http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: BALU LAXMAN KHATIK (DEAD) THROUGH LRS.  & ORS.

       Vs.

RESPONDENT: BIRU RAMCHANDRA KOTMIRE

DATE OF JUDGMENT:       23/11/1998

BENCH: G.T.Nanavati, S.P.Kurdukar.

JUDGMENT:

S.P.KURDUKAR, J.

       The dispute in this appeal relates  to  agricultural lands bearing Survey Nos.  159/2, 161/2 and 189/7 situate at village Are  Taluka  Karvir,  Distt,  Kolhapur.    It is not disputed that Baluz ïlLaxman Khatik was the tenant of  these lands.  He  died  during  the  pendency of this appeal.  The present appellants are the heirs and  legal  representatives of the said  tenant.  The respondent is the landlord.  It is also not disputed that these lands Agricultural  Lands  Act, 1948 (for short The Act.)

2.      Some  time  in  1957,  the  respondent Landlord (for short landlord) made an application to the tenancy authority under Section 88-C of the Act for issuance of  an  exemption certificate  and  such  a  certificate was in fact issued on 1.4.1962.  The landlord thereafter applied for possession of these lands on 7.6.1962 for bona fide  personal  cultivation under  Section  32  of the Act, such of the tenants who were cultivating the land on Ist April, 1957 would be entitled to purchase the said land and they shall be deemed  to  be  the purchasers from the said date provided no proceedings at the instance  of  the landlord for possession under the Act were pending at that time.  Since the landlord  had  applied  for exemption  certificate  under Section 88-C prior to 1.4.1957 and since he had applied, after obtaining such  certificate, for  possession  on  7.6.1962 under Section 33-B of the Act, the tiller’s day stood postponed until the disposal of these proceedings.  During the pendency of these two  proceedings, 32-G  proceedings under the Act were initiated but, however, these proceedings came to be drooped  on  13.6.1963  as  the tenant  declined to purchase the lands under Section 32-G of the Act.  The order of dropping the proceedings was made  on the  basis  of  the  joint statement recorded by the tenancy authority of the landlord and the tenant.  This statement of the tenant declining to purchase the land under Section 32-G of the Act was sought to be  used  by  the  landlord  as  an admission.   The tenant had alleged to have made a statement that these lands were leased out to him  for  growing  sugar cane.   The  significance  of  this statement is that if the lands were leased out for growing sugar cane.  Under Section 43-A (1)(b) then the provisions of Section 32 of the Act are not applicable.  In the meantime,  the  application  of  the landlord  under Section 33-B of the Tenancy Act was heard by the  tenancy  authorities  and  the  final  order  in  these proceedings  was  rendered  by  the  Bombay  High  Court  on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

16.4.1977  by  which  the  said  application  filed  by  the landlord stood  rejected.    It  may  also be noted that the landlord  had  filed  a  civil  suit  for  recovery  of  the rent/damages  against  the  tenant  but  the  said  suit was dismissed by the civil courts.  On  31-10-1969,  the  tenant applied  to  the tenancy authorities for foxing the price of these lands under Section 33-C of  the  Tenancy  Act.    The Tehsildar  after  notice  to  the  parties  by  his judgment holding that the tenant is entitled to purchase the land  on the  postponed  date  under  Section  33-C  of  the  Act and accordingly fixed the price of the lands.  The appeal  filed by the  landlord  came  to  be  dismissed.    The landlord’s revision  to  the  Maharashtra  Revenue  Tribunal  was  also dismissed.    However,  the  High  Court  in  Special  Civil Application No.  2583 of 1974 (with Second Appeal No.    702 of  1975)  by  its judgment and order dated 14.2.1978 partly allowed the Social Civil Application filed by  the  landlord and  remanded  the matter back to the Sub-Divisional Officer for disposal  in  the  light  of  the  directions  contained therein.   The  High  Court  was  of  the  opinion  that the appellate authority as well as the Revenue Tribunal did  not consider  the admission of the tenant and the other evidence on record properly.  The High  Court  also  found  that  the contention of the tenant as regards the issue of re-judicata was  also  not  deal  with  by these authorities since these issues were vital in deciding the  rights  of  the  parties. The  High Court while remanding the matter observed as under :-

       "For such a contention to  be  upheld,  it         would be necessary to work out interaction         between the provisions of Section 43A, 88C         and 33B  of  the  Tenancy  Act.    Such  a         discussion is  not  to  be  found  in  the         judgments  of  the  Courts  below  because         apparently a pint to that effect  was  not         taken by  either  of  the  parties.   This         being a question of law, it may be  raised         for the first time before the Court of the         Special  Deputy Collector to whom I an now         remanding this case with a direction  that         in  view  of the decision of this court in         Dattatraya Shripati Mohite’s case he, as a         final court of facts, is bound to consider         the evidentiary value  of  the  admissions         made  by  the  respondent  in the previous         proceedings  which  were   apparently   in         respect of  the  same subject matter.  The         petition therefore will have to be allowed         and is hereby allowed.         The High Court then directed :-

       "The  Social  Deputy  Collector  is   also         directed  to rehear the said appeal in the         first  place  considering  of  the  entire         evidence  on  record and in particular the         evidentiary value of the  admissions  made         by   the   respondent   in   the  previous         proceedings and  the  explanation  if  any         given  by  him in the present proceedings.         Secondly, he will also consider the  legal         effect   of   the   order  passed  by  the         Maharashtra  Revenue  Tribunal   on   10th         September  1969  to  which  I have already         made a reference above."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

       After remand the Deputy  Collector  heard  both  the parties  and  by  his  judgment  and  order  dated 31.3.1979 dismissed the appeal holding that  unless  these  admissions are  supported  by cogent documentary and other evidence the admissions cannot be held as a conclusive proof.  The Deputy Collector also found from the record that the lands were not leased out for growing sugar cane inasmuch as  the  landlord had  admitted that he was in possession of the lease deed in question but did not produce the same on record.  He further held that the landlord’s application under Section  88-C  of the Act was on the footing that the lands were Zirayat lands and  therefore  his  plea that the lands were leased out for growing sugar cane  could  not  be  accepted.    The  Deputy Collector  then held that the revenue record did not support the plea of the landlord that the sugar cane  was  grown  on these land  continuously  for  all  these years.  Consistent with these  findings  the  Deputy  Collector  dismissed  the appeal filed by the landlord.  The landlord aggrieved by the said   order  preferred  the  revision  application  to  the Maharashtra Revenue Tribunal and the said  Tribunal  by  its judgment  and  order  dated 12.2.1980 dismissed the recision application.  It may be stated that both  these  authorities have  considered  the  evidence  on record minutely and very carefully and thereupon held that the alleged  admission  of the  tenant  is  not  sufficient  to  reject  his claim as a statutory purchaser under Section 33-C of the  Act.    There are  several  other circumstances on record to indicate that the landlord  treated  these  lands  as  Zirayat  lands  and therefore  it could not be held that these lands were leased out for growing sugar cane.

3.      The landlord aggrieved by the above decisions of the Deputy Collector and the Maharashtra Tribunal preferred Writ Petition No.  2170 of 1980 to the High Court.  The said Writ Petition  was  heard by the same learned Single Judge who by his judgment and order dated June 19,  1990  set  aside  the concurrent   findings   recorded   by   the   three  tenancy authorities and held that the admission made by  the  tenant is binding upon him and in the light thereof it must be held that  the  lands  were leased out for growing sugar cane and therefore Section 43 A (1)(b) of the Act applies.   In  this view  of  the matter, the tenant is not entitled to purchase the land under Section 32-C of the Act.  The learned  Single Judge  accordingly  allowed  the  Writ Petition filed by the landlord and set aside the  orders  passed  by  the  Revenue Authorities  and  dismissed  the  application  filed  by the tenant on 13.1.1969 for  fixing  the  purchase  price  under Section 33-C of the Act.  The tenant aggrieved by this order of  the  High  Court  filed  this appeal after obtaining the special leave.

4.      Mr.  Mohta, the learned senior counsel appearing for the  appellants-tenants  urged  that  the  High  Court   had exceeded   its   jurisdiction  while  interfering  with  the findings  of  fact  recorded  by  all  the   three   tenancy authorities.   He  urged  that the learned judge of the High Court has overlooked the other  relevant  evidence,  namely, the  conduct  of  the  landlord  and  his  admission  in the application filed under Section 88-C of the Act.    He  then urged  that  in  the face of so many proceedings taken up by the  landlord  against  the  tenant  it  would   be   highly imorobable that the tenant would give an admission in favour of the landlord saying that the lands were leased out to him

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

for growing  sugar  cane.    It  was then contended that the landlord  had  admitted  in  his  evidence  that  he  is  in possession  of  the  lease  deed showing that the lands were leased out for growing sugar can e but failed to produce the same and this fact itself is sufficient to draw  an  adverse inference  against  him that in the event if such lease deed was produced it would prove otherwise.  The  revenue  record filed on record also did not show that either the sugar cane was  grown  on all these lands continuously or natural grass was grown on Survey No.  161/2.   Counsel,  however,  fairly stated that  sugar  cane  was grown in Survey No.  159/2 for some years but that would not  lead  to  an  inference  that these lands  were leased out for growing sugar cane.  It was therefore urged that the impugned order of the High Court is unsustainable and the same should be set aside and the order passed by the tenancy authorities be restored.

5.      Mr.  Ganpule, learned senior counsel  appearing  for the  landlord supported the impugned judgment and urged that the High Court was  fully  justified  in  holding  that  the tenant  had  failed  to given any explanation as regards his admission.  The admission is a very vital place of  evidence and  in  the  absence of any satisfactory explanation by the tenant it must be held that the lands were  leased  out  for growing sugar  cane.    Counsel  submitted  that there is no error in the  impugned  judgment  and  therefore  appeal  be dismissed.

6.      We were taken through the judgments of  the  tenancy authorities as  well as the High Court.  We have perused the record producer before us and in  our  considered  view  the impugned judgment  of  the  High Court is unsutainable.  The High Court while remanding the matter by  its  judgment  and order  dated  14.2.1978, directed the Sub-Divisional Officer to consider not only the so called admission of  the  tenant in  32  (G)  proceedings  but also other evidence on record. The Sub-Divisional Officer as well as the  Revenue  Tribunal did  consider  the  entire  evidence  led  by the parties on record, and thereafter held that the tenant is  entitled  to purchase  the  land under Section 33-C on the postponed date and accordingly the application made by  him  on  31.10.1969 for  fixing the purchase price under Section 33-C of the Act was maintainable and accordingly the price was fixed by  the Tahsildar and  upheld  by  the Dy.  Collector and Maharastra Revenue Tribunal.  In the face of these  findings  based  on appreciation of oral and documentary evidence on record.  In our opinion, the High Court was not justified in interfering with   the   finding   of   fact  recorded  by  the  tenancy authorities.  A glaring mistake that appears  to  have  been committed by the High Court is that while considering the so called  admission  of the tenant in 32-G proceedings, it has overlooked  the  very  admission  of  the  landlord  in  his application  under  Section  88-C  of  the  Act  wherein  he described the lands as Zirayat lands.  The  conduct  of  the landlord  unmistakably  indicates  that  he  wanted  to take advantage of the certificate obtained by him  under  Section 88-C of the Act by treating these lands as Zirayat lands and accordingly applied for possession under Section 33-B of the Act.  After failing in these proceedings, in our opinion, it would  not  lie in the mouth of the landlord to say that the lands were given to the tenant for growing  sugar  cane  and therefore  covered  by  Section  43-A(1)(b)  of  the Act and therefore exempted from the operation  of  Section  32-G  as well as  33-C  of the Act.  Annexure R-I is the order passed by the Second Additional Member and A.L.T  on  13.5.1963  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

which  the  alleged  admission  of  the  tenant  came  to be recorded.  The order reads as under :-

       "Both parties present.   They  state  that         land  S.No  189/7 of village Are is leased         to the tenant  for  cultivation  of  sugar         cane  and  that  sugar  cane and paddy are         grown by rotation.   The  entries  in  VF.         VII-A x  XII support their contention.  In         view of this the proceedings under Section         32(G) are dropped."

7.      It is not clear form this order as  to  whether  any separate  statement of the tenant was recorded at all in the said proceeding.  All that the order recited is  that  "both parties present.  They state that land S.No.189/7 of village Are  is  leased  to the tenant for cultivation of sugar cane and that sugar cane and paddy are grown by  rotation.    The entries in VF.    VII-A  x XII support their contention.  In view  of  this  the  proceedings  under  Section  32  G  are dropped."  This, in our opinion, could not be said to be and admission of  the  tenant  which  could  be  said  to  be  a conclusive proof  against him.  The tenant was an illiterate person.  He did not seem to  have  been  represented  by  an Advocate before  the  said tenancy authority.  Moreover, why such proceedings were required to be  initiated  is  also  a mystery  because  at  that  time  admittedly  the landlord’s application under Section 33-B of the  Act  after  obtaining the  certificate  under Section 88-C of the Act was pending. The  landlord  in  his  statement  has  nowhere  given   any explanation whatsoever  in this behalf.  The landlord in his statement recorded in the present proceeding, did  not  give any  explanation  as  to how he described these lands in his 88-C application as Zirayat lands.  In the  absence  of  any explanation  from  the  landlord, we are of the opinion that this admission  is  also  binding  upon   him.      Assuming therefore, that the tenant he made an admission in favour of the  landlord  that  the  lands  were  leased out to him for growing sugar cane but at the same  time  the  landlord  has also  made  an  admission  that the lands were Zirayat while making an application under Section 88-C of  the  Act.    In this  view of the matter, instead of laying much emphasis on the admissions given by the respective parties, we prefer to accept the revenue record which was not disputed  by  either parties in  the  courts  below.   The revenue record did not disclose except for two or three years  that  one  of  these lands was  under  the  cultivation  of  sugar  cane.  On the contrary, Zirayat crops were  grown  continuously  on  these lands.   The landlord had also not produced any rent receipt given by the tenant indicating that the rent was paid on the basis that sugar cane was  grown.    No  evidence  was  also produced  by  the  landlord  to indicate that sugar cane was grown on these lands and it was sold to any  sugar  factory. These  are  the  vital  circumstances  on which the landlord ought to have led evidence to non suit the tenant  from  his rights under  Section  33-C of the Act.  In our opinion, the High Court has failed to consider  all  these  circumstances and  eventually  committed  an  error  while  upsetting  the findings recorded by all the tenancy  authorities  including the Maharastra  Revenue  Tribunal.    The imougned judgment, therefore, cannot be sustained.

8.      In the result, the appeal is allowed.  The  judgment of  the  High  Court dated 19.6.1990 passed in Writ Petition No. 2170 of 1980 is quashed and set aside  and  consequently

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

the  said  Writ Petition would stand dismissed. The judgment and  order  dated  12.2.1980  passed  by   the   Maharashtra Tribunal, Kolhaour is confirmed. In the circumstances, there will be no order as to costs.