{"id":226693,"date":"2010-02-01T00:00:00","date_gmt":"2010-01-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vaijnath-vs-smt-afsar-begum-on-1-february-2010"},"modified":"2016-01-31T22:18:29","modified_gmt":"2016-01-31T16:48:29","slug":"vaijnath-vs-smt-afsar-begum-on-1-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vaijnath-vs-smt-afsar-begum-on-1-february-2010","title":{"rendered":"Vaijnath vs Smt. Afsar Begum on 1 February, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Vaijnath vs Smt. Afsar Begum on 1 February, 2010<\/div>\n
Bench: V.R. Kingaonkar<\/div>\n
                               (1)\n\n\n           IN THE HIGH COURT OF JUDICATURE OF BOMBAY,\n\n\n\n\n                                                               \n                      BENCH AT AURANGABAD\n\n\n\n\n                                       \n                  WRIT PETITION NO. 2006 OF 1991\n\n\n\n\n                                      \n    1.   Vaijnath s\/o Yeshwant Jadhav\n         Since deceased, by L.R.\n         Chandrakant s\/o Vaijinath Jadhav,\n         R\/o Ghatnandur, Tq. Ambajogai.\n\n\n\n\n                              \n    2.   Vishwanath s\/o Yeshwant Jadhav\n         Since deceased, by L.Rs.\n                    \n    (i) Shivaji w\/o Vishwanath Jadhav,\n         R\/o Ghatnandur, Tq. Ambajogai,\n         District Beed.\n                   \n    (ii) Sambhaji w\/o Vishwanath Jadhav,\n         R\/o as above.\n    (iii)Mathurabai w\/o Vishwanath Jadhav,\n         R\/o as above.\n    3.   Smt. Subhadrabai w\/o Harischandra Solunke,\n      \n\n\n         R\/o Salunkewadi, Tq. Ambajogai,\n         District Beed.\n   \n\n\n\n    4.   Smt. Bhimabai w\/o Annasaheb Shinde,\n         R\/o Gitta Post, Tq. Ambajogai,\n         District Beed.                           PETITIONERS\n\n\n\n\n\n                 VERSUS\n\n    Smt. Afsar Begum w\/o Nadimuddin Kazi\n    Since deceased by L.Rs.\n\n\n\n\n\n    (i) Mumtajoddin s\/o Qazi Nidimuddin\n         Siddiqui, Asstt. M.S.F.C.,\n         Regional Office, Station Road,\n         Aurangabad.\n    (ii) Ajijoddin s\/o Qazi Nadimoddin\n         Serving in the office of M.S.E.\n         Board, Ambajogai, Dist. Beed.                    RESPONDENTS\n\n\n\n\n                                       ::: Downloaded on - 09\/06\/2013 15:34:13 :::\n                                    (2)\n\n         .....\n<\/pre>\n
    Mr. B.A. Darak, advocate for the petitioners.\n<\/p>\n
    Mrs. M.A. Kulkarni, advocate for the respondents.\n<\/p>\n
         …..\n<\/p>\n
                                    [CORAM : V.R. KINGAONKAR, J.]
\n                                      [DATE : 1st February, 2010]<\/p>\n
    ORAL JUDGEMENT :\n<\/p>\n
    1.<\/p>\n
              By this petition, the petitioners impugn order <\/p>\n
    rendered   by   learned   Member   of   Maharashtra   Revenue <\/p>\n
    Tribunal, Aurangabad, in revision petition No. 13\/B\/89-\n<\/p>\n
    Beed   dated   21-09-1990   whereby   and   whereunder   the <\/p>\n
    revision   petition   was   allowed   and   the   order   of   the <\/p>\n
    Appellate   Tribunal   was   set   aside.   At   the   same   time, <\/p>\n
    order rendered by the Additional Tahsildar in File No. <\/p>\n
    83\/TNC\/Camp\/6   on   23-12-1987   was   confirmed.   The   legal <\/p>\n
    impact of the impugned order is that certificate issued <\/p>\n
    under   section   38E   of   the   Hyderabad   Tenancy   and <\/p>\n
    Agricultural   Lands   Act,   1950   (for   short,   “the   HT&AL <\/p>\n
    Act”) came to be cancelled.\n<\/p>\n
    2.        The   petitioners   are   legal   representatives   of <\/p>\n
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\n                                     (3)<\/span><\/p>\n
    deceased   Yeshwanta   Jadhav.     Lands   Survey   No.   202AA, <\/p>\n
    admeasuring   9   acres   20   gunthas,   Survey   No.   189, <\/p>\n
    admeasuring   1   acre   37   gunthas,   situated   at   village <\/p>\n
    Ghatnandur   (District   Beed)   were   owned   by   one   Naimuddin <\/p>\n
    Siddiqui.   Yeshwanta Jadhav was declared as a protected <\/p>\n
    tenant   of   the   said   lands.   Certificate   of   statutory <\/p>\n
    ownership  was issued in his favour on 01-02-1969.  The <\/p>\n
    landlord was alive at the relevant time. The price fixed <\/p>\n
    by the Tenancy Tribunal was deposited by Yeshwanta and, <\/p>\n
    therefore, certificate under section 38 (6) of the HT&AL <\/p>\n
    Act was issued in his favour on 23-04-1980.\n<\/p>\n
    3.        The original land owner i.e. Nadimuddin died in <\/p>\n
    1962   i.e.   before   issuance   of   the   certificate   under <\/p>\n
    section 38 (6) of the Hyderabad Tenancy and Agricultural <\/p>\n
    Land Acquisition Act, 1950 (for short, “the HT&AL Act”) <\/p>\n
    in   favour   of   said   Yeshwanta.     His   two   (2)   sons <\/p>\n
    challenged   the   declaration   of   statutory   ownership   in <\/p>\n
    favour of said Yeshwanta by filing an appeal before the <\/p>\n
    Deputy   Collector   (Land   Reforms).     The   learned   Deputy <\/p>\n
    Collector (Land Reforms) held that the appeal was barred <\/p>\n
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\n                                      (4)<\/span><\/p>\n
    by   limitation   and   as   such,   it   was   dismissed   by   order <\/p>\n
    dated   19-04-1971.     Feeling   aggrieved,   they   carried   the <\/p>\n
    matter   to   the   revisional   Court   by   filing   revision <\/p>\n
    application   No.   108\/B\/71-Beed.   The   learned   designated <\/p>\n
    Member of the Maharashtra Revenue Tribunal dismissed the <\/p>\n
    revision application, by order dated 05-11-1971.\n<\/p>\n
    4.         The   widow   of   deceased   Nadimuddin   filed   an <\/p>\n
    application before the Additional Tahsildar, Ambajogai, <\/p>\n
    challenging the issuance of certificate under section 38 <\/p>\n
    (6) and declaration under section 38E of the HT&AL Act <\/p>\n
    in favour of said Yeshwanta Jadhav.  Her main contention <\/p>\n
    was that said Yeshwanta Jadhav was never the tenant in <\/p>\n
    respect   of   the   land   bearing   Survey   No.   202AA, <\/p>\n
    admeasuring   9   acres   20   gunthas,   owned   by   deceased <\/p>\n
    Nadimuddin. She alleged that the said land was wrongly <\/p>\n
    shown   to   be   holding   of   said   Yeshwanta   Jadhav.     Her <\/p>\n
    contention   was   that   Yeshwanta   Jadhav   could   not   be <\/p>\n
    regarded   as   protected   tenant   of   the   said   land   and   the <\/p>\n
    entry in the final register of the protected tenants was <\/p>\n
    only in respect of another land i.e. Survey No. 189, but <\/p>\n
    there   was   no   declaration   as   such   in   respect   of   land <\/p>\n
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\n                                      (5)<\/span><\/p>\n
    Survey   No.   202AA   in   favour   of   said   Yeshwanta   Jadhav.\n<\/p>\n
    The   chief   bone   of   contention   was   that   there   was   error <\/p>\n
    while issuing the certificate under section 38 (6) and <\/p>\n
    it   was   issued   inclusive   of   land   Survey   No.   202\/AA <\/p>\n
    notwithstanding   the   fact   that   the   said   land   was   not <\/p>\n
    declared to Yeshwanta Jadhav under provisions of section <\/p>\n
    34   of   the   HT&AL   Act.   The   application   was   dismissed   by <\/p>\n
    the learned Additional Tahsildar, Ambajogai. The Deputy <\/p>\n
    Collector (L.R.), however, allowed the appeal preferred <\/p>\n
    by   deceased   respondent   Afsar   Begum   i.e.   widow   of   the <\/p>\n
    deceased   landlord   –   Nadimuddin.     The   learned   Deputy <\/p>\n
    Collector (L.R.) by order dated 20-01-1983 directed that <\/p>\n
    the Additional Tahsildar shall inquire about grievances <\/p>\n
    of   deceased   Afsar   Begum   and   to   decide   whether   said <\/p>\n
    Yeshwanta Jadhav was a protected tenant and was entitled <\/p>\n
    to be declared as such under section 37-A of the HT&AL <\/p>\n
    Act.  The enquiry revealed that name of Yeshwanta Jadhav <\/p>\n
    was not shown in the register of tenants.  He was never <\/p>\n
    shown   to   be   the   protected   tenant   while   preparing   the <\/p>\n
    register   of   protected   tenants.     It   was   found   by   the <\/p>\n
    learned   Additional   Tahsildar   that   there   was   mistake <\/p>\n
    caused   while   issuing   the   certificate   under   section   38 <\/p>\n
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\n                                     (6)<\/span><\/p>\n
    (6)   and   though   Yeshwanta   Jadhav   was   not   shown   as   a <\/p>\n
    protected   tenant   in   the   final   P.T.   register,   yet,   his <\/p>\n
    name was introduced as statutory owner while issuing the <\/p>\n
    said certificate.  Therefore, by order dated 23-12-1987, <\/p>\n
    the   Additional   Tahsildar   held   that   the   certificate   was <\/p>\n
    invalid.  He came to the conclusion that error caused in <\/p>\n
    the issuance of certificate could be rectified.   Hence, <\/p>\n
    he directed deletion of the entry pertaining to Survey <\/p>\n
    No.   202AA   from   the   relevant   certificate   issued   under <\/p>\n
    section 38 (6) of the HT&AL Act.\n<\/p>\n
    5.         The   petitioners   preferred   appeal   which   was <\/p>\n
    allowed by the learned Deputy Collector (L.R.), Beed by <\/p>\n
    judgement dated 30th  December, 1988.  The learned Deputy <\/p>\n
    Collector   held   that   the   civil   Court   had   dismissed   the <\/p>\n
    suit filed by the legal heirs of the deceased land owner <\/p>\n
    i.e.   Nadimuddin   for   declaration   that   the   statutory <\/p>\n
    ownership   granted   in   favour   of   Yeshwanta   Jadhav   was <\/p>\n
    illegal.  The learned Deputy Collector further held that <\/p>\n
    though   deceased   Nadimuddin   had   knowledge   about   the <\/p>\n
    judgement rendered by the Maharashtra Revenue Tribunal, <\/p>\n
    yet,   he   had   not   preferred   any   application   for <\/p>\n
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\n                                     (7)<\/span><\/p>\n
    cancellation   of   the   declaration   during   his   lifetime.\n<\/p>\n
    The   learned   Deputy   Collector   held   that   the   application <\/p>\n
    for   rectification   of   the   declaration   was   untenable   and <\/p>\n
    as   such,   the   judgement   and   order   rendered   by   the <\/p>\n
    Additional   Tahsildar   was   unsustainable.     Consequently, <\/p>\n
    the   appeal   was   allowed.     Feeling   aggrieved,   deceased <\/p>\n
    respondent   Afsar   Begum   preferred   revision   application <\/p>\n
    (Revision   No.   13\/B\/89-Beed).     Her   revision   application <\/p>\n
    was   allowed   by   the   Maharashtra   Revenue   Tribunal   on <\/p>\n
    21-09-1990.     The   petitioners   are   challenging   the   said <\/p>\n
    judgement rendered by the Maharashtra Revenue Tribunal.\n<\/p>\n
    6.         Mr.   Darak   would   submit   that   finality   is <\/p>\n
    attached to the declaration made under section 38E and <\/p>\n
    the same could not be challenged by deceased respondent <\/p>\n
    – Afsar Begum after lapse of a considerable period.  He <\/p>\n
    would   submit   that   the   earlier   round   of   litigation   was <\/p>\n
    initiated   by   the   sons   of   deceased   Nadimuddin   after <\/p>\n
    attaining majority and when they lost the legal battle, <\/p>\n
    the   mother   was   instigated   to   re-commence   the   same <\/p>\n
    objection to the declaration.  He would submit that the <\/p>\n
    learned Additional Tahsildar and the Maharashtra Revenue <\/p>\n
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\n                                     (8)<\/span><\/p>\n
    Tribunal   committed   patent   error   while   invalidating   the <\/p>\n
    certificate   issued   under   section   38   (6)   after   gap   of <\/p>\n
    many years and particularly when deceased Nadimuddin had <\/p>\n
    not   challenged   the   said   certificate   during   his   life-\n<\/p>\n
    time.   Mr. Darak contended that the Maharashtra Revenue <\/p>\n
    Tribunal exceeded revisional jurisdiction while allowing <\/p>\n
    the   revision   application   when   the   view   taken   by   the <\/p>\n
    learned   Deputy   Collector   (L.R.)   could   be   regarded   as <\/p>\n
    legal   and   proper.     He   urged,   therefore,   to   allow   the <\/p>\n
    petition   and   set   aside   the   impugned   judgement.     Per <\/p>\n
    contra,   Mrs.   Kulkarni   submitted   that   there   was   basic <\/p>\n
    mistake in issuance  of the certificate when land Survey <\/p>\n
    No.   202AA   was   incorporated   therein   without   there   being <\/p>\n
    declaration in favour of Yeshwanta Jadhav regarding his <\/p>\n
    tenancy.     She   submits   that   the   mistake   could   be <\/p>\n
    rectified at any time because the certificate could not <\/p>\n
    have   been   issued   without   there   being   declaration   of <\/p>\n
    status   of   Yeshwanta   Jadhav   as   a   protected   tenant.   She <\/p>\n
    contended that the challenge is not to the certificate <\/p>\n
    as such, but the challenge is regarding the foundation <\/p>\n
    to the certificate.  In other words, her main contention <\/p>\n
    is that without initial declaration of tenancy rights in <\/p>\n
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\n                                        (9)<\/span><\/p>\n
    favour   of   Yeshwanta   Jadhav   and   without   his   name <\/p>\n
    appearing   in   the   register   of   protected   tenants,   the <\/p>\n
    certificate could not have been issued under section 38 <\/p>\n
    (6). She would submit that the earlier orders rendered <\/p>\n
    against the two sons of deceased Nadimuddin could not be <\/p>\n
    treated   as  res   judicata  because   their   appeals   were <\/p>\n
    dismissed only on technical ground i.e. for the reason <\/p>\n
    that it was held as barred by limitation.   She submits <\/p>\n
    that   the   grounds   for   challenge   of   the   certificate   by <\/p>\n
    deceased respondent – Afsar Begum are totally different <\/p>\n
    and   as   such,   she   was   not   bound   by   the   outcome   of   the <\/p>\n
    earlier   litigation   in   this   context.     Hence,   Mrs. <\/p>\n
    Kulkarni urged to dismiss the petition.\n<\/p>\n
    7.         Before   I   proceed   to   consider   the   rival <\/p>\n
    submissions, it may be useful to examine the procedure <\/p>\n
    required   to   be   followed   for   the   purpose   of   deciding <\/p>\n
    questions   arising   in   respect   of   purchase   of   land   by <\/p>\n
    tenant and compulsory transfer of ownership to tenants.\n<\/p>\n
    For this purpose, Rule 14 of the Hyderabad Tenancy and <\/p>\n
    Agricultural   Lands   Rules,   1958   (for   short,   “the   HT&AL <\/p>\n
    Rules”) may be considered.   It contemplates the Tenancy <\/p>\n
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\n                                      ( 10 )<\/p>\n
    Tribunal   to   prepare   a   provisional   list   in   Form   VIII <\/p>\n
    containing :\n<\/p>\n
               (1) the names of such tenants as may be deemed
\n               to be protected tenants under section 37A,<\/p>\n
               (2) the extent of land held by such tenants.
\n               (3) the names of the landholders of such
\n               tenants; and<\/p>\n
               (4) the total area of land owned by such <\/p>\n
               landholders including the land under
\n               cultivation of their tenants.\n<\/p><\/blockquote>\n
    Sub-Rule   (2)   of   Rule   14   makes   it   incumbent   that   the <\/p>\n
    provisional   list   prepared   under   sub-rule   (1)   shall   be <\/p>\n
    published by affixing a copy thereof to the notice board <\/p>\n
    in the village chavdi.   The provisional list needs due <\/p>\n
    publication   and   thereafter,   objections   can   be   filed   by <\/p>\n
    the   concerned   persons.     Thus,   if   name   of   a   person   is <\/p>\n
    deleted from such provisional list and he claims to be a <\/p>\n
    tenant of a particular land, then he may raise objection <\/p>\n
    regarding such omission of his name from the provisional <\/p>\n
    list.   So   also,   if   name   of   a   person   is   erroneously <\/p>\n
    included   in   such   a   provisional   list,   the   land-\n<\/p>\n
    owner\/land-lord may raise objection about such entry in <\/p>\n
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\n                                      ( 11 )<\/p>\n
    the provisional list on the ground that the person whose <\/p>\n
    name   is   shown   in   the   list   is   not   a   protected   tenant.\n<\/p>\n
    These objections are required to be considered summarily <\/p>\n
    inquired   into   before   finalisation   of   the   list   of <\/p>\n
    protected tenants.\n<\/p>\n
    8.         The compulsory transfer of ownership to tenants <\/p>\n
    may be effected by following Rule 23.   Sub-Rule (1) of <\/p>\n
    Rule 23 reads as follows :\n<\/p>\n
               “(1) After   the   issue   of   a   notification   under
\n               section   38F   the   Tribunal   shall   cause   summary <\/p>\n
               enquiries to be made in respect of land held by <\/p>\n
               tenants   deemed   to   be   protected   tenants   under
\n               section   37A   and   their   landholders   and   shall
\n               prepare   a   list   in   Form   XV   of   such   protected <\/p>\n
               tenants and the description tenant is deemed to
\n               be the full owner under section 38F.”\n<\/p><\/blockquote>\n
    A careful reading of sub-Rule (4) of Rule 23 will make <\/p>\n
    it manifestly clear that the certificate in Form XVI to <\/p>\n
    each   of   the   protected   tenants   shall   be   issued   after <\/p>\n
    declaration   of   a   final   list   under   sub-Rule   (3).   The <\/p>\n
    procedure   contemplated   under   the   Rules,   therefore, <\/p>\n
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\n                                      ( 12 )<\/p>\n
    requires preparation of a provisional list in Form VIII, <\/p>\n
    publication of the list, calling of the objections, if <\/p>\n
    any,   summary   hearing   of   the   objections   and   thereafter, <\/p>\n
    preparation   of   final   list   of   protected   tenants   as <\/p>\n
    envisaged in Rule 23 (3).\n<\/p>\n
    9.         The question whether deceased Yeshwanta Jadhav <\/p>\n
    was a protected tenant or he was not a tenant in respect <\/p>\n
    of land Survey No. 202AA falls within exclusive domain <\/p>\n
    of the Tenancy Tribunal.  The issuance of the statutory <\/p>\n
    ownership certificate is a ministerial act.   Mr. Darak <\/p>\n
    invited   my   attention   to   certain   observations   in <\/p>\n
    “Bharatlal   s\/o   Hemraj   v.   Kondiba   Govinda   Jadhav   and  <\/p>\n
    others”   2001   (3)   Mh.L.J.   380.   A   Single   Bench   of   this <\/p>\n
    Court held that declaration under section 38E is not a <\/p>\n
    decision   or   order   within   the   meaning   of   section   90   of <\/p>\n
    the   HT&AL   Act   and,   therefore,   no   appeal   against   such <\/p>\n
    certificate   is   maintainable.     It   is   observed   that <\/p>\n
    issuance of the certificate in Form XVI in favour of a <\/p>\n
    protected tenant is only ministerial act which has to be <\/p>\n
    executed as a result of the final outcome of the enquiry <\/p>\n
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\n                                     ( 13 )<\/p>\n
    contemplated   under   Rule   23   of   the   HT&AL   Rules.     The <\/p>\n
    learned Single Judge held that such certificate is not a <\/p>\n
    decision or adjudication of the rival contentions of the <\/p>\n
    parties   and,   therefore,   it   cannot   be   treated   as <\/p>\n
    appealable  order.  Similar  view  is  expressed in  “Kishan <\/p>\n
    s\/o Ganpati Muley deceased L.Rs. Indrabai w\/o Kishanrao <\/p>\n
    Muley   and   others   v.   Abdul   Razak<\/a>   s\/o   Abdul   Kadar   and  <\/p>\n
    others” 2005 (4) Mh.L.J. 180.\n<\/p>\n
    10.        Question   involved   in   the   present   petition   is <\/p>\n
    not whether the certificate issued under section 38 (6) <\/p>\n
    was   amenable   to   appellate   jurisdiction,   or   that   it   is <\/p>\n
    un-assessable   if   it   is   issued   after   due   enquiry.   The <\/p>\n
    real question is whether the certificate could be issued <\/p>\n
    when name of deceased Yeshwanta Jadhav was not shown in <\/p>\n
    the provisional list of protected tenants, drawn in Form <\/p>\n
    No. VIII as required under Rule 14, nor it was shown in <\/p>\n
    the   final   list   of   the   protected   tenants   as   required <\/p>\n
    under Rule 23, provided in Form XV and, therefore, the <\/p>\n
    rectification   could   be   effected   by   the   Tenancy <\/p>\n
    Tribunal ?\n<\/p>\n
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                                      ( 14 )<\/p>\n
    11.        The   expression   “protected   tenant”   is   defined <\/p>\n
    under section 2 (r) of the HT&AL Act to mean a person, <\/p>\n
    who   is   deemed   to   be   a   protected   tenant   under   the <\/p>\n
    provisions of sections 34 to 37A Chapter-IV of the Act <\/p>\n
    refers   to   “protected   tenant”   to   mean   that   a   person, <\/p>\n
    subject   to   the   provisions   of   sub-section   (2)   (3)   of <\/p>\n
    section   34,   as   deemed   protected   tenant   if   he   has   held <\/p>\n
    the  land   as  a   tenant   continuously   for   a  period   of   not <\/p>\n
    less than six (6) years, being a period wholly included <\/p>\n
    in the Fasli years 1342 to 1352 (both years inclusive) <\/p>\n
    or for a period of not less than six years immediately <\/p>\n
    preceding   the   first   day   of   January,   1948,   or   for   a <\/p>\n
    period of not less than six years commencing not earlier <\/p>\n
    than   the   1st  day   of   the   Fasli   year   1353   (6th  October, <\/p>\n
    1943) and completed before the commencement of this Act.\n<\/p>\n
    The Act further provides for a scheme to decide disputed <\/p>\n
    questions   regarding   dispute   raised   about   status   of   a <\/p>\n
    protected tenant. The dispute ought to be raised within <\/p>\n
    one   year   from   the   commencement   of   the   Act   as <\/p>\n
    contemplated   under   section   35   and   is   required   to   be <\/p>\n
    decided by the Tahsildar.   Mr. Darak would submit that <\/p>\n
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\n                                      ( 15 )<\/p>\n
    when there was no such dispute raised within period of <\/p>\n
    one   year   after   commencement   of   the   Act,   the   status   of <\/p>\n
    the   deceased   tenant   –   Yeshwanta   Jadhav   could   not   be <\/p>\n
    lateron challenged and, therefore, the impugned order is <\/p>\n
    unsustainable.  It is pertinent to notice that status of <\/p>\n
    deceased   Yeshwanta   Jadhav   was   not   that   of   a   protected <\/p>\n
    tenant declared under section 34 of Chapter-IV.   There <\/p>\n
    was   no   occasion   to   raise   dispute   under   section   35   for <\/p>\n
    want   of   compliance   of   the   definition   of   expression <\/p>\n
    “protected tenant” under section 34 of Chapter-IV.   It <\/p>\n
    is   pertinent   to   note   that   section   8   of   the   HT&AL   Act <\/p>\n
    empowers   the   Tahsildar   to   decide   question   whether   a <\/p>\n
    person is tenant or not.   Therefore, when the landlord <\/p>\n
    opposes   status   of   a   person   claiming   to   be   tenant,   the <\/p>\n
    Tahsildar   can   decide   that   matter   in   the   same <\/p>\n
    proceedings.     In   the   present   case,   there   is   no   such <\/p>\n
    adjudication order placed on record.   There is also no <\/p>\n
    extract   of   the   register   maintained   under   sections   37A <\/p>\n
    and   38E   of   the   HT&AL   Act   which   indicates   inclusion   of <\/p>\n
    the   name   of   deceased   Yeshwanta   Jadhav   in   the   relevant <\/p>\n
    register of protected tenants.\n<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:34:13 :::<\/span><\/p>\n
                                      ( 16 )<\/p>\n
    12.        Section 37-A (2) reads as follows :\n<\/p>\n
               “37-A.     Persons holding land as tenant at the
\n               commencement   of   the   Hyderabad   Tenancy   and
\n               Agricultural Lands (Amendment) Act, 1955, to be <\/p>\n
               deemed to be protected tenants :
\n               (1) *****
\n               (2) The   rights   as   a   protected   tenant   of   a <\/p>\n
               person   deemed   under   sub-section   (1)   to   be   a
\n               protected   tenant   shall   be   recorded   int   he <\/p>\n
               Record of Rights, or where there is no Record
\n               of   Rights   in   such   village   record   as   may   be <\/p>\n
               prescribed.”\n<\/p><\/blockquote>\n
    A   plain   reading   of   section   37-A   would   make   it   amply <\/p>\n
    clear that deeming effect is given to tenancy of a class <\/p>\n
    of persons in possession of tenanted land. The rights of <\/p>\n
    a   protected   tenant   are   required   to   be   entered   in   the <\/p>\n
    Record of Rights. The fact situation in the present case <\/p>\n
    is   that   rights   of   deceased   Yeshwanta   Jadhav   were   not <\/p>\n
    recorded in the Record of Rights as contemplated under <\/p>\n
    section 37-A (2) nor in the provisional list in Form-VII <\/p>\n
    required to be prepared under Rule 14 nor his name was <\/p>\n
    shown   in   the   final   list   of   protected   tenants   which   is <\/p>\n
    required to be drawn in Form XV under Rule 23 (1) of the <\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:34:13 :::<\/span>
\n                                       ( 17 )<\/p>\n
    HT&AL Act.  On behalf of the respondents, an extract of <\/p>\n
    the relevant register of protected tenants is placed on <\/p>\n
    record.     It   appears   that   name   of   deceased   Yeshwanta <\/p>\n
    Jadhav was shown only in relation to land bearing Survey <\/p>\n
    No.   189,   admeasuring   1   Acre   37   Gunthas.   The   deceased <\/p>\n
    respondent   (Afsar   Begum)   had   filed   copies   of   Pahani <\/p>\n
    Patrak from 1950 to 1956 alongwith a certificate issued <\/p>\n
    by the Tahsildar which clearly showed that name of said <\/p>\n
    Yeshwanta   Jadhav   was   not   recorded   in   the   register   of <\/p>\n
    protected   tenants.     On   perusal   of   the   entries   in   the <\/p>\n
    Pahani Patraks, it can be gathered that he was not shown <\/p>\n
    as tenant of the land owned by deceased Nadimuddin.  His <\/p>\n
    name   appeared   in   the   Pahani   Patrak   for   the   year <\/p>\n
    1953-1954   for   the   first   time,   as   a   tenant   of   Pattedar <\/p>\n
    Mohammad   Jamrudbi   of   the   entire   land   Survey   No.   202.\n<\/p>\n
    Amongst   various   sharers   of   the   said   land,   Pattedar <\/p>\n
    Mohammad   Jamrudbi   was   one   of   the   co-sharers   and   her <\/p>\n
    share was being cultivated by deceased Yeshwanta Jadhav.\n<\/p>\n
    The   land   Survey   No.   202AA   was   not   shown   to   be   in   his <\/p>\n
    actual   possession   as   a   tenant.     It   is   quite   clear, <\/p>\n
    therefore,   that erroneously the certificate was issued <\/p>\n
    to him under section 38 (6) on totally wrong assumption <\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:34:13 :::<\/span>
\n                                      ( 18 )<\/p>\n
    that he was a protected tenant in respect of Survey No. <\/p>\n
    202AA.\n<\/p>\n
    13.        Mr.   Darak   would   submit   that   when   the   two   (2) <\/p>\n
    sons   of   deceased   Nadimuddin   had   lost   the   legal   battle <\/p>\n
    when   they   had   challenged   the   certificate   under   section <\/p>\n
    38   issued   in   favour   of   Yeshwanta   Jadhav   and   the   order <\/p>\n
    rendered by the Maharashtra Revenue Tribunal in case No. <\/p>\n
    108\/B\/71-Bhir on 5th November, 1971 had become final, the <\/p>\n
    same   issue   could   not   be   re-agitated   by   deceased <\/p>\n
    respondent – Afsar Begum.  He would submit that now the <\/p>\n
    unsuccessful   litigants   i.e.   the   two   sons   of   deceased <\/p>\n
    Nadimuddin will be the real beneficiaries of such orders <\/p>\n
    rendered by the revenue Tribunals including Maharashtra <\/p>\n
    Revenue   Tribunal   in   the   next   round   of   litigation <\/p>\n
    initiated   by   the   deceased   respondent   –   Afsar   Begum <\/p>\n
    because they are her legal representatives.   He argued <\/p>\n
    that   those   who   had   lost   their   claims   on   previous <\/p>\n
    occasion will now emerge as successful litigants if the <\/p>\n
    impugned order is maintained.   He submitted, therefore, <\/p>\n
    to set aside the impugned judgement.\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:34:13 :::<\/span><\/p>\n
                                      ( 19 )<\/p>\n
    14.        The   contentions   of   Mr.   Darak   may   prima   facie <\/p>\n
    appear   to   be   attractive.     However,   on   merits,   it   is <\/p>\n
    difficult   to   accept   his   submissions.     The   application <\/p>\n
    filed   by   the   two   sons   of   deceased   Nadimuddin   was <\/p>\n
    dismissed   due   to   bar   of   limitation.   The   deceased <\/p>\n
    respondent   –   Afsar   Begum   was   not   a   party   to   the   said <\/p>\n
    proceedings,   nor   there   was   any   decision   rendered   on <\/p>\n
    merits.   Hence, such decision cannot be treated as  res <\/p>\n
    judicata.  For, there was no finding rendered on merits.\n<\/p>\n
    15.        Mr. Darak seeks to rely on certain observations <\/p>\n
    in     “Mohammad   Kavi   Mohamad   Amin   v.   Fatmabai <\/p>\n
    Ibrahim” (1997) 6 SCC 71.   He would submit that though <\/p>\n
    no time-limit was prescribed for exercise of power under <\/p>\n
    section 8 of the HT&AL Act, yet, the application filed <\/p>\n
    by   deceased   respondent   Afsar   Begum   could   not   be <\/p>\n
    entertained   after   lapse   of   many   years.     In   the   given <\/p>\n
    case,   suo   motu   enquiry   was   started   by   the   Mamlatdar <\/p>\n
    somewhere in September, 1973 in respect of the transfer <\/p>\n
    which had taken place in 1972.  The Apex Court held that <\/p>\n
    the   suo   motu   power   under   section   84-C   of   the   Bombay <\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:34:13 :::<\/span>
\n                                      ( 20 )<\/p>\n
    Tenancy   and   Agricultural   Lands   Act,   1976   was   not <\/p>\n
    exercised   by   the   Mamlatdar   within   a   reasonable   time.\n<\/p>\n
    The facts of the given case are on different footings.\n<\/p>\n
    In the present case, the statutory ownership certificate <\/p>\n
    was issued in favour of deceased Yeshwanta Jadhav even <\/p>\n
    though he was not declared as a protected tenant of land <\/p>\n
    Survey   No.   202AA   and   his   name   did   not   appear   in   the <\/p>\n
    relevant register.  His name was surreptitiously entered <\/p>\n
    and   mistakenly,   the   certificate   of   statutory   ownership <\/p>\n
    was issued in his favour without any basis.  Obviously, <\/p>\n
    such   inherent   defect   could   be   rectified   at   any   time.\n<\/p>\n
    There   is   no  bar  of   limitation   in   case   the   decision   is <\/p>\n
    rendered without any legal basis, by mistake or fraud.\n<\/p>\n
    In  “Bachan and another v. Kankar and others” (AIR 1972  <\/p>\n
    S.C. 2157), the Apex Court held that a person cannot be <\/p>\n
    conferred   adhivasi   rights   on   basis   of   an   entry <\/p>\n
    incorrectly   introduced   in   the   Record   of   Rights   in   his <\/p>\n
    favour.  It is observed :\n<\/p>\n
               “The   High   Court   wrongly   held   that   though   the <\/p>\n
               entry was incorrect it could not be said to be  <\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:34:13 :::<\/span>
\n                                      ( 21 )<\/p>\n
               fictitious.   It is too obvious to be stressed <\/p>\n
               that   an  entry  which  is  incorrectly   introduced <\/p>\n
               into   the   records   by   reason   of   ill-will   or <\/p>\n
               hostility is not only shorn of authenticity but <\/p>\n
               also becomes utterly useless without any lawful <\/p>\n
               basis.”\n<\/p><\/blockquote>\n
    16.        The   entry   of   the   name   of   deceased   Yeshwanta <\/p>\n
    Jadhav   in   the   subsequent   record   for   declaring   him   as <\/p>\n
    person entitled to become statutory owner under section <\/p>\n
    38-C   of   the   HT&AL   Act   must   be   regarded   as   fictitious, <\/p>\n
    unfounded and useless. The Maharashtra Revenue Tribunal <\/p>\n
    usefully   referred   to   observations   of   this   Court   in <\/p>\n
    “Vyankatesh   Deshpande   v.   Kusum   Kulkarni<\/a>”   (1976   Mh.L.J.\n<\/p>\n
    373).  A Division Bench of this Court held that the acts <\/p>\n
    of the revenue officer, or order which can be termed as <\/p>\n
    invalid and withut jurisdiction would be nullity.   So, <\/p>\n
    it is not necessary for anyone to object such order or <\/p>\n
    act  for  setting  aside   the   same.  The  null   and   void   act <\/p>\n
    can be challenged in any proceedings.   Obviously, when <\/p>\n
    the declaration of statutory ownership under section 38 <\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:34:13 :::<\/span>
\n                                    ( 22 )<\/p>\n
    (6) could not be granted in favour of deceased Yeshwanta <\/p>\n
    Jadhav, for the reason that he was totally ineligible to <\/p>\n
    claim status of protected tenant, in respect of the land <\/p>\n
    survey   No.   202AA,   the   certificate   can   be   regarded   as <\/p>\n
    non-est in the eye of law.  Needless to say, whether the <\/p>\n
    legal   representatives   of   deceased   respondent   –   Afsar <\/p>\n
    Begum   became   ultimate   beneficiaries   of   the   impugned <\/p>\n
    decision, though had lost the challenge to such order in <\/p>\n
    the past, is of no much significance.  Once it is found <\/p>\n
    that the certificate issued in favour of said Yeshwanta <\/p>\n
    Jadhav   is   null   and   void,   there   hardly   appears   any <\/p>\n
    substantial   error   committed   by   the   learned   designated <\/p>\n
    Member of the Maharashtra Revenue Tribunal. The impugned <\/p>\n
    order is, therefore, legal and proper.\n<\/p>\n
    17.       In the result, the petition is dismissed.   No <\/p>\n
    costs.\n<\/p>\n
                                                 [ V.R. KINGAONKAR ]
\n                                                        JUDGE  <\/p>\n
    NPJ\/wp2006-91<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:34:13 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Vaijnath vs Smt. Afsar Begum on 1 February, 2010 Bench: V.R. Kingaonkar (1) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2006 OF 1991 1. Vaijnath s\/o Yeshwant Jadhav Since deceased, by L.R. Chandrakant s\/o Vaijinath Jadhav, R\/o Ghatnandur, Tq. Ambajogai. 2. Vishwanath s\/o Yeshwant Jadhav […]<\/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-226693","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nVaijnath vs Smt. Afsar Begum on 1 February, 2010 - 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\/vaijnath-vs-smt-afsar-begum-on-1-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vaijnath vs Smt. 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