ORDER
S.S. Nijjar, J.
1. This petition under Article 227 of the Constitution of India has been filed with a prayer for quashing the order passed by the Maharashtra Revenue Tribunal in Revision Application No. M.R.T.-SH-X-6/81 (TEN.B. 334/81) dated 27-1-1988 and to restore the order dated 18th August, 1981 of the Special Deputy Collector, Tenancy Appeals and Special Land Acquisition Officer No. IV. Karmala in Tenancy Appeal No. 26 of 1977 confirming the order dated 17-2-1997 of the Tahsildar, Karmala in Court reference No. 9 of 1973.
2. The petitioner has filed a Civil Suit No. 251 of 1970 against the respondents in the Court of Civil Judge, Senior Division, Solapur in respect of the agricultural land bearing Gat No. 126 situate at village Wangi, Tal. Karmala, hereinafter referred to as
“the suit land”. It is stated by the petitioner that respondent Nos. 2 and 3 are the owners of the suit land. Respondent Nos. 2 and 3 were the Kartas of the family. On 8th April, 1958 respondent Nos. 2 and 3 executed a Sathe Khat in favour of respondent No. 1. By virtue of this Sathe Khat respondent No. 1 took possession of the suit land. The Sathe Khat (agreement for sale) is registered. Mutation Entry No. 2348 was made in the Revenue Record on 14th July, 1959 wherein respondent No. 1 is shown as tenant. This entry has been certified on 6th September, 1962. Thereafter Mutation Entry No. 2631 was recorded in the Revenue Records on 1-11-1964 which was certified on 18-11 -64. This mutation entry records that respondent No. 1 has been put in possession of the suit land on the basis of the Sathe Khat. In the Civil Suit respondent No. 1 took a plea that the Sathe Khat was made for legal necessity. As an alternative plea it was stated that he is a tenant on the suit land. In view of this plea taken by the respondent No. 1, Reference was made under section 85-A read with section 70(b) of the Bombay Tenancy and Agricuitural Lands Act, 1948, hereinafter referred to as “the Act”, to the Revenue Court. In the said reference an issue was framed to the effect “Does the defendant prove that he is a tenant of the suit land Gat No. 126 of the village Wangi, Tal. Karmala since 1958-59?” Accordingly notices were issued to both the parties and their statements were recorded. After considering all the evidence the Tahsildar Karmala decided the reference on 17th Feb. 1977 holding that respondent No. 1 is not a tenant on the suit land. Before arriving at the said conclusion the Tahsildar took note of the statement made by the respondent No, 1 to the effect that the suit lands was owned by respondent Nos. 2 and 3 and it was taken possession of by respondent No. 1 as tenant since 1958-59. Respondent No. 1 also produced extract of V.F. 7/12 in respect of the suit land showing that his name has been shown as a tenant in the Kul and Khand column. He also produced the extract of Mutation Entry No. 2348 in which his name had been entered as tenant from the year 1958-59. The Tahsildar also notices that in his cross-examination respondent No. 1 has deposed that no rent note was executed in the matter. He came in possession of the land by Sathe Khat dated 8th April, 1958. He also admitted that he has not paid any rent to the landlord. Respondent No. 1 also produced the extract of Mutation Entry No. 2631 dated 1-11-64 which showed that he came in possession of the land by Sathe Khat dated 8-4-58. It was further stated by respondent No. 1 that at first the land was leased out to him and the Sathe Khat was executed after 8 days. The petitioner had produced photo copy of the registered Sathe Khat. On perusal of the said Sathe Khat the Tahsildar came to the conclusion that the said document does not mention that the suit land was in possession of respondent No. 1 as tenant on the date of execution of Sathe Khat. On the contrary, the wording of Sathe Khat shows that the land was given in the possession of respondent No. 1 by respondent Nos. 2 and 3 with an agreement to sell the same and not for cultivation as a tenant. Statement of respondent No. 2 was also recorded in which he had stated that the land was never leased out by him to respondent No. 1 as a tenant. It is stated that the possession was given on the basis of Sathe Khat with the understanding to sell the same. The Tahsildar also notices that respondent Nos. 2 and 3 are not the sole owners of the land. The petitioners are also joint owners of the land. Respondent Nos. 2 and 3 admitted that they are owners of the land. Tahsildar, however, rightly held that the said Court has not to go into the details as to whether they are sole owners or the co-owners of the land. On the basis of the above the Tahsildar held that respondent No. 1 is in the possession of the suit land by Sathe Khat and not by lease deed. An argument was raised by the Counsel for respondent No. 1 to the effect that
he is a deemed tenant by virtue of provisions of section 4 of the Act. This argument was rejected on the ground that although respondent No. 1 holds land lawfully he is not holding it on lease. Hence he cannot be held to be holding land as a tenant.
3. Aggrieved against this order respondent No. 1 filed an appeal before the Deputy Collector. The said appeal has also been dismissed by an order dated 18th August, 1981. After considering the evidence the Appellate Court holds that according to section 2 sub-section (18), tenant means a person who holds land on lease and includes a person who is deemed to be a tenant under section 4 of the Act. According to section 4 of the Act, a person lawfully cultivating the land belonging to another person shall be deemed to be a tenant. The Appellate Court has held that respondent No. 1 cannot be held to be a tenant as he had admitted in the cross-examination dated 10-2-75 that he is cultivating the suit land due to Sathe Khat. In the body of the Sathe Khat it is mentioned that the possession of the suit land is delivered to respondent No. 1 on the day of Sathe Khat. This fact of possession is also supported by Mutation Entry No. 2631 dated 1-11-64 which has been duly certified on 18-11-64. Even the witness Shri Kalyanrao Janardhan Jadhav who was examined by respondent No. 1 stated that respondent No. 1 is Wahiwating the land as owner since last 18 to 19 years. The respondent failed to produce any evidence in respect of the rent receipts or lease period. The Appellate Court, therefore, held that in the absence of such important evidence, respondent No. 1 cannot be called a tenant of the suit land. It is held that the respondent No. 1 has totally failed to establish his claim as tenant. Thus the order passed by the Tahsildar has been upheld.
4. Aggrieved against the aforesaid order, respondent No. 1 approached the Maharashtra Revenue Tribunal, hereinafter referred to as “the M.R.T.”, by way of revision application. Exercising its powers under section 76 of the Act, the M.R.T. has upset the findings of fact recorded by both the courts below. The tribunal noticed the arguments raised by the Counsel for the respondent No. 1 and the Counsel for the petitioner. It was argued that the trial Court ought to have relied on the Mutation Entry No. 2348 and ignored the Mutation Entry No. 2631. It was also argued that both the courts had ignored the vital fact that respondent No. 1 was holding the suit land as a tenant before the execution of the Sathe Khat. It was, however, submitted on behalf of the petitioner that the tribunal will not upset the concurrent findings of fact to the effect that the respondent No. 1 is not a tenant on the suit land unless the same are perverse. Reference was made to the decisions of this Court as also of the Supreme Court . It was also argued that even if it is accepted that the respondent No. 1 was a tenant then the provisions of section 32-O of the Act would be applicable as the Sathe Khat was executed after the Tillers day. No application whatsoever has been made by the respondent No. 1 on the basis of his rights under section 32-O of the Act. The tribunal thereafter embarked on a detailed re-examination of the evidence led by the parties. It has been held that the trial Court has misappreciated the evidence. It is held that the Appellate Court wrongly discarded the Mutation Entry No. 2348. It is held that the said entry ought not to have been discarded as the same is certified and it has been made on the basis of the statement of the person who was present accepting the contents of the entry. It is, therefore, held that the mutation entry cannot be disputed. Even the plea of the petitioner has been rejected that except for the copy of the Sathe Khat no other documents have been, produced. It is held that from the above it is apparent that the respondent No. 1 was first inducted as a tenant and thereafter in consideration of the rent the respondent Nos. 2 and 3 took the amount
of Rs. 2,500/- from respondent No. 1 and executed the Sathe Khat to evade the provisions of the Act.
5. I am in agreement with the submissions made by the Counsel for the petitioner, Mr. Godbole. The M.R.T. travelled beyond the scope of its jurisdiction under section 76 of the Act. The tribunal acted as a Court of first instance and as the Appellate Court. Findings of fact on the basis of evidence are to be returned only by the trial Court or by the Appellate Court. The tribunal under section 76 of the Act has the jurisdiction to examine the findings of fact if the same are based on no evidence or are found to be perverse. So long as there is some material on the record and the findings of fact have been arrived at thereon the tribunal would have no jurisdiction to upset the concurrent findings of fact. Even otherwise this Court is of the view that the conclusion drawn by the tribunal is wholly perverse. It was not even the case of respondent No. 1 that the Sathe Khat was executed in lieu of rent. This finding is given by the tribunal without there being any evidence on the record to that effect. The tribunal has upset the concurrent findings of fact without even discussing the scope of section 4 or section 2 sub-section (18) of the Act. In my view, the tribunal has wholly exceeded its jurisdiction in upsetting the concurrent findings of fact recorded by the trial Court. In view of the above I find merit in the writ petition. 6. Mr. Godbole has rightly contended that the tribunal has wrongly discarded the Mutation Entry No. 2631 which has been certified by the Competent Authority. This entry is later in time and has been accepted by respondent No. 1. On the other hand the earlier Mutation Entry No. 2348 says that respondent No. 1 is a tenant of respondent No. 3 only. Respondent No. 2 has stated that he had never inducted respondent No. 1 as the tenant on the suit lands. It is categorically stated by this witness that respondent No. 1 was given possession on the basis of Sathe Khat. Even the witness produced by respondent No. 1 has stated that respondent No. 1 has been cultivating the suit land as the owner for the last 18 to 19 years. In these circumstances Mr. Godbole is right that section 4 would have no application to the facts and circumstances of the case. In any event the tribunal has no jurisdiction to substitute its own finding of fact for the findings of fact recorded by the trial Court and the Appellate Court. The aforesaid view of mine also finds support from a judgment of the Supreme Court in the case of Maruti Bala Raut v. Dashrath Babu Wathare and others, wherein examining the scope of the powers of the tribunal under section 76 of the Act and the powers of the High Court under Article 227 of the Constitution of India it has been held as under :
“4. Let us first deal with the order of the Maharashtra Revenue Tribunal. The
Tribunal’s powers are found in section 76 of the Bombay Tenancy and
Agricultural Lands Act which reads as follows:
“76.(1) Notwithstanding anything contained in the Bombay Revenue Tribunal
Act, 1939, an application for revision may be made to the Maharashtra
Revenue Tribunal constituted under the said Act against any order of the
Collector on the following grounds only:
(a) That the order of the Collector was contrary to law.
(b) That the Collector failed to determine some material issue of law; or
(c) that there was a substantial defect in following the procedure provided by
this Act, which has resulted in the miscarriage of justice.
(2) In deciding applications under this section the Maharashtra Revenue Tribunal shall follow the procedure which may be prescribed by rules made under this Act after consultation with the Maharashtra Revenue Tribunal.”
There is no dispute that in these two cases the Prant Officer (Deputy Coilrctor) as well as the Special Deputy Collector is a Collector as defined in cl. (22) of section 2 of the Act. We have carefully gone through the order of the Maharashtra Revenue Tribunal and are of opinion that in so far as it reversed the order of the Special Deputy Collector the tribunal clearly exceeded its powers. The order of the tribunal is a very clear and concise one and if it were an original order or an order passed in exercise of appellate powers there is no doubt it would be a proper order. The tribunal clearly acted in complete disregard of its powers and proceeded as though it were either dealing with the matter as a Court of first instance or as an Appellate Court.”
7. In view of the above, the writ petition is allowed. Rule is made absolute in terms of prayer clause (a). There shall be no order as to costs.
7. Petition allowed.