Shobha @ Surekha Suresh Patil & Anr. vs Radhika Prakash Borgaonkar & Ors.

Rule. Rule made returnable forthwith, and with the consent of learned Counsel for the parties, heard finally.

By this petition under Article 227 of the Constitution of India, the petitioners assail the legality, propriety and correctness of a judgment and order dated 12^th February, 2025, passed by the learned President, Maharashtra Revenue Tribunal, Mumbai (“MRT”) in Revision Application No.TNC/REV/THN/63/2021 whereby the revision application preferred by the Respondent Nos.1 to 3/landlords against an order passed by the Sub-Divisional Officer, Kalyan in Tenancy Appeal No.38/2019, thereby setting aside the order dated 18^th April, 2012 passed by the Tahsildar and Agricultural Land Tribunal (“ALT”) in Tenancy Case No.08/2012 directing the deletion of the names of the predecessor-in-title of the petitioners as the tenants in respect of the land bearing Survey No.11/3/3/6 admeasuring 89.4R (“subject land”) purportedly in the exercise of the power under Section 70(b) of the Maharashtra Tenancy and Agricultural Lands Act, 1948 (“MT and AL Act, 1948”), came to be allowed by setting aside the order passed by the SDO.

Shorn of superfluities, the background facts leading to this petition, can be stated as under :-

I have heard Mr. Shriram Kulkarni, the learned Counsel for the petitioners, Mr. Ashutosh Kumbhakoni, the learned Senior Advocate for the Respondent Nos.1 to 4, Ms. Shivani Kondekar, the learned Counsel for Respondent Nos. 5 and 6, Mr. Ajit Savagave, the learned Counsel for Respondent Nos. 9 and 19 to 23 and Smt. Savita Prabhune, the learned Counsel for Respondent Nos. 29 to 31 – State. The learned Counsel for the parties took the Court through the order passed by the Authorities below and the material on record.

Mr. Shriram Kulkarni, the learned Counsel for the petitioners, took a slew of exceptions to the impugned judgment and order. Firstly, the MRT in exercise of its limited jurisdiction, could not have interfered with the well reasoned order passed by the Appellate Authority. Secondly, Mr. Kulkarni would urge, the MRT committed a grave error in law in delving into the factual aspects and setting aside the order passed by the Sub-Divisional Officer on that score. Thirdly, the fact that the petitioners are the daughters of late Lilabai and the names of the petitioners were mutated to the record of rights of other lands left behind by late Lilabai alongwith the Respondent Nos.5 and 6, was not in dispute. Yet the Respondent Nos.1 to 4 the purported landlords filed an application seeking a declaration under Section 70(b) of the MT and AL Act, 1948 without impleading the petitioners as party respondents to the said application. On that count alone, the order passed by the ALT was required to be interfered with and, thus, the Sub-Divisional Officer was fully justified in holding that, the application before the ALT was bad for non-joinder of necessary parties. Fourthly, Mr. Kulkarni submitted with a degree of vehemence that as late Dunda Karbhari was in cultivation of the subject land on the tiller’s day, the vested statutory rights could not have been defeated by resorting to the subterfuge of seeking a direction for the deletion of the names of tenants from the record of rights of the subject land. Lastly, taking the Court through the record of proceedings before the ALT, especially the institution of the application by the purported power of attorney holders in whose favour the subject land was already unlawfully sold, and the filing of the affidavit on behalf of the tenants by the purported power of attorney, Mr. Kulkarni would urge that, the proceedings before the ALT were not bona fide.

Per contra, Mr. Ashutosh Kumbhakoni, the learned Senior Advocate for Respondent Nos.1 to 4, laid emphasis on the fact that, the petitioners cannot be permitted to draw mileage from their non-impleadment in the application before the ALT as the names of the petitioners were not entered in the record of rights as the legal heirs of the late Lilabai qua the subject land. Attention of the Court was invited to the Mutation Entry No. 966, which does not include the subject land. Mr. Kumbhakoni would thus urge that, the contention that the Respondent Nos.1 to 3 had not designedly impleaded the petitioners as the party respondents to the Tenancy Application No. 08/2012 in their capacity of the legal representatives of late Lilabai, cannot be coutenanced.

Even otherwise, Mr. Kumbhakoni would urge, the mere fact that the petitioners are the daughters of late Lilabai, one of the daughters of deceased Dunda Karbhari, by itself, does not establish the juridical status of the petitioners as the tenants qua the subject land. Taking the Court through the provisions contained in Section 40 of the MT and AL Act, 1948 which provides for the continuance of tenancy upon the death of tenant, especially the legislative change brought about by Act No.13 of 1956, in the matter of heritability of the tenancy, Mr. Kumbhakoni, assiduously urged that, post the 1956 Amendment, the landlord shall be deemed to have continued the tenancy in favour of such heir or heirs of the deceased tenant as may be willing to continue the tenancy.

In the case at hand, according to Mr. Kumbhakoni, there is not an iota of material to show that, late Lilabai the predecessor-in-title of the petitioners or after the demise of late Lilabai the petitioners had conveyed their willingness to continue the tenancy. Mr. Kumbhakoni would urge, willingness to continue the tenancy is an essential statutory qualification and in the absence of material to demonstrate such willingness, the mere fact that the petitioners are the heirs of late Lilabai is of no significance. To this end, Mr. Kumbhakoni placed reliance on the judgment of the Supreme Court in the case of Vithal Dattatraya Kulkarni & ors. Vs. Smt. Shamrao Tukaram Power & ors.^{11.(1979) 3 SCC 212}, and a full Bench judgment of this Court in the case of Vasant Hariba Londhe Vs. Jagannath Eamghandra Kulkarni^{22.1969 Mh.L.J. 249}.

Mr. Kumbhakoni further submitted that, this Court in the exercise of its supervisory jurisdiction need not interfere with the impugned judgment and order as there is overwhelming material to show that, all the other heirs have unequivocally admitted the fact that, they were not in cultivation of the subject land. Laying emphasis on the affidavit filed on behalf of the Respondent Nos. 5 and 6 that since decades they and their family members were not in cultivation of the subject land, Mr. Kumbhakoni submitted that, there is no substantial failure of justice. Nor can it be said that, the petitioners have been deprived of their rights.

I have given careful consideration to the submissions canvassed across the Bar.

To begin with, by and large, the following facts appear to be rather incontrovertible. First, the predecessor-in-tile of the Respondent Nos.1 to 4 was the original holder of the complete and undivided land bearing Survey No.11/3. Secondly, the fact that the name of Dunda Kolya Karbhari came to be mutated to the record of rights of the subject land vide Mutation Entry No.80 as a tenant who had been in the occupation of the subject land alongwith the co-tenants since the year 1954-1955. Thirdly, it is not much in dispute that, late Dunda Karbhari passed away on 07^th January, 1971 and the names of his widow Anandibai and children including Lilabai, the mother of the petitioners and Respondent Nos. 5 and 6, came to be mutated to the record of rights of the subject land on 29^th March, 1971. Fourthly, upon the demise of Anandibai, the names of her children including Lilabai came to be mutated to the land bearing Survey No.11/3/3/6 (part). Fifthly, though after the demise of Lilabai on 05^th October, 1999, the names of the petitioners and Respondent Nos. 5 and 6 were mutated to the other lands left behind by late Lilabai, vide Mutation Entry No.966, yet the subject land was not included therein. Lastly, it is indisputable that in the Application No.08/2012 purportedly seeking a negative declaration, the petitioners were not impleaded as the legal heirs of late Lilabai.

Evidently, the ALT had passed the order on 18^th April, 2012 in the said Application No.08/2012 solely on the basis of the affidavit-in-reply filed on behalf of the purported power of attorney of Respondent Nos.5 and 6. The ALT had not embarked upon any inquiry and proceeded to record the findings solely on the strength of the contentions in the said affidavit.

The Sub-Divisional Officer was of the view that, the ALT could not have decided the application under Section 70(b) of the MT and AL Act, 1948, when a negative declaration was sought without providing an opportunity of hearing to the legal heirs of late Lilabai and conducting an inquiry to decide the question of tenancy in the light of the governing provisions of the MT and AL Act, 1948.

The learned President, MRT found the aforesaid approach of the Sub-Divisional Officer unsustainable. The fact that all the other heirs of the original tenants had conceded that, they were not in the cultivation and possession of the parcels of the land bearing Survey No.11/3, seems to have predominantly weighed with the learned President, MRT. It was also observed that, it appeared to be improbable that, the petitioners, who were the granddaughters of late Dunda Karbhari, would continue to cultivate the subject land.

Whether the aforesaid approach of the MRT is justifiable ?

The first issue that wrenches to the fore is, whether the MRT could have intervened with the order passed by the Sub-Divisional Officer in the exercise of its revisional jurisdiction. It would thus be necessary to appreciate the nature of the revisional jurisdiction exercised by the MRT under Section 76 of the MT and AL Act, 1948.

Section 76 of the MT and AL Act, 1948, reads as under :-

The text of Section 76(1) makes it explicitly clear that, the MRT is conceived as a Tribunal of limited jurisdiction. The grounds on which MRT may entertain a challenge to, and, if found necessary, interfere with, an order passed by the Collector have been spelled out in clear and unambiguous terms by clauses (a) to (c). It needs no emphasis that, the jurisdiction of MRT is circumscribed by the grounds specified in clauses (a) to (c) of the MT and AL Act, 1948.

At this juncture, it is necessary to keep in view the distinction between revisional and appellate jurisdiction. In the case of The State of Kerala Vs. K. M. Charia Abdulla & Co.^{33.AIR 1965 SC 1585}, the Supreme Court has exposited the distinction between the appellate and revisional jurisdiction in the following words :-

A profitable reference can also be made to a Constitution Bench judgment in Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh^{44.(2014) 9 SCC 78}, wherein while construing the revisional power of the High Court, under the State Rent Control legislations, the Supreme Court adverted to, and explained, the distinction between appellate and revisional jurisdiction. The relevant part of paragraph 28 reads as under :-

In the light of the aforesaid enunciation of law on the aspect of fundamental distinction between the appellate and revisional jurisdiction, if the nature of the revisional power conferred on the MRT under Section 76 of the MT and AL Act, 1948 is considered, it becomes evidently clear that, the legislature has not vested in the MRT, a general power of revision. Instead, the revisional jurisdiction is explicitly confined to what can properly be termed as errors of law or substantial defect in procedure resulting in miscarriage of justice.

In the case of Rahimatulla Rahiman Sarguru Vs. Bapu Hari Mane & anr.^{55.AIR 1979 SC 1326}, a three-Judge Bench of the Supreme court after adverting to the grounds as enumerated in Section 76(1) of the MT and AL Act, 1948, on which the revisional power can be exercised by the MRT postulated that the power of revision entrusted to the MRT under Section 76 of the MT and AL Act, 1948, are practically identical with the second appellate powers of the High Court under Section 100 of the Code of Civil Procedure, 1908 before it was amended by Act 104 of 1976. The aforesaid position was also highlighted by a three-Judge Bench of the Supreme Court in the case of Maruti Bala Raut Vs. Dashrath Babu Wathare & ors.^{66.AIR 1974 SC 2051}

Keeping in view the aforesaid rigor of Section 76 of the MT and AL Act, 1948, the justifiability of interference by the MRT is required to be appreciated. The first ground which weighed with the Sub-Divisional Officer to interfere with the order passed by the ALT was that, the petitioners were not impleaded as the party respondents to the application, though the record of rights indicated that the petitioners alongwith the Respondent Nos.5 and 6 had succeeded to the estate of late Lilabai. These findings of the Sub-Divisional Officer appeared to be rather impeccable. The landlord could not have taken refuge under Mutation Entry No.966, whereby the names of the petitioners and Respondent Nos.5 and 6 were mutated to the lands left behind by late Lilabai except the subject land.

The learned President, MRT, has not found any fault with the aforesaid findings of the Sub-Divisional Officer. On the contrary, the learned President, MRT, proceeded to overturn the order passed by the Sub-Divisional Officer, on the ground that, all other legal heirs of the original tenant except the petitioners had stated in writing before the ALT that they were not in possession and cultivation of the subject land. In the process, however, the learned President, MRT lost sight of the very pertinent observations made by the Sub-Divisional Officer that the ALT has not examined whether the tenancy came to be terminated in consonance with the provisions MT and AL Act, 1948.

Both the ALT as well as the MRT appeared to have committed a manifest error in law in not appreciating the consequences that emanated from the possession and cultivation of the land bearing Survey No.11/3/3/6 by late Dunda Karbhari on the tiller’s day. As noted above, the name of late Dunda Karbhari came to be mutated to the record of rights of the land bearing Survey No.11/3/3/6 on 27^th September, 1956 as a tenant thereof for being in cultivation of the subject land since 1954-1955. Dunda Karbhari passed away on 07^th January, 1971.

At this juncture, it is pertinent to note that in the Tenancy Case No.08/2012, it was nowhere the case of Respondent Nos.1 to 4 that late Dunda Karbhari was not a tenant in respect of the subject land on the tiller’s day. On the contrary, it was asserted that, the name of Anandibai, the widow of late Dunda Karbhari was mutated to the record of rights of the subject land as a tenant thereof and after her demise the names of the respondents therein namely Dinkar Karbhari, Banubai Mhatre and late Lilabai were mutated as the legal heirs of Anandibai and those entries be deleted. It thus becomes absolutely clear that, as of the tiller’s day Dunda Karbhari was in possession and cultivation of the subject land and continued to possess the subject land till his demise in 1971. The aforesaid facts completely alter the nature of the jural relationship between the tenants and the erstwhile landlord.

In view of the provisions contained in Section 32 of the MT and AL Act, 1948, on the tiller’s day, every tenant shall subject to other provisions of that section and the succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as a tenant, provided certain conditions are fulfilled. The title of the landlord to the land passes immediately to the tenant on the tiller’s day. The title of the land which was vested originally in the landlord passes to the tenant on the tiller’s day or the alternative period prescribed in that regard. The title so transferred is defeasible only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or committing default in payment of price thereof as determined by the Tribunal.

The aforesaid position was expounded by the Constitution Bench of the Supreme Court in the case of Sri Ram Ram Narain Medhi Vs. State of Bombay^{77.AIR 1959 SC 459} which reads as under :-

In the case of Amrit Bhikaji Kale & ors. Vs. Kashinath Janardhan Trade & anr.^{88.(1983) 3 SCC 437}, after following the aforesaid pronouncement, the Supreme Court enunciated that, it is unquestionably established that on the tiller’s day, the landlord’s interest in the land gets extinguished and simultaneously by a statutory sale without anything more by the parties, the extinguished title of the landlord is kindled or created in the tenant. That very moment the landlord-tenant relationship as understood in common law or Transfer of Property Act comes to an end. The link and chain is broken. The absent non-cultivating landlord ceases to have that ownership element of the land and the cultivating tenant, the tiller of the soil, becomes the owner thereof. Without any act of transfer inter vivos the title of the landlord is extinguished and is created simultaneously in the tenant making the tenant the deemed purchaser.

The ALT as well as the learned President, MRT completely ignored the salient statutory change brought about by the Amending Act, 15 of 1957. Those authorities proceeded on the premise, as if there was no legislative intervention and deemed transfer of ownership. Instead of examining the issue from the perspective of the lawful termination of the tenancy, given the admitted position that Dunda Karbhari was in possession and cultivation of the subject land as of the tiller’s day, the learned President, MRT misdirected himself in delving into the question of facts as regards the import of the statements by the other legal heirs of the original tenant that they were not in possession and cultivation of the subject land. The learned President, MRT clearly exceeded the limits of revisional jurisdiction in venturing into the thicket of facts.

The submission of Mr. Kumbhakoni premised on Section 40 of the MT and AL Act, 1948, is not required to be delved into elaborately. Once it is established that, late Dunda Karbhari was in cultivation and possession of the subject land on the tiller’s day and he passed away in the year 1971, the entire complexion of the controversy changes. Even otherwise, the Mutation Entry No. 161 clearly records that, the name of late Lilabai, the predecessor-in-title of the petitioners, came to be mutated to the subject land upon the demise of Dunda Karbhari in the year 1971. The said Mutation Entry manifests the intention of Anandibai and all her children to continue the tenancy, even if one were to proceed on the premise that, late Dunda Karbhari did not become the deemed purchaser of the subject land on the tiller’s day. In any event, none of the authorities below have examined and discarded the claim of the petitioners on the ground that, there was no material to show that, the petitioners had not shown willingness to continue as the tenants.

The learned President, MRT, seems to have committed a grave error in recording the finding on the basis of the statements made by the other successors in interest of late Dunda Karbhari that they were not in possession and cultivation of the subject land. In the process, the learned President, MRT, completely lost sight of the fact that the MT and AL Act, 1948 frowns upon divesting the tenant of the possession of the agricultural land otherwise than in accordance with the provisions contained in the MT and AL Act, 1948. It is pertinent to note in the affidavit filed on behalf of the respondent Nos.5 and 6 in the Tenancy Case No.08/2012, it was affirmed by the Power of Attorney that, the purported tenancy rights in the subject land were released in favour of the ladlord after obtaining consideration from them.

Suffice to note that, section 15 of the MT and AL Act, 1948 specifically addresses the anxiety of the legislature in ensuring that the tenant is not dispossessed of the land on the spacious plea that the tenant voluntarily surrendered the land. The proviso to section 15(1), ordains in emphatic terms that the voluntary surrender by the tenant shall be in writing, and verified before the Mamlatdar in the prescribed manner. Conversely, section 29(2) injuncts the landlord from obtaining possession of the land held by the tenants except under an order of the Mamlatdar. Evidently, it is not the claim of the landlord that, in the case at hand, the tenant had surrendered the possession of the suit lands in conformity with, and observance of, the provisions contained in sections 15 and 29 MT and AL Act, 1948.

A useful reference, in this context, can be made to a judgment of a three-Judge Bench of the Supreme Court in the case of Babu Parasu Kaikadi (Dead) By LRs. Vs. Babu (Dead) through LRs^{99.(2004) 1 SCC 681}. In the said case, the jural relationship between the parties thereto as the landlord and tenants was not disputed. It was also not disputed that the tenants therein had voluntarily surrendered the land to the landlord; however, the said surrender was not in terms of sections 15 and 29 of the MT and AL Act, 1948. The Supreme Court, in the light of the aforesaid facts, considered the question: “Whether the voluntary surrender which is not in terms of sections 15 and 29 is a valid one?" After adverting to the provisions contained in sections 15 and 29 of the Act, 1948, the Supreme Court expounded the legal position as under :-

In the backdrop of the aforesaid clear and explicit enunciation of the legal position, and the express mandate of the provisions contained in sections 15 and 29 of the MT and AL Act, 1948, the learned President, MRT was not at all justified in recording the finding on the basis of the statements of the other legal heirs of Dunda Karbhari that they were not in possession of the subject land.

For the foregoing reasons, the impugned judgment and order passed by the learned President, MRT deserves to be quashed and set aside.

Hence, the following order :-