Bombay High Court
Mahadeo @ Mahadu Haribhau Nigune vs Indulal Ranchhoddas Shah Since ... on 17 July, 2000
Equivalent citations: 2001(1)BOMCR445, (2001)1BOMLR117, 2001 A I H C 1010, (2001) 1 ALLMR 222 (BOM), 2001 BOM LR 1 117, (2001) 1 BOM CR 445
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT M. Khanwilkar, J.
1. This writ petition, under Article 227 of the Constitution of India, is directed against the judgment and order passed by the M. R. T.. Pune dated 4.3.1987 in Revision Application No. 1 of 1985.
2. Briefly stated, one Indulal Ranchhoddas Shaha, along with 3 others, had filed application under Section 70b of B. T. & A. L. Act before the Tahasildar, Pune City, Pune being Tenancy Appeal No. 1 of 1981 for a declaration that the Petitioner herein is not the tenant in respect of the suit land bearing Survey No. 721/2-A situated at Pune City.
3. The Tahasildar after considering the evidence on record took the view that the Respondents had established that the Petitioner herein was not cultivating the suit land as a tenant. The Tahasildar referred to the receipts which were placed on record to show that the Petitioner was paid as wages and not share in the crops. Another document which has been relied upon is Nokarnama, which would go to show that the Petitioner was cultivating the suit land as a servant on wages without any sahre in the crop. Tribunal also referred to the circumstance that the Petitioner had not brought any material on record to show that he was paying annual assessement or land revenue as a tenant of the suit land, which he was obliged to do under the Act. Besides the documents, the Tahasildar also placed reliance on the admission given by the Petitioner that he was working with the Respondent as labourer. The Tahasildar by its order dated 16.7.1984 having regard to the totality of the circumstances took the view that the Petitioner herein was not the tenant in respect of the suit land. The Tahasildar has held that the Petitioner has neither been able to show that he was a contractual tenant nor there is any evidence to hold that the Petitioner was a deemed tenant within the meaning of section 4 of the Act. The Tahasildar held that, on the other hand, the evidence on record would go to show that the Petitioner was cultivating the suit land as servant on wages, without share in the crop, and as such was not a deemed tenant.
4. Being dissatisfied by the said order, the Petitioner preferred an appeal before the Additional Collector, Pune, being Tenancy Appeal No. 28 of 1984. The Appellate Court, without giving due importance to the aforesaid documents and evidence which pursuaded the Tenancy Court to record a finding that the Petitioner was not cultivating the suit land as a tenant, was unduly impressed with the R. T. S. proceedings which indicated that the Petitioner was in occupation of the suit land. The Appellate Court, by its judgment and order dated 9.7.1985, allowed the appeal.
5. On reading the judgment of the Appellate Court it appears that the Appellate Court was of the view that the decision in R. T. S. proceedings between the parties had attained finality and it was not open to the Respondents to challenge or dispute that the Petitioner was in occupation of the suit land as a tenant. No other point has weighed with the Appellate Court to allow the appeal preferred by the Petitioner.
6. The Respondents preferred revision application before the M. R. T. under Section 76 of the Act. The Tribunal after carefully examining of the record concluded that the approach of the Appellate Court was totally wrong and could not be sustained. The Tribunal correctly held that the decision in R. T. S. proceedings. The Tribunal instead adverted to the relevant documents in the shape of receipt, Nokarnama as well as the admissions given by the Petitioner in the cross- examination to show that he was cultivating the suit land as a labourer on wages no crop share basis. The Tribunal accordingly allowed the revision application by setting aside the order passed by the Appellate Court vide its order dated 4.3.1987.
7. Against the aforesaid decision the present writ petition has been filed by the alleged tenant. The learned Counsel for the Petitioner mainly argued that the Tribunal has clearly exceeded the jurisdiction under Section 76 of the Act in reversing the finding of fact recorded by the Appellate Court which was final fact finding Court.
8. I am afraid this contention deserves to be stated to be rejected for the simple reason that the Appellate Court had clearly misdirected itself in giving undue importance to the decision in R. T. S. proceedings while deciding the claim of tenancy. The decision in R. T. S. proceedings, at best would go to show that the petitioner was occupying the suit land, but that by itself was not sufficient to arrive at a finding that his occupation of the suit land was in the capacity of a tenant. Further having regard to the oral evidence of the Petitioner, in particular the admission that he was cultivating the suit land as labourer, coupled with the receipts as well as the Nokarnama produced on record would clearly go to show that no doubt the Petitioner was cultivating the suit land but was doing so in the capacity of labourer/servant on wages without having any share in the crop grown out of the suit land.
9. In the circumstances, in absence of evidence regarding the contractual tenancy, the only other manner in which the Petitioner could have succeeded was by adducing evidence that he was in occupation of the suit land as a servant on crop share basis. There is absolutely no evidence that the Petitioner was cultivating the suit land on crop share basis. On the other hand, there is positive evidence that he was cultivating the suit land on wages only. In this view of the matter, the approach of the Tribunal cannot be faulted inasmuch as the decision of the Appellate Court was totally misdirected and untenable, both on facts and in law.
10. The learned Counsel for the Petitioner then argued that having regard to the R. T. S. proceedings, which remained unchallenged, it would clearly go to show that the Petitioner was lawfully occupying the suit land. He also emphasized on the circumstance that Respondents have filed suit against the Petitioner on the allegation that the Petitioner was a trespasser and that the said suit came to be withdrawn unconditionally. In my view, neither of the above circumstances would be of any avail to the Petitioner for the simple reason that mere possession of the suit land cannot create tenancy rights within the meaning of Section 4 of the Act. On the other hand, Section 4 clearly postulates that if the land is cultivated with the help of servant on wages, without share in the crop or through hired labourer, under personal supervision of the owner or any member of the owner's family, such cultivation would be deemed to personally cultivated by the owner. Naturally, therefore, aforesaid persons through whom cultivation is undertaken are not treated to be deemed tenant within the meaning of section 4 of the Act. From the evidence on record it is not possible to hold that the Petitioner was cultivating the suit land on crop share basis, therefore, cannot be termed as a deemed tenant. Thus, the aforesaid circumstances, referred to by the Petitioner, cannot be the basis for reaching at a conclusion that the occupation of the said land by the Petitioner was in the capacity as tenant.
11. For the aforesaid reasons, I find no merit in the writ petition inasmuch as there is no infirmity in either the approach adopted by the Tribunal and/or the conclusion reached by it that the Petitioner was not cultivating the suit land as a tenant.
12. While parting it would be relevant to point out that the Tribunal in para 6 of the judgment has already taken note of the conduct of the Petitioner that although he had no interest in the suit land, he accepted sum of Rs. 10,000/- from one R. A. Raman and parted with 20 gunthas out of the suit land. Besides the said transaction, during the pendency of the writ petition, the Petitioner has amicably resolved the matter by voluntarily offering possession of the suit lands to the Respondents. Possession receipt in this behalf has been executed between the parties on 27.4.1992. Acting on the basis of the said possession receipt and after getting possession of the suit land the Respondents have developed the suit property by constructing building in which third party rights have already been created. It is now brought to the notice of the Court that the Petitioner after handing over vacant possession of the suit land has chosen to file suit for declaration that the aforesaid possession receipt is not binding on him. It is not necessary to go into this aspect of the matter but to observe that this only shows the conduct of the petitioner in taking out different proceedings without having any semblance of right in respect of the suit land.
Accordingly, writ petition is dismissed with costs all throughout. Costs quantified at Rs. 5000/- to be paid forthwith.
Rule stands discharged.
Certified copy expedited.
Parties to act on the copy of this order duly authenticated by Sheristedar of this Court.