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S.C. Dharmadhikari, J.—Rule. Rule made returnable forthwith by consent of the parties. These 128 writ petitions although by different petitioners, they impugn the same orders of the Maharashtra Revenue Tribunal and, therefore, they were taken up together. There are common arguments canvassed. There is a common grievance of each of the petitioner, namely, that the Tribunal should not have remanded the case after it finds that the petitioners/original applicants have satisfied it that none of the orders impugned before the Tribunal can be sustained in law. In these circumstances, these writ petitions can be disposed of by a common order. They were heard finally. By consent of the parties they are being disposed of.
Mr. Samdani, the learned senior counsel appearing on behalf of the writ petitioners, has referred to the list of dates and events in Writ Petition No. 2539 of 2012. He submits that the controversy is common but for convenience, some of the facts in this writ petition be noted.
This writ petition is filed by Jairaj Kantilal Sonawala and 6 others on the basis that they are owners and in possession of/or otherwise well and sufficiently entitled to part and parcel of land comprising of Gut Nos. 45/1, 57/1, 63/2(p), 63/3(p), 63/4(p), 65/1, 65/3, 68, 72, 73, 78/1, 78/2, 78/3 and 78/4 admeasuring approximately 300 areas, situated at Village Khari, Dist. Thane.
It is the case of the petitioners that respondent Nos. 2 to 6 to this writ petition are legal heirs of Ramesh Balkrishna Lase who was the original applicant. He had filed an application on 21st March, 1983 invoking Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the B.T.A.L. Act), claiming a declaration that he was the tenant of the petitioners in respect of the land Survey No. 78(p). It was alleged by him that he was cultivating this agricultural land.
It is the case of the petitioners that by a registered sale deed dated 5th October, 1965 between late Kantilal M. Sonawala and late Dayalal Acharya, and by subsequent duly registered modification deed dated 28th June, 1968 also executed between the same parties, late Kantilal M. Sonawala became the exclusive owner of the said land, more particularly described herein above. There is a mutation vide mutation entry No. 191 dated 1st April, 1968 entering the name of said Kantilal M. Sonawala in the revenue records pertaining to this land. The petitioners then claimed that Kantilal died in or about 1969. The land was divided between his five sons being legal heirs and representatives. Out of them, four are the petitioners and the 5th son Virendra Kantilal Sonawala died some time in or about 2006. Petitioner Nos. 5 to 7 are the legal heirs and representatives of Virendra Kantilal Sonawala. It is stated that, on 21st March, 1983, 234 persons including the original applicant filed an application u/s 70(b) of the B.T.A.L. Act in the office of the Tahsildar, Thane, for a declaration that they are tenants of the petitioners in respect of their individual plots of land and allegedly cultivated by them. The petitioners state that, each of these applications which are in cyclostyled form, in which only name of each applicant being filled in and the number of years from when tenancy was claimed, entered on each application in ink. Each one of the applicant named that Chandrakant Kantilal Shah and others were the landlords/owners and that the applicants were tenants of the agricultural lands cultivating the same for the past 20-22 years. The claim of cultivation is from 1961 to 1962.
On such applications/notices were issued and the petitioners filed their written statement contending that from the date that Kantilal Sonawala purchased the said land, namely, in the year 1965, till the date of the aforesaid applications, there is no record of any tenant of the said land, leave alone, any such names nor any revenue records of the land referring to any such claimant of tenancy. The petitioners relied upon the 7/12 extracts for the period from 1969 till the year 1984. It is their case that the land is "khajan" and "budit" and is for non-agricultural and industrial use and it is accordingly uncultivable and the notification published in the official gazette in the year 1967 was relied upon. The petitioners state that they have been paying land revenue to the Government and the revenue rent receipts were produced.
On 26th September, 1986, the Tahsildar passed 234 orders all in the same format declaring each of the applicants to be tenants of the original owners/landlords in respect of the individual plots of land allegedly cultivated by them. After passing of these orders pursuant to an application made by them, the applicants'' names came to be inserted in the 7/12 extracts under the "Other Rights" column. The original opponents, being aggrieved by the orders of the Tahsildar, preferred appeals to the Assistant Collector, Thane. These appeals were heard and by an order passed on 11th January, 1989 they were allowed. However, while setting aside the order of Tahsildar, the Assistant Collector ordered a remand of the cases for fresh enquiry. The order of remand stated that each of the applicants'' case should be treated separately and individually and be dealt with as such.
After the order of remand, the parties appeared before the Resident Nayab Tahsildar and the Resident Nayab Tahsildar commenced the enquiry. The enquiry went on and subsequently he passed various orders from 30th November, 2000 to 30th September, 2002, declaring each of the applicants before him as protected tenants. The applications which were dealt with were 134 in number and covered by these orders. The petitioners preferred 134 appeals before the Sub-divisional Officer, Thane Division, Thane (hereinafter referred to as "the S.D.O."), and the S.D.O. heard these tenancy appeals and passed orders on 13th December, 2002/16th December, 2002, setting aside the order passed by the Resident Nayab Tahsildar. The S.D.O. held that there is no sufficient evidence adduced by the original applicants to enable the Tahsildar to uphold the claim of tenancy. Some of the original applicants preferred Revision applications u/s 76 of the B.T.A.L. Act before the Maharashtra Revenue Tribunal (hereinafter referred to as "the Tribunal"). In the meanwhile, the original applicant expired and what the petitioners are aggrieved by is, the fact that the Maharashtra Revenue Tribunal has, despite some of the applicants having been expired and not being represented, passed the impugned order. The petitioners have referred to the fact that, one writ petition being Writ Petition No. 9428 of 2010 was filed challenging the orders passed by the Maharashtra Revenue Tribunal and during the course of its pendency, the petitioners were informed that the original applicant had passed away on 28th February, 2008. The petitioners, therefore, took steps and impleaded respondent Nos. 2 to 6 herein as heirs and legal representatives of the original applicant. Since this Court observed that there are individual cases which have been dealt with by the Tribunal, it would be proper if individual writ petitions are filed, and that is how the petitioners proceeded to file these individual writ petitions challenging the order passed by the Tribunal.
It is urged by Shri Samdani, learned senior counsel, that the Tribunal, after having given conclusive findings in favour of the present petitioners, has unnecessarily and without any justification directed a remand of the cases. If the Tribunal''s findings and conclusions right up-to paragraph 31 are perused, it would be apparent that the Tribunal does not find any substance in the contentions of the original applicants that they were tenants of the agricultural land. My attention is invited by Shri Samdani to the findings up-to paragraph 18 of the impugned order and thereafter from paragraphs 19 to 31. Shri Samdani has handed over two charts to demonstrate that the original applicants have miserably failed to prove their claim. According to him, the Tribunal should not have directed a remand in these circumstances.
For instance, Shri Samdani invited my attention to the case of one of the applicants which has been dealt with by the Tribunal. It is urged by Shri Samdani that, if the Tribunal was of the opinion that there is absolutely no material on record to conclude that the original applicants have proved their case of tenancy, then, why the remand has been ordered is not clear at all. If the Tribunal was of the opinion that in all the matters, there is no valid evidence to declare original applicants to be tenants and in spite of all these facts, the Tahsildar without recording any reasons, has declared them as tenants, then the S.D.O. was justified in allowing appeals of landlords and setting aside the orders of Tahsildar. If the statements of tenants are perused and when there is no evidence to show that the lands were cultivable any time and have been cultivated personally and by whom and to whom the rent was paid, then according to Shri Samdani, there is no justification for directing the remand. The remand is ordered not to fill up any lacuna but if the principles of Order XLI Rule 23 and 23-A of the CPC or analogous thereto are to be complied, then, only in the event the case is decided on preliminary issues and a finding on that issue is reversed by higher Court, then for a decision on merits of the entire case, a remand is necessary. In other contingency, a remand is directed in the interest of justice. However, in no case remand is justified so as to enable the parties to fill up the lacuna or remove the defects in their cases. Once the case has been dealt with on merits and there are conclusive findings rendered, then, a remand is wholly unnecessary. A higher Court having opined that the material record is insufficient or there is no evidence or that there is no material at all, then, a remand can never be directed.
Shri Samdani, learned senior counsel appearing for the petitioners, has relied upon a compilation of documents and also the following decisions in support of his submissions :-
(i) Shamrao Maruti Patil and Another Vs. Smt. Shantabai Dattatraya Salokhe, ;
(ii) Mallappa Kallapa Shahapure and Others Vs. Narasingh Saraswati Deo, ;
(iii) Girja Kumar and Others Vs. State of Himachal Pradesh and Another, .
Shri Jha, learned counsel appearing on behalf of the respondents, who are contesting these petitions and who are the original applicants or their heirs/legal representatives or persons claiming through them, submitted that the Tribunal was considering a case of an application made u/s 70(b) of the B.T. & A.L. Act, 1948. That is a application in which relief claimed is pertaining to the status of the applicants. That status claimed is of tenancy and in relation to an agricultural land. This is an agrarian statute and furthering agrarian reforms and it is a beneficial and social legislation. It is intended to achieve the object and purpose of protecting those who are cultivating the lands. If they are found to be cultivating lands and in physical possession as on the specified date, namely, 1st April, 1957 or prior thereto, then their rights are fully recognized, protected by the statute. Such being the intent of the legislature, whenever cases of this nature filed before the authorities under the B.T. & A.L. Act are being considered, a view which furthers the object and purpose of the Act rather than defeats it has to be taken. Very often claims are put forward by those who are poor, illiterate and have no means or resources to approach either the authorities or a Court of law. When such poor persons are being displaced from agricultural land and they approach the authorities seeking protection, then, when they are handicapped and do not have complete material with them, some assistance can be given to them by remanding their cases for a fresh enquiry. This is not a case where the Court should interfere in writ jurisdiction merely because another view is possible. Similarly, this is not a case where Tribunal has committed any gross error of law apparent on the face of the record or perversity in remanding the cases. The Tribunal was aware of such difficulties and miseries of a poor agriculturalist. It took up for consideration four sample cases. The applicants in these cases were not aware about their title. They were not having complete details. The documents were not in their custody. The Tribunal perused the records and found that there are about 200 villagers who have staked their claims. There are spot panchanamas. Equally, the landlords never claimed that they cultivated the land personally or through some one. Under these circumstances, if the fate of 200 families is to be decided, then, a proper enquiry must be held and for that purpose remand is necessary. Finally, the Tribunal referred to the fact that tenants as also landlords, filed application for production of documents. While the landlord urged that the land was never cultivated as it was a "Khajan" or "Budit" land, the tenants filed application which indicated, according to the Tribunal, that the lands were cultivated from 1931-32 and in the "Crop" column, the crop is indicated, which is "rice/Bhat". If there is no explanation forthcoming as to why the land records indicate that the lands were under cultivation, then, for a proper scrutiny and to enable the tenants to produce all the documents which would evidence and substantiate their claim, a remand would be necessary. If these are the state of affairs and voluminous documents were produced, Shri Jha submits, that the Tribunal''s final conclusion need not be interfered with. The writ petitions be, therefore, dismissed.
With the assistance of the learned counsel appearing for parties, I have perused the petition and the annexures thereto. I have also perused with their assistance the orders of the Tribunal which have been impugned before me. I have also perused the charts and some of the documents which have been compiled.
The Tribunal had before it, the revision applications and details of some revision applications have been set out in the order passed by the Tribunal. The Tribunal in the opening paragraph of its order has observed that the revision applications have been preferred by persons claiming to be tenants and they are aggrieved and dissatisfied with the judgment and order passed by the S.D.O., Thane, in different appeals. The S.D.O. in the appeals, has set aside the orders of the Tahsildar, Thane, who declared all the revision applicants before the Tribunal as tenants of the lands. The details of the cases taken up and dealt with by the authorities are to be found in paragraph 3 of the order passed by the Tribunal. These details running into several pages would indicate as to how number of applications came to be preferred and how some of them have been dealt with and they are grouped accordingly.
The Tribunal has proceeded to hold that there is no dispute that the lands belong to Chandakant Kantilal Shah and his brothers. They have purchased the lands under the registered sale deed dated 5th October, 1965 from one Dayalal Acharya. The schedule of the sale deed has been referred to which shows that the land admeasures 332.35 acres. The lands are described by old survey numbers. There are 110 survey numbers and reference is made to the cancellation deed dated 28th June, 1967 and the schedules thereto. What has been then referred to by the Tribunal is the admitted fact of the applications being filed by each of the respondents/original applicants in March, 1983 claiming to be tenants of the lands in question. These applications were made by 245 persons and they were allowed in the year 1986. The decisions of the Tahsildar and Agricultural Land Tribunal were challenged before the Assistant Collector, Thane, who allowed the revision applications and remanded the matters for fresh trial. In this order of the Assistant Collector also, there are observations that the applications are nothing but cyclostyled copies. The names and certain details are inserted in ink. Though different persons claim tenancy, particulars of the lands were not given in the application. The evidence led was also cyclostyled copies showing deposition by different persons. However, after the remand order, the original applicants before the Maharashtra Revenue Tribunal and respondents in the present proceedings appeared before the Agricultural Land Tribunal. They filed amendment applications. On these amendment applications, there is no endorsement as to on which date they were submitted and taken on record, there are no signatures of the Agricultural Land Tribunal, there are no orders passed on these amendment applications purporting to furnish particulars of tenancy, and there are no particulars given. The amendments are to the effect that each of the applicant is cultivating the lands for 40-45 years. In the earlier application, the pleading is that the disputed land is in the applicant''s possession for 20-22 years. There is nothing on record which indicate that the amendment application is allowed. However, some undated statements appear to have been made in each proceedings without there being any endorsement of the Tahsildar. The statements are that the applicants confirmed their earlier stand and assertions. However, except the 7/12 extract for the year 1982-83 showing names of 25 persons as cultivators and some mutation entries in the name of legal representatives after the death of original applicant, no documents appear to have been produced. On behalf of the present petitioners, namely, the writ petitioners, zerox copies of their statements and also one of the landlords recorded on 15th February, 1999 and 20th February, 1999 are filed in each of the proceedings. In very few cases, may not be more than 10, statements of applicants were recorded and they were cross-examined. In other cases, there is no cross-examination. Yet, the Agricultural Land Tribunal allowed these applications and declared the applicants before the Maharashtra Revenue Tribunal as tenants. The writ petitioners, being aggrieved by this judgment, preferred appeals before the S.D.O. The learned S.D.O. allowed all the appeals except 5, namely, Appeal No. 144/2002, 158/2002, 143/2002, 154/2002 and 153/2002. He dismissed these 5 appeals and held the respondent herein as tenants of the lands and not of present landlord Sonawalas, but one Madhukar Acharya. It is not necessary to refer to those orders, inasmuch as, they are not questioned.
The order of the S.D.O. allowing the other appeals and setting aside the declaration of tenancy in favour of the original applicants therein, was questioned in the revision applications on which the impugned order has been made.
The learned then President of the Maharashtra Revenue Tribunal has referred to the arguments of the advocates in great detail and up-to para 12 he makes a reference to the same as also some documents.
Then from paragraph 12, the sample cases or instances which would enable the learned President to arrive at a complete and proper picture are referred. It is stated that the Tenancy Revision Application No. 131/B/05 is preferred by landlords and one Laxman Lasa is a tenant. Laxman Lase filed Tenancy Case No. 173/87 before the Agricultural Land Tribunal. He filed application u/s 70(b) on 11th February, 1983. After remand by the order of the Assistant Collector, his case is registered as Case No. 173 of 1987. The original application filed by Shri Laxman Lase is cyclostyled. He states that he cultivates the land since 20-22 years and it is owned by Chandrakant Shah. Though he pleads that he cultivates the land, his name is not appearing in the records of rights.
The learned President then refers to the statement recorded on 28th September, 1985 and holds that this is a cyclostyled statement in which it is stated that the landlord resides at Mumbai, he never visited the land. The statement proceeds to state that he used to pay the rent since 1st April, 1957 to landlord through "Munim", without disclosing the name. Thus, though the disputed land is shown to be Survey No. 78/6 to the extent of 30 gunthas in the statement and also supporting statements, there are no details, save and except, urging that the applicant Laxman Lase is the tenant of the lands owned by Chandrakant Shah and he does cultivate the lands. In the statement which was supporting the case of Laxmana Lase, it is stated that the rent was paid through "Mukadam" to the landlord. Thus, during the course of 22 years no attempt is made to enter the details in the "Possession" column in the revenue records and in cyclostyled statement the details are given. If Chandrakant Shah has purchased the property in 1965, then, the revisional authority holds that he had absolutely no concern with this land in 1957. The landlord, in the year 1957, was the vendor from whom Chandrakant Shah had acquired the rights in the property. Thus, each of the details which were placed before the Tribunal, were found to be erroneous and faulty. Yet, the declaration was given that this person is a tenant of the agricultural land. Such a finding was set aside by the Assistant Collector in 1989 by the order passed on 11th January, 1989. On remand of the case also nothing better was placed before the Tahsildar and Agricultural Revenue Tribunal. The application for amendment was moved wherein it was stated that one acre portion is in possession of this applicant Laxman Lase. Now this information was supplied by villagers. No particulars are given, only amendment is proposed and this time there is an improvement that the possession is from 40-45 years. There is no name of the landlord disclosed nor that of the "Mukadam" who is allegedly collecting the rent. The amendment application is undated. It does not bear any endorsement when it was presented to the Tahsildar. There is no order passed on this application. After remand also, the statement of Laxman Lase was recorded on 14th July, 1993. The lands were stated to be in possession from 40-45 years. Once the statement is making reference to Chandrakant Shah as owner, that would mean that the applicant has not come forward with relevant and pertinent details and has no idea as to how the lands had changed hands. Now this statement which is stated to have been recorded on remand, does not bear any endorsement or signature of the authority. There is one more statement recorded of Laxman Lase before the Tahsildar on 20th July, 2001. In this, there is another discrepancy wherein it is stated that the land is in his cultivation. However, rent was paid to the landlord in kind. Then it is stated that the "bandhs" are erected along with other villagers and payment of levy was made to the Government. There is no reference as to who was the landlord previously and later on how the levy was paid to the Government. There is no cross-examination and equally the Tribunal holds that landlords never refused to cross-examine him. Therefore, such a statement has been termed as no evidence.
The Tribunal''s judgment is replete with observations and it is pertinent to note that not only in case of said Laxman Lase but while dealing with the M.L.C. Revision No. 132/B/05, the case of one Shivram has been dealt with by the Tribunal. This case is also similar to that of Laxman Lase. Then there are further cases referred in paragraphs 14 and 15 and they pertain to Shankar Bubera and Gopinath and one Jagdish.
Paragraph 16 of the Tribunal''s order categorizes the tenancy cases, the name of the tenant and details of land, the appeal number and revision number and a summary of the evidence led. That paragraph with the chart is eloquent enough and deserves to be reproduced. It is accordingly reproduced as under :
Let us now consider another group of revision applications which are the revision applications preferred by different tenants whose applications were allowed by ALT declaring them to be tenants. But learned S.D.O. set aside those orders, and tenants came in this revision. By examining record and proceeding of each and every case for the factual aspect and evidence led by tenants, following chart is prepared which shows what type of evidence is being led in these matters.
22 Based on this, the Tribunal concludes that all applicants together approached the Tahsildar in March, 1983 filing cyclostyled applications purported to be one u/s 70(b) without giving particulars of the tenancy and also admitting ownership of landlords. Each one of them claimed possession since 20-22 years. There is no reference or co-relation of the claim with that of the tiller''s day. In all cases, on examination of record, the cyclostyled statements and contents thereof were disbelieved. There is absolutely no documentary evidence, save and except, introducing certain 7/12 extracts, but none of the persons coming forward and deposing with regard to their contents. Then there is an attempt to improve upon the original cases by filing amendment applications. The Tribunal concludes that, if the present petitioners/predecessors before me had purchased these lands in the year 1965 and they were not the owners on tiller''s day, then, the details of tenancy with reference to the landlords, their entity, the date of commencement of the alleged tenancy, the quantum of rent, the mode of payment, are pertinent details which are lacking in each of these cases. If there is no pleading and even after permission there is no documentary evidence, except production of mutation entries, and the Tribunal has concluded that none of the applicants can be believed, then, one fails to understand as to why in the ultimate analysis and as a final conclusion a remand is warranted.
It would, therefore, be necessary to refer to certain findings of the Tribunal but instead of making reference to them, it would be better if some observations and conclusions of the Tribunal are reproduced :-
Now submission is advanced in the written notes of arguments that there is admission from the landlords about status of present petitioners to be tenants. Along with the notes of arguments filed on behalf of tenants, said statement of Jairaj is produced to show landlord''s admission. Copy of statement of one of the tenants, by name, Chandrakant Pawar is tried to be relied upon as a proof of tenant''s possession over the property. Chandrakant Pawar, in his statement, has stated that land S. No. 78/31 is in his possession since 45 years and he was paying rent in kinds, but possessing no receipt. In this statement, he has stated that Chandrakant Shah is the owner of this property. He has not even disclosed the names of earlier owners to whom rent was alleged to have been paid. Chandrakant Shah purchased this property in 1965. This witness claims possession over the property and payment of rent since 45 years. So, it is an attempt to show that he was in possession on Tiller''s day. Chandrakant Shah was not the owner of this property on Tiller''s day. This tenant is not disclosing the name of the land owner to whom rent was paid, so, such a evidence cannot be accepted to be a valid evidence to establish the tenancy. He made attempt to show that Kharland Board carried out maintenance of this property by erecting bunds and according to him, landlord entered into agreement with some of the tenants to purchase the lands from them. When cross-examined, he has stated that name of his father is appearing in 7/12 extract and gave statement that he will produce the same later on. But in further cross, he admitted that name of his father was never recorded to be a tenant, nor he is having knowledge whether his father filed any application. Though he contends that these landlords agreed to purchase the property from tenants, in cross, he has stated that this is his hear-say knowledge. So, the evidence of this witness does not prove anything including admission of the landlord. Statement of one Pundalik Bhoir is also produced along with the written arguments who claims that for S. No. 78 admeasuring 30 gunthas he filed application u/s 70(b). He gave general statement that rent in kinds used to be paid to landlord and landlord never came to cultivate the land. There is no cross-examination of this witness. Along with notes of arguments, tenants produced statement of landlord Jairaj to show his admission about tenancy. In his examination-in-chief he has specifically stated that he has not leased out land to any tenant. According to him, the disputed 300 acres land is at one place and it is not suitable for cultivation as the land submerges in sea-water. He has admitted that his father purchased these properties by way of investment. He has denied that previous land owners leased out these properties to tenants. When he was cross-examined, it was asked to him whether Chandrakant Motiram and Parshuram Mhatre cultivated this land and he pleaded ignorance. To prove so-called admission of tenancy, reliance is placed on his statement in cross. In the cross-examination he gave statement that he entered into agreement to purchase and develop properties from some of the tenants and this is a qualified statement made by him that such an agreement was made only with a view that the cases should be disposed of as early as possible. This is not an admission admitting tenancy of any particular person. But it is an ambiguous statement that with some tenants, he entered into agreement of sale as well as development agreement, which cannot be treated to be an admission admitting tenancy in favour of any person. He admits that to 10 tenants payment was being made from his account, but who are those tenants is not brought on record. As such, his admission is that with some tenants, he entered into agreement, not admitting tenancy in favour of a particular person. As referred to above, on examination of the records, it is noticed that in no case proper procedure is followed. In some cases, (very few) out of these petitions, the cross-examination of applicant was held. Two of such cases are referred above, which also did not give details of creation of tenancy by any particular person or their possession or the details of payment of rents.
Thus, in the case of Chandrakant Pawar and Pundlik Bhoir, the Tribunal has made above observations and has further held that, in the two other cases which are taken as sample ones initiated by Dharma Bubera through his legal representative Savitri Bubera and Shankar Mhatre, the conclusions are identical, then, one fails to understand as to what could be the circumstances and factors causing a decision leading to remand of these cases back to the authorities.
In paragraph 18 of the Tribunal''s order, the four instances and cross-examination of the applicants therein demonstrated the fallacy in their cases and the Tribunal''s conclusion is that there is nothing which would indicate that these persons were aware of the title to the lands nor have they proved the case of their tenancy, their ignorance of their landlords and absence of documents would mean that there is no valid evidence so as to declare any of these persons as tenants. The Tribunal then proceeds to fault the Tahsildar for having declared them as such. If Tribunal upholds the S.D.O.''s order in appeal setting aside the order of the Tahsildar, then, one fails to understand as to why the revision applications were not dismissed outright. The Tribunals'' observations are very pertinent and it is held that in almost all the cases there are statements of tenants who are not even cross-examined on behalf of landlords and nothing is there on record to show that opportunity was given to them to examine other witnesses. However, sheer number of cases or the land admeasuring 300 acres is no ground to order a remand. If the fate of 200 villagers and their families is at stake and such villagers had ample opportunities in the form of repeated remands and they can avail legal advise and approached all Authorities up-to Tribunal, then, it is not as if on account of poverty, illiteracy or social handicaps or lack of information and knowledge that their cases have suffered. The parties cannot be accommodated on some spacious ground. Ultimately, a liberal approach in social causes does not mean that the Court must show undue sympathy and accommodate parties repeatedly. Courts of justice have to be firm at some stage and balance equities and rights. By unnecessarily prolonging the cases and enquiries of this nature, the Court should not encourage uncertainty. A uncertainty and equally unpredictability have often been taken advantage by those who may not be the concerned or necessary parties. Lot of persons and entities peep into litigations which are prolonged and endless. In such circumstances, it is equally the duty of a Judicial Tribunal exercising revisional power and being manned by a retired Judge of this Court to ensure that there is finality to litigation.
If paragraphs 19 and 20 are perused, then the Tribunal was fully aware of the applications filed for production of documents. Each one of this application filed by the so-called tenants and the landlord/owners have been dealt with. The landlord''s attempt was to show that the land was never been cultivated as it was a "Khajan or Budit" land. It may be that such applications were filed and that entries in the revenue records have been relied upon. Some of the receipts have been referred to and they are as old as of 1950-51 till 1957-58 which shows that the lands, according to the Tribunal, are uncultivated However, when these documents were not produced before the appellate Court or in the enquiry and the Tribunal does not wish to rely on them for the first time in revisional jurisdiction, that is no ground to order a remand because the landlords are not seeking any opportunity to prove their cases. It is those persons claiming tenancy and whose applications have been disallowed in appeal by the S.D.O. who have approached the Tribunal invoking its revisional jurisdiction. Therefore, what the landlord feels or what the landlords desire is a better evidence and that ought to be on record by itself and without anything more is no justification for ordering a remand. In other words, the landlord did not seek a remand.
As far as tenants are concerned, their documents are referred in paragraphs 21 to 24 and there are voluminous documents which were sought to be introduced and persons are claiming that they are in possession since their forefathers. However, the Tribunal faults such an approach of these persons by terming their attempt as belated. If original applications were filed and the claim is that the lands have been cultivated for 20 years which claim is later on inflated by amendment to 40-45 years, then, there ought to be cogent material warranting consideration by the Tribunal of the request of remand. Why the extracts or copies which are now made available, according to the Tribunal, to the tenants, were not produced in the enquiry and subsequently on remand or even before the S.D.O. has not been clarified at all. The Tribunal then holds in paragraph 21 that it passed an order on 14th December, 2009 that only copies of the orders issued by the competent authority are allowed to be produced. That was one of the documents which has been referred and which was sought to be produced by the landlord. However, in paragraphs 22, there is a reference made to another application dated 14th December, 2009 and zerox copies of some enquiry held by City Survey office. The documents have not been taken on record though they are referred to, for the reason that they are not public documents. Then, there is reference to certain documents which have been produced by the landlords and that is in paragraph 23.
As far as the persons who had made these applications and the revision applicants were concerned, the bunch of documents produced by them are referred to from paragraphs 24 and then there is a reference made to an application dated 1st January, 2010 for production of certified copy of City Survey number to show possession of the revision applicants over the disputed lands. There is extensive reference to these documents and what is extremely relevant is, the conclusion of the Tribunal that there are material documents referring to agricultural lands, which is an old record showing survey number of the lands and showing some of the applicants as cultivators, but there is no document to show that these are extracts of the disputed lands. If the application for production of the documents by so-called cultivators and persons claiming to be tenants of agricultural land, denotes that the entry therein in the relevant columns pertaining to the land is "Barren" , then, the tribunal rightly discarded them. They are also discarded because the lands were described by survey numbers and not by block numbers. There are survey numbers and it is difficult to verify and hold which survey number merged in which block number. Survey numbers and entries recording the names of some persons as tenants are also produced. It may be mentioned, according to the Tribunal, the oral evidence led by parties before the Enquiry Officer was vague. It is not claimed that the claim of tenancy is not on the footing that the persons allegedly cultivating the lands were at the relevant time the tenants of original landlord Kantilal or Dayalal Acharya. If the present landlord purchased the property from Dayalal Acharya and if these documents appear to be produced by Dayalal Acharya, then, the Tribunal faulted all the parties for not producing them before the enquiry officer. However, on the spacious plea that these documents will be helpful to decide the controversial issue, the Tribunal states that their production needs to be allowed and the production of documents at Vol. III is allowed. There is a reference once again made to all such documents in paragraphs 25, 26 and 27. To my mind, allowing production of documents and with reference to them, specifically concluding that none of these documents could assist the parties concerned because based on them, they are still not clear as to who was the person under whom they cultivated the lands, then, I do not see how one could remand the case. The final conclusion with regard to the contents of these documents has been rendered by the Tribunal. One does not remand a case merely because one is unsure or not certain about one''s own finding, opinion and conclusion. That is no reason for ordering a remand. Parties who are not diligent despite litigating for considerable length of time, do not bother to take care of the lacunas and deficiencies in their cases, are not to be assisted by frequent remands. The purpose of remand essentially is to enable a Court of law to render justice. It is not to assist those who have not been diligent or those who for their own reasons are not producing the relevant evidence despite several opportunities. The defects in a case have to be removed in a timely manner. If the defect remains despite it being brought to the party''s notice, and is pointed out but nothing has been done in relation thereto, then, it is not the business of higher Courts to go on remanding cases to enable the parties to improve upon their original version or introduce fresh or new case for the first time. This is precisely what has happened when voluminous documents were referred to during the course of remand before the Tahsildar and Agricultural Land Tribunal. A prolonged argument leading to delivering a lengthy judgment in which the rival versions have been considered and reasons are assigned for disbelieving and discarding one version, then the conclusion therein ordinarily ought to be either a party succeeds or does not. Then there need to be a remand or a fresh round. In the peculiar facts and circumstances of this case, what I have noticed is that, repeatedly the Tribunal holds that the tenants did not produce documents before the enquiry officer to prove their lawful right. Now, when oral evidence is over, they have produced bunch of documents such as old records and entries and showing their cultivation but in some of the records produced by the landlord, their names are not appearing. Therefore, for verification with regard to the correctness of the same, re-enquiry is essential. At the same time, it is difficult to co-relate this finding with the other in the same paragraph that in the cases before the authorities and equally the Tribunal, what is material is the factum of possession on tiller''s day. If the factum of possession on tiller''s day by all the persons who are claiming to be agriculturists has not been proved by valid evidence adduced before the Tenancy Court, then, the remand can be justified only if the Tribunal concludes that the documents produced would evidence possession and on the tiller''s day. That is not the conclusion rendered anywhere and in the persuasive arguments advanced, Mr. Jha was unable to point out any such conclusion.
Therefore, if the case law that has been referred extensively in paragraphs 27 and 28 leads the Tribunal to conclude that there is no evidence for declaring the revision applicants as tenants, the dismissal of their cases by the S.D.O. by allowing the appeals of landlords was justified, then, paragraphs 29 and 30 are not conclusions in law justifying a remand. This is not the purpose for which one orders a remand. On some spacious and general grounds remand of cases has to be discarded.
If any reference is need to these salutary principles, one can refer with advantage a judgment of the Hon''ble Supreme Court in the case of P. Purushottam Reddy and Another Vs. Pratap Steels Ltd., , where the Hon''ble Supreme Court explained the scope of Order XLI Rules 23, 23-A and 25 of the CPC providing for remand. The power of remand is inherent in the power to decide an appeal as per the Civil Procedure Code. If the power of remand is inherent in the appellate Court and one assumes that the Maharashtra Revenue Tribunal possesses that power, then, some assistance can be derived of the following observations of the Hon''ble Supreme Court:-
The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the CPC by CPC Amendment Act, 1976, there were only two provisions contemplating remand by a Court of appeal in Order 41 of CPC. Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issues is reversed in appeal. Rule 25 applies when the appellate Court notices an omission on the part of the Trial Court to frame or try any issue or to determine any question of fact which in the opinion of the appellate Court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate Court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial Court, are required to be returned to the appellate Court. However, still it was a settled position of law before 1976 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction u/s 151 of the CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 of the CPC. In cases where additional evidence is required to be taken in the event at any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate Court itself or by directing any Court subordinate to the appellate Court to receive such evidence and sent it to the appellate Court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati, , it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand dehors the Rules 23 and 23A. To wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20, Rule 3 or Order 11, Rule 31 of the CPC and hence it is no judgment in the eye of law it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.
What the Supreme Court cautious all of us, is an unwarranted order of remand as it gives the litigation an undeserved lease of life and, therefore, it must be avoided. The Supreme Court has also clarified that, power of remand is to be exercised when the case is decided only on preliminary issue and the finding on which is reversed by the Appellate Court, then, the matter must go back to the original authority or Court for a decision on other issues and dealing with the merits. The other power of remand is when the case is not decided only on preliminary issues but there is a decision rendered on all points and issues. If such a decision, covering all points and issues, requires interference by the appellate authority but the appellate authority finds that in the interest of justice the remand is necessary, then, that is a power which is traced to Order 41 Rule 23-A of CPC Code. If these principles are borne in mind as they are guiding all of us equally in exercise of revisional powers, then one fails to understand the order of a remand in this case and it is difficult to uphold it.
A faint attempt made by Shri Jha to show that this writ petition should not be entertained because the petitioners in this case have consented to the course adopted by the Tribunal, need not detain me. The Tribunal''s order must be read as a whole. The Tribunal''s order is completely in favour of the present petitioners. If it is so and the Tribunal then remands the case, then, the petitioners are justified in complaining about the course adopted and urging that the same is vitiated by a error of law apparent on the face of the record or perversity. Paragraph 31 of the impugned order refers to the consent for the course suggested by the revisional authority, namely, the Maharashtra Revenue Tribunal. The advocates may have stated that if at all a remand is being directed and that is what the Tribunal intended, then, the matter must go to the Special Tahsildar and need not remain pending in the office of the Regular Tahsildar solely exercising his powers over the entire area because he may be flooded with other enquiries. Agreement to such a course cannot be termed as a waiver of the right to challenge the ultimate conclusion of the Tribunal ordering a remand. In this case, there is nothing in paragraph 31 which would indicate that the petitioners consented to a remand. In fact, they are aggrieved by the course adopted by the Tribunal. The Tribunal having dismissed the revision applications which are filed by the contesting respondents to these petitions by disbelieving their versions ought not to have remanded their cases is the grievance of the petitioners. By the observations in other paragraphs of the Tribunal''s order referred by me herein above and finding that there is enough material to hold that the remand was unnecessary and uncalled for, then, I do not propose to dismiss these writ petitions on the ground that the course suggested by the Tribunal was consented by the present petitioners.
The judgments that have been relied upon by Shri Jha on this point are clearly distinguishable on facts. The Supreme Court, in the cases which are brought to my notice by Shri Jha, did not entertain the writ petition because it was a consent decree. The consent decree having been passed in the case of Suvaran Rajaram Bandekar and Others Vs. Narayan R. Bandekar and Others, , the Court refused to interfere on the ground that the consent decree can be modified equally by consent of parties and not otherwise.
In the second case S.P. Boarkar and Ors. v. N.T.C. (S.M.) Ltd. and Ors., (2001) 1 LLJ 1415 SC , the Hon''ble Supreme Court upheld the order of this Court, because this Court concluded that the Industrial Court''s direction is based on consent given by parties. That was the course suggested by parties of giving alternate relief instead of reinstatement. That alternate relief having been consented to, could not then be questioned.
The powers of Lok Adalat under the Legal Services Authorities Act, 1987, was the issue in the case of P.T. Thomas Vs. Thomas Job, . His Lordship Dr. A.R. Laxkshmanan, as His Lordship then was, while outlining the scope of powers conferred in the Lok Adalat concluded that the language of CPC in this behalf is absolute. No appeal lies from an order or decree which is passed by consent of parties. That mandate has been read into the order of the Lok Adalat as well. Beyond this, the judgment is of no assistance in this case.
Equally, in the other judgment in the case of S. Thilagavathy Vs. State of Tamil Nadu and Others, , the Supreme Court refused to interfere because the party had agreed to join at the transferred place and given up her challenge against the transfer order before the Single Judge. The appeal against the consent order was not maintainable and dismissed by the Division Bench of the High Court. That order was upheld on this factual foundation.
In these circumstances, none of the judgments can be assisting Shri Jha in this case.
In the view that I have taken, it is not necessary to make any detailed reference to the ambit and scope of the powers conferred by Section 76 of the B.T. & A.L. Act, 1948. The powers that the law confers are intended to set right errors of law committed by Courts of justice. The Tribunal must interfere in cases where it finds that orders of the authorities below it are perverse or vitiated by errors of law apparent on the face of the record. When material evidence or documents are ignored or their contents brushed aside, when parties had no proper or enough opportunity to prove their cases, when parties proceeded under disability, then and in all such cases a revisional interference is warranted and is upheld. Beyond that, a re-appreciation or reappraisal of evidence in revisional proceedings or unnecessary directions of remand, cannot be justified and can well be termed as the Tribunal exceeding the scope of its authority. For this proposition, really no judgment is required. All that is necessary is to remind the Tribunal of such rulings in which it is held that if the case suffers from paucity of evidence as held by the Hon''ble the Supreme Court in the case of Girja Kumar and Others Vs. State of Himachal Pradesh and Another, , then, there is no question of remand or re-examination as that would mean giving an opportunity to cure any lacuna in the evidence. The Hon''ble Supreme Court has cautioned the judicial authorities and Courts that those who have not led the evidence before the Trial Court, must suffer for it. In the case in hand, Remand was not a course which could have been adopted in the given facts and circumstances, then, the Tribunal''s order cannot be sustained.
As a result of the above discussion, writ petitions succeed. Rule is made absolute in the following terms.
The Tribunal''s orders to the extent it directs the remand of the cases back to the Tenancy authorities, is quashed and set aside. The revision applications filed before the Maharashtra Revenue Tribunal will stand dismissed in their entirety and without any direction or order of remand.
In the circumstances, there will be no order as to costs.
At this stage, Mr. Jha, the learned advocate appearing for the respondents, prays that this order be stayed. This request is opposed by Mr. Samdani, learned senior counsel appearing for the petitioners, by pointing out that the Revisions are dismissed and that dismissal is upheld by quashing and setting aside the direction of remand and such an order can never be stayed.
In these cases, the revision applications were filed by the contesting respondents. They have not succeeded before the Tribunal as would be evident by what has been held by me hereinabove. Despite that the Tribunal directed a remand and which order and direction has been faulted by me and quashed and set aside. Therefore, the contesting respondents'' revision applications stand dismissed in their entirety. I do not understand how such an order can be stayed. Request for stay refused. To be fair to Shri Jha, his request was based on the fact that the contesting respondents are claiming to be in physical possession and that on the strength of this order, proceedings may be initiated to dispossess them. I find absolutely no material which would evidence physical possession of the respondents before me and as claimed. In such circumstances, there is no basis for the apprehension expressed by Shri Jha.