 in Revision
No. MRT.SH.II.1/86 (TEN 8 /36/85) Pune.
2. Briefly stated, the land bearing Gat Nos. 830,
824 and 807 situated at village Kini, Taluka
Akkalkot, District Solapur was owned by
Sangabassappa Manikshetty. Some time in the year
1941, the said Sanmgabassappa Manikshetty by his
Will created a public trust in respect of the
subject property and also provided maintenance to
her widow Nillawabai from the income of the said
land of the trust. The said Sangabassappa
Manikshetty however, leased out the suit land to
one Shivlingappa viz. father of the Respondent
Nos. 1 and 2 and husband of Respondent No. 3 herein
in the year 1950-51. It has come on record that
in the Village Record mutation entry has been
mae on 15-2-1954 to indicate that the subject
property is a trust property. The said
Sangabassappa Manikshetty however, expired on
3-11-1995, leaving behind widow Nillawabai.
Under the Will executed by him, Nillawabai was to
get maintenance. The parties, however, have
proceeded on the premise that Nillawabai became
the landlady after the demise of the husband
Sangabassappa Manikshetty. The matter has been
examined in that perspective. Be that as it may,
it is Respondents’ case that the said Nillawabai
dispossessed Shivlingappa, their predecessor in
title from the suit lands in the year 1956 which
is before the tiller’s day i.e. 1-4-1957. In
the circumstances, Shivlingappa had filed
application under Section 29(i) for restoration
of possession of the suit land in which an
exparte order was passed in favour of said
Shivlingappa directing handing over possession of
the suit lands to him. Against the said decision
Nillawabai had filed an appeal in which both
Nillawabai and Shivlingappa entered into
compromise whereunder it was agreed between the
parties that Nillawabai would retain possession
of the suit land. This compromise has been
recorded on 29-6-1959. However, soon thereafter
Nillawabai expired on 15-7-1967. The said
Shivlingappa predecessor of the Respondents filed
Tenancy Case under Section 32 1B of the Act
before the Tahasildar for restoration of
possession. This application is undoubtedly
filed against the predecessor of the trustees
which was created by deceased Sangabassappa
Manikshetti in respect of the suit land. The
Tahasildar after adjudication of the matter by
order dated 31-10-1973, allowed the application
filed by the said Shivlingappa and ordered
restoration of possession of the suit lands.
Pursuant to this order, the said Shivlingappa is
stated to have been put in possession of the suit
lands, as is seen from the mutation entry.
However, being dissatisfied by the above said
order, the trustees preferred an appeal before
the S.D.O. Solapur, which appeal was however
dismissed on 5-6-1974. Consequently the trustees
took up the matter in revision before the M.R.T.,
Pune bearing No. 290/1974. The Revisional
authority allowed the said revision preferred by
the trustees and was pleased to quash the
proceedings initiated by Shivlingappa under
Section 32 1B of the Act. It is not in dispute
that this order passed by the Tribunal, negating
the claim of restoration of possession set up by
Shivlingappa, has attained finality, as the same
has gone unchallenged. The predecessor of the
Respondent in that sense suffered the said order
during his life time. The said Shivlingappa died
on 12-9-1975. The record indicates that
Tahasildar fixed rent in respect of the suit land
some time on 19-12-1975. Taking clue from this
development, the Respondent Nos. 1 and 2 filed
tenancy Case No. 6 of 1980 under Section 70(b) of
the Act in the year 1980 before the Additional
Tahasildar, Akkalkot asserting that they are
tenants. The application does not specifically
set out as to whether the tenancy is claimed
prior to the tiller’s day or on the basis of
possession obtained by Shivlingappa, their
predecessor, in the year 1973. Be that as it
may, the said application was allowed by the
Tahasildar on 16-9-1980. The Tahasildar held
that the Respondents were tenants in respect of
the suit lands. Against this decision, the
trustees preferred an appeal before the S.D.O.
Solapur, being Tenancy Appeal No. 14 of 1981. The
said appeal was allowed by the S.D.O. Solapur by
judgment and order dated 5-6-1982. In this
decision the S.D.O. has opined that the amount
received by the trustees from the Respondents was
not towards rent but as mesne profits. The
matter was carried in appeal by the Respondents.
The appellate authority by its order however,
remanded the case for fresh enquiry in terms of
the observations made in the said order dated
5-6-1982. Accordingly, the matter was reexamined
by the Tahasildar. The Tahasildar after
reexamining the rival case, by order dated
12-9-1983 has held that the Respondents were not
cultivating the lands personally as they were
working in Panchayat Samiti as peons. The
Tahasildar further held that they got the lands
cultivated through the labourers. In the
circumstances, the Tahasildar held that the
Respondents were not tenants and were not
entitled for declaration in that behalf under
Section 70(b) of the Act. Against this decision
the Respondents carried the matter in appeal
being Tenancy Case No. 50 of 1983 before the
S.D.O. However, it is relevant to point out that
the Petitioners are relying on possession receipt
by Talathi Kini mentioning that Gat Nos. 507, 830
and 824 have been taken over and handed over to
the trustees. (Kabje pavati is also part of
record). The appeal preferred by the Respondent
was however allowed by the Assistant Collector,
Solapur Division, Solapur by order dated dated
October 31, 1984. The Appellate authority placed
reliance on the mutation entry in respect of the
suit lands pertaining to the year 1973 indicating
that the possession of the suit land was handed
over to the tenants. The Appellate Court has
also adverted to the receipt produced by the
tenants for the year 1976-77 that the trustees
accepted the amount by way of rent of the suit
land. The Appellate Court further took into
account that the trust has not obtained any
certificate under Section 88B of the Act, and,
therefore, rights of tenant which had
crystallized cannot be taken away. Consistent
with these observations, the Appellate authority
allowed the appeal and declared that the
Respondents were tenants in the suit land. The
Petitioners being dissatisfied by the said order,
filed revision application before the M.R.T.
Pune. The Tribunal has more or less toed the
same line of reasoning given by the appellate
authority for dismissing the revision preferred
by the Petitioners. It is against this decision
the present writ petition under Article 227 has
been filed by the Petitioners.
3. The first contention raised is that the
original tenant having entered into compromise
with Nillawabai, it was not open for his
successors to assert that they still continued to
be tenants in respect of the suit lands claiming
through the original tenant. It is contended
that undisputedly the original tenant
Shivlingappa was dispossessed prior to the
tiller’s day and that in the proceedings for
restoration of possession the said Shivlingappa
and Nillawabai, who was accepted to be landlady,
entered into a compromise, and that compromise
having gone unchallenged by him or for that
matter by his successors, would be binding on
them and denude the Respondents to claim that the
original tenant was in possession of the suit
lands on the tiller’s day. It is further
contended that in any case the original tenant
had taken recourse to the proceedings under
Section 32 1B of the Act and which proceedings
were evidentially rejected by the revisional
authority and that order has become final. It is
therefore, contended that the relief for
restoration of possession at the instance of the
original tenant having been rejected and having
attained finality, the Respondents who are the
successors of the original tenant cannot assert
tenancy rights in respect of the suit land. It
is contended that mere factum of possession would
be of no avail to the Respondents, assuming the
same is sought to be established on the basis of
mutation entry. The learned Counsel has further
contended that the receipts issued by the trust
by itself cannot create tenancy in favour of the
Respondents. It is contended that in the
application filed before the authorities below,
the Respondents have come with a positive plea
that they were claiming tenancy through their
predecessor Shivlingallpa. In the circumstances,
according to the petitioners, the present
proceedings were nothing but abuse of process
especially when the earlier proceedings had
attained finality and were binding on the
Respondents who were successors in interest or
the original tenant.
4. Mr. Katikar for the Respondents contends
that there is no infirmity in the view taken by
the Appellate Court and as confirmed by the
Revisional Court. According to him this is not a
matter which warrants interference under Article
227 of the Constitution of India. He submits
that the mutation entry pertaining to the year
1973 clearly indicates that the tenant was put in
possession of the suit lands. The original
tenant Shivlingappa was undoubtedly shown as
tenant in the year 1950-51 by virtue of lease
issued by the original owner Sangabassappa
Manikshetti. It is therefore contended that
tenancy would relate back prior to the tiller’s
day and therefore the Respondents being his
successors in interest will have to be declared
as tenants in exercise of power under Section 70b
of the Act. He has also placed reliance on the
factum that tenancy authority had fixed rent in
respect of the suit land in the year 1975.
According to him, this order has attained
finality and was not challenged by the trustees.
He has also placed strong reliance on the
receipts issued by the trust clearly accepting
the Respondents as tenants. Besides the receipt,
he has also referred to observations made by the
Courts below relating to the admission of one of
the trustees that the Respondents were tenants.
According to him, therefore, in such a situation
no fault can be found with the courts below for
having recorded finding of fact that the
Respondents were tenants in respect of the suit
land and therefore the present writ petition was
devoid of merits.
5. Having heard the rival submissions, in my
opinion, the Courts below have completely
misdirected themselves in enquiring into the
matter having regard to the admitted facts on
record. From the facts which have gone
unchallenged are that, after the demise of
Sangabassappa parties proceeded with clear
understanding that Nillawabai had become the
landlady and since she was widow she was disabled
landlady within the meaning of Section 32F of the
Act. Besides, it transpires from the record that
the original tenants Shivlingappa was dispossessed
by Nillawabai in 1956 and that Shivlingappa took recourse
to proceedings for restoration of possession
before the tenancy authorities. In the said
proceedings, however, Shivlingappa compromised
with Nillawabai on 29-6-1959 and pursuant to the
said compromise , the said Nillawabai continued to
remain in possession of the suit lands. The fact
remains, therefore, that since 1956 when
Shivlingappa came to the dispossessed till the
life time of Nillawabai upto 15-7-1967, she
occupied and enjoyed the suit land and that
Shivlingappa was not in possession thereof.
However, it is only after the demise of
Nillawabai, Shivlingappa instituted proceedings
under Section 32 1B for restoration of possession,
in the year 1970. This proceedings also came to
be dismissed by virtue of order passed by M.R.T.
on 5-6-1974. It is not in dispute that the said
order has attained finality as the same was never
challenged by the said Shivlingappa during his
life time. It is also matter of record that even
the Respondents have not challenged the said
order dated 5-6-1974 passed by the Tribunal. The
position that emerges from this situation is that
Shivlingappa, though was inducted as a tenant in
the year 1950, but came to be dispossessed before
the tiller’s day and that he was not in
possession atleast till 31-10-1973 when the
Tahasildar had passed order directing restoration
of possession on his application under Section 32
1B of the Act. The fact remains however, that
the said proceedings under Section 32 1B have
been eventually rejected by the Tribunal. To put
it differently, possession obtained by
Shivlingappa in the said proceedings pursuant to
the order passed by the first authority would be
of no consequence for examining the claim with
regard to the plea of tenancy set up by the
Respondents. The said Shivlingappa original
tenant, however, obtained possession of the suit
lands in the year 1973 only on the basis of the
order passed by the first authority which came to
be annulled by the revisional authority and which
decision has attained finality. The fact which
has now been brought to the notice of this Court
is that pursuant to the order passed by the
Tribunal dated 5-6-1974 the Talathi Kini has
handed over possession of the suit land to the
trustees petitioners herein. Assuming that the
Respondents are still in possession, that would
not materially affect the decision making process
in the present case – inasmuch as in the present
case the Respondents have approached the tenancy
authorities for declaration that they were the
tenants. Such proceedings, to my mind, would be
unavailable to the Respondents in the light of
the fact that their predecessor had entered into
compromise, which has gone unchallenged by their
predecessor during his life time. As seen
earlier, compromise was arrived on 29-6-1959 and
Shivlingallpa died as late as on 12-9-1975. At
no point of time Shivlingappa challenged the said
compromise nor did he take any steps to challenge
the said compromise. No doubt Shivlingappa had
filed application under Section 32 1B of the Act
for restoration, as is seen from the record that
application has been dismissed by the revisional
authority by order dated 5-6-1974. If this be
so, the consequence is that there is no order in
favour of Shivlingappa for restoration of
possession. The fact that he obtained possession
pursuant to the order passed by the first
authority in proceedings under Section 32 1B
would be of no avail for deciding the issue that
arises for consideration. The Respondents could
have successful in claiming to be tenants in
respect of the suit land provided it was possible
to establish that the said Shivlingappa was in
possession on the tiller’s day and in any case he
was put in possession by court of competent
jurisdiction pursuant to a valid order for
restoration of possession passed under Section 32
1B of the Act. Understood thus, it is not
possible to countenance the argument that the
right of Shivlingappa to claim that he continued
to be tenant in respect of the suit land
subsisted merely because he was put back in
possession in October 1973. If the predecessor
of the Respondents had no right to continue in
the suit lands as tenant, much less as deemed
purchaser, then, surely the Respondents cannot
claim better title then their predecessor. It is
not in dispute that the application filed before
the first authority by the Respondents is clearly
on the basis that they were claiming tenancy in
respect of the suit land through their
predecessor, the original tenant Shivlingappa.
This crucial aspect of the matter has been
glossed over by the authorities below and that
they have proceeded to examine the matter on the
basis of some subsequent records which have come
on record. Once the order passed by the tenancy
authority under Section 32 1B directing
restoration of possession to the original tenant
Shivlingappa is reversed and the application
stands rejected by the superior authority, then
it is not possible to permit the Respondents to
fall back upon the factum of original tenant
having been put in possession pursuant to such
order in the year 1973. In that sense, the
mutation entry would be of no consequence to
decide the controversy that arises in the present
case. Be that as it may, the fact that the
tenancy authority had fixed rent in respect of
the suit land sin the year 1975 and which has
gone unchallenged would again be of no
consequence. In any case such event by itself
cannot create any right of tenancy in respect of
the suit land in favour of the Respondents. We
have already noted that the Respondents are not
claiming to be tenants in their own rights, but
are claiming to be tenants through their
predecessor Shivlingappa, which is evident from
the application preferred by them before the
first authority. If this be so, then the matter
will have to be examined only in that perspective
and if it is found that the Shivlingappa did not
continue to be the tenant, then surely the
Respondents cannot permitted to claim higher
title than what was possessed by their
predecessor Shivlingappa himself. Much reliance
was placed by Mr. Katikar on the receipt issued by
the trustees in favour of Respondents accepting
them to be tenants. It is not the case of the
Respondents that they were induced as tenants
after the tiller’s day or that they were claiming
tenancy in their own rights. The receipts issued
by the trust would therefore be of no avail. As
rightly observed by the lower authority, that
receipt cannot be treated as rent receipts as
such.
6. In the present case however, as observed
above, the Respondents claim to be tenants
through their predecessor – Shivlingappa. The
parties however, proceeded before the authorities
on the premises that after the death of
Sangabassappa Manikshetti his widow Nillawabai
became the landlady. The authorities below have
also adverted to this aspect while observing that
since the landlady was widow on the tiller’s day
i.e. 1-4-1957, by virtue of provisions of
Section 32 1A to 1F, stood
postpone. In this context it needs to be
observed that if the Respondents proceed on the
premise that Nillawabai had become the landlady,
then surely it was obligatory on the part of the
original tenant Shivlingappa to give intimation
regarding his intention to purchase the suit land
within the statutory period provided under
Section 32F of the Act. In this case it is
common ground that no such intimation was given
by the said Shivlingappa, the predecessor in
title of the Respondents. The consequence of
such failure is that the sale would become
ineffective. In which case it will be open to
the landlords to recover possession of the suit
lands by taking recourse to provisions under
Section 32P of the Act. On the other hand, if it
proceeds on the premise, as was attempted to be
argued on behalf of the Respondents that, the
Respondents were put in possession in the year
1973, then they were tenants inducted after the
tiller’s day i.e. 1-4-1957. If this be so, then
by virtue of Section 32 O of the Act, the
Respondents were obliged to give intimation
regarding their intention to purchase the suit
lands within the statutory period. It is common
ground that even such intimation has not been
given by the original tenant or for that matter
the Respondents at any point of time. The
consequence of such failure is also provided in
Section 32 O that the sale becomes ineffective.
Even in that case the Respondents cannot be said
to have become deemed purchasers. Taking any
view of the matter, in my view, both the Courts
below wholly misdirected in issuing declaration
in favour of the Respondents that they are
tenants in respect of the suit lands. On the
other hand, I am disposed to restore the order
passed by the first authority, after remand, in
rejecting the application dated 12-9-1983, for
the above said reasons. In my view, the
proceedings regarding declaration of tenancy in
favour of the Respondents are wholly ill advised.
Assuming that the Respondents may be justified in
contending that they are in possession, which
claim is however falsified by the possession receipt
issued in the year 1983, as referred to above,
which is already part of the record; the
possession in the first place would not be
one as tenant within the meaning of the
provisions of the Act of 1948. In any case,
since the Respondents have failed to give
intimation within the statutory period of their
intention to purchase the suit lands they would
be denuded of their right in this behalf and for
which reason the consequences as provided under
Section 32 O or 32 P for the purchase having
become ineffective would follow. In such a
situation, no fruitful purpose would be served by
adjudicating the issue as to whether the
Respondents were tenants as contended. However,
I have already held as stated above that the
Respondents cannot be said to be tenants.
7. In the circumstances, this writ petition
succeeds. Orders passed by the Tribunal dated
June 30, 1986 and the order dated October 31st
1984 are set aside and instead the order passed
by the Additional Tahasildar and A.L.T. Akkalkot
dated September 12, 1983 is restored. Writ
petition is allowed in the above terms. No order
as to costs.
Certified copy expedited.