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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3787 OF 1991
Tatya Vithoba Dethe,
(since deceased through his heirs)
Dnyanoba Tatya Dethe & ors. ... Petitioners
v/s
Madhavdas K. Maysurkar
(since deceased through his heir)
Ramchandra Krishnaji Sawant
(since deceased through his heir)
Smt.Shantabai Ramchandra Sawant ... Respondent
Mr.S.G.Karandikar i/by Mr.G.S.Godbole for petitioner.
Mrs.S.S.Deshpande for the respondent.
CORAM: SMT.NISHITA MHATRE, J.
DATED: 18TH NOVEMBER, 2008
ORAL JUDGMENT:
1. The petitioners have challenged the order passed by
the Tenancy Awal Karkun, Pandharpur on 30.9.1982 in
Tenancy Case No.84/B/Takali, the order passed by the
Sub-Divisional Officer (in short, S.D.O.), Pandharpur
Division, dated 15.9.1990 in Tenancy Appeal No.1 of 1983
and the order passed by the Maharashtra Revenue Tribunal
(in short, M.R.T.) on 21.6.1991.
2. The brief facts giving rise to the present petition
are as follows:-
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. Tatya Vithoba Dethe was the tenant of lands bearing
survey Nos.194, 196 and 207 situated in Village Takli,
Tal. Pandharpur in District Solapur. Tatya’s son
Dnyanoba and his brother Santaram purchased the suit
land by a registered sale deed dated 18.4.1956 for a
consideration of Rs.7000/- from the owners of the land
i.e. Madhavdas Krishnaji Maysurkar, the predecessor in
title of the present respondent. In 1985, the Tenancy
Mahalkari commenced proceedings under Section 84B of the
Bombay Tenancy and Agricultural Lands Act (hereinafter
referred to
as “the Act”) on the ground that the sale
was invalid under Section 64 of the Act as it stood
prior to the Amending Act of 1956. According to the
Tenancy Mahalkari, the sale in favour of Dnyanoba and
Santaram was invalid as it was not in favour of the
tenant of the lands. Accordingly, an order was passed
on 14.12.1958 by the Tenancy Mahalkari in Tenancy Case
No.84/B/5, Takli, declaring the sale invalid. Since no
notices were issued to either the landlord or to the
petitioners, the respondent’s predecessor in title
approached the Tenancy Awal Karkun and sought
restoration of possession of the property on the ground
that he had inherited the same. By an order dated
15.3.1973, the Awal Karkun, Pandharpur, passed an
ex-parte order directing that the possession of the land
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be restored to him. The petitioners received an
intimation directing them to hand over possession of the
land to the respondent’s predecessor. It was at this
juncture that the petitioners became aware of the order
dated 14.12.1958 passed by the Tenancy Mahalkari as also
the order passed by the Tenancy Awal Karkun.
3. An appeal was, therefore, preferred by the
petitioners to the S.D.O. challenging both the
aforesaid orders. The S.D.O. allowed the appeal by
observing that Tatya was the tenant of the land on the
date
of the sale and hence the proper order should have
been to restore the land to Tatya and not the landlords
assuming the sale was invalid. The S.D.O. also held
that the petitioners were in actual possession of the
suit lands alongwith Tatya. The proceedings were then
remanded to the Trial Court by the S.D.O. for a
decision on merits. Revision applications were filed by
both, the petitioners and the landlords before the
Maharashtra Revenue Tribunal. The petitioners filed
their revision application contending that instead of
remanding the matter, the S.D.O. ought to have
regularised the sale on payment of penalty. The
revision filed by the landlords was allowed while the
revision of the petitioners was dismissed, thus
resulting in restoration of the order of the Tenancy
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Mahalkari and Tenancy Awal Karkun. The order of the
S.D.O. remanding the matter to the Trial Court was set
aside.
4. Aggrieved by the decision of the M.R.T. the
petitioners preferred Special Civil Application No.
1616 of 1975 before this Court. By an order dated
5.11.1979, this Court set aside the order of the
Tribunal and restored the order of the S.D.O. remanding
the matter to the Trial Court. The proceedings
commenced afresh after remand. The Tenancy Awal Karkun
by
his judgment and order dated 30.12.1982 declared the
sale of 18.4.1956 in favour of Dnyanoba and Santaram,
invalid and directed them to hand over the possession of
the lands to the respondents herein.
5. An appeal was preferred by the petitioners before
the S.D.O., Pandharpur. This appeal was dismissed by
him on 15.9.1990.
6. The petitioners then preferred a revision
application before the M.R.T., Pune. The revision
application was heard and decided on 21.6.1991. The
Tribunal dismissed the revision and confirmed the orders
passed by the authorities below. The petitioners have
therefore preferred the present writ petition
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challenging all the aforesaid orders passed against
them.
7. Mr.Karandikar, learned advocate appearing for the
petitioners submits that all the authorities below,
including the Tribunal, have not correctly appreciated
the law which governs the sale of lands executed by deed
of 18.4.1956. He submits that the sale of the lands was
between the landlords on the one hand and Dnyanoba and
Santaram on the other, who were part of the joint family
of Tatya. Tatya was admittedly a tenant of the lands
and S.D.O.
by his order in Tenancy Appeal No.64 of 1973
had held that Dnyanoba and Santaram were in actual
possession of the suit lands with Tatya. According to
the learned advocate, the petitioners were cultivating
the land personally with Tatya, as part of a joint
family and therefore were tenants. The sale between the
landlords and tenants was valid and in any event under
Section 84B of the Act if the sale was invalid it could
have been regularised by paying a penalty of Rs.1/-.
The learned advocate submits that as a result of the
impugned orders, the lands have been restored to the
landlords and they have also benefited by the amount of
Rs.7,000/- which was paid to them at the time when the
sale took place on 18.4.1956. It is further submitted
that the lands cannot be restored to the landlords under
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any circumstances as Section 84B of the Act contemplates
that the lands must be restored to the person from whom
they were acquired. The learned advocate points out
that in the present case they were acquired from Tatya
who was in possession of the land as a tenant and
therefore, assuming the sale was invalid, the lands
ought to have been restored to Tatya. The learned
advocate further submits that Dnyanoba being the son of
Tatya was certainly a part of the joint family of Tatya.
He urges therefore that Dnyanoba's rights in the land
cannot be extinguished in the manner that they have by
the impugned
orders. Besides, the learned advocate
submits that all the authorities below have accepted the
fact that Tatya never ceased to be in possession of the
land as a tenant. He submits that the crucial question
is whether on the date of the sale on 18.4.1956 Dnyanoba
could have purchased the land together with Santaram
from the landlords.
8. Per contra, Mrs.Deshpande, learned advocate for the
respondent submits that no interference is called for
from this Court with the orders of the authorities
below. She submits that the writ jurisdiction of this
Court should not be exercised when there are three
concurrent orders in favour of the respondent which do
not contain any infirmities. The learned advocate
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points out that Tatya has not challenged the order
granting possession to the landlords at any point of
time when he was alive. She submits that there was no
evidence on record as held by the authorities below that
Dnyanoba and Santaram were part of the joint family of
Tatya. In fact, all the authorities below have held
that Tatya was the sole tenant and, therefore, the
purchasers i.e. Dnyanoba and Santaram were outsiders
and not tenants who had purchased the lands. She
submits that there was no material on record in support
of the petitioners’ contention that they were tenants by
virtue of
being part of a joint family of Tatya. She
therefore submits that there is no need to interfere
with the orders passed.
9. Before considering the submissions of the learned
counsel for the parties, it would be appropriate to
consider the provisions under which the Tenancy Mahalkar
had initiated proceedings against the petitioners.
10. Section 84B was inserted in the Act by the Amending
Act on 1.4.1956. It was later amended in 1958 when a
proviso was inserted to Section 84B. Both the section
and its proviso have a retrospective effect. Section
84B reads thus :-
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“Section 84B:- (1) Where in respect of a
transfer or acquisition of any land made on or
after the 15th day of June, 1955 and before the
commencement of the Amending Act, 1955, the
Mamlatdar, suo motu or on the application ofany person interested in such land, has reason
to believe that such transfer or acquisition –
(a) was in contravention of section 63 or 64 as
it stood before the commencement of the
Amending Act, 1955, or
(b) is inconsistent with any of the provisions
of this Act as amended by the Amending Act,
1955, the Mamlatdar shall issue a notice in the
prescribed form to the transferor, the
transferee or the person acquiring such land,
as the case may be, to show cause as to why thetransfer or acquisition should not be declared
to be invalid and shall hold an inquiry and
decide whether the transfer or acquisition isor is not invalid:
Provided that where the transfer or acquisition
was in favour of the tenant in possession ofthe land, such transfer or acquisition shall
not be declared to be invalid if the tenant
pays to the State Government a penalty of Re.1.
Section 63 of the Act as it stood prior to the 1955
Amending Act bars transfers of agricultural lands to
non-agriculturists. Section 64 permits sale of
agriclutural lands to particular persons in the order of
priority stipulated under sub-section (2). Clause A
which deals with priority in case of agricultural land
other than a dwelling house reads as under:-
“A. In the case of agricutural land other than
a dwelling house, the site thereof and land
appurtenant to such house when such site or
dwelling house or land is not used or is not
necessary to carry on agricultural operations
in the adjoining lands –
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(i) the tenant in actual possession of the
land,
(ii) the person or persons personally
cultivating any land adjacent to the land to be
sold,
(iii) a co-operative farming society,
(iv) any other agriculturist,
(v) any other person who has obtained from the
Collector a certificate that he intends to take
profession of agriculturist.
In order to appreciate the aforesaid provisions of the
Act, it will also be necessary to consider certain
definitions
determination
under
of
the Act which are relevant
the issues involved in
for
this
the
writ
petition:
"Section 2(18):-
2(18): "Tenant" means an
agriculturist who holds land on lease and
includes a person who is deemed to be a tenant
under the provisions of this Act. The word
“landlord” shall be construed accordingly.”
“Section 2(11):- “Person” includes an undivided
Hindu family.”
“Section 2(7A):- “joint family” means an
undivided Hindu family, and in the case of
other persons a group or unit the members of
which are by custom joint in estate or
residence.”
“Section 2(6):- “To cultivate personally” means
to cultivate on one’s own account –
(i) by one's own labour, or
(ii) by the labour of any member of one's
family, or
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(iii) by servants on wages payable in cash or
kind but not in crop share or by hired labour
under one’s personal supervision or the
personal supervision of any member of one’s
family.
There can be no dispute that Tatya, Dnyanoba and
Santaram were part of a joint family, Dnyanoba being the
son and Santaram, the brother of Tatya. Assuming
Santaram was a part of the joint family of Tatya, in any
event Dnyanoba would be a member of the joint family of
Tatya as defined under Section 2(7A). There are
findings of the authorities below which indicate that
Tatya and Dnyanoba were cultivating the land personally.
The findings of the S.D.O. indicate that Tatya was in
actual possession of the lands as the original tenant
and that Dnyanoba and Santaram were in actual possession
of the land together with Tatya.
11. The learned counsel for the respondent has
submitted that when there are three concurrent findings
of fact recorded by the Courts below, this Court should
not interfere in its writ jurisdiction with the impugned
orders. There is no doubt that the High Court in its
writ jurisdiction, will not normally interfere with the
concurrent findings of fact recorded by the Courts
below. However, if these findings are perverse and if
there is an error apparent on the face of the record,
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this Court has a duty to interfere in its writ
jurisdiction and set right the injustice caused to a
party. The sale was executed on 18.4.1956 when Tatya
was the tenant in possession and was cultivating the
land personally. There can be no dispute that on
18.4.1956 Tatya’s family, including Dnyanoba and
Santaram, was staying together jointly as an Un-divided
Hindu Family, with Tatya as the eldest member of the
family. The finding of the S.D.O. that Dnyanoba and
Santaram were in possession of the land together with
Tatya and that they were cultivating the land personally
has
not been set aside by any subsequent authority nor
has the finding been challenged by the respondent.
Thus, the possession of Tatya alongwith Dnyanoba and
Santaram was never disputed nor is there any material on
record to indicate that the tenancy of Tatya was
terminated at any point of time or that the possession
of the land was taken away from him. Thus, under
Section 64(2)(a)(i), the agricultural land is permitted
to be sold to a tenant in actual possession of the land.
Dnyanoba and Santaram who were in possession of the land
as members of the Un-divided Hindu Family of Tatya were
also tenants under Section 2(18). Being in actual
possession of the land as tenants, they were entitled to
purchase the land under Section 64 of the Act.
Therefore, in my opinion, the sale of the land to the
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petitioners cannot be faulted as it is not in
contravention with either Section 63 or 64 as they stood
before the Amending Act of 1955.
12. Even assuming the sale of the land to the
petitioners was in contravention of either of the
provisions under Section 63 or 64 or inconsistent with
the provisions of the Act as amended by the Amending Act
of 1955, the sale could have been regularised under the
proviso to Section 84B. In case of the transfer or
acquisition in favour of the tenant in possession, the
proviso stipulates that the transfer of land need not be
declared invalid if the tenant pays the State Government
a penalty of Rs.1/-. Once there is a finding of the
S.D.O. that Tatya was cultivating the land personally,
it includes cultivation of land by the labour of
Dnyanoba and Santaram as part of an Un-divided Hindu
Family, it obviously means that they were tenants in
possession of the land and had a right to acquire the
ownership of the land under the Act.
13. In any event, the land could not have been restored
to the landlord as Tatya was always in possession of the
land as a tenant even after the execution of the sale
deed. He was cultivating the land personally and was in
actual possession of the property on 1.4.1957. His
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tenancy was never terminated at any point of time. On
his death, the tenancy is deemed to have continued in
favour of his heirs. Therefore, looking at the case
from any angle, the respondents would not be entitled to
restoration of the land. The petitioners being part of
the Un-divided Hindu Family, would be entitled to
continue with the possession of the land after the death
of Tatya in 1975. Although it has been argued on behalf
of the respondent that Tatya was the tenant and not the
petitioners, Section 2(18) of the Act defines a tenant
as one who holds land on lease and also includes a
person
who is deemed to be a tenant. Under Section 40
of the Act, in any event, the tenancy is deemed to have
continued in favour of the petitioners as heirs of
Tatya.
14. In my opinion, the findings recorded by all the
authorities below with respect to the restoration of the
land to the respondent must be set aside.
15. Writ petition allowed.
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