Bombay High Court
Shri Gulabrao Sahebrao Shinde vs Shri Sayaji Shankar Shinde on 31 October, 2003
Equivalent citations: 2004(3)BOMCR159, 2004(1)MHLJ873, 2004 A I H C 733, 2004 BOM LR 2 480 (2004) 1 MAH LJ 873, (2004) 1 MAH LJ 873
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT
1. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Maharashtra Revenue Tribunal, Pune dated March 2, 1990 in Revision Application No. MRT-NS/VIII/89 (TNC.B.210/89). The land in question is agricultural land bearing Gat Nos. 323 and 799 situated at Village Jamb, Taluka Wai, District Satara. The said land was originally owned by Smt. Housabai Govind Shinde. The said Housabai executed a Lease Deed in favour of the Petitioner on September 20, 1987. One of the condition stated in this Lease Deed is that the Petitioner has been put in actual possession of the suit land along with crops, on condition of payment of 1/3rd (one-third) crops share to said Housabai. On 28th September 1987, Smt. Parvatibai Sudan Sakunde, the grand daughter of Housabai and Smt. Tarabai Anandrao Babar, step-mother of Smt. Parvatibai, executed a Consent Deed to the Agreement dated September 20, 1987 executed by Housabai in favour of the Petitioner herein. The said Housabai died on December 11, 1987, whereafter, the mutation entry No. 1102 was effected on December 3, 1988 and the name of Smt. Parvatibai Sudan Sakunde was entered in the record of rights with regard to the suit lands, as the only legal heir of Housabai. The said Parvatibai, later on, executed Sale Deed dated June 7, 1988 in favour of Respondent in respect of the suit land for consideration of Rs. 45,000/- (Rupees Forty-five Thousand). After the said transaction, name of Respondent was entered in the record of rights in place of said Smt. Parvatibai vide mutation entry No. 1136. The Petitioner immediately thereafter, served notice to the Respondent on August 16, 1988 expressing his intention to exercise his right to purchase the suit land conferred by virtue of Section 33-O of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act'). The Petitioner, thereafter, on August 19, 1988, filed application before the Tenancy Awwal Karkun, Wai being Tenancy 70(b) of the Act for declaration that he is tenant in respect of the suit land since August 20, 1987 as per the written agreement of lease. The Tenancy Awwal Karkun, Wai, by making necessary enquiry, in which parties adduced evidence, by Judgment and Order dated March 15, 1989 allowed the application preferred by the Petitioner. The Tenancy Awwal Karkun has adverted to all the relevant materials on record and on analysing the same, has found as of fact, that the Petitioner was in lawful cultivation of the suit land, which was earlier belonging to Housabai and now owned by the Respondent, as tenant. Against this decision, the Respondent carried the matter in appeal before the Sub-Divisional Officer. The Appellate Authority, by Judgment and Order dated July 21, 1989, dismissed the appeal and confirmed the finding of fact recorded by the First Authority. Accordingly, even the Appellate Authority found, as of fact, that the Petitioner was in lawful cultivation of the suit land since September 20, 1987 as tenant. These concurrent decisions were challenged by the Respondent before the Maharashtra Revenue Tribunal. The Tribunal, on the other hand, by the impugned Judgment and Order has allowed the Revision Application preferred by the Respondent. To overturn the concurrent views taken by the two authorities below, the Tribunal has found that on proper construction of the Lease Deed, it appears that the Petitioner was accepted as partner in cultivation by deceased Housabai and in no way, it would suggest that the intention of Housabai was to lease out the suit lands. The Tribunal then adverted to 7/12 extract and noted that the name of the Petitioner is mentioned in the 'other rights column' indicating that the Petitioner has right to take water, whereas, the mode of cultivation was mentioned as Type I, which means the land was cultivated personally by the landlady. The Tribunal has further found that there was no evidence to show that the Petitioner had paid 1/3rd share of crop to Housabai or to Parvatibai or for that matter, to the Respondent, at any time. The Tribunal, therefore, proceeded to hold that the terms of Agreement have not been acted upon by the parties. The Tribunal then records that the Agreement was not signed by the Petitioner in whose favour it was executed by said Housabai, which affected the efficacy of the said document. The Tribunal has then observed that there is no explanation/evidence forthcoming as to from which source the Petitioner supplied water to his sugar-cane crop in the disputed land. Further, it appears that the sugar-cane was sown in the suit land on 3rd August, 1987, whereas, as per the disputed Agreement, the Petitioner was put in possession on September 20, 1987. The Tribunal found that the evidence on record indicates that Housabai was in possession of the suit land till her death and which fact has been conceded by the Petitioner and his witnesses. The Tribunal, therefore, found as of fact, that the Petitioner was not in possession of the suit land till Housabai died and even thereafter. The Tribunal has then observed that there is reason to believe that the disputed Lease Deed is sham and bogus. For recording this opinion, the Tribunal has adverted to the circumstances that the 7/12 extract reveals that deceased Housabai was in possession at the relevant time. Whereas, the disputed Agreement shows that the Petitioner was put in possession on the specious reasoning that Housabai was unable to cultivate the land due to her old age. The Tribunal also took into account that the Consent Deed executed by Parvatibai and Tarabai was wholly unnecessary because Housabai was the sole owner of the suit land, who was alive at the relevant time. On the above reasoning, the Tribunal found that the disputed Agreement was sham and bogus. The Tribunal has then observed that it appears that the Petitioner has failed to give intimation to the landlord within one year as required by virtue of Section 32-O of the Act. On the above reasoning, the Tribunal allowed the Revision preferred by the Respondent, overturning concurrent decisions of the two authorities below. It is this Judgment of the Tribunal, which is subject matter of challenge in the present Writ Petition.
2. Mr. Thorat for the Petitioner mainly contents that the Tribunal has completely exceeded its revisional jurisdiction in overturning concurrent finding of facts recorded by two authorities below. According to Mr. Thorat, the Tribunal is not competent to discuss the evidence and to come to its own conclusion on the question of fact as to whether the Petitioner was in lawful cultivation of the suit land as tenant or not. He therefore submits that the Tribunal has clearly exceeded its jurisdiction. Mr. Thorat further contends that assuming that the Tribunal in its revisional jurisdiction was competent to interpreted document, which can be stated to be question of law, but in the present case, it was not even remotely suggested by the Respondent at any stage that the purport of the said document was to create partnership in cultivation, which did not amount to tenancy or deemed tenant. He further contends that the Tribunal has also exceeded its jurisdiction in recording its opinion that the evidence on record would suggest that the parties did not act upon the conditions of the disputed agreement. He further submits that the question as to whether the said document was sham and bogus, was also completely outside the scope of jurisdiction vested in the Tenancy Authority. In support of this contention, reliance has been placed on the decision in the case of Dada Salva Yadav v. Vasant Anant Sultane reported in LXII Bombay Law Reporter 471. He submits that even the opinion recorded by the Tribunal that the Petitioner has failed to give necessary intimation within the specified period under Section 32-O is error apparent on the fact of the record inasmuch as the Petitioner had given such intimation to the Respondent on August 16, 1988 itself. Moreover, he contends that in any case, it is well settled that the question of giving such intimation under Section 32-O would arise only when the issue as to whether the Petitioner was tenant in respect of the suit land or not, is conclusively answered by the Tenancy Authority and which opinion would culminate with the decision in the present Writ Petition. He submits that the limitation specified under Section 32-O would commence from the date of the decision of this Court. According to Mr. Thorat, the Tribunal has completely misdirected itself in dwelling upon matters which were not germane for deciding the matter in issue which has caused serious miscarriage of justice.
3. Learned Counsel for the Respondent, on the other hand, has supported the decision of the Tribunal and has adopted the reasons recorded by the Tribunal to support the order passed in favour of the Respondent. According to the Respondent, there was ample evidence on record, which would belie the claim of the Petitioner regarding tenancy rights in respect of the suit land. Learned Counsel has placed reliance on the oral evidence of the Petitioner and his witnesses to the effect that it is conceded that Housabai was cultivating the land till her death and in the wake of that evidence, the finding as reached by the two authorities below, cannot be sustained and consequently, the finding of fact as recorded that the Petitioner was in lawful cultivation of the suit land since 20th September, 1987 will have to be discarded and therefore, on fault can be found with the ultimate conclusion reached by the Revisional Authority. Learned Counsel further submits that it is common ground that the disputed Agreement was not a registered document. He submits that if the said document was not registered, the conclusion reached by two authorities below which is founded on that document, cannot be sustained because the document is inadmissible in evidence. Reliance has been placed on the Full Bench decision of the Patna High Court in the case of Ram Nath Mandal and Ors. v. Jojan Mandal and Ors. It is therefore contended that if the said document was to be discarded being inadmissible, then the finding on the issue of whether the petitioner was in lawful cultivation of the suit land, will necessarily have to be answered against the Petitioner. Learned Counsel contends that there is no justification to interfere in exercise of writ jurisdiction only because the Revisional Authority had overturned the concurrent decisions of two authorities below. According to the learned Counsel, the Revisional Authority acted within jurisdiction and each of the reasons recorded by the Revisional Authority are germane for deciding the matter in issue.
4. Before I proceed to consider the rival submissions, it will be appropriate to advert to the settled legal position as to the scope of interference by the Revisional Authority in exercise of powers under Section 76 of the Act. The Apex Court in the case of Maruti Bala Raut v. Dushrath Babu Wathare and Ors. as , while considering this question has expounded that the Tribunal is not competent to discuss the evidence on record and come to its own conclusion. In the present case, to my mind, this is the precise mistake committed by the Tribunal. The Tribunal, so as to overturn concurrent decisions of two authorities below on the question of fact as to whether the Petitioner was in lawful cultivation of the suit land as tenant, has first proceeded to examine the purport of the disputed document. It has found that on proper construction of the terms therein, it appears that the arrangement was one of partner in cultivation and not a Lease. Assuming that the Tribunal was justified in interpreting the terms of the document being question of law, such a case was not even suggested by the Respondent at any stage of the proceedings. The Tribunal has therefore travelled beyond the pleadings of the parties. The Tribunal then proceeds to analyse the efficacy of entries in the 7/12 extract and proceeded to hold that the Petitioner was not in possession of the suit land till Housabai died and even thereafter. This approach was clearly impermissible in the light of the principle expounded in the Maruti Bala's case (Supra). For that matter, the Tribunal also could not have considered as to whether there was no evidence or otherwise with regard to giving 1/3rd crop share to the landlord by the Petitioner. Those aspects have already been considered by the two authorities below and they have found that the question of giving 1/3rd crop share to Housabai or Parvatibai did not arise because Housabai died soon after the disputed Agreement was executed in favour of the Petitioner and before the first crop could be harvested. That is a possible view of the matter. The Revisional Court could not have ignored that view and substituted its own view so as to overturn the concurrent finding of fact on the factum of lawful cultivation of the suit land of the Petitioner as tenant. It is rightly contended on behalf of the Petitioner that the Tribunal has clearly exceeded its jurisdiction in recording its opinion that the evidence would indicate that the parties did not act upon the terms of the Agreement and that, there was reason to believe that the Lease was sham and bogus. Reliance has been rightly placed on the decision in the case of Dada Salva Yadav (Supra) to support this contention. Those questions were clearly outside the scope of enquiry under Section 70 of the Act and could be decided only by the Civil Court. It is not in dispute that the petitioner had already instituted suit against the Respondent for injunction and the Civil Court had granted temporary injunction in favour of the Petitioner, which was operating against the Respondent. To my mind, therefore, all the discussion entered into by the Tribunal to overturn the concurrent finding recorded by two authorities below on the factum of lawful cultivation of the suit land by the Petitioner is inappropriate. Only to illustrate this position, I may refer that, the Tribunal has found that the Petitioner is not signatory to the disputed document, although the document is executed in his favour. The Tribunal has then noted that there was no evidence or explanation as to the source from where the Petitioner supplied water to his sugar-cane crop in the disputed land. The Tribunal has also noted that the Consent Deed executed by Parvatibai and Tarabai on 20th September 1987 was on a plain paper and there was in fact no occasion for executing such document during the life time of Housabai. To my mind, none of the above reasons can be justification for overturning the concurrent finding of fact recorded by the two authorities below. On the other hand, the two authorities below have adverted to the relevant materials on record and after analysing the same, reached at that conclusion. It was not a case one of manifest error committed by the two authorities below or that the finding reached by them was perverse as such. The Tribunal has clearly exceeded its jurisdiction, as has been observed in the case of Maruti Bala Raut (Supra).
5. In so far as the opinion recorded by the Tribunal that it appears that there is no compliance of Section 32-O of the Act, even this opinion recorded by the Tribunal is error apparent on the face of the record, as the petitioner/has rightly relied on the communication dated 16th October 1988, which was sent to the Respondent. This communication expressly states that the Petitioner desired to exercise his right under Section 32-O of the Act. Besides, there is force in the submission made on behalf of the Petitioner that the question of exercising such right would arise only after the present proceedings were to finally culminate with the finding that the Petitioner was in lawful cultivation of the suit land. Only on culmination of the present proceedings, would the Petitioner be required to give intimation for the purpose of Section 32-O of the Act, in law.
6. According to the Respondent, the disputed document was not registered and therefore, inadmissible in evidence. Indeed, the decision of the Full Bench of the Patna High Court in Ram Nath Mandal's case (Supra) would support the argument canvassed on behalf of the Respondent that when the transaction is reduced into writing, then, in the case of a Lease from year to year or any term exceeding a year would be required to be registered under Section 17 of the Registration Act, and if unregistered, the Lease will be inadmissible in evidence under Section 49 of the Registration Act, and other evidence of its term, will be precluded under Section 91 of the Evidence Act. Even accepting this argument canvassed on behalf of the Respondent to be correct, that would be of no avail to the Respondent. Although, the disputed Lease Deed is unregistered document, the same would be inadmissible to the extent the Petitioner seeks to rely on the same for establishing his title, but that document can nevertheless be pressed into service for collateral purpose. In any case, it is well settled that the question as to whether a person is a tenant, will have to be decided by essentially taking into account three facts. The Supreme Court in the case of Dahya Lala and Ors. v. Rasul Mahomed Abdul Rahim and Ors. observed that the person who is deemed to be a tenant by virtue of Section 4, is manifestly in a class apart from the tenant who holds lands on lease from the owner. Such a person would be invested with the status of a tenant if three conditions are fulfilled. (a) that he is cultivating the land lawfully; (b) that the land belongs to another person, and (c) that he is not within the excepted categories. In the present case, the two authorities below have answered all the three factors in favour of the Petitioner and those finding of facts cannot be discarded at all. This Court in the case of Dhondu Bapu Save v. Anirudha reported in Volume 77 (Vol.XXV-No. 1) Tenancy Law Reporter 6 in Spl.C.A.479 of 1972 decided on 20-11-1975, has held that because there is no entry in the tenancy column, no rent note to support the Applicant's case, it cannot be said that he is not a tenant. In the said decision, this Court went on to observe that Section 4 of the Tenancy Act does not require an entry in the tenancy column or a rent note or rent receipt in support of statutory tenancy under that Section. All that is required under that Section is "lawful" cultivation by a person other than the member of the family of the landlord, subject to other conditions laid down in Section 4. As mentioned earlier, two authorities below addressed themselves to all the relevant matters to find that the Petitioner was put in lawful cultivation of the suit land belonging to Housabai and did not come under the excepted category. This is the finding of fact, which cannot be overturned and will have to be affirmed and respected. Understood thus, the impugned Judgment of the Tribunal cannot be sustained.
7. In the circumstances, this Writ Petition succeeds. The impugned Judgment and Order is set-aside, and instead, the order passed by the Tenancy Awwal Karkun as affirmed by the Sub-Divisional Officer on the application filed by the Petitioner under Section 70(b) of the Act, are restored, meaning thereby, the Petitioner is declared as tenant in respect of the suit lands.
8. No order as to costs.