Bombay High Court
Shri. Amiroddin Shekhan Saheb Khatib ... vs Shri. Yashwant Ramchandra Gujar And Ors on 22 July, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:28762
WP-5904-2013-1.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5904 OF 2013
1. Shri. Amiroddin Shekhan Saheb Khatib,
since deceased through LRs.
Petitioners Nos.4 to 6.
2. Shri. Chiragoddin Mohammad Saheb Khatib,
3. Bilal Ahmed Mohammad Saheb Khatib.
All residents of Nashik,
4. Shekhan Saheb Amiroddin Khatib.
5. Mariyabi d/o. Amiroddin Khatib,
6. Enatbegum Amiroddin Khatib.
All S/Nos.4 to 6 R/o. Kokanipura, Nashik
Through Power of Attorney Holder
Chandrashekhar Babulal Shah,
R/o. Abhyankar Towers, 4th floor,
M.G.Road, Nashik. ...Petitioners
Versus
1. Shri Yashwant Ramchandra Gujar,
R/o. 306/307, Prasanna Arcade, Old Agra
Road, Nashik.
2. Shri Dhananjay Ganpatrao Adke,
R/o. Dhananjay Niwas, Lam Road,
Deolali Camp, Taluka & Dist. Nashik.
3. Smt.Gitabai Gatalu Bhil alias
Yashodabai Gatalu Bhil
R/at At & Post: Damori,
Taluka: Kopergaon, Dist. Ahmednagar.
4. Sau.Suman Gangaram Suryatal alias Surate,
R/at Jaikwadi Camp, Nath Nagar Taluka Paithan,
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Dist. Aurangabad.
5. Sau. Usha Ashok Suryatal alias Surate.
R/at Jaikwadi Camp, Nath Nagar, Taluka Paithan,
Dist. Aurangabad. ...Respondents
------------
Adv. R. D. Soni i/b Ram & Co. for the Petitioner.
Adv. Girish Agrawal a/w Mr. Shubham Jangam, Ms. Naina Boraste for
Respondent Nos. 1 to 5.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : July 9, 2024.
Pronounced on : July 22, 2024
JUDGMENT:
1. Rule. Rule made returnable forthwith and taken up for final hearing with consent of the parties.
2. By this Petition filed under Article 227 of the Constitution of India, exception is taken to the judgment and order dated 14 th December, 2012 passed by the Maharashtra Revenue Tribunal (MRT for short) in Revision No. 3/B/2003 setting aside the order of the Tahsildar and Sub Divisional Officer and remanding the matter to the Tahsildar for deciding the application afresh after giving opportunity of leading oral as well as documentary evidence to both the parties. FACTUAL MATRIX :
3. The Petitioners instituted proceedings before the Tahsildar being Tenancy Case No. 1 of 1999 seeking removal of the name of the Harish 2 of 23 WP-5904-2013-1.docx Respondents from the other rights column of the 7/12 extracts in respect of land bearing Survey No. 685-A and 716 situated at Nasik. The Tahsildar issued notices to the parties and called for report from the Circle Officer.
4. The Tahsildar noted the application dated 12 th January, 1999 filed by the Respondents before the Tahsildar stating that their predecessor Gatlu Bhil's name was entered into the 7/12 extract in the other rights column and he has expired long back. That, no application was made by Respondents for getting their names mutated as legal heirs of the deceased Gatlu. That, the deceased Gatlu was residing in Aurangabad and he has no concern with the suit property and was not in possession thereof and that their names be removed from the other rights column. The Tahsildar recorded the statements of the Respondents that their names have been mutated as legal heirs of Gatlu. Gatlu had expired 25 years back and was working on a dam at Paithan and that the suit properties were in possession of the Petitioners on 1st April, 1957. That, the suit properties were not in cultivation of their father and that their statements are being recorded voluntarily.
5. The order of the Tahsildar further notes that on 26 th March, 1999, the respondents submitted a written reply withdrawing their Harish 3 of 23 WP-5904-2013-1.docx earlier statements and claimed that they are residents of Nashik and the suit properties are in their possession. It was contended that they have executed power of attorney for the Court proceeding in favour of Yashwant Gujar and Dhananjay Adke. The sum and substance of their written statement was that they have not surrendered their rights in respect of the suit land.
6. The Tahsildar noted that the name of the Respondent's predecessor was mutated as protected tenant vide Mutation Entry No. 5326 and the names of the Respondents as legal heirs was mutated vide Mutation Entry No. 29318. The Tahsildar held that the Mutation Entry No. 5326 does not refer to any order of Tenancy Court declaring the Respondent's father as protected tenant. On aspect of possession, the Tahsildar held that the documents on record did not establish that the subject property was in the possession of the deceased Gatlu or his legal heirs on 1 st April 1957 or even thereafter. There is no evidence which has been produced by the respondents in the form of any rent receipts or any other evidence and they have not established that they are protected tenants as per provisions of The Maharashtra Tenancy and Agricultural Lands Act, 1948 (Tenancy Act for short).
7. The Tahsildar noted that the Respondents had filed an Harish 4 of 23 WP-5904-2013-1.docx application under Section 84 of the Tenancy Act being Tenancy Application No. 14 of 1996 for recovery of the possession which was dismissed on 7th April, 1999. The Respondents had also filed Regular Civil Suit No. 59 of 1996 seeking injunction against the Petitioners from interfering with the Respondent's possession in which Court Commissioner came to be appointed and the report does not establish the Respondent's possession. The Tahsildar noted that the suit was dismissed on 5th January, 1999 and while dismissing the suit, the Trial Court held that the Respondents have not established that they are protected tenant. Vide order dated 4th July, 1999, the Tahsildar directed deletion of the Respondent's names as protected tenants from the other rights column of 7/12 extract in respect of the Survey No. 716 and Survey No. 685/A.
8. As against this, the Respondents preferred Tenancy Appeal No. 2 of 2000 before the Sub Divisional Officer which was dismissed by order dated 28th March, 2002. The Sub Divisional Officer (SDO for short) noted that the crop cultivation entries of Survey No. 685/A of the year 1937-38 to 1942-43 are recorded as "Self", for the year 43-44 to 55-56 are recorded in the name of Gatlu, for the year 56-57 in the name of Gajiram Gatlu Bhil, for the year 57-58 to 59-60 in the name of Rajaram Bhala Bhil and for the year 60-61 to 2000-01 as "Self" i.e. in Harish 5 of 23 WP-5904-2013-1.docx the name of landlord. The SDO also noted from the 7/12 extracts of survey No. 716 for the years 1963-64 to 2000-01, the crop inspection entries were recorded as self. The SDO observed that the name of the Gatlu was recorded as protected tenant by Mutation Entry No. 5326 but subsequently, the suit lands being Inam Class VI-A lands were re- granted to the landlord by order dated 3 rd June, 1961 and Mutation Entry No. 7932 was effected and certified, which order is still in force. The SDO considered the dismissal of the application for possession and held that Respondents have failed to prove their possession and dismissed the appeal.
9. The Respondents had filed application under Section 84 of the Tenancy Act i.e. Tenancy Application No.14 of 1996 in respect of Survey No.685/A seeking eviction of the Petitioners. In those proceedings, the SDO held that there is no document to show that the tenants are in possession of the suit land. That, the Respondents had not entered into witness box and there is no record to show that the Respondents are concerned with the suit land and no record to show that the landlord is in unauthorized possession of the suit land and hence, question of eviction does not arise.
10. As against this, the Respondents had filed Revision Application No. 110/B/1999 before the MRT which came to be dismissed by order Harish 6 of 23 WP-5904-2013-1.docx dated 15th May, 2001. MRT noted that the names of the Respondents have been entered as legal heirs in 1992 and the original protected tenant had expired in the year 1974. That, none of the parties had produced 7/12 extract indicating their possession prior to 1995-96 and the record indicated that for the year 1995-96, the possession is with the Petitioners and the area is under hutment. MRT noted that the Respondents have not been able to prove as to when they were dispossessed. MRT noted the decision of the Civil Court and Tahsildar in Tenancy Case No. 1 of 1999 and held that though the names of the Respondents appear in the record of rights, they have not been able to prove their possession and the original protected tenant expired in the year 1974 and after 18 years the names of legal heirs were mutated. The original entry as protected tenant is of the year 1948 and besides this, there is no evidence to show that the protected tenant was cultivating the suit land anytime and dismissed the Revision.
11. The Respondents had also filed Regular Civil Suit No. 59 of 1996 seeking perpetual injunction against the Petitioners claiming that the Respondents were dispossessed on 11th January, 1996. The Trial Court held that on perusal of the 7/12 extract it appears that in the year 1994-95, there are many owners of the suit property including Harish 7 of 23 WP-5904-2013-1.docx Respondents. However the document is totally silent about the possession of the Respondents or even their father over the suit property and the Respondents had failed to establish that they are the protected tenants under the Tenancy Act. The Trial Court considered the evidence of the Power of Attorney holder of the respondents and held that the constituted attorney is totally unaware about the facts of the case. The Trial Court noted that the position of the site has revealed from the Court Commissioner's report put to the constituted attorney shows that she is totally unaware about the position of the site. The Trial Court noted that the Respondents had failed to prove their possession and only there is an entry of the Respondents in the other rights column. The Trial Court further noted that an application was moved by the Respondents for referring the matter to the Tenancy Court for deciding the tenancy of the Petitioners, however the said application came to be rejected. The Trial Court thereby dismissed the suit.
IMPUGNED JUDGMENT AND ORDER DATED 14th DECEMBER, 2012:
12. The impugned judgment and order arises out of challenge to the order of SDO dated 28 th March, 2002 filed against the order of the Tahsildar deleting the name of the Respondents from the other rights column of the 7/12 extract in respect of suit property i.e. Survey No. Harish 8 of 23 WP-5904-2013-1.docx 685/A and 716 as protected tenant. MRT examined the record of the Tahsil Office and observed that the application was filed under section 15 (1) of the Tenancy Act by the Respondents wanting to surrender their tenancy rights. MRT noted that the statements recorded does not show as to who has recorded their statement as there is no counter signature of any authority nor any date. MRT also considered the subsequent application given by the Respondents refuting their earlier statement of surrender. MRT noted that the Tahsildar has passed the order without allowing the parties to lead oral and documentary evidence and merely on the basis of the documents including judgment of the Civil Court the application has been allowed.
13. MRT noted that the Court Commissioner's report in Civil Suit shows that survey No. 685/A was a dairy farm including cattle shed and that the 7/12 extract shows that the said land is not under cultivation. Further the entries of 1962-1963, 1965-66, 1967-1968 shows that in some part of the land crop is grown. MRT held that the issue to be decided under Section 84 of the Tenancy Act was limited to the question of dispossession and unauthorised possession and there is no specific issue raised regarding tenancy. MRT held that no proper opportunity was given to the Respondents to lead oral and Harish 9 of 23 WP-5904-2013-1.docx documentary evidence regarding issue of tenancy and as such, quashed and set aside the order of the Tahsildar and Sub Divisional Officer and remanded the matter to the Tahsildar to permit parties to lead evidence and decide the same afresh.
SUBMISSIONS :
14. Mr. Soni, learned counsel for the Petitioners has taken this Court through the orders passed by various forums and would submit that it has been the consistent finding of the authorities that the respondents are not in possession. He submits that it is only by virtue of Mutation Entry no. 5326 dated 22 nd March, 1948 the name of the Gatlu appeared in the other rights column as protected tenant which entry was also without any Court order or without any declaration as a protected tenant. He submits that the suit land is Inam Class VI-A land and was re-granted to the Petitioners by order dated 30 th July, 1961. He submits that the fact that the Respondents had filed an application under Section 84 of the Tenancy Act demonstrate that they were not in possession of the suit land. He submits that before the Tahsildar in Tenancy Application No. 1 of 1999, the Respondents themselves had filed an application on 12th January, 1999 admitting that Gatlu was residing in Aurangabad and had no concern with the suit property and was not in possession of the suit property. He submits that though Harish 10 of 23 WP-5904-2013-1.docx their statement was later sought to be withdrawn, the Tahsildar had recorded their statements and has endorsed his signature. He has drawn attention of this Court to the application as well as the statements recorded which are annexed at page No. 20 to 27 of the additional compilation of documents. He would further submit that subsequently, in the year 1982, the property has been included within the area of Nashik Municipal Corporation in the town planning scheme. He submits that possession is tenancy and the Respondents have failed to show their possession. He submits that MRT remands the matter on an incorrect findings of fact by holding that there is no endorsement, whereas to the left side of the document of page No. 20, the Tahsildar has affixed his signature. He submits that there are subsequent events which have taken place inasmuch as six sale deeds have been executed, the land has been converted into non- agricultural land. He submits that the status of the land has changed and the possession of the land is with the Petitioners.
15. Per contra, Mr. Agrawal submits that under Section 84 of the Tenancy Act, recovery of the possession has been denied and in proceedings under Section 84, there is no authority to decide as to whether the tenant is protected tenant. He submits that the procedure for surrender of tenancy is set out in Section 15 of Tenancy Harish 11 of 23 WP-5904-2013-1.docx Act read with Rule 9 of the Tenancy Rules. He submits that what was required was the recording of the satisfaction of Tahsildar that the tenant had voluntarily made a surrender after understanding its nature and consequences, which satisfaction is not recorded in present case. Drawing the attention of this Court to the Application at page No.20 of the compilation of document stated to be an application under Section 15 (1) of the Tenancy Act, he submits that if the Respondents were not protected tenants, there was no question of surrender of tenancy under section 15(1) of the Tenancy Act. He would further point out the statements recorded and would submit that the endorsement of the statements by the Tahsildar would not substitute the satisfaction of the Tahsildar as required under Section 15 of the Tenancy Act. He would further submit that the Civil Court does not have jurisdiction to record any finding as regards the protected tenancy of the Respondents. In support, he relies upon the following decisions.
Papila Bai vs. Chavdas T. Bhortakke [AIR 2005 SC 662] Ramchandra Keshav Adke V/s.Govind Joti Chavare [AIR 1975 SC 915] Bhimaji Shankar Kulkarni V/s. Dundappa Vithappa Udapudi [AIR 1966 SC 166] Shri. Jagannath Vithu Jadhav (D) through LRs. & Harish 12 of 23 WP-5904-2013-1.docx Ors. V/s The State of Maharashtra & Ors. [2013(7) ALL MR 488] Rama Vithal Kalanttre (deceased through LRs.) & Anr. V/s Pandurang Hindurao Patil [2005(2) ALL MR 88] Vasudeo Ramchandra Kale & Ors. V/s Vijay Bhikaji Raut & Ors.[ 2001(3) Mh. L.J. 90] Bandu Yesu Mali, since deceased by his heir Akkatai Nadu Mali V/s Vishnu Kundlika Sawant & Ors., [1998(3) Bom. C.R. 212 ] Ebrahim Yusuf Lambe V/s Abdul Razak Abdul Rahiman Mulla [1978 80 BomLR 334] Durgaben Manibhai Makanji V/s Moria Bavia [AIR 1956 Bom 706] Coram: Chainani & Tarkunde, JJ Shivnarayan V/s Fakira Bala Roham & Ors. [Spl. Civil Application No.529 of 1958 Decided On: 23/04/1958].
16. In rejoinder Mr. Soni would submit that the decisions relied upon by the learned counsel for the Respondents are in respect of tenants who are in possession. He submits that in the present case, the distinguishing feature is that in the various forums it has been held that the Respondents are not in possession of the subject property. Pointing out to the re-distribution and valuation statement of town planing scheme Nashik No. 2, he submits that the plot No. 685/A and 716 have been converted into non-agricultural land. He would further submit that the satisfaction is recorded in the order of Harish 13 of 23 WP-5904-2013-1.docx the Tahsildar and the application of the Respondents is malafide as the proceedings are only in respect of survey No. 685/A and not survey No. 716 as it has milk dairy standing on the said property. He points out the possession receipt dated 12 th December, 1991 executed by the Respondents stating that the possession was handed over by the predecessors in title through the Respondents and that the Respondents have no concern with the suit land. He submits that the execution of the Power of Attorney would indicate that the litigation is being driven by third parties.
REASONS AND ANALYSIS :
17. By Tenancy Case No. 1 of 1999, the Petitioners sought deletion of the name of the Respondents as protected tenant from the other rights column of 7/12 extract of subject property. Admittedly, Mutation Entry No. 5326 has been certified recording the name of the predecessor of Respondent as a protected tenant and subsequently, the names of the Respondents are mutated as legal heirs vide Mutation Entry No. 29318. There is no challenge to these Mutation Entries by the Petitioners and the application was filed for deletion of names of the Respondents as protected tenant.
18. Coming to the order of the Tahsildar, the Tahsildar has allowed the application for the following reasons:
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(a) Application dated 12th January, 1999 filed by the Respondents stating that their predecessor Gatlu had no concern with the subject property.
(b) Statements recorded of the Respondents re-iterating that the subject lands were not cultivated by their predecessor. (c ) Mutation Entry Nos. 5326 and 29318 mutating the name of the predecessor of Respondent as protected tenant was not based on any order of Tenancy court.
(d) In proceedings initiated by the Respondents under Section 84 of Tenancy Act and in the Civil Court, the Respondents have been held not to be in possession.
19. The application dated 12th January, 1999 stated to be filed by the Respondents is under Section 15(1) of Tenancy Act governing the termination of tenancy by surrender. Reliance by the Tahsildar on the said application would, firstly, postulate that the predecessors of the Respondents were protected tenants in respect of the subject property and the surrender of tenancy by the Respondents is under Section 15 of the Tenancy Act. In that context, what assumes significance are the observations of the SDO in order dated 28 th March 2002 passed in appeal against the order of Tahsildar. The SDO has noted that the crop cultivation entries of Survey No. 685/A, for the year 1943-44 to 1945-46 are recorded in the name of Gatlu Vishram Bhil, 1956-57 is recorded in the name of Gajiram Gatlu Bhil and for the Harish 15 of 23 WP-5904-2013-1.docx years 1957-58 to 1959-60 in name of Rajram Bala Bhil. Despite observing that the predecessor of the Respondents were shown to be cultivating the land on tillers day, the Appeal came to be dismissed by the SDO as the findings in various forum was that the Respondents were not in possession of the subject land. The SDO failed to appreciate that the Petitioners seek deletion of the names of the Respondents as protected tenant from the other rights column. The inquiry which was contemplated was whether the predecessor of the Respondents were protected tenants of the subject land and whether there has been termination or surrender of tenancy in accordance with provisions of law. Neither the Tahsildar nor the SDO has conducted an inquiry into these aspects and has allowed the application of deletion of the Respondent's name by reason of they being held to be out of possession by various forums.
20. Considering the crop cultivation entries, which is not disputed as per the records, it appears that the predecessor of the Respondents were cultivating the land on tillers day. By virtue of statutory operation of law, under Section 32 of Tenancy Act, i.e. on 1st day April, 1957, every tenant shall be deemed to have purchased the land from his landlord the land held by him as tenant if such tenant was cultivating the land leased personally which right is Harish 16 of 23 WP-5904-2013-1.docx defeasible only in certain contingencies mentioned therein. The requirement of cultivation of the land on tillers day i.e. 1 st April 1957 by predecessor of the Respondent is established from the crop cultivation entries. It appears that subsequently, the suit lands being Inam Class VI-A land were re-granted to the landlord by order of 30 th June, 1961. It is settled position in law that the re-grant of the Inam land will not affect the protected tenancy of the predecessor of the Respondents. Mutation Entry No. 7932 recording the re-grant of the subject land narrates that the re-grant is subject to the provisions of Tenancy Act.
21. Although it was sought to be canvassed by Mr. Soni that the Mutation Entry No. 5326 was without any Court order, what can be inferred from the observations of SDO is that the crop cultivation entries of Survey No. 685-A for the year 43-44, 55-56 are recorded in name of Gatlu Bhil, for year 56-57 is recorded in name of Gajiram Gatlu Bhil and for the year 57-58, 59-60 in name of Rajaram Bala Bhil. The observations of SDO lends credence to the fact that Survey No. 685-A was cultivated by the predecessor of the Respondents in the year 56-57 i.e. on tillers day. It is only from the year 60-61 that the crop inspection entries are recorded in name of the landlord. Thus the application of the Respondents dated 12 th January, 1999 stating that Harish 17 of 23 WP-5904-2013-1.docx Gatlu was residing at Aurangabad and had no connection with the subject property would require investigation.
22. The Tahsildar in Tenancy Case No. 1 of 1999 has not conducted the requisite inquiry before directing the deletion of the name of the Respondents from the 7/12 extract. The provisions of the Tenancy Act confer deemed ownership of the tenant on the tillers day and unless it is shown that there is a valid termination or surrender of tenancy in accordance with the provisions of law, the rights of the protected tenant will subsist.
23. In the present case, the Tahsildar while deleting the names of the protected tenants have recorded the statements of the Respondents. Perusal of Section 15 of the Tenancy Act would indicate that the tenancy can be terminated by the tenant by surrendering his interest in favour of the landlords provided that such surrender shall be in writing and verified by the Mamlatdar in the prescribed manner and secondly, that the Mamlatdar shall in respect of surrender verified under sub section 1 of Section 15 hold an inquiry and decide whether the landlord is entitled under sub section 2 to retain the whole and any portion of the land so surrendered and specify the extent and particulars in that behalf.
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24. The Apex Court in the case of Ramchandra Keshav Adake vs. Govind Joti Chaware (supra) in the context of surrender of the tenancy has held that the surrender in order to be valid and effective has to fulfill the requirement of being in writing, of being verified before the Mamlatdar, and while making such verification, the Mamlatdar must satisfy himself in regard to two things namely, that the tenant understands the nature and consequences of surrender and that it is voluntary. It has further held that the Mamlatdar must endorse his findings as to such satisfaction upon the document of surrender.
25. The manner in which the surrender of tenancy is to be verified can be found in Rule 9 of the Tenancy Rules of 1956. It provides that the Mamlatdar is required to satisfy himself after such inquiry as it thinks fit that the tenant understands the nature and consequences of the surrender and also that it is voluntary and shall endorse his findings in that behalf upon the instrument of surrender. Applying the requirements laid down by the Apex Court to the facts of the present case, the Tahsildar has merely recorded the statements of the Respondents that the subject properties are in the possession of the Petitioners, that the predecessor Gatlu was cultivating land as tenant who expired prior to 25 years ,and, that Gatlu was not cultivating the Harish 19 of 23 WP-5904-2013-1.docx land. Apart from affixing his signature to the said statement, there is no other endorsement on the said statement which would reflect the satisfaction of the Mamlatdar that the tenant has understood the nature and consequences of the surrender and that it is voluntary. The Apex Court in Ramchandra Keshav Adake (supra) has held that the said requirements are obligatory and not directory. If the statements are considered in light of the decision of the Apex Court, there is no endorsement of the Mamlatdar that he is satisfied that the tenant has voluntarily surrendered the tenancy and the statutory requisites have been complied with. The Apex Court has held that recording of the satisfaction in the manner prescribed by the Rule was the substance of the matter and not any empty formality and in the absence of requisite endorsement, it cannot be said that there has been even a substantial compliance with the statutory requirements. In the present case, the requirement as contemplated by the Act and Rules for the purpose of arriving at a finding of surrender of the tenancy are missing. The order of Tahsildhar does not indicate that any opportunity of leading evidence was given to the Respondents particularly when the Respondents had thereafter withdrawn their statements.
26. Reliance has been placed by Mr. Soni, on the possession receipt Harish 20 of 23 WP-5904-2013-1.docx of 12th December, 1991 executed by the Respondents stating that the subject properties are owned by the Petitioners and names of their predecessors were effected in the revenue record and subsequently, their predecessor Gatlu had handed over the possession of the property to the Petitioners. The possession receipt in fact demonstrates that the property was in possession of the predecessors of the Respondent who is then stated to have handed over possession to the Respondents. It is therefore the case of the Petitioners that the tenancy has been surrendered which has to meet the requirements of Section 15 of the Tenancy Act read with Rule 9 of the Tenancy Rules and the satisfaction as laid down by the Apex Court in the decision of Ramchandra Adke (supra). The Tahsildar as well as the Sub Divisional Officer were swayed by the fact that the possession of the property was with the Petitioners and in the various forums, the possession has not been restored back to the Respondents. The application under Section 15(1) dated 12th January, 1999 and the possession receipt dated 12th January, 1999 read with the crop cultivation entries discloses that the case of the Petitioners was of surrender of tenancy in which event, a detailed inquiry was contemplated. Considering the aforesaid documents, it cannot be said that the Mutation Entry No. 5326 was a hollow entry and that the pre- decessor of the Respondents was never in cultivation of the subject Harish 21 of 23 WP-5904-2013-1.docx land. The effect of the pre-decessor of the Respondents being in cultivation on tillers day as per the crop cultivation entries, the alleged subsequent surrender of tenancy and the impact of rejection of application under Section 84 of Tenancy Act and the Respondents being out of possession on the deemed purchase under Section 32 of Tenancy Act are all questions which are required to be considered by the Tahsildar before the deletion of the names of Respondents as protected tenants.
27. The MRT by impugned order has rightly remanded the matter to the Tahsildar to decide the application afresh as the issue of tenancy was concluded by relying upon the proceedings under Section 84 of the Tenancy Act qua the recovery of possession. It is settled that the issue of the tenancy could be decided only by the Mamlatdar and not in any proceeding under Section 84 of the Tenancy Act or by the Civil Court. The MRT has held that the requirements of Section 15 of the Tenancy Act has not been sufficiently complied with by the Tahsildar and therefore, without allowing the party to lead oral or documentary evidence merely on documents which are referred to including judgment of the Civil Court, the decision was given by the Tahsildar.
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CONCLUSION :
27. The application before Tahsildar sought deletion of
Respondent's names as protected tenant from 7/12 extract. The crop cultivation entries shows that the Respondent's predecessors were cultivating the subject land on tiller's day. Mutation Entry No.5326 mutates the name of Respondent's predecessor as protected tenant.
28. The Tahsildar while adjudicating said application relies upon the application filed by the Respondents under Section 15 of the Tenancy Act and statements recorded. It will thus have to be shown that the tenancy was terminated or surrendered as per law. No such inquiry was conducted by Tahsildar and hence MRT has rightly remanded the matter. The subsequent events of the property being included in Town Planning Scheme has no bearing on the issue whether in the year 1999, the Tahsildar had rightly deleted the names of the Respondents as protected tenant.
29. In light of the discussion above, I do not find any infirmity in the order passed by the MRT. Petition fails and stands dismissed.
30. In view of the final disposal of the Petition, Interim/Civil application, if any, does not survive for consideration and the same is disposed.
[Sharmila U. Deshmukh, J.]
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Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 22/07/2024 20:24:43