Bombay High Court
Shri Devendra Radhakrishna Vast And Ors vs Shri Dattaram Vishnu Ralkar And Ors on 5 September, 2018
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11821 OF 2016
1. Shri Devendra Radhakrishan Vast )
Age: 55 years, Occ: Fishring )
2. Shri Hemant Radhakrishan Vast )
Age: 49 years, Occ: Hawker Business )
3. Shri Arun Radhakrishan Vast )
Age: 45 years, Occ: Service )
1 to 3 R/o. Arawali, Tal.: Vengurla )
Sagartirth, Post: Tank, Vengurla )
District : Sindhudurg - 416 516. ) .. Petitioners
(Original Applicants)
Versus
1. Shri Dattaram Vishnu Ralkar )
age : 71 years, Occ: retired )
R/o. Vengurla, Tal.: Vengurla )
Shri Balasaheb Annasaheb Jagadale )
District : Sindhudurg - 416 516. )
2. Smt.Radha Hari Girkar (since deceased) )
No legal heirs, hence deleted. )
3. Smt. Priya Surendra Walavalkar )
Age : Major, Occ: Household, )
R/o. Vengurla, Tal.: Vengurla )
District : Sindhudurg - 416 516. ) .. Respondents
(Orig. Respondents)
---
Mr.A.S. Khandeparkar i/by Mr.Arvind Kundekar for the petitioners.
Mr.S.G. Karandikar i/by Mr.Sudhir Prabhu for the respondent no.1.
---
CORAM : R.D. DHANUKA, J.
DATE : 5th September 2018
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Judgment :-
. By this petition filed under Article 227of the Constitution of
India, the petitioners have impugned the order dated 16 th September 2016 passed by the Maharashtra Revenue Tribunal in Tenancy Revision Application No.446 of 2013 and also impugning the order dated 12th July 2013 passed by learned Sub-Divisional Officer, Sawantwadi in Tenancy Remand Appeal No.57 of 2001. Some of the relevant facts for the purpose of deciding this petition are as under : -
2. It is the case of the petitioners that the respondent nos.1 and 3 are the original owners of the suit land bearing Old Survey No.304, New Survey No.2 hiss No.2-F area admeasuring 0-99-0 Hectre Are, of Assessment of Rs.0.61 situated at Village Sagartirtha, Tal:Vengurla, Dist.
Sindhudurg and they has succeeded their ownership rights from their father who was recorded owner to the suit land. It is the case of the petitioners that Rama Govind Girkar was a permanent tenant of the suit land and after his death, his right was succeeded by his son Hari Rama Girkar who died on 1st January 1993. His tenancy right was succeeded by his wife late Smt.Radha Hari Girkar whose name was recorded in the mutation entry No.77 dated 24th May 1997. It is the case of the petitioners ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 3 wp-11821.16(j).doc that the name of Radha Hari Girkar was recorded as a permanent tenant by mutation entry No.78 dated 27th June 1998. The said Smt.Radha Hari Girkar died without leaving any issue.
3. It is the case of the petitioners that Hari Girkar had given the suit land to the father of the petitioners as a Sub-tenant. The petitioners' family had been cultivating the suit land since more than 40 years as sub-tenant on payment of khand to Hari Girkar. It is the case of the petitioners that the father of the petitioners had paid the said khand amount to Hari Girkar by money order sent to him at Mumbai address and the same was accepted by him and after his demise, her wife late Smt.Radha Hari Girkar.
4. It is the case of the petitioners that the residential house owned by Hari Girkar was also transferred in the name of the petitioners by Grampanchayat and they were paying house tax to the Grampanchayat and have been residing therein. The petitioners have allegedly constructed another separate house in the suit land in the year 2002 after obtaining permission from the local Grampanchayat. The petitioners have also allegedly constructed various structures including a well and a Samadhi of their mother in the suit land some time in the year 2006. ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 :::
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5. On 26th February 2001, the petitioners filed an application under Section 70(b) of the Maharashtra Tenancy and Agricultural Lands Act (for short "the said Act") inter alia praying for declaring their status as tenant over the suit land before the Tahsildar at Vengurla. The respondent no.1 appeared before the learned Tahsildar and contested the said application filed by the petitioners. It is the case of the petitioners that the petitioners led evidence before the learned Tahsildar in the said application and produced various documents before the learned Tahsildar. The petitioners filed deposition of the petitioner no.1 before the learned Tahsildar on 4th April 2001 asserting that Hari Girkar was a permanent tenant in respect of the suit land and khand was paid to him. It is the case of the petitioners that the suit land is of New Survey No.2 hissa No.2-F land admeasuring 0-99-0 Hectre Are, Assessment of Rs.0.61 and is in possession of the petitioners and is under cultivation. The petitioners filed deposition of the adjoining cultivator Shri Yeshwant Govind Kudav before the learned Tahsildar on 4th April 2001.
6. The respondent no.1 also appeared before the learned Tahsildar and made a statement on oath on 4 th April 2001 denying the tenancy of the petitioners. It is the case of the petitioners that the respondent no.1 in his deposition before the learned Tahsildar admitted ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 5 wp-11821.16(j).doc that Hari Girkar was a permanent tenant and stated that the petitioners had not paid khand to the respondent no.1.
7. By an order dated 2nd June 2001 passed by the learned Tahsildar, the petitioners were declared as tenants of the suit land. The respondent no.1 filed tenancy appeal bearing No.57 of 2001 before the learned Sub-Divisional Officer, Sawantwadi. By an order dated 14 th February 2005, the said appeal was dismissed for default. By an order dated 24th December 2008, the Maharashtra Revenue Tribunal partly allowed the tenancy revision application filed by the respondent no.1 and remanded back the proceedings to the Sub-Divisional Officer to hear the said appeal on merit.
8. The petitioners made an application before the learned Tahsildar on 10th May 2006 to amend hissa No.2-F instead of hissa No.2 of Survey No.2. By an order dated 3rd June 2006, the learned Tahsildar issued amended order allowing the amendment in the order dated 2 nd June 2001. The learned Tahsildar passed further order dated 8 th February 2007 allowing the petitioners to make amendment in the order dated 2 nd June 2001. The learned Sub-Divisional Officer passed an order dated 12th July 2013 upon remand thereby allowing the appeal filed by the ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 6 wp-11821.16(j).doc respondent no.1 and setting aside the order passed by the learned Tahsildar which was passed in favour of the petitioners. The petitioners filed a tenancy revision application bearing No.446 of 2013 before the Maharashtra Revenue Tribunal.
9. It is the case of the petitioners that the respondent no.2 who claims to be an adopted daughter of late Smt.Radha Hari Girkar applied for intervention in the said tenancy appeal before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal had rejected the said intervention application by an order dated 2nd March 2016.
10. On 19th September 2016, the Maharashtra Revenue Tribunal passed the impugned order thereby rejecting the said tenancy revision application No.446 of 2013 and confirming the order passed by the learned Sub-Divisional Officer in Tenancy Remand Appeal No.57 of 2001. Being aggrieved by the said judgment of the Maharashtra Revenue Tribunal and the Sub-Divisional Officer, the petitioners have filed this petition under Article 227 of the Constitution of India.
11. Mr.Khandeparkar, learned counsel appearing for the petitioners invited my attention to various annexures to the writ petition ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 7 wp-11821.16(j).doc and would submit that the petitioners were the sub-tenants or deemed tenants in respect of the property in question. He submits that several documents were produced by the petitioners before the learned Tahsildar in support of the claim of the tenancy in the said application filed under Section 70(b) of the said Act. The learned Tahsildar had rightly considered all the oral and documentary evidence led by both the parties and had rightly declared the petitioners as tenants in respect of the suit property. Learned Sub-Divisional Officer however has erroneously reversed the findings rendered by the learned Tahsildar which findings of the learned Sub-Divisional Officer are erroneously confirmed by the Maharashtra Revenue Tribunal.
12. It is submitted by the learned counsel for the petitioners that the Maharashtra Revenue Tribunal has rejected the revision application filed by the petitioners mainly on the ground that the petitioners has produced the photocopies of the documents and not the originals. He placed reliance on Section 27 of the said Act and submits that under the said provision, the permanent tenant is allowed to sublet the land and thus the said land having been sublet in favour of the petitioners, learned Sub-Divisional Officer as well as the Maharashtra Revenue Tribunal could not have interferred with the order passed by the learned Tahsildar. ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 :::
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13. Learned counsel for the petitioners invited my attention to the photocopies of the alleged rent receipts, money orders and few other documents annexed to the writ petition and would submit that the petitioners had paid rent to Hari Girkar who was a permanent tenant. It is submitted that the learned Sub-Divisional Officer and the Maharashtra Revenue Tribunal could not have set aside the findings rendered by the learned Tahsildar contrary to the evidence produced by the petitioners on record.
14. It is submitted by the learned counsel that though pleadings filed by the petitioners before the learned Tahsildar were loosely drafted pleadings, the learned Sub-Divisional Officer and the Maharashtra Revenue Tribunal ought to have considered the true and correct intention of the petitioners in such drafting and could not have set aside the order passed by the learned Tahsildar on hyper technical ground.
15. Learned counsel placed reliance on the judgment of the Supreme Court in the case of Madan Gopal Kanodia Vs. Mamraj Maniram & Ors., AIR 1976 SC 461 and in particular paragraph 26 thereof in support of the submission that the Court cannot scrutinize the ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 9 wp-11821.16(j).doc pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds.
16. It is submitted by the learned counsel for the petitioners that it was not the case of the respondents that possession of the property was taken under Sections 15 or 31 of the said Act. He submits that under Section 15 of the said Act, possession of the property can be taken only in the mode and manner prescribed under the said provision. Learned counsel for the petitioners placed reliance on the judgment of this Court in the case of Dharma Radhya Vartha & Ors. Vs.Ramesh Vrijlal Shah & Ors., 2005 (4) Bom C R 108 and in particular paragraph 18 and would submit that even if the petitioners would have failed to establish the factum of lawful possession, the petitioners cannot be dispossessed from the suit lands in view of the fact that the right of the respondents to claim possession in respect of the suit lands has been extinguished by operation of law. It was incumbent upon the respondents to institute a suit for possession of the suit lands.
17. Learned counsel for the petitioners placed reliance on the judgment of this Court in the case of Babu Hari Patil & Anr. Vs. Rama Ananda Jadhav (since deceased) through his heirs Harubai Rama ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 10 wp-11821.16(j).doc Jadhav & Ors., 2005(1) Mh.L.J. 1063 and in particular paragraph 6.1 in support of the submission that the definition of 'tenant' under Section 2(18) of the said Act includes a persons who are not contractual tenants. He submits that the petitioners had proved before the learned Tahsildar that they were the deemed tenants under Section 4 of the said Act. He submits that the petitioners had prayed in the application filed under Section 70(b) of the said Act for declaration as permanent tenant. The petitioners had led evidence only to claim sub-tenancy.
18. It is lastly submitted that since the Maharashtra Revenue Tribunal has rejected the tenancy revision application on the ground that the petitioners had not produced the originals of the documents, this Court may remand the matter back to the learned Tahsildar with an opportunity to the petitioners to lead evidence in support of their claim proving their tenancy.
19. Mr.Karandikar, learned counsel for the respondent no.1, on the other hand, invited my attention to the application filed by the petitioners under Section 70(b) of the said Act and would submit that the petitioners had prayed for declaration of the petitioners as tenants in the said application dated 26th February 2001. It was alleged in the said ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 11 wp-11821.16(j).doc application that the petitioners were paying rent to the landlords and were claimed to be in possession of the suit land for last 35 to 40 years. It is submitted by the learned counsel that Smt.Radha Hari Girkar was the permanent tenant who expired on 4th December 2000 without leaving any legal heir. He invited my attention to the submission of the petitioner no.1 recorded before the learned Tahsildar alleging that the petitioners have been cultivating the suit land for last 42 to 45 years. Age of the said deponent was 39 years on the date of filing of such statement on 4 th April 2001. He submits that the petitioners have been taking inconsistent pleas i.e. the pleas in the application under Section 70(b) of the said Act, statement of the petitioner no.1 filed on 4th April 2001 and in the subsequent pleadings filed before the Maharashtra Revenue Tribunal.
20. It is submitted by the learned counsel that the petitioners did not produce any documents in support of their claim on payment of any rent to the permanent tenant. There was no correspondence exchanged between the petitioners and the permanent tenant at any point of time till her demise. The so called photocopies of the money orders were produced before the learned Tahsildar did not indicate that any payment of rent was paid by the petitioners to the permanent tenant. Learned counsel placed reliance on the evidence of the landlord Shri Dattaram ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 12 wp-11821.16(j).doc Vishnu Ralkar stating that he did not know the petitioners at all and the land was not given to the petitioners for cultivation at any point of time. No rent was ever paid by the petitioners to the landlord.
21. It is submitted by the learned counsel that though there was no conclusive evidence produced by the petitioners to prove the alleged plea of tenancy, the learned Tahsildar without recording reason and without considering the evidence of the respondent no.1 allowed the application filed by the petitioners under Section 70(b) of the said Act and declared the petitioners as tenants without declaring the petitioners either as permanent tenants or sub-tenants.
22. Learned counsel appearing for the respondent no.1 invited my attention to the written arguments filed by the petitioners before the learned Sub-Divisional Officer and would submit that the petitioners tried to improve their case by pleading a new case in the written arguments to the extent that the rent was paid by the petitioners to the respondents. He invited my attention to the written arguments filed by the petitioners before the Maharashtra Revenue Tribunal alleging that the alleged tenancy was assigned in favour of the father of the petitioners. He submits that the petitioners thus have pleaded three different and inconsistent stands on record before three different authorities. ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 :::
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23. It is submitted by the learned counsel that after demise of the permanent tenant Smt.Radha Hari Girkar, the petitioners appear to have got their names inserted in certain revenue records illegally. He submits that even those records showing the names of the petitioners would not prove their claim of tenancy under Section 70(b) of the said Act. He submits that on one hand in those documents, it is shown that the rent in respect of the land in question was Rs.7/- p.a. and on the other hand, the petitioners have alleged to have made payment of Rs.100/- by money order. Even those documents would not prove any claim of tenancy or payment of rent. Learned Sub-Divisional Officer as well as the Maharashtra Revenue Tribunal have thus rightly rejected the case of the petitioners and have rightly set aside the order passed by the learned Tahsildar.
24. Learned counsel for the petitioners placed reliance on the definition of 'tenant' under Section 2(18) of the said Act and also the definition of 'permanent tenant' under Section 2(10A) of the said Act. He submits that none of the petitioners had produced any rent receipts of the property satisfying the condition set out under Section 2(10A) to declare a person as a permanent tenant. The case of the petitioners initially claiming to be the permanent tenant and thereafter as sub-tenants ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 14 wp-11821.16(j).doc and thereafter as deemed tenants being inconsistent with each other and thus was rightly not accepted by the learned Sub-Divisional Officer and the Maharashtra Revenue Tribunal. He submits that the findings rendered by the Maharashtra Revenue Tribunal as well as the learned Sub- Divisional Officer being not perverse cannot be interferred with by this Court under Article 227 of the Constitution of India.
25. Learned counsel for the petitioners in rejoinder submits that the house constructed on the suit land has already been transferred in the name of the petitioner no.1 in the revenue record. The petitioners had produced the copies of the money orders and other relevant documents to prove the claim of tenancy in respect of the property in question. He submits that if this Court comes to the conclusion that the documents produced by the petitioners were not sufficient to prove the claim of tenancy before the learned Tahsildar, this Court be pleased to remand the matter back to the learned Tahsildar with an opportunity to the petitioners to prove their claim of tenancy under Section 70(b) of the said Act.
REASONS AND CONCLUSIONS :-
26. A perusal of the application filed by the petitioners under Section 70(b) of the Act, written arguments filed by the petitioners ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 15 wp-11821.16(j).doc before the learned Sub-Divisional Officer and the written arguments filed by the Maharashtra Revenue Tribunal by the petitioners would indicate that the petitioners have taken three different stand in the proceedings i.e. firstly claiming tenancy, thereafter claiming sub-tenancy and lastly as assignee of the tenancy right.
27. The application under Section 70(b) of the said Act filed by the petitioners even clearly indicates that the petitioners have not claimed permanent tenancy in the said application. The petitioners had urged in the written arguments before the Maharashtra Revenue Tribunal that in view of the alleged assignment of the tenancy in their favour, the petitioners were not required to pay any rent to the permanent tenant.
28. The petitioners at the same time had urged before this Court and also in the application filed before the learned Tahsildar under Section 70(b) of the said Act that the rent was paid to the permanent tenant by various money orders and had sought to place reliance on the photocopies of some of the money orders. In my view, the case of the petitioners thus was totally inconsistent and contradictory before the learned Tahsildar, before the learned Sub-Divisional Officer, before the Maharashtra Revenue Tribunal and before this Court and was thus rightly ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 16 wp-11821.16(j).doc rejected by the learned Sub-Divisional Officer and the Maharashtra Revenue Tribunal.
29. A perusal of the record further indicates that the petitioners had strongly placed reliance on the revenue record after demise of the permanent tenant i.e.Smt. Radha Hari Girkar showing the alleged possession of the petitioners in respect of the suit land. Till the date of permanent tenant, the petitioners were not in picture in so far as the suit land is concerned.
30. A perusal of the record further indicates that even according to the 7/12 extract relied upon by the petitioners in respect of the suit property, the rent receipts mentioned therein was Rs.7/- p.a. whereas the petitioners placed reliance on the photocopies of the alleged money orders thereby allegedly sending the rent to the permanent tenant @ Rs.100/-. The alleged money order even would not indicate as to for what purpose the said amount was allegedly sent to the permanent tenant or otherwise. There was no proof of any nature whatsoever produced by the petitioners to prove the alleged tenancy under Section 70(b) of the said Act for the period prior to 1974 or after 1976. The petitioners also did not examine Hari Girkar who, according to the petitioners, was the ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 17 wp-11821.16(j).doc permanent tenant. All proceedings have been initiated by the petitioners only after the death of the permanent tenant i.e. Smt. Radha Hari Girkar.
31. A perusal of the record further indicates that the petitioners have alleged to be in possession of the suit land by alleging different periods so as to fall their claim of the alleged tenancy under Section 2(10A) of the said Act. None of the alleged receipts produced by the petitioners would prove the claim of tenancy i.e. either permanent tenancy or sub-tenancy or assignment of any tenancy. There was no case of alleged assignment of tenancy or deemed tenancy pleaded in the application filed by the petitioners under Section 70(b) of the said Act before the learned Tahsildar.
32. A perusal of the record further indicates that though the petitioners had examined two of the witnesses including the petitioner no.1 before the learned Tahsildar, the petitioners did not produce and/or prove any of the documents in support of their claim of tenancy in respect of the suit land.
33. A perusal of the impugned order passed by the learned Sub- Divisional Officer and also passed by the Maharashtra Revenue Tribunal ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 18 wp-11821.16(j).doc clearly indicates that the learned Sub-Divisional Officer as well as the Maharashtra Revenue Tribunal have rendered a finding that all the photocopies of the rent receipts produced by the petitioners were secondary evidence. The petitioners had not produced any originals or certified copy. The learned Tahsildar thus could not have accepted those photocopies as evidence as per Section 65 of the Indian Evidence Act. It is further held by the Maharashtra Revenue Tribunal that there was no claim of any tenancy of the petitioners during the life time of Smt.Radha Hari Girkar. The petitioners ought to have got confirmation of such alleged tenancy at least from Smt.Radha Hari Girkar during her life time.
34. The Maharashtra Revenue Tribunal has also rendered a finding that even if any rent receipts were issued by Girkar, it does not disclose or prove that money was sent as a rent of disputed land. No letters or any other communication between the petitioners and Girkar family suggesting that money was received by Girkar family as rent of disputed land were produced by the petitioners before the learned Tahsildar or before the learned Sub-Divisional Officer or before the Maharashtra Revenue Tribunal. It is held by the Maharashtra Revenue Tribunal that even if the petitioners were claiming the possession of the disputed land for last 40 to 50 years, they ought to have come with very ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 19 wp-11821.16(j).doc strong evidence and convincing explanation for non action for such a longer period.
35. Mr.Khandeparkar, learned counsel for the petitioners does not dispute before this Court that the only photocopies of some of the documents which are annexed to the writ petition were produced by his clients before the learned Tahsildar. The petitioners also could not produce any original documents even at this stage before this Court or were not produced even before the learned Sub-Divisional Officer or even before the Maharashtra Revenue Tribunal. The question of considering the application of the petitioners to remand back the matter to the learned Tahsildar to give an opportunity to produce the originals ro some other documents to prove the case of tenancy in respect of the disputed land at this stage did not arise.
36. A perusal of the record indicates that Rama Govind Girkar was a permanent tenant of the disputed land. After his demise, his son Hari Rama Girkar become a tenant who expired in the year 1993 and after his death, the said Smt.Radha Hari Girkar become a permanent tenant whose name was entered in revenue record as a permanent tenant vide mutation entry No.77 dated 24 th May 1997. Till the death of ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 20 wp-11821.16(j).doc Smt.Radha Hari Girkar, the petitioners have never raised any claim of permanent tenancy or sub-tenancy or assignment of any tenancy in their favour. Admittedly Smt. Radha Hari Girkar died on 4 th December 2000 leaving no heirs behind. The petitioners are admittedly the tenants in the adjoining land and buildings which are not disputed lands. In these circumstances, after considering the evidence produced by both the parties, the learned Sub-Divisional Officer and the Maharashtra Revenue Tribunal were right in rejecting the claim of tenancy made by the petitioners and have rightly interferred with the order passed by the learned Tahsildar declaring the petitioners as tenants under Section 70(b) of the said Act.
37. I am not inclined to accept the submission of the learned counsel for the petitioners that there was loose drafted pleadings of the petitioners filed in the application under Section 70(b) of the said Act.
38. A perusal of the record indicates that all the pleadings filed by the petitioners from time to time including the written arguments were drafted by the advocates. Reliance thus placed by the learned counsel for the petitioners on the judgment of the Supreme Court in the case of Madan Gopal Kanodia (supra) would not assist the case of the ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 21 wp-11821.16(j).doc petitioners. Reliance placed by the learned counsel for the petitioners on the said judgment is thus totally misplaced.
39. In my view, the assessment receipts produced by the petitioners also would not indicate or prove the claim of tenancy pleaded by the petitioners before the two authorities below and also the Maharashtra Revenue Tribunal. The submission of the learned counsel for the petitioners that under Section 27 of the said Act, a permanent tenant can sublet the land governed by the provisions of the said Act is not disputed by the learned counsel for the respondent no.1.
40. Learned counsel for the respondent no.1, however, has rightly urged before this Court that the plea of the alleged sub-tenancy even not raised in the application under Section 70(b) of the said Act filed by the petitioners before the learned Tahsildar.
41. A perusal of the record further indicates that the alleged receipts issued by Hari Rama Girkar and relied upon by the petitioners do not tally with other records produced by the petitioners and thus would not assist the case of the petitioners.
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42. In so far as the submission of the learned counsel for the petitioners that it was not the case of the respondent no.1 that the possession of the disputed land was taken either under Section 15 or 31 of the said Act is concerned, in my view, there is no substance in the submission of the learned counsel for the petitioners. The petitioners could not produce any proof in support of their alleged claim of possession prior to year 2000 and thus the claim of the petitioners for alleged tenancy under Section 70(b) of the said Act clearly fell on the ground.
43. In so far as the judgment of this Court in the case of Dharma Radhya Vartha & Ors. (supra) is concerned, it is held by this Court that even if the petitioners fail to establish the factum of lawful possession, even so, they cannot be dispossessed from the suit lands and the right of the respondents to claim possession in respect of the suit lands has been extinguished by operation of law. In that case, the respondents had failed to institute any suit for possession of the suit land within the limited period provided in the Limitation Act, 1963. In this case, the respondents have not filed any suit for possession of the suit land from the petitioners. The judgment of this Court in the case of ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 23 wp-11821.16(j).doc Dharma Radhya Vartha & Ors. (supra) would not assist the case of the petitioners and is clearly distinguishable in the facts of this case.
44. In so far as the judgment of this Court in the case of Babu Hari Patil & Anr.(supra) relied upon by the learned counsel for the petitioners is concerned, this Court in the said judgment while interpreting Section 2(18) of the said Act has held that it would be difficult to assume in construing Section 4 that the person who claims the status of a deemed tenant must be cultivating land with the consent or authority of the owner. The relevant condition imposed by the statute was only that the person claiming the status of a deemed tenant must be cultivating land lawfully. In my view, the said judgment is not even remotedly assist the case of the petitioners. In this case, the petitioners had not even pleaded a deemed tenancy in their application filed under Section 70(b) of the said Act before the learned Tahsildar. The petitioners have even otherwise failed to prove that they were cultivating the land for a period contemplated under Section 70(b) read with Section 2(10A) of the said Act.
45. A perusal of the record further indicates that though the petitioners had prayed for declaration of the petitioners as tenants, the ::: Uploaded on - 11/09/2018 ::: Downloaded on - 11/09/2018 23:24:05 ::: ppn 24 wp-11821.16(j).doc petitioners had led evidence only to claim sub-tenancy. In my view, learned counsel for the respondent no.1 has rightly placed reliance on the evidence of the landlord led before the learned Tahsildar and rightly submitted that the learned Tahsildar did not consider the said evidence led by the landlord while accepting the plea of tenancy filed by the petitioners.
46. A perusal of the order passed by the learned Tahsildar in favour of the petitioners clearly indicates that the learned Tahsildar has not rendered sufficient reasons and had passed a very cryptic order which has been rightly reversed by the learned Sub-Divisional Officer and the said order of the Sub-Divisional Officer has rightly confirmed by the Maharashtra Revenue Tribunal.
47. In my view, the findings rendered by the learned Tahsildar being perverse, were rightly interferred with by the learned Sub- Divisional Officer and by the Maharashtra Revenue Tribunal. The findings of the learned Sub-Divisional Officer and the Maharashtra Revenue Tribunal being not perverse cannot be interferred with by this Court under Article 227 of the Constitution of India. In my view, the petition is devoid of merit.
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48. I therefore pass the following order :-
(i) Writ petition filed by the petitioners is dismissed.
(ii) Ad-interim relief granted by this Court on 14 th October 2016
stand vacated.
(iii) There shall be no order as to costs.
R.D. DHANUKA, J.
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