Bombay High Court
Prabhakar S/O Govindrao Hambarde And ... vs Shriram Sansthan, Takarkheda Sambhu ... on 9 August, 2019
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
40-A-J-WP-6363-18 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.6363 OF 2018
1. Prabhakar s/o Govindrao Hambarde,
aged 72 years, Occupation Agriculturist,
resident of Ajinkya Colony,
VMV Road, Amravati
2. Waman s/o Govindrao Hambarde,
aged 65 years, Occupation Agriculturist,
Takarkheda Shambhu,
Tahsil Bhatkuli, Dist. Amravati ... Petitioners
-vs-
1. Shriram Sanstha, Takarkheda Sambhu,
Regd No.A/561, Amravati Through its
President Sahebrao Daulatrao Kale,
resident of Takarkheda (Sambhu),
Tahsil Bhatkuli, Dist. Amravati
2. Dilip Pundlikarao Kale Secretary,
Age 57, Occ. Agriculturist,
3. Nirmala Hemantrao Kale,
Treasurer, Age 57, Occ. Household,
4. Manohar Motilal Kale
Member (Dead)
5. Madhukar Narayanrao Deshmukh,
Member (Dead)
6. Bhaurao Daulatrao Kale,
Member, Aged about 65, Occ. Nil
7. Sudhir Omkar Mankar,
Member, Aged about 65, Occ. Agriculturist
8. Ramdas Rajaram Bade,
Member, Aged about 77, Occ. Nil
9. Ashatai Janrao Kale
Member, Aged about 78, Occ. Household
::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 13:46:00 :::
40-A-J-WP-6363-18 2/9
10. Subhash Dayaram Vaidya
Member, Aged about 67, Occ. Agriculturist
Nos.1 to 10 R/o Takarkheda Sambhu,
Tahsil Bhatkuli, District Amravati
11. Anandrao Haribhau Band,
aged major, Occ. None, resident of
Shikshak Colony Shegaon naka, Amravati
Present Body (new members of the Trust)
12. Pankaj Shravanji Kantode,
Aged about 30, Occ. Agriculturist
13. Nitin Prabhakar Nachankar,
Aged about 45, Occ. Agriculturist
14. Sudhir Devidas Joshi,
Aged about 65, Occ. Agriculturist
15. Vaibhav Vithal Korde,
Aged about 32, Occ. Agriculturist
16. Mohan Balasaheb Deshmukh
Aged about 30, Occ. Agriculturist
17. Sanjay Panjabrao Virulkar,
Aged about 45, Occ. Agriculturist
18. Dhiraj Jaikumar Deshmukh
Aged about 40, Occ. Agriculturist
19. Haribhau Krushnarao Deshmukh
Aged about 70, Occ. Agriculturist
20. Vaikanthrao Naraynrao Deshmukh
Aged about 40, Occ. Agriculturist
21. Yogesh Manikrao Deshmukh
Aged about 42, Occ. Agriculturist
22. Ajay Namderao Chotode,
Aged about 44, Occ. Agriculturist
23. Aashish Babushet Sawarkar
Aged about 42, Occ. Agriculturist
::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 13:46:00 :::
40-A-J-WP-6363-18 3/9
24. Nana Yadaorao Deshmukh (Dead)
25. Raju Krushnarao Nimkar
Aged about 52, Occ. Nil
26. Kishor Mohanlal Tiwari
Aged about 30, Occ. Agriculturist
27. Yogesh Sahebrao Deshmukh
Aged about 42, Occ. Agriculturist
28. Sudhakar Narayanrao Virulkar
Aged about 68, Occ. Nil
29. Sangeeta Arun Meshram
Aged about 35, Occ. Household
30. Bhavna Manoj Deshmukh
Aged about 32, Occ. Household
31. Sushma Suresh Pingle
Aged about 48, Occ. Household
32. Indumati Jagdish Deshmukh
Aged about 69, Occ. Household
Respondent Nos.12 to 32 R/o Takarkheda Sambhu
Tahsil Bhatkuli, Dist. Amravati.
Shri S. R. Deshpande, Advocate for petitioner.
Shri P. A. Kadu, Advocate for respondent Nos.1, 12 to 23 and 25 to 32.
CORAM : A. S. CHANDURKAR, J.
DATE : August 09, 2019 Oral Judgment :
The challenge raised in the present writ petition is to the order passed by the Sub Divisional Officer on 05/12/2012 under Section 120 of the Maharashtra Tenancy and Agricultural Lands Act, 1958 (for short, the said Act). By that order the possession of field bearing Survey No.176 to the ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 13:46:00 ::: 40-A-J-WP-6363-18 4/9 extent of 5H 77R was directed to be handed over by the petitioners to the respondent No.1-Trust under Section 120 of the said Act. That order has been confirmed by the Maharashtra Revenue Tribunal in exercise of its revisional jurisdiction.
2. It is the case of the respondent No.1-Trust that it is duly registered under provisions of the Maharashtra Public Trusts Act, 1950 and it has been issued an Exemption Certificate dated 17/04/1959. The land in question was occupied by Govind Punaji Hambarde as tenant. The tenant expired on 06/11/1995. According to the Trust, after his death the legal heirs had no right to continue in possession of the lands in question and it sought summary eviction of the petitioners herein under provisions of Section 120 of the said Act. The application in question was filed on 22/07/2002.
In the reply filed on behalf of the petitioners herein it was pleaded that they were in occupation of the land in question in the capacity of being the legal heirs of the original tenants. Their predecessor was in possession since 1952 and hence the Trust had no right to seek eviction of the petitioners herein.
3. The Sub-Divisional Officer considered the evidence that was brought on record and recorded a finding that in view of the decision of the Honourable Supreme Court in Shriram Mandir Sansthan vs. Vatsalabai ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 13:46:00 ::: 40-A-J-WP-6363-18 5/9 and ors. 1999 (1) MhLJ 321 the legal heirs of the tenant had no right to continue to occupy the lands in question. The tenancy was not heritable and hence on that count the application in question came to be allowed. This order was challenged by the petitioners by filing revision application in which it was sought to be urged that the Trust had accepted rent from the legal heirs of the original tenant. It was therefore urged that as the tenancy continued they were not entitled to be evicted. The Maharashtra Revenue Tribunal further dismissed the revision application and confirmed the order of summary eviction. Being aggrieved the said order has been challenged in the present writ petition.
4. Shri S. R. Deshpande, learned counsel for the petitioners submitted that the petitioners were not liable to be evicted in exercise of powers conferred under Section 120 of the said Act. According to him though the original tenant had expired on 06/11/1995, no steps were taken immediately thereafter to evict the legal heirs. On the contrary the Trust accepted rent till the year 2002 from the legal heirs without any protest. Referring to the provisions of Section 2(32), 6 and 8 of the said Act he submitted that the tenancy of the petitioners was liable to be determined only by invoking the provisions of Section 19 of the said Act. The legal heirs were claiming tenancy independently and hence they were not liable to be summarily evicted. This aspect was raised by the petitioners before the ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 13:46:00 ::: 40-A-J-WP-6363-18 6/9 Authorities but the same had not been considered in the proper perspective. The learned counsel placed reliance on the decisions in Shriniwas Govind Mudholkar vs. Dattatraya Mahadeo Ranade and ors 1987 Mh.L.J. 982, Bomisetti Ramachandra Rao vs. N. R. Manikya Rao AIR 1972 AP 198, Karnani Industrial Bank Ltd vs. The Province of Bengal and ors. AIR 1951 SC 285 and Shyam Lal vs. Deepa Dass Chela Ram Dhela Garib Dass AIR 2016 SC 3243. He also referred to the provisions of Section 116 of the Transfer of Property Act, 1872 to substantiate his contentions. It was thus submitted that the impugned orders were liable to be set aside.
5. Shri P. A. Kadu, learned counsel for the respondent No.1 along with other Trustees supported the impugned order. He submitted that the Maharashtra Revenue Tribunal rightly found that the petitioners were not entitled for protection of their possession. The plea as sought to be raised with regard to creation of fresh tenancy was being raised only by way of an afterthought. The same was not raised earlier before the Sub-Divisional Officer. According to him mere acceptance of the amount of rent after the death of the original tenants would not cause prejudice to the case of the Trust. In view of the fact that an Exemption Certificate was issued to the Trust, it was open to summarily evict the legal heirs of the original tenant. He relied upon the decisions in Shanti Devi vs. Amal Kumar Banerjee AIR 1981 SC 1550 and Ganga Dutt Murarka vs. Kartik Chandra Das and ors. ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 13:46:00 ::: 40-A-J-WP-6363-18 7/9 AIR 1961 SC 1067 and submitted that the impugned order did not call for any interference.
6. I have heard the learned counsel for the parties at length and I have also perused records of the case. On giving due consideration to the respective submissions I find that the petitioners are not entitled for any relief. It is undisputed that the land in question is owned by the respondent No.1-Trust which has been issued an Exemption Certificate dated 17/09/1959. It is also not in dispute that the land in question was in possession of Govind Hambarde who expired on 06/11/1995. The petitioners who are the legal heirs of the aforesaid tenant while opposing the proceedings filed under Section 120 of the said Act had filed their reply before the Sub-Divisional Officer. The stand taken by them was that they were legal heirs of the original tenant and that the original tenant was in possession since 1952. Besides this stand it was not the case pleaded that even after the death of the original tenant the legal heirs continued paying rent to the Trust which was accepted without any protest thus resulting in creation of fresh tenancy. In the light of the law as laid down in Shriram Mandir Sansthan (supra) tenancy of lands owned by the Trust which has been issued an Exemption Certificate is not heritable. Thus on the death of the original tenant the legal heirs cannot succeed to the tenancy. On this count the order passed by the Sub-Divisional Officer as maintained by the ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 13:46:00 ::: 40-A-J-WP-6363-18 8/9 Maharashtra Revenue Tribunal directing summary eviction of the legal heirs of the original tenants cannot be faulted.
7. In so far as the plea raised by the petitioners with regard to creation of fresh tenancy by virtue of acceptance of rent by the Trust, as noted above the same has not been specifically pleaded by the legal heirs. This defence has no factual basis and as the same was not raised earlier, there was no occasion for the Trust through its Trustees to meet that defence. According to the learned counsel for the petitioners since it was an admitted position that rent was accepted till about 2002 after which the application under Section 120 of the said Act was filed, the legal heirs were entitled to contend that a fresh tenancy had been created. As held in Shantidevi (supra) for the lease to be deemed to have been continued in favour of the defendant it was necessary to show that the defendant remained in demised possession after determination of the lease and that the plaintiff had expressly or by necessary implication permitted such continued possession. However if no such plea of holding over is raised then it cannot be said that the relationship of landlord and tenant continued. Similar view has been taken in Ganga Dutt Murarka (supra). Though the learned counsel for the petitioners sought to refer to the provisions of Sections 6 and 8 of the said Act, in absence of any such plea with regard to creation of fresh tenancy having not been raised, that stand cannot be accepted. On that count no ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 13:46:00 ::: 40-A-J-WP-6363-18 9/9 notice of termination of tenancy was required to be issued to the legal heirs and they were liable to be evicted under Section 120 of the said Act by following the summary procedure.
In these facts therefore the ratio of the decisions relied upon by the learned counsel for the petitioner cannot be made applicable to the case in hand.
8. It is found that the adjudication by the Sub-Divisional Officer and thereafter by the Maharashtra Revenue Tribunal does not suffer from any jurisdictional error. There is no case made out to interfere in writ jurisdiction. The Writ Petition is therefore dismissed with no order as to costs.
JUDGE Asmita ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 13:46:00 :::