Shiva Krishna Magar vs Dharma Bhiwa Bhagat & Ors.

Heard learned Counsel for the parties.

By this petition under Article 227 of the Constitution of India, the Petitioner-landlord is challenging Judgment and order dated 10.08.2009 passed by the President, Maharashtra Revenue Tribunal, Mumbai in Tenancy Revision Application No. 284/B/2001, by which the Revision filed by the Respondents/Tenant is allowed, thereby setting aside the orders dated 04.04.2001 passed by Sub-Divisional Officer (SDO), Thane and dated 15.05.1997 passed by the Tahsildar, Kalyan and the matter is remanded back to the Tahsildar, Agriculture Land Tribunal (ALT), Kalyan for fixation of purchase price under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (‘the said Act’ for short). By the impugned order, the concerned Tahsildar is directed to follow due procedure of giving opportunity of hearing to both parties. The effect of the impugned order is that 32G proceedings are restored.

Agricultural land survey No. 24 situated at Village Ghotsai, Taluka Kalyan, District Thane is the subject matter land in dispute. Name of one Pangalu Mahadu Bhagat was recorded as a Tenant. In the year 1964, proceedings under Section 32G were initiated. In the said proceedings, statement of Tenant Pangalu was recorded who gave willingness to purchase the land. The Power of Attorney holder (‘PoA’ for short) of the landlord objected to said proceeding stating that the Tenant has surrendered the tenancy in Tenancy Case No. 12 of 1957 which is decided on 18.11.1957. The concerned Tahsildar dropped the proceedings by order dated 28.01.1964. Initially, the tenants filed Revision Application No. 134 of 1986; however, it was withdrawn. Tenants then filed Tenancy Appeal No.38 of 1992. The concerned SDO allowed the said appeal on 04.07.1994 and remanded the matter back for fresh inquiry. After remand, learned Tahsildar conducted inquiry in which statement of present Respondent No. 2 Nana Haribhau Magar was recorded. Thereafter, without entertaining the application for adjournment made on behalf of the Tenant, the learned Tahsildar dropped the proceedings by his order dated 15.05.1997.

The Tenants then filed Tenancy Appeal No. 14 of 1997 before SDO. The concerned SDO again dismissed the appeal and confirmed the order of Tahsildar, accepting the contention of landlord that the predecessor of Tenants had surrendered tenancy.

Aggrieved by the said order, the Respondents filed Tenancy Revision Application No. 284/B/2001 before the Tribunal. The Tribunal after hearing both sides and on appreciation of evidence passed the impugned order dated 10.08.2009 restoring the proceedings under 32G of the said Act directing fixation of purchase price.

In these circumstances, the landlord filed this petition, which was admitted on 11.03.2010. Though this Court directed the Tahsildar to issue notice to Respondents and record the statements and produce it before this Court, proceedings under Section 32G of the said Act were stayed. During pendency of the petition by order dated 28.07.2026, legal heirs of Respondent No. 2, who died during pendency, were brought on record. Also during pendency of the petition, one intervention application (IA(ST)/21314/2026) was filed claiming that part of the property has been developed and there has been compromise between Applicant-Developer, Petitioner/landlord and legal heirs of Respondent No. 2.

This Court has recorded in order dated 28.07.2026 passed in the said intervention application that Respondent No. 1 has taken a clear stand that the compromise between the Petitioner/landlord and legal heirs of Respondent No. 2 as well as Developer can proceed and operate for 50% share of Respondent no. 2; however, it cannot bind the share of the Respondent No. 1.

Learned Counsel Mr. Joshi appearing for the Petitioner /landlord submitted that the surrender by the predecessor of Respondents/Tenant in 1957 is valid for which Mutation Entry No. 782 has been produced. He submitted that during inquiry, while recording the evidence of the Tenant Pangalu, he has stated that rent receipts are not produced. That while recording the evidence of PoA of the then landlord (Mr. Mukund Shivram Magar) he has stated that the tenant has voluntarily surrendered the tenancy and there has been an order dated 18.11.1957, which was not available at the time of recording evidence, but it was sought to be produced later. He submitted that on the next day, the landlord has produced Order dated 18.11.1957 in Tenancy Case No. 12 of 57-58 and the concerned ALT/Mamlatdar was shown the order and it was returned. He submitted that therefore, the Tahsildar and SDO were justified in dropping 32G proceedings. It is further submitted that when the Tenancy Revision Application No. 134 of 1986 was withdrawn by the Tenants on 08.10.1992, there was no reason for filing Tenancy Appeal No. 38 of 1992. He relied on following judgments in support of his submissions.

Per contra, Mr. Patil learned counsel for the Respondent No. 1/Tenant supported the impugned order, contending inter alia that the alleged case of surrender has been rightly rejected by the Tribunal. He submitted that the evidence of Tenant Pangalu recorded before the ALT/ Mamlatdar clearly indicates that the tenant has asserted possession; he has given no objection to purchase the land, has shown willingness to purchase the land; he has asked for 7 installments; he has also stated that from tillers day, every year 9 man rice was given to landlord or around Rs.135 was the rent. He has also stated that he is ready to pay interest. He pointed out that the Tenant was not cross-examined by the landlord and the order was not produced during evidence of the landlord. He submitted that the subsequent endorsement relied upon by the Petitioner landlord that the order dated 18.11.57 of surrender in Tenancy Case No. 12 of 57-58 cannot be considered as sufficient compliance or proof of surrender because it is not in the presence of the Tenant. He submitted that nobody has signed on behalf of Tenant on the alleged endorsement and therefore it cannot amount to surrender.

Inviting the Court's attention to order dated 28.01.1964, It is submitted that the ALT/Mamlatdar has incorrectly recorded that the Tenant and the landlord have stated that the land is surrendered. He submitted that the grievance can not be made about withdrawal of Revision Application No. 134/1986 and filing of Appeal No. 38 of 1992, as the said appeal has been entertained on merits where the landlord has participated in the hearing. He submitted that revision was not maintainable challenging the order of dropping proceedings under Section 32G of the said Act. He relied on following judgment in support of his case.

I have considered the rival submissions and perused the record.

In the beginning it must be noted that the case of the Petitioner/landlord of surrender is based on an alleged order of surrender dated 18.11.1957 passed in Tenancy Case No. 12/57-28 and oral evidence of Tenant stating that he has not produced rent receipts.

It is necessary to note that on 23.01.1964, during inquiry, tenant Pangalu has specifically stated many things viz. (i) That he was in possession on tillers day and till date he is in possession, (ii) That he has given no objection to purchase the land, (iii) he showed willingness to purchase the land, (iv) he has asked for 7 installments, (v) That from tillers day every year 9 man rice was given to landlord or around Rs.135 per annum was the rent and (vi) That he is ready to pay interest.

Tenant was not cross examined. This indicates that his statements about possession on tiller’s day and till the date of recording evidence, was an undisputed fact.

If the tenancy was indeed surrendered in 1957, there was no reason for notice being issued to him in January 1964 to the Tenant Pangalu. Copy of notice is on record. The Tenant has clearly asserted that he was in possession on tillers day also till the time when evidence was recorded. He has shown willingness to purchase the land. He has asked for installments and has shown willingness to pay interest. He has also clearly stated that he is paying crop share (rice) to the landlord.

In the teeth of such evidence led by Tenant himself as recorded by ALT/Mamlatdar, it is clear that at the relevant time the tenant was heard and had not surrendered the land.

The case of the Petitioner/landlord that he has produced the order of surrender dated 18.11.1957 cannot be accepted because the order was not produced on 23.01.1964 when the Tenant had an opportunity to cross examine, but it was produced subsequently in the absence of Tenant. Therefore, learned Counsel for the Respondent no. 1 is right in submitting that mere endorsement about surrender order being ‘shown and returned’ is not sufficient proof of surrender.

The ALT/ Mamlatdar while dropping the proceedings in January 1964, has incorrectly held that ‘tenant and landlord’ have both stated about land in question being surrendered. There is no such statement made by Tenant about surrender.

In the absence of alleged surrender order, it cannot be said that there was due compliance with Section 15 of the said Act where the surrender is required under law to be in writing and duly verified before Mamlatdar in the prescribed manner. Proviso of Section 15(1) as well as Sub-Section (2A) clearly indicate that, an inquiry is supposed to be held and a decision whether landlord is entitled to retain whole or any portion of land and its extent and in particular reason in that behalf, is accepted. Section 15(2A) was brought into force with effect from 28.09.1957 (when it was published in Government Gazette). Therefore, alleged surrender order of 18.11.1957 must be shown to have been passed after due inquiry by Mamlatdar and verified by him. Since no such order is produced and only an endorsement is relied upon, the case of surrender cannot be accepted.

Viewed in the light of what is observed above, when the impugned order is perused, it is seen that the Tribunal has rightly held that in the statement of Tenant, there is no reference of alleged surrender and landlord alone has claimed that there has been a surrender. The Tribunal has considered that after remand, statement of only landlord was recorded and tenant’s application for adjournment on the ground that his advocate had undergone surgery, was rejected and thereafter, the proceedings under 32G have been dropped. The Tribunal has rightly considered that when the Tenant was in possession of the property on tillers day, he becomes ‘deemed purchaser’ and unless valid surrender as contemplated under Section 15 of the said Act is proved, there cannot be presumption of surrender. The Tribunal has rightly held that landlord has not produced on record any order to show such surrender. It is a matter of fact that even today in this petition, the order of surrender is not produced.

Reference to Mutation Entry No. 782 of 31.07.1964 removing the name of Tenant Pangalu cannot be considered as proof of valid surrender.

In Suhasini Gopinath Dadkar (Supra), this Court has held that when tenant is found in actual possession of the property on tillers day and when the alleged surrender was after 01.04.1957, merely because tenant is dispossessed, that has to be ignored for the purpose of 32G proceedings. This judgment directly supports the case of the Respondents.

In Dadu Bhagoji Patil (Supra), this Court has held that there is inalienable and unfettered right conferred by the said Act under Section 32G in favour of tenant in possession on tillers day and merely because tenant was dispossessed, it has to be ignored for the purpose of 32G proceedings. This judgment also supports the case of a Respondent.

In Vasu Dhondi Sutar (Supra) this Court has observed that there can be no surrender of tenancy after 01.04.1957 on which day the relationship of landlord and Tenant came to an end, and by operation of law, tenant became deemed purchaser and the surrender could become effective only on process of verification duly completed.

Since in the present case, the alleged case of surrender is of 18.11.1957, which is after the amendment, it is not necessary to consider the judgment of Ramachandra Keshav Adke (Supra).

In the aforesaid facts and circumstances and for reason indicated above, there is no perversity in the impugned order. The view taken is the most probable view based on material available on record. There is no reason to interfere in writ jurisdiction.

Writ petition is therefore dismissed. Rule is discharged. No order as to costs.

Interim /ad-interim relief granted earlier stands vacated. In view of stand of Respondent No.1 as recorded in order dated 28.07.2026 and Paragraph No.7 above, separate order in IA(ST) No. 21314 of 2026, is not required. In view of dismissal of petition, separate order on IA No. 12869 of 2023 (for direction) is not required.

Pending Interim Applications are disposed of in above terms.

All concerned to act on duly authenticated or digitally signed copy of this order.