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CASE NO.: Appeal (civil)  58 of 1999

PETITIONER: Ramesh Ramnarayan Dangare

RESPONDENT: Vithabai w/o Bhausaheb Wakchaure & Anr.

DATE OF JUDGMENT: 17/09/2004

BENCH: SHIVARAJ V. PATIL & B.N. SRIKRISHNA

JUDGMENT: J U D G M E N T

W I T H  

[C.A. Nos.  59/99 & 60/99]

Shivaraj V. Patil J.

       One Bala Laxman Landge was the land owner of survey nos.  36/8, 36/9, 27/5 and 47/2 situated at village Induri in  Ahmednagar District.  He sold the land survey no. 47/2 in favour  of the appellant under registered sale deed dated 27.11.1970.   Proceedings were started by the land owner under Section 84-C of  the Bombay Tenancy and Agricultural Lands Act, 1948 (for short  ‘the Act’) before the tenancy authority contending that the sale  deed pertaining to land survey  no. 47/2 was invalid as the  appellant was not an agriculturist. The authority, after hearing  the parties by its order dated 30.8.1971 on the basis of evidence  available, concluded that appellant was an agriculturist.  In  that view, the proceedings were dropped.  This order attained  finality as its validity was not challenged in any further  proceedings.   

       Two lease deeds were executed by the land owner in favour  of the appellant on 7.3.1969 for lease period of 10 years in  respect of survey nos. 36/8 and 36/9.    Subsequently these lands were purchased by the appellant under  registered sale deeds dated 9.6.1976.  A lease deed was executed  by land owner Balaji in favour of the appellant on 7.3.1975 for a  period of 99 years in respect of the land bearing survey no.  27/5.  The original land owner Balaji died on 29.8.1980.   Immediately after his death, the respondents claiming to be his  legal heirs, filed three tenancy cases challenging the validity  of sale deeds in respect of survey no. 36/8 and 36/9 and lease  deed relating to survey no. 27/5.  Additional Tehsildar, Akola,  dismissed all the three applications made by the respondents.   Aggrieved by the said order, the respondents filed three appeals  before the Sub-Divisional Officer, questioning the validity and  correctness of the order passed by the Tehsildar.  The Sub- Divisional Officer (SDO), by a detailed order, dismissed the  appeals concurring with the findings recorded by the Tehsildar.   Thereafter, the respondents filed revision petitions before the  Maharashtra Revenue Tribunal, Pune.  By a common order, the said  Tribunal allowed the revision petitions and set aside the order  of SDO in respect of survey nos. 36/8 and 36/9 and remanded the  case in respect of survey no. 27/5 for holding inquiry under  Section 32-P of the Act.  The appellant filed the writ petitions  before the High Court questioning the validity and correctness of

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the common order passed by the Tribunal.  The High Court  dismissed the writ petitions affirming the order of the Tribunal.   Hence, these appeals.

       The learned senior counsel for the appellant urged that (1)  the Tribunal and the High Court committed an error in rejecting  the case of the appellant when his status as an agriculturist had  been declared by the competent authority in earlier proceeding in  relation to survey no. 47/2 by the order of the competent  authority dated 30.8.1971 which order remained unchallenged; (2)  the Tribunal exceeded its jurisdiction while exercising  revisional power under Section 76 of the Act and has acted as an  appellate authority by re-appreciating the evidence in reversing  the order of the appellate authority.   

       In opposition, the learned counsel for the respondents made  submissions in support of the impugned order stating that the  Tribunal on proper appreciati0n of respective contentions in the  light of the material on record passed the order which was  rightly affirmed by the High Court in the writ petitions.

       On the earlier occasion in the proceedings initiated under  Section 84-C of the Act in respect of survey no. 47/2 between the  same parties, the competent authority recorded a finding in its  order dated 30.8.1971 that the appellant was an agriculturist.   This order attained finality as it was not challenged any  further.  In that case also, it was contended that survey no.  47/2 was sold to the appellant by the original owner on  27.11.1970 under registered sale deed; since the appellant was  not an agriculturist, the sale transaction being in contravention  of Section 63/64 of the Act was invalid.  There also, a specific  issue was raised as to whether the appellant was an agriculturist  and the same was answered in favour of the appellant holding that  he was an agriculturist by the order dated 30.8.1971 referred to  above.  The Additional Tehsildar, Akola, referred to the  deposition of the appellant and the documentary evidence produced  by him to show that the appellant’s family paid land revenue to  Government and that the land revenue receipts proved  that there  were agricultural lands in the name of the father of the  appellant.  It was also noticed that the appellant had produced  extract of village form No. VII-XII in respect of survey no. 11/1  of Thugaon Khurd indicating that the said land was standing in  the name of the appellant.  In the order of the Tehsildar, it was  also noticed that the appellant had produced documentary evidence  in tenancy case No. 14/1981 pertaining to survey no. 36/9.  The  Tehsildar’s order also refers to the order made by the competent  authority on 30.8.1971 concluding that the appellant was an  agriculturist while dealing with the case relating to survey no.  47/2 on identical facts.  It was also pointed out that the said  decision has been recorded in the village records vide M.E. No.  2503 of village Induri. Thus, the Tehsildar after elaborately  considering the evidence, recorded the findings that the land  owners failed to prove their case that the appellant was an  unauthorized holder of the lands and that he was not an  agriculturist during the relevant period.  Consequently, he  dismissed the applications filed by the land owners.  The Sub- Divisional Officer in the appeals filed by the land owners  challenging the correctness and legality of the order of the  Tehsildar, on re-appreciation of the entire evidence, the  pleadings and the contentions urged on behalf of the parties, by  a detailed and considered order, dismissed the appeals.  In the  said order, it is stated that the learned Advocate for the land  owners raised only one point as to whether the appellant was an  agriculturist.  Dealing with the said point, the SDO took note of  the fact that the appellant was already held to be an

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agriculturist in the case pertaining to survey no. 47/2 decided  by the competent authority on 30.8.1971.  He also observed that  the land owners did not establish that the appellant was not an  agriculturist by adducing documentary evidence.  He was of the  view that once appellant had been declared as an agriculturist in  one case at the relevant period, that finding when remained  unchallenged, was binding on the parties.  The argument that the  suit lands in previous case and the present cases were different  and the parties were also not same, was rejected holding that the  parties in the cases were not different but the land owners came  up as successors-in-interest. It may be stated here itself that  the original owner did not challenge the transaction of sale and  lease of lands during his life time. The SDO also found that the  appeals filed by the land owners were time-barred and that the  land owners did not put forth any grounds for condonation of  delay.  Thus, having regard to all aspects, the SDO agreeing with  the findings recorded by Tehsildar, dismissed the appeals.  The  Maharashtra Revenue Tribunal in the revisions filed by the land  owners exercising revisional power set aside the orders of the  SDO as regards survey no. 36/8 and 36/9.  However, the case as  regards suit land in survey no. 27/5 was concerned, the  application filed by the land owners was remanded to make enquiry  under Section 32-P within one year.  The Tribunal decided the  revision petitions on a wrong footing that there was admission of  the appellant that at the time of first transaction of lease of  the lands in survey nos. 36/8 and 36/9 on 7.3.1969, he had no  land of his own or of his family for cultivation; he and his  father were pursuing business other than agriculture.  Having  seen the statement of the appellant, we do not find any such  clear and unambiguous admission that he was not an agriculturist  on 7.3.1969.  Assuming that he and his father were doing  business, that did not necessarily lead to the conclusion that  the appellant was not an agriculturist.  Between the same parties  when there was a categorical finding and decision that the  appellant was an agriculturist, as is evident from the order  dated 30.8.1971 made by the competent authority, the Tribunal  committed a serious error in not considering the effect of this  order.  The reversal of concurrent findings of fact recorded by  the Tehsildar and SDO without dislodging the reasons given by  them for conclusion that the appellant was an agriculturist,  cannot be sustained.  Having regard to scope of revisional power  under Section 76 of the Act in terms of Section 76(1)(a), (b) and  (c), in our view, the Tribunal exceeded its jurisdiction in  reversing the concurrent findings of fact.  The Tribunal simply  proceeded on the ground that when the lands were leased to the  appellant in 1969, he was not an agriculturist and subsequently  the sale deeds made in favour of the appellant were invalid, that  too after accepting the status of the appellant as an  agriculturist while dealing with case as regards the land survey  no. 27/5.  The finding of the Tribunal is opposed to the  documentary evidence as well as a binding decision that the  appellant was an agriculturist at the relevant period.  As  regards the lands in survey no. 27/5, the Tribunal taking note of  the fact that the status of the appellant was declared as  agriculturist in tenancy case No. 84-C/29/70 decided on 30.8.1971  and that the lease deed was executed on 7.3.1975 for a period of  99 years, it was held that the transaction was valid but,  however, in regard to this survey no. 27/5, the Tribunal has  observed that the lease for a period of 99 years was made on  7.3.1975 after tiller’s day i.e. 1.4.1957, so provisions of  Section 32-O of the Act are applicable and the tenant i.e. the  appellant was under obligation to give intimation of his  willingness to purchase the suit land within one year from taking  of lease; whether such intimation was given or not was required  to be enquired into by the Tehsildar.  In that view, the Tribunal

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remitted the case to the Tehsildar for holding enquiry under  Section 32-P of the Act only so far related to survey no. 27/5.   Unfortunately, the High Court in the impugned order committed the  same error of proceeding on the basis of the so-called admission  alleged to have been made by the appellant.  The High Court  simply agreed with the finding recorded by the Tribunal on the  basis of admission.  The High Court also did not consider the  effective and valid finding recorded in the earlier proceedings  between the same parties in respect of survey no. 47/2 that the  appellant was an agriculturist.  In other words, the High Court  has affirmed the decision of the Tribunal without correctly  examining the contentions and the legal position applicable to  them.  We are of the view that the impugned judgment cannot be  upheld except to the extent affirming the order of the Tribunal  remanding the case to the Tehsildar for holding enquiry under  Section 32-P of the Act.   

In view of what is stated above, the impugned judgment is  set aside except to the extent of upholding the order of Tribunal  in remitting the case to the Tehsildar for holding enquiry under  Section 32-P of the Act so far it related only to survey no.  27/5, keeping all the contentions of the parties open to be urged  before the Tehsildar.  The appeals are allowed accordingly.  No  costs.