Bombay High Court
Smt. Anusayabai Ganpati Gaikwad ... vs Baba Tatya Nikam (Since Deceased ... on 13 September, 2002
Equivalent citations: 2003(4)MHLJ956
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
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, Kolhapur dated 23rd July 1987 in Revision Application No. MRT SS/9/1982.
2. The suit lands are situated at village Nagewadi, Taluka Khanapur, District Sangli. In all 4 lands are subject matter of the present Petition, viz. Survey Nos. 36/1C, 97/7, 291/6 and 257/4 respectively. These lands were owned by one Bhau Aba Nikam who died on 17th April 1953 leaving behind his wife Smt. Kasabai and daughter Anusayabai. It is common ground that the Respondent No. 1 (Baba Tatya Nikam) is the cousin brother of Anusayabai. It is also not in dispute that there is no written Kabulayat on rent receipt executed in favour of the said Baba Tatya Nikam in respect of the suit land. However, the said Baba Tatya Nikam, predecessor of the present Respondents claimed that he was tenant in respect of the suit land on the basis of certain entries in the revenue records. There is nothing on record to indicate that the original Respondent No. 1 had at any point of time paid any rent revenue with regard to the suit land. The tenancy authority proceeded on the assumption that the original Respondent No. 1 was the tenant before the tiller's day in respect of the suit land and, therefore, initiated proceedings under Section 326 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to Tenancy Act). In that proceedings statement of Anusayabai appears to have been recorded in which she has deposed that Baba Tatya Nikam was her cousin brother and was occupying the suit lands prior to tiller's day. It is relevant to note that Anusayabai gave another statement before the Authority on 16-11-1963 that she had never stated in her earlier statement that Respondent No. 1 was tenant in respect of the suit land. Besides, when the statements of Anusayabai were recorded by the authorities, Kasabai widow of original landlord Bhau Aba Nikam, was still alive. It is not in dispute that no notice was given to the said Kasabai regarding the proceedings, though in ordinary course she had become landlady being widow of original landlord - Bhau Aba Nikam. Kasabai however, died much after the statement of Anusayabai was recorded on 25-10-1962. Suffice it to point out that Tenancy Authority by its order dated 22-3-1963 held that Baba Tatya Nikam, original Respondent No. 1 herein, was tenant prior to tiller's day only in respect of land bearing Survey No. 36/1-C referred to above. This decision was challenged by Anusayabai before the appellate authority by way of Appeal No. 23 of 1965. Even the original Respondent No. 1 tenant filed Appeal against the same decision, being dissatisfied by the finding returned by the tenancy authority that he was not tenant in respect of other lands prior to the tiller's day, by way of Appeal No. 328 of 1964. Both the appeals were heard and decided together by the appellate authority vide judgment and order dated 4-7-1967. The appellate authority allowed the appeal preferred by Anusayabai and reversed the conclusion reached by the first authority that the original Respondent No. 1 was tenant in respect of the land bearing Survey No. 36/1-C, whereas the appeal preferred by the Respondent No. 1 came to be dismissed. The Appellate authority found that the original Respondent No. 1 may get himself declared as tenant by taking recourse to proceedings as permissible in law. The Respondent No. 1 did not take recourse to that measure but, instead, challenged the decision of the appellate authority by way of revision application before the Maharashtra Revenue Tribunal. The Revisional Authority by its order dated 25-11-1968 partly allowed the revision observing that instead of requiring the tenant to take recourse to remedy for declaring himself as a tenant prior to tiller's day, the authority may make reference to the Tahasildar for deciding that issue. Pursuant to the order of Tribunal the authority made reference to the Tahasildar which was numbered as Tenancy Case No. 12 of 1974. The Tahasildar held that, the Respondent No. 1 was tenant in respect of land bearing Survey No. 36/1-C only prior to 1-4-1957, whereas he came in possession of the remaining land after the tiller's day. The Tahasildar accordingly decided the case on 17-10-1977. Against this decision the Respondent No. 1 did not take the matter in appeal inspite of the finding returned against him with regard to other lands except Survey No. 36/1-C. Whereas, the present Petitioners - heirs of said Anusayabai preferred appeal before the Appellate Authority taking exception to the opinion to the opinion expressed by the Tahasildar relating to Survey No. 36/1-C. It is relevant to note that while the proceedings were pending before the tenancy authority, the said Anusayabai expired and the matter was contested by the present Petitioners. Be that as it may, the appeal preferred by the Petitioners was allowed by the appellate authority. The appellate authority referred to all the relevant materials and essentially took the view that the original respondent No. 1, being the cousin brother of Anusayabai, could not have claimed to have become a deemed tenant within the meaning of Section 4 of the Tenancy Act. The appellate authority has further held that the claim set up by the Respondent No. 1 that he was contractual tenant pursuant to the oral lease in his favour was not established from the record. On the finding of fact the Appellate court proceeded to allow the appeal preferred by the Petitioners. It would be apposite to advert to the relevant discussion of the Appellate Court which reads thus:-
"From the evidence on record and from the argument of Advocate of appellate, it is seen that the lower Court has relied on the statement of Shri Baba Tatya Nikam, he is cultivating the suit lands on oral lease. The lower Court further depend on the entry of Shri Baba Tatya Nikam in Kul and Khand col. Shri Baba Tatya Nikam has produced three witnesses out of which one Shri Shivram Ganu Jadhav has deposed that Shri Baba Tatya Nikam is cultivating the suit lands as owner. One witness Shri Nagu Krishna Nikam is related with him. Third witness Shri Narayan A. Nikam deposed that when the lease was settled a list of persons attended at the time of oral lease was given out. In the first statement Shri Baba Tatya Nikam deposed that he has given crop share to Smt. Anusayabai and he subsequently said that he has given crop share to Shri Bhau Ana and Smt. Kasabai. First statement given by him is false, no written lease is produced in this case, no entry of oral lease is effected in M.F. Register, the name of Shri Baba Tatya Nikam is entered to the suit land without giving intimation to the landlord and landlady. The lower Court has relied on the statement of Smt. Anusayabai who is not landlady of the suit lands so the evidence of Smt. Anusayabai cannot be taken into consideration. Three pieces of suit lands are fragment and they are declared as per notification in Gazette dated 17-5-1950. So they cannot be leased it without prior permission of the competent authority. In view of these evidence on record, there is no proof that Shri Baba Tatya Nikam is cultivating the suit lands in the capacity of tenant. He is cousin brother of Smt. Anusayabai. He cultivated the suit lands on behalf of Bhau Aba Gaikwad (Nikam) or his wife Smt. Kasabai or his sister Smt. Anusayabai, he has not produced any record showing that he was tenant of the suit lands so he has failed in proving his case of tenancy. The following order, is therefore, passed."
Against this decision the original Respondent No. 1 took the matter in revision before the Maharashtra Revenue Tribunal. The Tribunal by the impugned judgment has, however, interfered with the finding of fact returned by the appellate authority by reappreciating the materials on record and has found that the view taken by the first authority that the Respondent No. 1 was tenant in respect of Survey No. 36/1-C was proper. It is also found that the Respondent No. 1 was tenant in respect of other suit lands as well. The Tribunal in the first place has noted the position that original Respondent No. 1 was cousin brother of deceased Anusayabai. Moreover, there was conflicting version in the evidence of Respondent No. 1 and his witnesses as to when he started cultivating of the suit lands and from whom. The Tribunal has also adverted to the fact that there was no lease deed or rent receipt or rent crop or crop share paid by the Respondent No. 1. However, the Tribunal placed emphasis on the first statement made by the said Anusayabai on 25-10-1962 wherein she has admitted the Respondent No. 1 to be tenant in respect of the suit land prior to tiller's day and having become deemed purchaser. In the circumstances, the present writ petition under Article 227 of the Constitution of India has been filed by the Petitioners viz. heirs of said Anusayabai questioning the correctness of the approach as well as view taken by the Tribunal.
3. According to the Petitioners the Tribunal could not have re appreciated the materials on record to interfere with the finding of fact in exercise of its revisional jurisdiction. It is further contended that the Tribunal having accepted the fact that the Respondent No. 1 was the cousin brother of deceased Anusayabai, through whom the Petitioners inherited the suit lands after the demise of their grand mother Kasabai, it was not open to the Tribunal to still conclude that Respondent No. 1 was deemed tenant in respect of the suit land, having regard to bar contained in Section 4 of the Act. It is further contended that the case as set up by the Respondent No. 1 that he was contractual tenant in respect of the suit land has not been substantiated and it has been so found by the final fact finding court. It is contended that when the Tribunal has adverted to the fact that there is no rent receipt or lease deed or crop share paid by the Respondent No. 1 then, it is incomprehensible as to how Respondent No. 1 can be said to have established the fact that he was contractual tenant in respect of the suit land. It is further submitted that Tribunal could not have discarded the subsequent statement of Anusayabai dated 16-11-1963. It was also submitted that when the previous statement of Anusayabai was recorded on 25-10-1962, at the relevant time, kasabai who had succeeded after the death of her husband original owner Baba Aba Nikam, was alive and, therefore, Anusayabai was not competent to depose on behalf of the landlady. Moreover, it is also demonstrated from the record that no notice or intimation was given in the said Kasabai relating to the earlier proceedings. In the circumstances, it is contended that Tribunal has clearly exceeded its jurisdiction in deciding the matter in favour of the Respondent No. 1 that too with regard to other suit lands when the Respondent No. 1 had not even challenged the decision of the Tenancy Authority in that behalf.
4. On the other hand, according to Mr. Thorat, learned Counsel for the Respondent No. 1, no fault can be found with the approach or reasoning of the Tribunal - because the Tribunal has proceeded to decide the matter on the basis of statement made by Anusayabai which not only bound Anusayabai but also the present Petitioners who are claiming to be her heirs. He submits that since there is no material on record to even remotely suggest that previous statement of Anusayabai was recorded on collusion or by fraud, the present Petitioners would be bound by that statement. He submits that, therefore, the Tribunal was justified in deciding the matter on the basis of that statement and if that statement was to prevail then it was not necessary for the Respondent No. 1 to bring any positive evidence on record to show the existence of contractual tenancy and relationship between the parties that behalf. He, therefore, submits that the factum of Respondent No. 1 being cousin brother as stated in the statement given before the authority, that by itself would not mean that he was member of the family of Kasabai or for that matter Anusayabai so as to denude the Respondent No. 1 from the privileges of a deemed tenant conferred by virtue of Section 4 of the Tenancy Act. He therefore, submits that the conclusion reached by the tribunal cannot be faulted. According to him, on consideration of Section 4 in particular explanation II thereof read with Clause (6) of Section 2 it can be held that even the member of the owner's family would get right to become deemed tenant. In this case, according to him, Kasabai was widow and that she was mentally disabled, therefore, Respondent No. 1 was occupying the suit land in particular Survey No. 36/1-C as tenant prior to tiller's day. He further contends that merely describing the Respondent No. 1 as a cousin brother was not sufficient as no evidence has been brought on record as to relationship or genealogy of the family of the original owner Bhau Aba Nikam so as to hold that relationship of the Respondent and heirs of Kasahabi or for that matter Anusayabai was of blood relation. He submits that in that case also the Respondent No. 1 would succeed as he becomes deemed tenant within the meaning of Section 4 of the Act. Mr. Thorat further contends that Respondent No. 1 was paying assessment regularly and that would presuppose that he was tenant in the suit lands. According to him, therefore, no fault can be found with the conclusion reached by the Tribunal.
5. Having considered the rival submissions, to my mind, the Respondent No. 1 has taken inconsistent stand inasmuch as he avers that he is a deemed tenant but also a contractual tenant. There is perceptible difference between deemed tenant and a contractual tenant. In so far as plea of contractual tenancy is concerned, the courts below have found as a fact that there is no lease deed, Kabulayat or rent receipt. Be that as it may, to get protection of the provisions of Section 4 of the Act to be a deemed tenant, a person lawfully cultivating any land belonging to another person would become deemed tenant if such land is not cultivated personally by the owner and if such person is not a member of the owner's family. We are not concerned with the other exceptions referred to in Section 4 of the Act. If the person is a member of the owner's family then the law clearly excludes such person from being a deemed tenant in respect of any land, though it is under his lawful cultivation. To get over this position Mr. Thorat contends that the Respondent No. 1 was not member of the owner's family. It is not possible to accept that contention because, during the cross examination Respondent No. 1 has clearly conceded the fact that he is cousin brother of Anusayabai. That means the Respondent No. 1 was member of owner's family. If that be so, he cannot be accepted to be a deemed tenant. Mr. Thorat, however, contends that relationship between Respondent No. 1 and Kasabai or for that matter Anusayabai has to be established on record. To my mind, it was not necessary for the Petitioners to establish that position, once the Respondent No. 1 has accepted the fact that he was the cousin brother of Anusayabai. The expression "member of the owner's family" has been considered by this court to be of wide import and would include the cousin brother. It is apposite to advert to the observations of this Court in Nilavabai Sida Khajure's case reported in 1977 Mh.L.J.-443, wherein it is held that a person closely related will have to be held as member of the owner's family. The onus was on the Respondent No. 1 to prove that he was not the member of the owner's family, as is now contended. That is lacking in the present case. Mr. Thorat, however, contends that by virtue of explanation II of Section 4 of the Act, even if the Respondent No. 1 was member of the owner's family that would not preclude him from becoming a deemed tenant. It is not possible to accept this contention. Explanation II to Section 4 reads thus:
"Where any land is cultivated by widow or a minor or a person who is subject to physical or mental disability or a serving member of the armed forces through a tenant then notwithstanding contained in Explanation I to Clause 6 of Section 2, such person shall be deemed to be tenant within the meaning of this Section."
Whereas, Clause (6) of Section 2 defines expression "to cultivate personally" which means to cultivate land on one's own account - i) by one's own labour, or ii) by the labour or any member of one's family or iii) under the personal supervision of oneself or any member of one's family, by hired labour or by servant on wages payable in cash or kind but not any crop share. Explanation II to Clause (6) of Section 2 provides that "A widow or a minor, or person who is subject to physical or mental disability or a serving member of the armed forces shall be deemed to cultivate the land personally if such land is cultivated by servants, or by hired labour, or through tenants". On conjoint reading of these provisions, to my mind, the legislative intent is plainly to except the member of owner's family to be a deemed tenant. In the circumstances, no other reason would be of any avail to the Respondent No. 1. A priori, the Respondent No. 1 cannot qualify the requirements of being a deemed tenant.
6. That takes me to the other contention raised that the Respondent No. 1 was a contractual tenant in respect of the suit lands. Undoubtedly, the law does not preclude member of the owner's family to be a contractual tenant. But to establish the fact that the person was lawfully cultivating the suit land as contractual tenant it is necessary to prove that there was lease of immovable property or of oral agreement accompanied by delivery of possession as required by Section 107 of Transfer of Property Act. There is no evidence whatsoever regarding lease deed or Kabulayat. The only contention which needs to be addressed is that the Respondent No. 1 was in occupation of the suit lands pursuant to the oral lease in his favour coupled with delivery of possession thereof. The appellate Court has analyzed the evidence on record and has returned finding of fact that the Respondent No. 1 failed to establish that there was any oral lease in his favour. There is no infirmity in that view. The Tribunal has, however, interfered with that view mainly on the basis of statement of Anusayabai dated 25-10-1962 wherein she had stated that the Respondent No. 1 was tenant in respect of the suit land prior to the tiller's day. This argument over looks that the said Anusayabai subsequently gave another statement on 16-11-1963 disputing that she had described the Respondent No. 1 as tenant and also asserted that she had never given any such statement before the authority as is recorded. Be that as it may, what is relevant to note is that when the earlier statement of Anusayabai was recorded on 25-10-1962 at that point of time the landlady Kasabai was alive and nowhere in that statement it is mentioned that she was giving that statement on behalf of the landlady under her authority. It is also not in dispute that no notice or intimation was given to Kasabai regarding the earlier proceedings. Even for this reason the binding effect of the statement of Anusayabai recorded on 25-10-1962 on the original owner becomes questionable. Besides, in the next statement of Anusayabai she has very categorically said that Respondent No. 1 was not tenant in the suit lands. Moreover, the Appellate Authority has rightly adverted to the inconsistent stand taken by the Respondent No. 1 - as on the one hand he claims in his oral evidence that he was in lawful cultivation of the said land since 1950 but the entries in the revenue record are only from 1957-58. The Appellate Court has also noted that the said entries in the revenue record were not entered after giving notice or intimation to the landlady Kasabai or Anusayabai. If that be so, merely because there ie entry in the revenue record indicating the name of the Respondent No. 1 as tenant that by itself would not be sufficient to accept the claim of contractual tenancy between the parties. Although the Respondent No. 1 claims that he has been paying assessment in respect of the suit land but the record indicates that those payments have been paid by Respondent No. 1 for and on behalf of the owner and not in his own rights. Besides, the oral evidence adduced by the Respondent No. 1 has been found to be unacceptable by the Appellate Authority. If this be the state of affairs it was not open for the Tribunal to reappreciate the evidence on record to take a different view than the one reached by the appellate authority. It could do so only if the view of the appellate authority was manifestly wrong. Accordingly, it was not open to the Tribunal to over tun the finding of fats returned by the Appellate Authority merely because in its view a different opinion was possible. That is not the scope of revisional jurisdiction of the Tribunal. This legal position has been enunciated by the apex Court in . Even for this reason the decision of the Tribunal cannot be sustained.
7. In the circumstances, the order passed by the Tribunal which is subject matter of challenge in this writ petition is set aside and the one passed by the Appellate Authority is restored. Rule made absolute in the above terms with no order as to costs.
Certified copy expedited.