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Judgment
1 Heard A.S. Kilor, the learned counsel for petitioners, Shri N.H. Joshi, the learned AGP for respondents 1 to 3 and Shri R.R. Deshpande, the learned
counsel for respondents 4 to 6 .
2 The petitioners are questioning the judgment dated 24.1.2013 rendered by the Maharashtra Revenue Tribunal (MRT) in exercise of revisional
jurisdiction under section 111 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (Act).
3 Shri Ganpatrao Buty was the owner of agricultural land assigned survey number 150/2 admeasuring 18.18 acres situated in mouza Jawala, Tahsil
â€" Arni, District Yavatmal (said land). Respondents 4 to 6 are the legal heirs of late Shri Ganpatrao Buty.
4 The petitioners preferred application dated 10.11.2006 before Tahsildar Arni, purportedly under section 43, 46 and 49 of the Act seeking a
declaration that since Shri Ramchandra Ganpat Bhure was cultivating the said land as tenant since 1958Â59, in view of the provisions of section 46
and 49 of the Act, the respondents 4 to 6, as legal heirs of Shri Ramchandra Ganpatrao Bhure are the statutory owners of the said land. The crux of
the application is that Shri Ramchandra Bhure, was a deemed tenant and petitioners, as his legal heirs are entitled to determination of the purchase
price and transfer of ownership of the said land in their favour. It would be necessary to consider the pleadings in the said application, since the crucial
question is whether the material on record is sufficient to uphold the contention of the petitioners that Shri Ramchandra Bhure was a deemed tenant. It
is averred in the application that the deemed tenancy is recorded in the revenue record by mutation entry 1347 dated 11.1.1962. The further averment
is that although Ramchandra Bhure was cultivating the said land since 1958Â59, the revenue entry incorrectly records that Ramchandra Bhure was
cultivating the land since 1961Â62. The next material averment in the application is that since Ramchandra Bhure was cultivating the land till his death
on 13.7.1997, and therefore, was in cultivating possession on the relevant dates 1.4.1961 and 1.4.1963, the respondents 4 to 6 are the statutory owners
of the said land. It is further averred that the applicants â€" respondents 4 to 6 are entitled to purchase the said land in view of provisions of section 43
of the Act and to determination and fixation of the purchase price and to transfer of owners under section 43(14) of the Act.
5 Respondent 4 â€" Subhash Buty filed on record preliminary submissions and reply on 5.12.2006 and 10.1.2007 respectively. The land owner denied
that Ramchandra Bhure was cultivating the land since 1958Â59. It is asserted that the crop statement of 1958Â59 records the name of one Shri
Yadao Bhadya Mahar as the cultivator of the land as tenant of Shri Ganpat Buty. It is further asserted that the crop statement for the year 1962Â63
records the name of Smt. Laxmibai Yadav Mahar as the cultivator on lease of Rs. 30/Â and that of Shri Ramchandra Bhure as cultivator of the said
land as subÂlessee of Laxmibai Yadao Mahar on lease rent of Rs. 50/Â. It is specifically contended that neither Shri Yadav Mahar nor Smt.
Laxmibai Mahar was authorized to subÂlessee the land. Referring to the mutation entry 1347 dated 10.11.1962 (referred to as mutation entry
11.1.1962 in the application) the land owner asserted that the Naib Tahsildar was not empowered to certify mutation entry qua the tenancy rights in
the absence of an adjudication and order of the Tahsildar and Agricultural Lands Tribunal. A reference is made to an order dated 4.4.2005 passed by
the then Naib Tahsildar, Arni Shri Bhagat which notes that the mutation entry dated 10.11.1962 certified by the Naib Tahsildar is not supported by any
reference to tenancy proceedings or to any order passed in such proceedings. In sum and substance, the contention of the land owner was that Shri
Ramchandra Bhure was not in lawful cultivating possession of the said land.
6 By order dated 5.4.2010, the Tahsildar and Agricultural Tribunal (Tribunal) allowed the application preferred by respondents 4 to 6 interalia
recording a finding that since Shri Ramchandra Bhure was in cultivating possession of the said land on the relevant dates, his legal heirs are entitled to
fixation of price and transfer of ownership. This order is upheld by the Sub Divisional Officer who dismissed the appeal preferred by the land
owners by order dated 3.4.2012. These orders are set aside by the order impugned rendered by the MRT which is assailed in writ jurisdiction.
7 Shri A.S. Kilor, the learned counsel for the petitioners would submit that the MRT committed a serious error of law in disturbing the finding of fact
concurrently recorded. Shri A.S. Kilor, the learned counsel would further submit that the mutation entry 1347 dated 10.11.1962 has a presumptive
value, and since a certified copy of the said entry was produced on record, the burden to prove that Shri Ramchandra Bhure was not a deemed tenant,
was that of the land owners. Shri Kilor, the learned counsel would submit that while neither the applicants nor the nonÂapplicants â€" land owners
adduced oral evidence, in view of the failure of the land owners to dislodge the presumption, the MRT fell in serious error in interfering in revisional
jurisdiction under section 111 of the Act.
8 Per contra, Shri R.R. Deshpande the learned counsel for respondents 4 to 6 would submit that the burden to prove deemed tenancy, is that of the
persons asserting such claim. Shri R.R. Deshpande, would invite my attention to the statutory scheme and in particular to section 6 of the Act to
substantiate the contention that the application preferred by the legal heirs of Shri Ramchandra Bhure is bereft of necessary particulars and the
foundational facts are not pleaded. Shri R.R. Deshpande, would submit that deemed tenancy must be proved, like any other fact by the claimant by
proving that the tenant was lawfully cultivating the land. Shri R.R. Deshpande, would draw support from several decisions of this Court and the
Hon'ble Apex Court to buttress the said submissions which decisions shall be considered at a later stage. Shri R.R. Deshpande, would submit that it
was obligatory for the applicants to plead that Shri Ramchandra Bhure was cultivating the land lawfully on the relevant dates and to further step into
the witness box to substantiate such plea. Shri R.R. Deshpande, would submit, that mere production on record of a certified copy of a mutation entry
would not discharge the burden to prove deemed tenancy, particularly since the other revenue entries clearly indicate that Shri Ramchandra Bhure
was a subÂlessee of Shri Yadaorao Bhadya Mahar or Smt. Laxmibai Mahar.
9 Seminal issue which falls for consideration is whether the legal heirs of Shri Ramchandra Bhure have proved that Shri Ramchandra Bhure was a
deemed tenant. Deemed tenant is defined in section 6 of the Act which reads thus:
 “6. (1) A peson lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally
by the owner and if such person is not Â
(a) a member of the owner's family, or
(b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the
owner or any member kof the owner's family, or
(c) a mortagagee in possession.
(2) Forthe purposes of this Act, a peson shall be recognised to be a protected lessee if such person was immediately, before the commencement of
this Act, deemed to be protected lessee under section 3 of the Berar Regulating of Agricultural Leases Act, 1951.
(3) For the purposes of this Act a person shall be recognise to be an occupancy tenant, if such person was immediately before the commencement of
this Act deemed or declared to be an occupancy tenant under section 169 of the Code.
Plain language of section 6 of the Act would suggest that unless a person is lawfully cultivating the land, he can not be treated as a deemed tenant.
10 In Kisan Punjaji ..vs.. Yashodabai w/o. Mahadeo and others, reported in 1968 Mh.L.J.688 a learned Single Judge of this Court observes thus:
The first position of fact that must be remembered is that Kisan, the petitioner, is an assignee of the entire rights of Govinda for the remaining
period of lease. Â Kisan is not therefore either a subÂlessee or a lessee. He is merely an assignee of the leasehold rights. Though it is argued before
me in all seriousness by the learned counsel for the petitioner that Kisan's continuance of possession is by assent of the landlord which results in
renewal of tenancy, there is hardly any proof in that behalf. Section 116 of the Transfer of Property Act contemplates that the possession after the
period of lease is over must be shown to be with the assent of the landlord or the lessor or his legal representative ought to have accepted rent for a
period subsequent to the period of lease. In either case, there is the renewal of the lease from year to year or from month to month according to the
purpose for which the lease was created. Kisan has not pointed out how he continued with the assent of the lessor. It is not his case that he ever paid
rent. Mere continuance at the sufferance of the landlord or due to the laches of the landlord is not the kind of possession that is contemplated by the
provisions of Section 116 of the Transfer of Property Act. Kisan argues that Mankabai was the owner after the sale in her favour by Yashodabai and
Rukhabai. Mankabai being the wife of Kisan, it may be presumed that the husband was in possession with the assent of the landlord. It may be
remembered that the position taken up in the earlier litigation by the preÂemptor was that the sale was benami in the name of Mankabai though the
true owner was Kisan himself. That was denied, find the finding was obtained in 1940 from the Court that the purchaser is Mankabai in her own
rights. What is needed is either the acceptance of rent after the period of the original lease is over or a consent which is subsequent to the expiry of
the period. Unless this is done, there is no question of the effect ""of holding over following under the provisions of Section 116 of the Transfer of
Property Act. Mankabai has not been examined nor any other positive evidence is led in that behalf. In the circumstances, I would hold that Kisan
merely continued in possession after the end of the period of the original lease. He has not proved that he continued with the assent of the lessor or
that he paid any rent for a subsequent period which is accepted by the landlord.
An important illustration of this approach is found in the case of Karnani Industrial Bank v. Prov. of Bengal . The Supreme Court points out that
for the application of Section 116 of the Transfer of Property Act, two things are necessary:ÂÂ(1) the lessee should be in possession after the
termination of the lease; and (2) the lessor or his representative should accept rent or otherwise assent to his continuing in possession. They observed:
...The use of the word ' otherwise' suggests that acceptance of rent by the landlord has been treated as a form of his giving assent to the tenant's
continuance of possession. There can be no question of the lessee ' continuing in possession ' until the lease has expired, and the context in which the
provision for acceptance of rent finds a place clearly shows that what is contemplated is that the payment of rent and its acceptance should be made
at such a time and in such a manner as to be equivalent to the landlord assenting to the lessee continuing in possession. Where the landlord had
accepted rent for a period subsequent to the determination of the lease by efflux of time nearly a year before the expiry of the lease, the consent of
the landlord to the tenant's continuing in possession cannot be inferred.
This shows that continuance with consent for which the payment of rent or the assent must be shown to exist after the original period is over and
thereafter it is given. The payment of advance rent as we may call it for a period to cover some period beyond the original lease but before the expiry
of the original lease is not a payment for the continuance of the possession. What must therefore be proved is that the assent which is the basis of the
right of renewal under Section 116 of the Transfer of Property Act must exist after the original term is over. There is no such evidence in this case,
and on this short ground, it could be held that the petitioner is not entitled to take advantage of the provisions of Section 116 of the Transfer of
Property Act
In my opinion, the principle laid down in these cases does not apply to the type of the case with which I am dealing. In all those cases, the only
proposition was that an erstwhile tenant was sought to be. summarily ejected withÂout recourse to law. In one case, the landlord tried to obstruct the
tenant; in the other, the landlord, the Union of India, took, resort to summary eviction under the provisions of some statute. The basis of those
judgments is that an erstwhile tenant is not in unlawful possession. In this country, in view of the laws made, even against an erstwhile tenant a decree
has got to lie obtained for possession. This, to my mind, is very much different from saying that the possession of an erstwhile tenant is lawful in the
sense that he could defend it on some valid ground against the landlord himself. But for the protective laws like the Tenancy Act and the Rent Control
Act, there could be no defence to a tenant in a suit for eviction after the, period is over. The only defence he could take up is that the contract is
renewed either by direct contract or by conduct which falls under Section 116 of the Transfer of Property Act. But for these defences, he was bound
to surrender possession. To my mind, the provisions of the Tenancy Act require that there should be some positive content in the right to be in
possession. This positive content should be of a type by which he could resist the recovery of possession by the landlord himself if a suit were to be
instituted against him. Taking resort to Section 116 of the Transfer of Property Act or to plead a new direct contract of tenancy is not to resist
possession on the ground of a right which flows merely from the fact of erstwhile tenancy. This is a new fact that occurs and creates a right for the
first time in the tenant. Otherwise he had no right to defend the decree of possession in favour of the landlord. In this context it is important to note
that the Full Bench of this Court as also the Supreme Court considered the facts where the right created in favour of a subÂtenant or a mortgagee's
tenant was a, subsisting lawful right on the date when the Tenancy Act came into force. To my mind, the present petitioner Kisan had no such right in
his favour in 1958, when the Bombay Tenancy and Agricultural Lands Act came into force.
The next argument, therefore, is that the petitioner has been continued in possession for quite some time. From 1950 when the original term ended,
he is continuously in possession till 1961. Some cases were cited in which continued possession of an erstwhile tenant extending for a period of 10Â11
years has been construed as possession with the assent of the landlord under the provisions of Section 116 of the Transfer of Property Act. I do not
think that the mere laches or laziness of the landlord to recover possession can lead to the conclusion that there has been a renewal of the lease. I
have sufficiently dealt with this aspect earlier. For the same reasons, the ultimate approach under the Transfer of Property Act is also not available to
the present petitioner.
11 I am in respectful agreement with the enunciation of law in Kisan Punjaji ..vs. Yashodabai w/o. Mahadeo and Ors. Mere cultivating possession and
indeed continuance of possession at the sufferance of the landlord or due to the latches of the landlord would not fructify into lawful possession. The
essence of lawful possession is that the possession is of rightful origin. It is axiomatic, that possession of a subÂlessee would not be a lawful
possession unless it is irrefutable that the land owner had permitted the lessee to create a subÂlessee.
12 It is well settled that the burden to prove lawful possession is that of the person alleging to be in lawful possession. Useful reference may be to the
decision of the Hon'ble Apex Court in Hanmanta Daulappa Nimbal (since deceased by his heirs and Lrs)..vs.. Babasaheb Dajisaheb Londhe reported
in (1995)6 SCC 58. It is equally well settled that deemed tenancy is neither a pure question of fact nor a pure question of law and is a mixed question
of fact and law. The necessary corollary is that the claimant to the status of deemed tenant is obligated to plead that he was in lawful possession of
the agricultural land on the relevant dates. Implicit in the requirement to plead lawful possession is the requirement to plead, with necessary
particulars, that the claimant was cultivating the land with the consent of the land owner, as a tenant. It would be apposite to refer to the following
observations of a learned Single Judge in Gitabai ..vs.. Dayaram and Ors, reported in 1969 Mh..L.J.838.
“13. It is, however, seriously contended that the Tribunal has acted in excess of its Jurisdiction in reversing the finding of the two Courts and
especially the appellate authority as to the status claimed by Dayaram. It is urged that whether Dayaram had proved that he was a tenant is
essentially a question of fact and however erroneous assuming that there is error the finding may be, the Tribunal had no jurisdiction to interfere with
such a finding. In my opinion, this contention is not well founded. It is true that in reaching a conclusion about the jural relationship like that of landlord
and tenant in this case, certain facts are required to be established, and so far as the facts to be established lead to an inference of fact, that may be a
finding which is binding on the superior authorities. But if the inference reached itself is without evidence, then it is open to the revisional authority to
find what the evidence is in order to come to a proper conclusion as to the jural relationship. Moreover the question of status of Dayaram who claimed
to be a tenant on land and a protected lessee is not a pure question of fact, nor is it dependent on an inference from fact. It is a question of law and or
at any rate, a mixed question of law and fact. If any authority is needed for this proposition, it is only necessary to refer to a few precedents. In
Narsayya v. Veerayya , it has been held that the question as to whether a certain legal position is created as between the parties as the result of a
certain transaction is a matter of law, and hence the question whether the relationship of landlord and tenant existed between the defendants and the
plaintiff is one of law and not of fact. Reference is made to the decision of the Privy Council in Satgar Prasad v. Raj Kishore Lal, AIR 1919 PC 60. A
similar view was taken in the Allahabad High Court recently in Ram Prakash v. Shambhu Dayal, , wherein the Court observed:
Whether the facts found by the lower Court constitute a relationship of subÂtenancy or of landlord and tenant between the parties is a question of
law, and if the lower Courts have come to an erroneous conclusion on this point, the High Court can interfere in Second Appeal.
There is another decision of the Privy Council in Dhanna Mal v. Moti Sagar , laying down that the proper effect of a proved fact is a question of law
and the question whether a tenancy is permanent or precarious is one of a legal inference from facts and not itself a question of fact. This decision
was followed by the Supreme Court in Bejoy Copal v. Pratual Chandra, . In that case the question arose under Sections 109 and 112 of the Code of
Civil Procedure, there being concurrent findings that the tenancy is permanent. The appellant urged that the appeal was not concluded by the
concurrent finding of the Courts below that the tenancy was permanent because that question was one of the proper inference in law to be deduced
from the facts as found by the Courts below. This contention was accepted.
In this Court, a similar view has been taken when the matter was referred to Division Bench, in Dhondi v. Dadoo, AIR 1954 Bom 100. In his
order of reference Mr. Justice Shah (as he then was) has observed:
It is true that an inference as to permanent tenancy is a mixed question of law and fact and could be raised in second appeal. But the facts found
from which the inference in favour of a party claiming to be a permanent tenant is sought to be raised must be regarded as binding in second appeal,
though the question as to what inference should be raised from those facts must be regarded as a question of law.
A similar view has been taken in other High Courts also.
Where therefore on facts which could said to be established, an inference as to the jural relationship between the parties viz. that of landlord and
tenant, is required to be drawn, the jurisdiction of the revisional authority cannot be denied on the ground that it is interfering with the finding of fact.
The inference being a legal inference to be drawn from proved circumstances, it was open to the Tribunal to record a finding. There was a further
infirmity in reaching the finding, namely, the total absence of evidence regarding the oral partition or the letting of land or cultivation of land by Uttam
which was the sheetÂanchor of the petitioner's case, the total exclusion from consideration of other documents on record such as the crop statements
of 1952Â53 and 1953Â54 which proved the cultivating possession of Dayaram from Sukhdeo who was shown as occupant, and a wholly erroneous
inference is drawn from the mutation entry in the recordÂofÂrights in coming to the conclusion that Janibai was the owner of the property from
whom Sukhdeo obtained the property after her death, ignoring altogether the intervening fact of the partition of the property under which alone Janibai
had been granted this field.â€
13 If the pleadings are scrutinized on the anvil of the settled legal position, it is apparent that the application preferred by the legal heirs of Shri
Ramchandra Bhure is silent on material aspects. The averment that Shri Ramchand Bhure was in lawful cultivation of the land as tenant of Shri
Ganpat Buty is conspicuously absent. The substratum of the application is the assertion that Ramchandra Bhure was cultivating the land since 1958Â‐
59 and the tenancy is recorded by mutation entry 1347 dated 10.11.1962. The legal heirs of Ramchandra Bhure have not stepped into the witness box
nor have the land owners. Certified copies of revenue entries are produced on record and the legal heirs of Shri Ramchandra Bhure rely substantially
if not entirely on entry 1347 dated 11.1.1962 which according to them records the deemed tenancy. Before I proceed to consider whether the material
on record interalia the mutation entry on which the legal heirs of Shri Ramchandra Bhure heavily rely, is sufficient to establish the jural relationship of
deemed tenant, reference to the decisions relied on by the learned counsel for the petitioner Shri A.S. Kilor would be in order. Shri Anil Kilor, the
learned counsel relies on the decision of the Hon'ble Apex Court in Laxminarayan Dipchand Meshwari and Ors..vs.. Maharashtra Revenue Tribunal
and Ors, 1973 Mh.L.J.489 which deals with the contention of the landlord that since the tenant failed to exercise his right to purchase the land in
question under subÂsection (14 A) of section 43, the land shall be deemed to have been surrendered to the landlords. The next decision pressed in
service is Madhavrao Rajeshwar Deshpande..vs.. Shankar Singh and Ors (Civil Appeal 2393 of 1966 decided on 24.2.1970) which has no bearing on
the issue involved in this petition. Shri A.S. Kilor, the learned counsel then relies on the decision of the Hon'ble Apex Court in Ram Ram Narain
Medhi..vs.. The State of Bombay, AIR 1959 SC 459 which considers the constitutional validity of the Act. The reliance is also placed on the
decision of the Hon'ble Apex Court in Sahibdar Khan and Ors..vs.. Sadloo Khan (dead) by Lrs and Ors, AIR 2003 SC 2073 to buttress the submission
that an entry in the record maintained under the statute, even if the entry is incorrect, can be considered for deciding the status of a person as
bhumidar if the entry is not challenged nor is it alleged that the entry is recorded fraudulently or fictitiously. Shri A.S. Kilor, the learned counsel then
relies on the decision of this Court in Meenakshi M. Gurao..vs.. Krishna S. Rahate, 2007(1) Mh.L.J.312 to buttress the submission that in
determination of the status of deemed tenant due weightage must be given to the revenue entries. Reliance is further placed on the decision of this
Court in Rahibai Ladkya Patil..vs.. Mathuradas Ramchandra Agrawal, (2001)1 Mh.L.J.242 in support of the submission that revenue entry is a
public document which can not be brushed aside lightly. The last decision pressed in service is Yadaorao Nathuji Kokude..vs.. The State of
Maharashtra and Ors, 1976 Cr.L.J.751 in support of the contention that revenue entries would have presumptive value in deciding the factum of
possession.
14 A revenue entry recording the factum of possession may indeed have presumptive value as is argued by Shri Anil Kilor, the learned counsel.
However, for reasons spelt out in paragraphs infra, I am not persuaded to hold that the jural relationship of deemed tenant is proved on the basis of the
mutation entry which according to the legal heirs records the deemed tenancy.
15 The petitioners neither entered the witness box nor did they examine any other witness like adjoining field owner/s to prove that Ramchandra
Bhure was cultivating the land under the direct authority of Shri Ganpat Buty. There is no material on record to suggest that the mutation entry dated
10.11.1962 is taken by an authorized officer pursuant to an inquiry under the Act. The presumptive value of the said mutation entry, if at all, is further
diluted if not obliterated by the revenue entries taken prior and subsequent thereto. Illustratively, the crop statement of the year 1958Â59 records the
name of Shri Yadav Mahar as the cultivator. The crop statement of the year 1963Â64 records the name of Smt. Laxmibai Yadav Mahar as the
lessee and that of Shri Ramchandra Bhure as the subÂlessee and the crop statement for the year 19650Â66 again records that Smt. Laxmi Yadav
Mahar subleased the said land to Shri Ramchandra Bhure on Makta (lease rent) of Rs. 50/Â. The mutation entry on which the petitioners are heavily
relying, is too fragile a piece of material to be the foundation of the claim of deemed tenancy.
16 The submission that the MRT committed an error of law in disturbing the findings of fact in revisional jurisdiction deserves rejection since the status
of deemed tenant is a mixed question of fact and law and since the legal inference drawn by the authorities below on the basis of material on record is
clearly erroneous, the MRT acted well within jurisdiction under section 111 of the Act in correcting the error. Reference my be made to the decision
of this Court in Gitabai ..vs.. Dayaram and Ors supra.
17 The judgment impugned is unexceptionable and no interference in writ jurisdiction is warranted.
18 The petition is dismissed with no orders as to cost.