Shri Madhusudan Trimbak Rajbahadar vs Shri. Dhondiram Ganpat Gaikwad & Ors.

Heard learned counsel for the parties. Perused the record.

Invoking Article 227 of the Constitution of India, the Petitioner/landlord is challenging the Judgment and Order dated 22.12.1995 passed by President, Maharashtra Revenue Tribunal, Mumbai, thereby allowing Tenancy Revision Application No. 17 of 1994 filed by Respondent/tenant setting aside earlier orders and allowing Tenants’ application under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (‘the said Act’ for short), directing the seller to fix purchase price of the subject matter land.

Agricultural Land Gat No. 385-B admeasuring 4 Hectare 12 Are at Village Ambe Dindori, Taluka -Dindori, District-Nashik is the subject matter land, hereinafter referred to as ‘the said land’ for short.

On Tillers day (01.04.1957) The Petitioner/landlord was minor and therefore, the purchase was postponed. On 11.07.1966, the Petitioner/landlord became major. In 1967, Petitioner/landlord filed Tenancy Application No. 29 of 1967 against the tenants for possession of entire Gat No. 385 admeasuring 9 Hectare 39 Are. Compromise arrived between the parties and area admeasuring 5 Hectare 27 Are was handed over to the Petitioner/landlord for which separate 7/12 extract was prepared and it was numbered as Gat No. 385-A. Remaining area of 4 Hectare and 12 Are remained with the tenants with separate 7/12 extract and Revised Gat No. 385-B was issued. This remaining land, Gat No. 385-B admeasuring 4 Hectare 12 Are is the subject matter land. After a gap of about 20 years, the Respondents filed Tenancy Case No. 3 of 1987 under Section 32G before the concerned Tahsildar. The Petitioner filed his say and contended that as per Section 32F of the said Act, the right to purchase is not exercised within 1 year from landlord attaining majority and therefore, the application is time barred. He contended that no notice was served upon the landlord as per Section 32F(1A) of the said Act.

By order dated 22.10.1990, the Tahsildar dismissed the Tenancy case holding that application is time barred and that provisions of Section 32F of said Act were attracted. It is held that the tenant had knowledge of landlord attaining majority. It is also held that no rent was paid by the tenants.

Respondent filed Appeal No. 27 of 1990 before the Sub-Divisional Officer, Nashik. (‘SDO’ for short). The appeal is preferred by legal heirs of one of the tenant. Learned SDO dismissed the appeal by order dated 30.12.1993. The Respondent filed Tenancy Revision Application No. 17 of 1994 before the Revenue Tribunal, which is allowed under the impugned order.

In these circumstances, Respondent/landlord has filed this petition. Rule was granted and petition was admitted on 25.04.1997. Interim relief was granted, staying the impugned order.

Learned counsel Mr. Dighe appearing for the Petitioner/landlord submitted as under.

That it is nobody's case that the compromise had taken place in application under Section 31 or Surrender under Section 15 of the said Act. He submitted that neither order nor compromise which had taken place in the earlier Tenancy Case No. 29 of 1967 is on record. That therefore, there is nothing to indicate that an order under Section 31 has been passed. Therefore, relationship of landlord tenant continues and the tenant was obliged under Section 32F(1A) of the said Act to give notice within a period of 1 year from landlord attaining majority and apply for fixation of the purchase price.

He submitted that in earlier round of litigation, the tenant had relinquished his right in respect of half portion and therefore for the remaining half portion, the relationship of landlord and tenant will continue and therefore the limitation under Section 32F will apply.

He further submitted that in the present case, Respondent Tenant has filed tenancy case after a lapse of 20 years and therefore the Tahsildar has rightly dismissed the same, and SDO had confirmed it and the Tribunal was not justified in interfering with the concurrent orders. He relied on following Judgments in support of his case.

ii) Anna Bhau Magdum, since deceased by His Legal Representatives v/s. Babasaheb Anandrao Desai (1995) 5 SCC 243.

iii) Babu Vithu Gaikwad (dead) by Lrs. v/s. Chintaman Sadashiv and Ors.(2007) 9 SCC 632.

iv) Tukaram Maruti Chavanv/s Maruti Narayan Chavan (Dead) by Lrs. And Ors. (2008) 9 SCC 358

On the other hand Mr. Agrawal, learned Counsel for the Respondent Tenant submitted that there is no other provision under the said Act by which possession can be taken from tenant except under application by landlord under Section 29 read with 31 or under Section 15 of the said Act for surrender. He submitted that pleadings in the application and reply itself clarifies that earlier it was an application under section 31 of the said Act. He submitted that Section 15 of the said Act contemplates that it has to be verified by Mamlatdar in the prescribed manner and due inquiry is contemplated before surrender can be accepted. He submitted that no such material is on record and therefore it has to be held that the earlier order was an order under Section 31. He submitted that on decision of earlier tenancy Case No. 29 of 1967 thereby dividing the property as Gat No. 385-A retained by landlord and Gat No. 385-B remaining with tenant, the tenant became deemed purchaser and therefore requirement under section 32F(1A) of giving notice within specified time will not apply. He submitted that even after half land being received by the landlord, if tenant is held to continue as tenant and not a deemed purchaser, the whole object of the said Act will be defeated. He relied on following Judgments.

I have considered rival submissions and perused the record.

It is not disputed that pleadings and order, passed in earlier litigation (Tenancy Case No. 29/67) are not available on record. In Paragraph No. 3 Tenancy Case No. 3 of 1987 (present litigation) it is pleaded by tenant that the landlord had applied for possession under the earlier case for ‘personal cultivation’. This pleading is not specifically denied. In the same paragraph the tenant has stated that after compromise, for remaining land, the tenant continued as kul. Therefore, there is no merit in submission that earlier litigation (Tenancy Case No. 29/1967) was not a proceeding under Section 31 of the said Act. According to tenant, he became deemed purchaser on the day of order/compromise in earlier proceedings.

Learned Tahsildar who heard the Tenancy Case No. 3 of 1987 has held that the landlord was minor on Tiller’s day i.e. 01.04.1957 and therefore the procedure under Section 32F of the said Act will apply. The Tahsildar has considered Section 32F(1A) of the said Act, and held that an intimation within period of 1 year from landlord obtaining majority is not given. The Tahsildar has held that the tenant has failed to file the application within time, despite knowing about landlord attaining majority and also held that the application is filed after 20 years without any reason. Therefore, the application was rejected. Learned SDO has again considered that landlord being minor on tiller’s day, the same was postponed. It is considered that landlord became major on 11.07.1966 and therefore, the case will be governed under Section 32F(1A) and tenant’s right to purchase the land is subject to notice within specific period. The SDO held that 7/12 extract clearly shows that entry in record of rights has been taken long back regarding landlord's majority and therefore the contention of tenant that he was not knowing about majority of landlord, is unbelievable. Ultimately, the SDO held that the purchase has became ineffective and the order of Tahsildar was confirmed.

Now, let us consider the judgments relied upon by the parties one by one.

In Anna Bhau Magdum (Supra), there was no earlier application under Section 31. It considered a situation where landlord is minor, widow or subjected to any disability and in such situation, it was mandatory for tenant to give notice within prescribed time. The facts of the present case are completely different because there has been earlier round of litigation between parties under Section 31.

In Appa Narsappa Magdum (Supra), also there was no earlier application under Section 31 r/w Section 29 of the said Act and this judgment has been overruled by the Hon'ble Supreme Court (3 Judges Bench) in Vasant Ganpat Padave (dead) by legal representatives and Ors. Vs. Anant Mahadev Sawant (dead) through legal representatives and Ors. (2019) 19 SCC 577.

In Nanasaheb Kisan Mali (supra), the issue was in respect of obligation on the landlord who attains majority on or after 17.10.1969 in view of the amendment. It was held by learned single Judge of this Court that such requirement is not retrospective. In this case also there was no earlier application for obtaining part possession under Section 31 of the said Act.

In Babu Vithu Gaikwad (Supra), the Hon'ble Supreme Court has in fact clearly stated in Paragraph No. 12 that when landlord applies for recovery of possession under Section 29 read with 31 of the said Act, the provisions of Section 32F(1A) becomes inapplicable thereby making them mutually exclusive to the extent that if one is applicable, the other cannot be evoked. These observations directly support the case of the Respondent Tenant.

In Tukaram Maruti Chavan (Supra) also there was no earlier application under Section 31 thereby dividing the property. Also, this judgment is overruled by Vasant Padave (Supra) to the extent it followed Appa Narsappa Magdum (Supra).

In Sujataali Motebarali (Supra), it is held by this Court that in case of widow terminating tenancy for bonafide cultivation and obtaining possession of half land, the tenant becomes statutory owner of the remaining half and has right to apply under Section 32G. This case supports the case of the Respondent.

In Shrikant v/s Dhondi (Supra), minor landlord had applied for recovery of land for personal cultivation and parties compromised, agreeing that the landlord should resume 1/3^rd land and tenant should retain 2/3^rd land. In such factual background, which is very similar to the present dispute, it was held that landlord cannot contend that Section 32F applies. So this judgment also supports the case of the Respondent.

In Sakharam Genu Shinde (Supra), while considering right of the tenant, this Court held that when minor landlord applies before 31.03.1957, for resumption and possession of half land, the tenant becomes statutory owner of remaining half. This judgment also supports the Respondent.

The Tribunal has considered that in the facts of the present case, the tiller’s day was postponed because the landlord was minor. The Tribunal has accepted the submissions made on behalf of the Tenant that once the landlord takes possession of half of the land, the Tenant would become ‘deemed purchaser’ in respect of remaining half of the land and therefore, there is no question of exercising right of purchase under Section 32F(1A) within specific time limit. The Tribunal accepted that once the landlord takes possession under Section 31 read with Section 29 of the said Act, the tenant becomes ‘deemed purchaser’ of the remaining part of the suit land. The Tribunal has accepted that Section 32F(1A) of the said Act is not at all applicable to the present case because landlord has received possession of half of the land in earlier proceedings, after becoming major and after filing application under Section 31 of the said Act against many tenants including the present Tenant.

In view of the position of law emerging as discussed above, it is clear that since the proceedings under Section 31 read with Section 29 of the said Act has taken place, the provisions of Section 32F(1A) are in applicable. Therefore, the Tribunal was justified in holding that the orders passed by concerned Tahsildar, confirmed by concerned SDO were not legal and proper. The view taken by the Tribunal appears to be in consonance with the legal position discussed above.

In the aforesaid facts and circumstances and for reasons indicated above, there is no perversity in the impugned order. The view taken is most probable view based on material on record. Hence no interference is required in writ jurisdiction.

Writ petition is accordingly dismissed. Rule is discharged. No costs. Interim/ad-interim relief granted earlier, stands vacated.

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