Bansi And Others vs Yeshwanta And Others

Nitin B. Suryawanshi, J

Rule. Rule made returnable forthwith. Heard finally with the consent of learned advocates for the appearing parties.

The challenge raised in this writ petition is to the order dated 19. 01.2009 passed by the Deputy Collector, Land Reforms, Beed and confirmed by

Maharashtra Revenue Tribunal, Aurangabad.

The property in question is land Survey No. 40/A admeasuring 2 Hector 83 R. situated at village Dongaon, Taluka Kaij, District Beed. One

Gangabhishan Shrikishan Ranwa was the original owner of land Survey No. 40 admeasuring 17 Acres 12 Gunthas. The said Survey number was

divided in five plots, Survey Nos. 40/A, 40/4, 40/5, 40/7 and 40/8. On 23-06-1969, Gangabhishan initiated proceedings against Yashwant, respondent

No.1 for recovery of rent and possession of an area of 15 Acre 35 Gunthas from land Survey No. 40/A and 7 Acre 27 Gunthas from Survey No.37.

In the said proceedings, a compromise was recorded between landlord Gangabhishan and tenant Yashwant, whereby it was mutually agreed that

Yashwanta the tenant shall retain 7 Acres of agricultural property from land Survey No. 40/A and release 8 Acre 35 Gunthas of Survey No. 40 and 7

Acre 27 Gunthas from Survey No. 37 in favour of the landlord.

Respondents no. 1 to 6 filed Regular Civil Suit No. 73 of 1985 in the Court of Civil Judge, Junior Division, Kaij, seeking perpetual injunction in

respect of land Survey No. 40/8 admeasuring 2 Hector 83 R. situated at village Dongaon, Taluka Kaij, District Beed (for short, “suit landâ€)

against the petitioners and other respondents.

. After hearing the parties, RCS No. 73 of 1985 came to be dismissed.

The petitioners, who are the subsequent purchasers of 60 R portion of the land Survey No. 40, filed RCS No. 376 of 1985 only against landlord

Gangabhishan for correction of sale deed for correcting 3 H. 43 R in the place of 60 R land. The suit was allowed ex-parte on 30.07.1988. In Regular

Darkhast No. 30 of 1989 (Bansi Versus Gangabhishan), orders for correction of sale deed dated 13.06.1978 were passed. In the execution

proceedings through the Court Commissioner, the area in the sale deed of the petitioners was corrected from 60 R to 3 H. 43 R.

By Regular Civil Appeal No. 40 of 1994, the trial Court’s Judgment in RCS No. 73 of 1985 was challenged and the appeal came to be allowed.

The petitioners challenged the Appellate Court’s Judgment and Decree by filing Second Appeal No. 462 of 2007. The Second Appeal was

allowed. The Judgment and Decree passed by the District Court was set-aside. This Court directed the trial Court to refer the issue of tenancy to the

competent authority. Pursuant to the order passed by this Court, the learned Civil Judge, Junior Division, Kaij referred the matter to the Agricultural

Land Tribunal.

The Tribunal, after hearing the parties, held that father of the original plaintiffs i.e. Yashwant Madhav Ghule was not a tenant of land Survey No.

40/8 and further held that the said land is free from tenancy. Respondents No. 1 to 6 challenged the order passed by the Tribunal, by filing Appeal

before the Deputy Collector, Land Reforms, which was allowed by order dated 19. 01.2009 by holding that respondents No. 1 to 6 are the tenants of

Survey No. 40/8. The petitioners challenged the order passed by the Deputy Collector, by filing Revision No. 66/B/2015/B before the Maharashtra

Revenue Tribunal, Mumbai, which came to be dismissed. Hence, the present petition.

Heard Mr. V. J. Dixit, the learned Senior Advocate for the petitioners, Mr. G. V. Sukale, the learned Advocate for respondent No.2 and Mr. B. S.

Choure, the learned Advocate for respondents No. 8A to 8E.

Mr. Dixit, learned Senior Advocate for the petitioners assailed the impugned orders passed by the Deputy Collector and the Maharashtra Revenue

Tribunal, Aurangabad, contending that, the compromise was never acted upon as the tenant failed to pay the consideration price and no sale deed was

executed. He further submitted that the name of tenant was not mentioned in the tenancy register maintained under Rule 23 of the Hyderabad

Tenancy Rules. The Maharashtra Revenue Tribunal has failed to consider the issue of tenancy in the proper prospective and has recorded erroneous

findings. He submitted that, as per Section 32 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (for short, “the said Actâ€), two

years’ limitation is prescribed for taking possession by the tenant. The same is not done. Therefore, the right of tenant to take possession is lost.

At no point of time the sale deed executed between landlord and subsequent purchasers/ petitioners was ever challenged by the respondents. These

aspects are ignored by the Deputy Collector as well as by Maharashtra Revenue Tribunal. The impugned orders passed by them therefore are

unsustainable and are liable to be quashed and set-aside.

On the other hand, learned Advocate for the respondents submitted that the issue of tenancy is rightly decided by the Deputy Collector. It is a

settled legal position that ‘once a tenant, always a tenant’. He further submitted that from 1954, the tenant was in possession of the land in

question. On the Tillers’ day i.e. 1. 04.1957, the tenant was in possession of the land in question as tenant. After the compromise, in terms of

compromise, the landlord was given possession of some portion of the land in question from Gut No. 40. He, then, sold the land to the petitioners. This

shows that the compromise was acted upon and the respondents/tenants were in possession of 2 Hector 83 R land. He submitted that in RCS No. 376

of 1985 filed by the petitioners, rectification in the sale deed was sought. The landlord failed to appear in that suit and the suit was decreed.

Accordingly, by appointing the Court Commissioner, correction deed was executed and in the place of 60 R, the entire land 3 Hector 43 R was

corrected in the sale deed. The said decree is not binding on the tenant. He supported the orders passed by the Deputy Collector as well as

Maharashtra Revenue Tribunal. His further submission is that since concurrent findings of facts are recorded by the authorities, this Court may not

interfere in extra ordinary writ jurisdiction.

Learned Advocate for respondent No. 8 adopted the arguments of the learned Advocate for the petitioners.

In reply, learned Senior Advocate for the petitioners submitted that as per the compromise deed Issar-pavati was never prepared. The Decree

passed in RCS No. 378 of 1985 was never challenged by the tenant, so also, the correction deed. He, therefore, submitted that the petition deserves to

be allowed.

Heard learned Advocates for the parties at length and perused the record.

It emerges from the record that Gangabhishan was the original landlord, who owned land Survey No. 40 and Survey No. 37 from village Dongaon.

Yahwant and his brothers were cultivating the said lands from 1954 onwards, as tenants. Survey No. 40 was divided in five parts 40/A, 40/4, 40/5,

40/7 and 50/8.

Admittedly, Gangabhishan initiated proceeding on 23. 06.1969 against Yashwant and his brothers for recovery of possession of land Survey No.

40/A and Survey No. 37. It is also a matter of record that compromise was arrived at in the said proceeding, according to which, tenant Yashwant

agreed to retain 7 Acre of agricultural property towards Western side from land Survey No. 40/A and remaining 8 Acre 35 Gunthas from Survey No.

40 was to be returned in favour of Gangabhishan. It was also agreed that the landlord is the owner of Survey No. 37 admeasuring 7 Acre 27 Guntha.

Even if the contention of the petitioners that the said compromise was not acted upon, is accepted, the fact that Yashwanta and his brothers were

tenants, is accepted by the landlord way back in the year 1969 and 1971. The compromise of 1971 whether it is acted upon or not, would not

extinguish the existing rights of the tenant and his brothers.

The petitioners filed RCS No. 376 of 1985 arraying only landlord Gangabhishan as defendant. The respondents/tenants were not made party. The

defendant/landlord deliberately remained absent and allowed the suit to proceed ex-parte. It is obvious that the suit was filed by petitioners in collusion

with the landlord. It appears that the petitioners were well aware of the tenancy rights of the respondents while purchasing the property from the

landlord. While seeking correction by adding 3 Hector 43 R more area in the sale deed, no additional consideration was paid by the petitioners. This

also indicates that collusive decree of correction was obtained by the petitioners. This decree, therefore, cannot be said to be binding on the tenant and

his heirs.

It is further clear from the record that in the sale deed executed by the landlord Gangabhishan in the year 1978 in favour of the petitioners, the

portion given to the tenant was kept as it is. The name of tenant appears in cultivation column till 1978-79. The tenant was in possession of the land in

question and the landlord failed to obtain the possession of the tenanted land under Section 32(2) of the said Act. Admittedly, no procedure laid down

in Rule 7 of Hyderabad Tenancy Act, 1950, which contemplates satisfaction of the Tahsildar as to voluntary surrender of Tenancy is followed in the

present matter. There is nothing on record to show that Yashwanta had surrendered the tenancy. The Tahsildar, ignoring all these aspects, declared

Survey No. 40/A free from tenancy and deleted the name of Yashwant from the revenue record without issuing notices to the tenants.

In Madhao Versus M.R.T. Nagpur, 1970 Mah.L.J.991, it is held that “tenant handing over possession to the landlord privately, tenant does not

cease to be tenant without an order for possession recorded by Tahsildar.â€​ This ratio supports the case of respondents.

The Deputy Collector was, justified, in setting aside the order passed by Tahsildar. The order of the Deputy Collector was confirmed by the

Maharashtra Revenue Tribunal, by recording a finding that, “there is no legal document on record about surrender of tenancy by Yashwanta.

Admission of Yashwanta’s Tenancy by landlord in 1969 and 1971 has binding effect on Revision Applicant alsoâ€​. The Tribunal has also recorded

a finding that, the procedure contemplated under Rule 7 of the Hyderabad Tenancy 1950 was not followed by which the Tahsildar has satisfied

himself about voluntary surrender of the Tenancy. The Tribunal has come to a conclusion that the compromise of 1971 will not vitiate existing rights of

Tenant Yashwanta. It is further held that correction deed effected in the ex-parte decree, the applicants (petitioners) succeeded in ousting the

respondent (other tenants) from land Survey No. 40. The Tribunal has also held that the revision petitioners (petitioners) could not stake claim to the

land beyond whatever they have purchased even if the correction deed is acted upon and the tenants’ right to suit property are not eclipsed and

vanished by correction deed dated 04.08.1989. The Tribunal also recorded a finding that, the Tahildar failed to verify that Yashwanta was in

cultivation of the suit property from 1956-60 to 1974-75. The Tahsildar wrongly quoted circular of Commissioner Aurangabad dated 25.02.1971,

indeed it was clarified by Revenue Authorities, while issuing the said circular that notices be issued before deleting names of tenants in accordance

with record of right procedure. No such procedure obviously was followed, when name of Yashwanta was deleted in the year 1979-80 from the

revenue record. The entire exercise was illegal. The Tribunal was justified in recording these findings on the basis of record and legal provisions. The

Tribunal has correctly appreciated the material on record and rival contentions of the parties and has passed a well reasoned order.

There are concurrent findings of facts recorded by the Deputy Collector and the Tribunal. There is no illegality or perversity in the orders

impugned in the petition. Writ petition is, therefore, dismissed. Rule is discharged. No costs.

At this stage, the learned Advocate for the petitioners seeks continuation of interim relief granted in favour of the petitioners.

Interim relief granted earlier to continue for further period of four weeks from today.