{"id":211482,"date":"2002-06-07T00:00:00","date_gmt":"2002-06-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sanganbassappa-channappa-vs-shri-vishwanath-shivlingappa-on-7-june-2002"},"modified":"2018-11-18T12:33:35","modified_gmt":"2018-11-18T07:03:35","slug":"sanganbassappa-channappa-vs-shri-vishwanath-shivlingappa-on-7-june-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sanganbassappa-channappa-vs-shri-vishwanath-shivlingappa-on-7-june-2002","title":{"rendered":"Sanganbassappa Channappa … vs Shri Vishwanath Shivlingappa … on 7 June, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
Sanganbassappa Channappa … vs Shri Vishwanath Shivlingappa … on 7 June, 2002<\/div>\n
Author: A Khanwilkar<\/div>\n
Bench: A Khanwilkar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
A.M. Khanwilkar, J.<\/p>\n
 1. This writ petition takes exception to the
\norder passed by the Maharashtra Revenue Tribunal,
\nPune dated June 30, 1986 in Revision
\nNo. MRT.SH.II.1\/86 (TEN 8 \/36\/85) Pune.\n<\/p>\n
2. Briefly stated, the land bearing Gat Nos. 830,
\n824 and 807 situated at village Kini, Taluka
\nAkkalkot, District Solapur was owned by
\nSangabassappa Manikshetty. Some time in the year
\n1941, the said Sanmgabassappa Manikshetty by his
\nWill created a public trust in respect of the
\nsubject property and also provided maintenance to
\nher widow Nillawabai from the income of the said
\nland of the trust. The said Sangabassappa
\nManikshetty however, leased out the suit land to
\none Shivlingappa viz. father of the Respondent
\nNos. 1 and 2 and husband of Respondent No. 3 herein
\nin the year 1950-51. It has come on record that
\nin the Village Record mutation entry has been
\nmae on 15-2-1954 to indicate that the subject
\nproperty is a trust property. The said
\nSangabassappa Manikshetty however, expired on
\n3-11-1995, leaving behind widow Nillawabai.
\nUnder the Will executed by him, Nillawabai was to
\nget maintenance. The parties, however, have
\nproceeded on the premise that Nillawabai became
\nthe landlady after the demise of the husband
\nSangabassappa Manikshetty. The matter has been
\nexamined in that perspective. Be that as it may,
\nit is Respondents’ case that the said Nillawabai
\ndispossessed Shivlingappa, their predecessor in
\ntitle from the suit lands in the year 1956 which
\nis before the tiller’s day i.e. 1-4-1957. In
\nthe circumstances, Shivlingappa had filed
\napplication under Section 29(i) for restoration
\nof possession of the suit land in which an
\nexparte order was passed in favour of said
\nShivlingappa directing handing over possession of
\nthe suit lands to him. Against the said decision
\nNillawabai had filed an appeal in which both
\nNillawabai and Shivlingappa entered into
\ncompromise whereunder it was agreed between the
\nparties that Nillawabai would retain possession
\nof the suit land. This compromise has been
\nrecorded on 29-6-1959. However, soon thereafter
\nNillawabai expired on 15-7-1967. The said
\nShivlingappa predecessor of the Respondents filed
\nTenancy Case under Section 32 1B of the Act
\nbefore the Tahasildar for restoration of
\npossession. This application is undoubtedly
\nfiled against the predecessor of the trustees
\nwhich was created by deceased Sangabassappa
\nManikshetti in respect of the suit land. The
\nTahasildar after adjudication of the matter by
\norder dated 31-10-1973, allowed the application
\nfiled by the said Shivlingappa and ordered
\nrestoration of possession of the suit lands.
\nPursuant to this order, the said Shivlingappa is
\nstated to have been put in possession of the suit
\nlands, as is seen from the mutation entry.
\nHowever, being dissatisfied by the above said
\norder, the trustees preferred an appeal before
\nthe S.D.O. Solapur, which appeal was however
\ndismissed on 5-6-1974. Consequently the trustees
\ntook up the matter in revision before the M.R.T.,
\nPune bearing No. 290\/1974. The Revisional
\nauthority allowed the said revision preferred by
\nthe trustees and was pleased to quash the
\nproceedings initiated by Shivlingappa under
\nSection 32 1B of the Act. It is not in dispute
\nthat this order passed by the Tribunal, negating
\nthe claim of restoration of possession set up by
\nShivlingappa, has attained finality, as the same
\nhas gone unchallenged. The predecessor of the
\nRespondent in that sense suffered the said order
\nduring his life time. The said Shivlingappa died
\non 12-9-1975. The record indicates that
\nTahasildar fixed rent in respect of the suit land
\nsome time on 19-12-1975. Taking clue from this
\ndevelopment, the Respondent Nos. 1 and 2 filed
\ntenancy Case No. 6 of 1980 under Section 70(b) of
\nthe Act in the year 1980 before the Additional
\nTahasildar, Akkalkot asserting that they are
\ntenants. The application does not specifically
\nset out as to whether the tenancy is claimed
\nprior to the tiller’s day or on the basis of
\npossession obtained by Shivlingappa, their
\npredecessor, in the year 1973. Be that as it
\nmay, the said application was allowed by the
\nTahasildar on 16-9-1980. The Tahasildar held
\nthat the Respondents were tenants in respect of
\nthe suit lands. Against this decision, the
\ntrustees preferred an appeal before the S.D.O.
\nSolapur, being Tenancy Appeal No. 14 of 1981. The
\nsaid appeal was allowed by the S.D.O. Solapur by
\njudgment and order dated 5-6-1982. In this
\ndecision the S.D.O. has opined that the amount
\nreceived by the trustees from the Respondents was
\nnot towards rent but as mesne profits. The
\nmatter was carried in appeal by the Respondents.
\nThe appellate authority by its order however,
\nremanded the case for fresh enquiry in terms of
\nthe observations made in the said order dated
\n5-6-1982. Accordingly, the matter was reexamined
\nby the Tahasildar. The Tahasildar after
\nreexamining the rival case, by order dated
\n12-9-1983 has held that the Respondents were not
\ncultivating the lands personally as they were
\nworking in Panchayat Samiti as peons. The
\nTahasildar further held that they got the lands
\ncultivated through the labourers. In the
\ncircumstances, the Tahasildar held that the
\nRespondents were not tenants and were not
\nentitled for declaration in that behalf under
\nSection 70(b) of the Act. Against this decision
\nthe Respondents carried the matter in appeal
\nbeing Tenancy Case No. 50 of 1983 before the
\nS.D.O. However, it is relevant to point out that
\nthe Petitioners are relying on possession receipt
\nby Talathi Kini mentioning that Gat Nos. 507, 830
\nand 824 have been taken over and handed over to
\nthe trustees. (Kabje pavati is also part of
\nrecord). The appeal preferred by the Respondent
\nwas however allowed by the Assistant Collector,
\nSolapur Division, Solapur by order dated dated
\nOctober 31, 1984. The Appellate authority placed
\nreliance on the mutation entry in respect of the
\nsuit lands pertaining to the year 1973 indicating
\nthat the possession of the suit land was handed
\nover to the tenants. The Appellate Court has
\nalso adverted to the receipt produced by the
\ntenants for the year 1976-77 that the trustees
\naccepted the amount by way of rent of the suit
\nland. The Appellate Court further took into
\naccount that the trust has not obtained any
\ncertificate under Section 88B of the Act, and,
\ntherefore, rights of tenant which had
\ncrystallized cannot be taken away. Consistent
\nwith these observations, the Appellate authority
\nallowed the appeal and declared that the
\nRespondents were tenants in the suit land. The
\nPetitioners being dissatisfied by the said order,
\nfiled revision application before the M.R.T.
\nPune. The Tribunal has more or less toed the
\nsame line of reasoning given by the appellate
\nauthority for dismissing the revision preferred
\nby the Petitioners. It is against this decision
\nthe present writ petition under Article 227 has
\nbeen filed by the Petitioners.\n<\/p>\n
3. The first contention raised is that the
\noriginal tenant having entered into compromise
\nwith Nillawabai, it was not open for his
\nsuccessors to assert that they still continued to
\nbe tenants in respect of the suit lands claiming
\nthrough the original tenant. It is contended
\nthat undisputedly the original tenant
\nShivlingappa was dispossessed prior to the
\ntiller’s day and that in the proceedings for
\nrestoration of possession the said Shivlingappa
\nand Nillawabai, who was accepted to be landlady,
\nentered into a compromise, and that compromise
\nhaving gone unchallenged by him or for that
\nmatter by his successors, would be binding on
\nthem and denude the Respondents to claim that the
\noriginal tenant was in possession of the suit
\nlands on the tiller’s day. It is further
\ncontended that in any case the original tenant
\nhad taken recourse to the proceedings under
\nSection 32 1B of the Act and which proceedings
\nwere evidentially rejected by the revisional
\nauthority and that order has become final. It is
\ntherefore, contended that the relief for
\nrestoration of possession at the instance of the
\noriginal tenant having been rejected and having
\nattained finality, the Respondents who are the
\nsuccessors of the original tenant cannot assert
\ntenancy rights in respect of the suit land. It
\nis contended that mere factum of possession would
\nbe of no avail to the Respondents, assuming the
\nsame is sought to be established on the basis of
\nmutation entry. The learned Counsel has further
\ncontended that the receipts issued by the trust
\nby itself cannot create tenancy in favour of the
\nRespondents. It is contended that in the
\napplication filed before the authorities below,
\nthe Respondents have come with a positive plea
\nthat they were claiming tenancy through their
\npredecessor Shivlingallpa. In the circumstances,
\naccording to the petitioners, the present
\nproceedings were nothing but abuse of process
\nespecially when the earlier proceedings had
\nattained finality and were binding on the
\nRespondents who were successors in interest or
\nthe original tenant.\n<\/p>\n
4. Mr. Katikar for the Respondents contends
\nthat there is no infirmity in the view taken by
\nthe Appellate Court and as confirmed by the
\nRevisional Court. According to him this is not a
\nmatter which warrants interference under Article
\n227 of the Constitution of India. He submits
\nthat the mutation entry pertaining to the year
\n1973 clearly indicates that the tenant was put in
\npossession of the suit lands. The original
\ntenant Shivlingappa was undoubtedly shown as
\ntenant in the year 1950-51 by virtue of lease
\nissued by the original owner Sangabassappa
\nManikshetti. It is therefore contended that
\ntenancy would relate back prior to the tiller’s
\nday and therefore the Respondents being his
\nsuccessors in interest will have to be declared
\nas tenants in exercise of power under Section 70b
\nof the Act. He has also placed reliance on the
\nfactum that tenancy authority had fixed rent in
\nrespect of the suit land in the year 1975.
\nAccording to him, this order has attained
\nfinality and was not challenged by the trustees.
\nHe has also placed strong reliance on the
\nreceipts issued by the trust clearly accepting
\nthe Respondents as tenants. Besides the receipt,
\nhe has also referred to observations made by the
\nCourts below relating to the admission of one of
\nthe trustees that the Respondents were tenants.
\nAccording to him, therefore, in such a situation
\nno fault can be found with the courts below for
\nhaving recorded finding of fact that the
\nRespondents were tenants in respect of the suit
\nland and therefore the present writ petition was
\ndevoid of merits.\n<\/p>\n
5. Having heard the rival submissions, in my
\nopinion, the Courts below have completely
\nmisdirected themselves in enquiring into the
\nmatter having regard to the admitted facts on
\nrecord. From the facts which have gone
\nunchallenged are that, after the demise of
\nSangabassappa parties proceeded with clear
\nunderstanding that Nillawabai had become the
\nlandlady and since she was widow she was disabled
\nlandlady within the meaning of Section 32F of the
\nAct. Besides, it transpires from the record that
\nthe original tenants Shivlingappa was dispossessed
\nby Nillawabai in 1956 and that Shivlingappa took recourse
\nto proceedings for restoration of possession
\nbefore the tenancy authorities. In the said
\nproceedings, however, Shivlingappa compromised
\nwith Nillawabai on 29-6-1959 and pursuant to the
\nsaid compromise , the said Nillawabai continued to
\nremain in possession of the suit lands. The fact
\nremains, therefore, that since 1956 when
\nShivlingappa came to the dispossessed till the
\nlife time of Nillawabai upto 15-7-1967, she
\noccupied and enjoyed the suit land and that
\nShivlingappa was not in possession thereof.
\nHowever, it is only after the demise of
\nNillawabai, Shivlingappa instituted proceedings
\nunder Section 32 1B for restoration of possession,
\nin the year 1970. This proceedings also came to
\nbe dismissed by virtue of order passed by M.R.T.
\non 5-6-1974. It is not in dispute that the said
\norder has attained finality as the same was never
\nchallenged by the said Shivlingappa during his
\nlife time. It is also matter of record that even
\nthe Respondents have not challenged the said
\norder dated 5-6-1974 passed by the Tribunal. The
\nposition that emerges from this situation is that
\nShivlingappa, though was inducted as a tenant in
\nthe year 1950, but came to be dispossessed before
\nthe tiller’s day and that he was not in
\npossession atleast till 31-10-1973 when the
\nTahasildar had passed order directing restoration
\nof possession on his application under Section 32
\n1B of the Act. The fact remains however, that
\nthe said proceedings under Section 32 1B have
\nbeen eventually rejected by the Tribunal. To put
\nit differently, possession obtained by
\nShivlingappa in the said proceedings pursuant to
\nthe order passed by the first authority would be
\nof no consequence for examining the claim with
\nregard to the plea of tenancy set up by the
\nRespondents. The said Shivlingappa original
\ntenant, however, obtained possession of the suit
\nlands in the year 1973 only on the basis of the
\norder passed by the first authority which came to
\nbe annulled by the revisional authority and which
\ndecision has attained finality. The fact which
\nhas now been brought to the notice of this Court
\nis that pursuant to the order passed by the
\nTribunal dated 5-6-1974 the Talathi Kini has
\nhanded over possession of the suit land to the
\ntrustees petitioners herein. Assuming that the
\nRespondents are still in possession, that would
\nnot materially affect the decision making process
\nin the present case – inasmuch as in the present
\ncase the Respondents have approached the tenancy
\nauthorities for declaration that they were the
\ntenants. Such proceedings, to my mind, would be
\nunavailable to the Respondents in the light of
\nthe fact that their predecessor had entered into
\ncompromise, which has gone unchallenged by their
\npredecessor during his life time. As seen
\nearlier, compromise was arrived on 29-6-1959 and
\nShivlingallpa died as late as on 12-9-1975. At
\nno point of time Shivlingappa challenged the said
\ncompromise nor did he take any steps to challenge
\nthe said compromise. No doubt Shivlingappa had
\nfiled application under Section 32 1B of the Act
\nfor restoration, as is seen from the record that
\napplication has been dismissed by the revisional
\nauthority by order dated 5-6-1974. If this be
\nso, the consequence is that there is no order in
\nfavour of Shivlingappa for restoration of
\npossession. The fact that he obtained possession
\npursuant to the order passed by the first
\nauthority in proceedings under Section 32 1B
\nwould be of no avail for deciding the issue that
\narises for consideration. The Respondents could
\nhave successful in claiming to be tenants in
\nrespect of the suit land provided it was possible
\nto establish that the said Shivlingappa was in
\npossession on the tiller’s day and in any case he
\nwas put in possession by court of competent
\njurisdiction pursuant to a valid order for
\nrestoration of possession passed under Section 32
\n1B of the Act. Understood thus, it is not
\npossible to countenance the argument that the
\nright of Shivlingappa to claim that he continued
\nto be tenant in respect of the suit land
\nsubsisted merely because he was put back in
\npossession in October 1973. If the predecessor
\nof the Respondents had no right to continue in
\nthe suit lands as tenant, much less as deemed
\npurchaser, then, surely the Respondents cannot
\nclaim better title then their predecessor. It is
\nnot in dispute that the application filed before
\nthe first authority by the Respondents is clearly
\non the basis that they were claiming tenancy in
\nrespect of the suit land through their
\npredecessor, the original tenant Shivlingappa.
\nThis crucial aspect of the matter has been
\nglossed over by the authorities below and that
\nthey have proceeded to examine the matter on the
\nbasis of some subsequent records which have come
\non record. Once the order passed by the tenancy
\nauthority under Section 32 1B directing
\nrestoration of possession to the original tenant
\nShivlingappa is reversed and the application
\nstands rejected by the superior authority, then
\nit is not possible to permit the Respondents to
\nfall back upon the factum of original tenant
\nhaving been put in possession pursuant to such
\norder in the year 1973. In that sense, the
\nmutation entry would be of no consequence to
\ndecide the controversy that arises in the present
\ncase. Be that as it may, the fact that the
\ntenancy authority had fixed rent in respect of
\nthe suit land sin the year 1975 and which has
\ngone unchallenged would again be of no
\nconsequence. In any case such event by itself
\ncannot create any right of tenancy in respect of
\nthe suit land in favour of the Respondents. We
\nhave already noted that the Respondents are not
\nclaiming to be tenants in their own rights, but
\nare claiming to be tenants through their
\npredecessor Shivlingappa, which is evident from
\nthe application preferred by them before the
\nfirst authority. If this be so, then the matter
\nwill have to be examined only in that perspective
\nand if it is found that the Shivlingappa did not
\ncontinue to be the tenant, then surely the
\nRespondents cannot permitted to claim higher
\ntitle than what was possessed by their
\npredecessor Shivlingappa himself. Much reliance
\nwas placed by Mr. Katikar on the receipt issued by
\nthe trustees in favour of Respondents accepting
\nthem to be tenants. It is not the case of the
\nRespondents that they were induced as tenants
\nafter the tiller’s day or that they were claiming
\ntenancy in their own rights. The receipts issued
\nby the trust would therefore be of no avail. As
\nrightly observed by the lower authority, that
\nreceipt cannot be treated as rent receipts as
\nsuch.\n<\/p>\n
6. In the present case however, as observed
\nabove, the Respondents claim to be tenants
\nthrough their predecessor – Shivlingappa. The
\nparties however, proceeded before the authorities
\non the premises that after the death of
\nSangabassappa Manikshetti his widow Nillawabai
\nbecame the landlady. The authorities below have
\nalso adverted to this aspect while observing that
\nsince the landlady was widow on the tiller’s day
\ni.e. 1-4-1957, by virtue of provisions of
\nSection 32 1A to 1F, stood
\npostpone. In this context it needs to be
\nobserved that if the Respondents proceed on the
\npremise that Nillawabai had become the landlady,
\nthen surely it was obligatory on the part of the
\noriginal tenant Shivlingappa to give intimation
\nregarding his intention to purchase the suit land
\nwithin the statutory period provided under
\nSection 32F of the Act. In this case it is
\ncommon ground that no such intimation was given
\nby the said Shivlingappa, the predecessor in
\ntitle of the Respondents. The consequence of
\nsuch failure is that the sale would become
\nineffective. In which case it will be open to
\nthe landlords to recover possession of the suit
\nlands by taking recourse to provisions under
\nSection 32P of the Act. On the other hand, if it
\nproceeds on the premise, as was attempted to be
\nargued on behalf of the Respondents that, the
\nRespondents were put in possession in the year
\n1973, then they were tenants inducted after the
\ntiller’s day i.e. 1-4-1957. If this be so, then
\nby virtue of Section 32 O of the Act, the
\nRespondents were obliged to give intimation
\nregarding their intention to purchase the suit
\nlands within the statutory period. It is common
\nground that even such intimation has not been
\ngiven by the original tenant or for that matter
\nthe Respondents at any point of time. The
\nconsequence of such failure is also provided in
\nSection 32 O that the sale becomes ineffective.
\nEven in that case the Respondents cannot be said
\nto have become deemed purchasers. Taking any
\nview of the matter, in my view, both the Courts
\nbelow wholly misdirected in issuing declaration
\nin favour of the Respondents that they are
\ntenants in respect of the suit lands. On the
\nother hand, I am disposed to restore the order
\npassed by the first authority, after remand, in
\nrejecting the application dated 12-9-1983, for
\nthe above said reasons. In my view, the
\nproceedings regarding declaration of tenancy in
\nfavour of the Respondents are wholly ill advised.
\nAssuming that the Respondents may be justified in
\ncontending that they are in possession, which
\nclaim is however falsified by the possession receipt
\nissued in the year 1983, as referred to above,
\nwhich is already part of the record; the
\npossession in the first place would not be
\none as tenant within the meaning of the
\nprovisions of the Act of 1948. In any case,
\nsince the Respondents have failed to give
\nintimation within the statutory period of their
\nintention to purchase the suit lands they would
\nbe denuded of their right in this behalf and for
\nwhich reason the consequences as provided under
\nSection 32 O or 32 P for the purchase having
\nbecome ineffective would follow. In such a
\nsituation, no fruitful purpose would be served by
\nadjudicating the issue as to whether the
\nRespondents were tenants as contended. However,
\nI have already held as stated above that the
\nRespondents cannot be said to be tenants.\n<\/p>\n
7. In the circumstances, this writ petition
\nsucceeds. Orders passed by the Tribunal dated
\nJune 30, 1986 and the order dated October 31st
\n1984 are set aside and instead the order passed
\nby the Additional Tahasildar and A.L.T. Akkalkot
\ndated September 12, 1983 is restored. Writ
\npetition is allowed in the above terms. No order
\nas to costs.\n<\/p>\n
Certified copy expedited.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Sanganbassappa Channappa … vs Shri Vishwanath Shivlingappa … on 7 June, 2002 Author: A Khanwilkar Bench: A Khanwilkar 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-211482","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSanganbassappa Channappa ... vs Shri Vishwanath Shivlingappa ... on 7 June, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sanganbassappa-channappa-vs-shri-vishwanath-shivlingappa-on-7-june-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sanganbassappa Channappa ... vs Shri Vishwanath Shivlingappa ... on 7 June, 2002 - 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