Bombay High Court
Maruti Jaywant Shinde vs Smt. Shantabai Baburao Gotharne And Ors on 28 April, 2021
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
Salgaonkar
1/19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST). NO. 4146 OF 2020
Maruti Jaywant Shinde
Age 67 years, Occ. Agriculturist,
R/o. Sudwadi, Tal. Maval, Dist. Pune .... Petitioner
v/s.
1. Smt. Shantabai Baburao Gotharne
Age. Adult, Occ. Not known,
R/o. Sudwadi, Tal. Maval, Dist. Pune
2. Shri. Ashok Baburao Gotharne
Age. Adult, Occ. Not known.
R/o. Sudwadi, Tal. Maval, Dist. Pune
3. Shri. Chandrashekhar Baburao Gotharne
Age. Adult. Occ. Not known.
R/o. Sudwadi, Tal. Maval, Dist. Pune
4. Shri. Uday Ramchandra Kulkarni
Age. Adult, Occ. Not known.
R/o. Sadumbare, Tal. Maval, Dist. Pune.
5. Tahesildar of Vadgaon-Maval .... Respondents
-------------------
Mr. Manoj Patil a/w. Ashish Pawar & J.R.Jadhav for the
Petitioner.
Mr. Ajinkya Badar a/w. Suraj Desai for the Respondent Nos.1,
2 and 3.
Mrs. M.S.Bane, AGP for the State
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Salgaonkar
2/19
CORAM : ANUJA PRABHUDESSAI, J.
RESERVED ON : DECEMBER 09, 2020.
PRONOUNCED ON: 28th APRIL, 2021.
JUDGMENT :-
1. Rule. With consent rule is made returnable forthwith.
2. This petition takes exception to the Judgment and Order dated 31st December, 2019 passed by the Maharashtra Revenue Tribunal (MRT), Pune in Revision Application NO. P/I/1/2017. By the impugned judgment, the MRT has set aside the order dated 30/01/2015 passed by learned Tahsildar, Maval in Tenancy Case No.32-G/SR/52/2013, and order dated 18.12.2016 passed by learned Sub Divisional Officer in Tenancy Appeal SR/142/2015 and consequently dismissed the proceedings filed by the Petitioner under Section 32G of Maharashtra Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act').
3. The dispute in the present case is in respect of an agricultural land under Survey No. 70/1 (New Gat No.199) Village, Sudawadi, Maval, Pune. It is not in dispute that the said land was owned by Vitthal Ganesh Kulkarni. The said ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 3/19 land was in possession of Bhika Dhondu Mahar, the grand father of the Petitioner, as a tenant. The Petitioner claims that his father Jaywant Bhika Mahar continued to be in possession of the said land as on the Tillers day and as such became deemed purchaser under the provisions of the Act.
4. It is the grievance of the Petitioner that the owners of the land illegally sold the said tenanted land to Respondent No.1 by Sale Deed dated 29th May, 1964. On the basis of the said sale deed, the name of the Respondent No.1 came to be recorded in Survey Records under Mutation Entry No.1003. The Petitioner therefore filed proceedings under Section 32G r/w. Section 64 and 84(b) being Tenancy Case No. 74 of 2006 and sought a declaration that the said sale deed 29.5.1964 is illegal, and further sought fixation of the purchase price in respect of the tenanted land.
5. The Respondents resisted the claim of the Petitioner mainly on the ground that Bhika Mahar was lawfully dispossessed and the original owner was put in possession of the land prior to the Tillers day. The Respondents claim that the original owner continued to be in possession of the land till ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 4/19 the date of execution of the sale deed and since then Respondent No.1 continues to be in possession of the said land.
6. In the previous round of litigation, by order dated 19.12.2007, learned Tahsildar had allowed the Tenancy Case and declared that the sale deed executed in favour of the Respondent No.1 is contrary to the provisions of Section 64 of the Tenancy Act and is therefore invalid. Learned Tahsildar directed to record the name of the owner in the Survey Record and gave liberty to the Petitioner to initiate fresh proceedings under Section 32G. In Appeal, being Tenancy Appeal No. 14 of 2008, learned SDO by judgment dated 8th August, 2013 set aside the order of the Tahsildar and remanded the matter with directions to adjudicate the issue of possession.
7. Accordingly, learned Tahsildar heard the parties on the issue of possession. Relying upon mutation entry No.742 and the entries in the survey records, learned Tahsildar recorded a finding that Jaywant Bhika Mahar, the father of the Petitioner, was in possession of the subject land as on the Tillers day. Learned Tahsildar further observed that the owner had not obtained possession of the land within the statutory period of ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 5/19 two years. Hence, by order dated 30 th January, 2015, learned Tahsildar allowed the application filed by the Petitioner under Section 32G and declared the Petitioner to be deemed purchaser of the subject land and fixed the purchase price at Rs.8810/-. Adjudication under Section 32G is culminated in the issuance of Certificate under Section 32M of the Act.
8. This order was challenged before the learned SDO in Tenancy Appeal No. 142 of 2015. Upon hearing the respective parties, learned SDO held that Bhika Dhondu Mahar was a protected tenant. Learned SDO observed that though the mutation entry no.702 refers to order dated 7/1/1955 whereby possession of the land was ordered to be handed over to the original owner, the Respondent had not adduced any evidence to prove that the said order was implemented within a period of two years. Learned SDO held that the mutation entries No.742 and 743 clearly demonstrate that the father of the Petitioner was in physical possession of the subject land as on the Tillers Day. Based on these findings, by order dated 18/12/2016, learned SDO dismissed the appeal.
9. This order of SDO came to be challenged before the ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 6/19 MRT in Revision Application No. P/I/1/2017, filed under Section 76 of the Act. The MRT relied upon Mutation Entry No.702 to hold that the original tenant was dispossessed by lawful means and that his name was deleted from the survey records w.e.f. 26/11/1986. The MRT observed that there is an overwriting of the name of Jaywant Bhika Mahar, in the cultivator's column for the year 1956-57 of 7/12 extract. Relying upon the mutation entry no.702 and the subsequent entries in cultivators column of 7/12 extract, the MRT concluded that the owner was in continuous possession of the land till the date the land was transferred in favour of Respondent No.1 by sale deed dated 29/05/1964. The MRT held that the Petitioner has failed to prove that he was in possession of the land as on the Tillers day and based on these findings the MRT set aside concurrent findings recorded by the Tahsildar and the SDO and consequently dismissed the 32G proceedings filed by the Petitioner. This order is under challenge in this petition filed under Article 227 of the Constitution of India.
10. Shri Manoj Patil, learned counsel for the Petitioner submits that the Tahsildar and the SDO have recorded a clear ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 7/19 and categorical finding that the father of the Petitioner was in possession of the subject land on the Tillers day. This finding is based on the mutation entry no.742 and 743 . Learned Counsel has relied upon the decision of this Court in Abdul Rajtak Adbul Rehman Mulla vs. Ibrahim Yusuf Lande 2006 (1) Bom.C.L. 214 to contend that the revisional jurisdiction of the MRT is restricted to the three grounds enumerated in clauses (a), (b) and (c) of Section 76 of the BTAL Act. He submits that the MRT has exceeded its jurisdiction in interfering with the concurrent finding of facts recorded by the authorities below.
11. Per contra, Mr. Ajinkya Badar, learned counsel for Respondent Nos.1 to 3 submits that Mutation Entry no. 702 and the entries in 7x12 extract amply prove that the original tenant Bhika Mahar @ Shinde, the grandfather of the Petitioner was dispossessed by due process of law prior to the Tillers Day. The Petitioners did not seek recovery of possession within the statutory period. He submits that the mutation entry No. 742 is an erroneous entry made after the Tillers day. He submits that the Respondent No.1 has purchased the property in the year 1964 and that Mutation ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 8/19 entry No.1003 has been recorded in the name of Respondent No.1 in survey records. He submits that the RespondentNo.1is in possession of the land since the date of purchase. He contends that the Petitioner has failed to prove the tenancy claim and hence MRT was well within its powers to interfere with the findings, which though concurrent are perverse findings.
12. I have perused the records and considered the submissions advanced by the learned Counsel for the respective parties. The only question which falls for consideration in the present petition is whether the MRT has exceeded its revisional jurisdiction under Section 76 of the Act.
13. Before adverting to the question raised in the Petition, it would be appropriate to consider the scope and extent of the revisional jurisdiction and statutory provisions pertaining to the revisional jurisdiction of the MRT under the Act. In Hindustan Petroleum Corporation Limited v/s. Dilbahar Singh (2014) 9 SCC, the Constitution Bench of the Hon'ble Supreme Court, while considering the scope of the revisional ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 9/19 jurisdiction of the High Court under various Rent Control and other legislations has highlighted the limited nature of the revisional jurisdiction and drawn distinction between appellate and revisional jurisdiction as under :-
"25 ...Conceptually, revisional jurisdiction is a part of appellate jurisdiction, but it is not vice versa. Both, appellate jurisdiction and revisional jurisdiction are creatures of statues. No party to the proceeding has an inherent right of appeal or revision. An appeal is continuation of suit or original proceeding, as the case may be. The power of the appellate court is co-extensive with that of the trial court. Ordinarily, appellate jurisdiction involves rehearing on facts and law but such jurisdiction may be limited by the statute itself that provides for appellate jurisdiction. On the other hand, revisional jurisdiction, though, is a part of appellate jurisdiction but ordinarily it cannot be equated with that of a full fledged appeal. In other words, revision is not continuation of suit or of original proceeding. When the aid of revisional court is invoked on the revisional side, it can interfere within the permissible parameters provided in the statute. It goes without saying that if a revision is provided against an order/appellate authority the decision of the revisional court is the operative decision in law. In our view, as regards the extent of appellate ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 10/19 or revisional jurisdiction, much would, however, depend on the language employed by the statute conferring appellate jurisdiction and revisional jurisdiction."
14. Having considered the scope of the revisional powers in general, it would now be relevant to refer to Section 76 of the Act, which defines the contours of revisional jurisdiction of the MRT. Section 76 reads as under :-
" 76. Revision.
(1) Not withstanding anything contained in the Bombay Revenue Tribunal Act, 1939, an application for revision may be made to the Maharashtra Revenue Tribunal constituted under the said Act against any order of the Collector on the following grounds only;
(a) that the order of the Collector was contrary to law;
(b) that the Collector failed to determine some material issue of law; or
(c) that there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice.
(2) In deciding applications under the section the Maharashtra Revenue Tribunal shall follow the procedure which may be ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 11/19 prescribed by rules made under this Act after consultation with the Maharashtra Revisional Tribunal."
15. A plain reading of this provision indicates that the scope of interference in revisional jurisdiction is restricted to the grounds specified in the three clauses of sub section 1 of Section 76. As it has been held by the Apex Court in Rahimatulla Rahiman Sarguru vs. Bapu Hari Mane & Ors. (1979) 4 SCC 391, the powers of Revision entrusted to the Maharashtra Revenue Tribunal under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, are practically identical with the Second Appellate powers of the High Court Under Section 100 Civil Procedure Code before it was amended by Act 104 of 1976.
16. In Shamrao Maruti Patil & Ors. Vs. Shantabai Dattatraya Salokhe, 1995 (1) Mh.L.J. 668, this Court, while considering the scope of revisional powers, under Section 76 of the Act has observed that :-
" 9.... It is well-settled that if a decision is based on evidence, however, unsatisfactory the judgment may be, it does not cease to be question ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 12/19 of fact and unless the Tribunal finds that there was no evidence for the finding of fact, the mere insufficiency of evidence or defect in the appreciation of evidence will not convert a question of fact into a question of law. Whether the proof of a particular fact is satisfactory or not is for the fact finding authority to determine. Adequacy of evidence or sufficiency of evidence cannot be a question of law and the Tribunal, in exercise of its revisional jurisdiction, cannot re- appreciate the evidence and give a fresh conclusion of its own unless it holds that the finding of the Appellate Authority is perverse. The scope and power of revision under section 76 of the Act came up for consideration before the Supreme Court in Baldevji v. State of Gujarat, (sic Rahimatulla Rahiman Sarguru (1979) 4 SCC 391 supra) wherein it was held that the powers of revision entrusted to the Maharashtra Revenue Tribunal under section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, are practically identical with the second appellate powers of the High Court under section 100 of the Civil Procedure Code before it was amended by Act 104 of 1976. The scope and ambit of section 100 of the Code of Civil Procedure is not mere res integra. As observed by the Supreme Court in Ramachandra v. Ramalingam, the exercise of power under section 100 of the Code of Civil ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 13/19 Procedure is confined to cases where the High Court is satisfied that the decision is contrary to law or some usage having the force of law, or that the decision has failed to determine some material issue of law or usage having the force of law, or if there is a substantial error or defect in the procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits. Only in such cases, the High Court can interfere with the conclusions of the lower appellate Court. It was made clear that the error or defect in the procedure referred to in section 100 of the Code of Civil Procedure clearly and unambiguously indicates an error or defect connected with, or relating to the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. From the above observations of the Supreme Court, it is clear that the power of the Tribunal under section 76 of the Act is a limited one and can be exercised on any of the grounds mentioned in the three clauses of sub-section (1) thereof. "
17. Similarly, in Dattatraya Yamaji Bhutkar & Ors. Vs. Vaijinath Madhav and Ors. 1998 (3) Bom.C.R.286 and Abdul Rajtak (supra), this Court has reiterated that the ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 14/19 provision under Section 76 restricts the power of the Tribunal to reverse findings of facts, except on the grounds enumerated in clauses (a), (b) and (c). It is held that findings of fact on the basis of evidence are to be returned only by the trial Court or by the Appellate Court. The Tribunal under Section 76 of the Act has the jurisdiction to examine the findings of fact, if the same are based on no evidence or are found to be perverse. So long as there is some material on record and findings of facts have been arrived at thereon, the Tribunal would have no jurisdiction to upset the concurrent findings of fact.
18. In the instant case, it is not in dispute that the subject land was owned by Vithal Ganesh Kulkarni. Bhika Mahar @ Shinde, the grandfather of the Petitioner was a protected tenant in respect of the said land. The cultivators column in 7 x 12 extract indicates that the said land was cultivated by Bhika Dhondu Mahar till the year 1954-55. Mutation Entry No.702 effected on 13.6.1955 records that possession of the subject land was taken from Bhika Dhondu Mahar @ Shinde and handed over to Vithal Ganesh Kulkarni based on the order dated 7.1.1955 passed by the ld. Mamlatdar, Maval, in Tenancy Case No.3/55 and a possession receipt in that regard ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 15/19 was prepared and taken on record. The Respondents have relied upon this entry to contend that the original owner was in possession of the subject land as on the Tillers day.
19. In this regard, it is pertinent to note that the survey records, particularly the entry in "Kul - Khand" ( Cultivators column ) for the year 1955-56, which was recorded subsequent to purported dispossession, does not support the claim of the respondent, but clearly indicates that during this period i.e. 1955-56 Jaywant Mahar, son of Bhika Mahar continue to cultivate the land as a tenant thereof and appropriate the produce with the owner. This entry which was effected during the lifetime of Bhika Mahar, reveals that Jaywant Mahar was in possession of the land as on the Tillers day. The entry in the Cultivators column for the year 1956-57 also records the name of Jaywant Mahar, whereas entries for the period subsequent to the Tillers day records the word "Khud" (Self). These entries also reinforce the claim of the Petitioner that Jaywant Mahar continued to be in lawful cultivation of the land.
20. It is also relevant to note that Mutation Entry No.742 dated 19.05.1957 records that Jaywant Bhika Mahar was in ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 16/19 actual occupation and possession of the land prior to 1956-57. Mutation Entry No.743 further indicates that the Circle Officer had confirmed that the occupation and possession of the land was with Jaywant Mahar and hence cancelled the said mutation entry applied by the owner for deletion of the name of Jaywant Mahar. These mutation entries, which have not been challenged, also support the claim of the Petitioner that his father continued to be in lawful cultivation of the land on the Tillers day and hence, deemed to have purchased the subject land.
21. The Respondent, even after the remand order, did not adduce any evidence to rebut the presumption and/or to prove that the owner had taken possession of the land from Jaywant Bhika Mahar. Hence, on the basis of these mutation entries and the entries in Cultivators column, learned Tahsildar and SDO have held that Jaywant Bhika Mahar was in possession of the land on the Tillers day. These authorities have thus recorded a clear and cogent finding that the Petitioner was a deemed purchaser of the land in terms of Section 32 of the Act.
22. The MRT has interfered with the finding of fact ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 17/19 recorded by these Authorities on the basis of Mutation Entry No.702. While arriving at a conclusion that Bhika Mahar was dispossessed by lawful means and that the original owner was put in possession of the land, the MRT has ignored subsequent Mutation Entries No.742 and 743 which, as observed by the both the Authorities below clearly indicate that Jaywant Mahar was in possession of the land prior to 1956-57. The MRT has also discarded the entry in the Cultivators Column for the year 1956-57 on the ground that there is over writing in the name of Jaywant Mahar and on an assumption that the word "khud" (self) in Cultivators column for the subsequent years refers to the owner. It is to be noted that the MRT has ignored the fact that the entry in the Cultivators column for the previous year 1955-56 which was recorded subsequent to purported dispossession, was in the name of Jaywant Mahar and that there was no material on record to indicate that Jaywant Mahar was dispossessed by lawful means.
23. It is to be noted that the question whether the father of the Petitioner was in possession of the land on the Tillers day is a question of fact. Both the authorities below have recorded ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 18/19 a finding that the father of the petitioner was in possession of the land on Tillers day and acquired the status of deemed tenant by operation of law. These findings are based on evidence on record and cannot be construed as perverse findings. Consequently, the MRT had no jurisdiction to interfere with the concurrent findings recorded by fact finding authorities even if it was possible to have a different view. As noted above, the scope of revisional jurisdiction is circumscribed by the rigors of Section 76 of the Act and as such the Revisional Authority could have interfered with the findings only within the permissible parameters. Evidently, while purporting to exercise revisional jurisdiction, the MRT instead of restricting itself to the three grounds specified in Section 76(1) of the Act, acted as a fact finding/Appellate Authority and ventured into re-appreciating the evidence and substituting the finding of fact by its own finding. The MRT has therefore far exceeded the jurisdiction conferred on it by Section 76 of the Act. Hence the impugned order cannot be sustained.
24. Under the circumstances, the Petition is allowed. The impugned order dated 31st December, 2019 passed by the MRT ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 ::: Salgaonkar 19/19 in Revision Application No.P/I/1/2017 is quashed and set aside. The decision of the learned SDO, Maval-Mulshi, Pune in Tenancy Appeal/SR/142/2015 as well as the decision of learned Tahasildar @ Maval in Tenancy Case No.32-G/SR/52/2013 is restored. Rule is made absolute in above terms. There shall be no order as to costs.
(ANUJA PRABHUDESSAI, J.) ::: Uploaded on - 03/05/2021 ::: Downloaded on - 09/09/2021 03:51:24 :::