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PETITIONER: MARUTI BALA RAUT

       Vs.

RESPONDENT: DASHRATH BABU WATHARE & ORS.

DATE OF JUDGMENT27/08/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. REDDY, P. JAGANMOHAN BEG, M. HAMEEDULLAH

CITATION:  1974 AIR 2051            1975 SCR  (1) 899  1974 SCC  (2) 615

ACT: Constitution  of  India, 1950, Article 227--Powers  of  High Court   to  interfere  on  the  questions  of  fact  or   to reappreciate evidence. Bombay   Tenancy  and  Agricultural  Lands   Act,   1948--S. 76--Powers  of Land Revenue Tribunal to interfere  with  the questions of fact in exercise of revisional powers.

HEADNOTE: In  the year 1948 Miraj State was merged in the then  Bombay Province  and  from that date the Bombay  Tenancy  Act  1939 became  applicable to the lands in question.   The  question arose  whether  the appellant was a tenant at the  time  the Bombay  Tenancy  Act  1939 was  made  applicable  and  would therefore  be  a protected tenant or not.   There  were  two proceedings  in respect of two different parts of  the  same land one between the appellant on the one hand and  Yeshwant and  Jinnappa  on the other hand and the other  between  the appellant  on the one hand and Bhim Rao and Dasrath  on  the other hand raising the same issue whether the appellant  was a  tenant at the relevant time.  In the proceedings by  Bhim Rao  and  Dasrath,  the  Deputy  Collector  held  that   the appellant  was  a  tenant  at the  relevant  time.   In  the proceedings initiated by Yeshwant and Jinappa the  Mamlatdar also  held  the appellant to be a tenant.   The  Mamlatdar’s order  was,  however,  set  aside  by  the  Special   Deputy Collector.  Two Revision Applications were filed before  the Maharashtra  Revenue Tribunal; one by the appellant and  the other  by Bhim Rao and Dasrath.  The Tribunal dismissed  the application  filed by Bhim Rao and Dasrath and  allowed  the application  filed by the appellant and set aside the  order of the Special Deputy Collector.  Two.  Writ Petitions  were filed in the High Court, under Article 227.  The High  Court allowed both the petitions. HELD  : (1) The powers of the Maharashtra  Revenue  Tribunal are  to  be found in section 76 of the  Act.   The  Tribunal clearly  exceeded  its power in reversing the order  of  the Special  Deputy  Collector.  The Tribunal clearly  acted  in complete disregard of its powers and proceeded as though  it were  either  defiling with the matter as a court  of  first instance or an appellate Court. [902 A-B]

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(2)  The  High  Court  was, however,  plainly  in  error  in interfering  with the judgment of the Tribunal which  merely upheld  the  Deputy Collector’s order.  The High  Court  has ignored the limitation within which it has to art while  ex- ercising  its powers under Article 227 of the  Constitution. It  was not for the High Court to discuss the  evidence  and come  to the conclusion as to whether the appellant  was  or was not the tenant on 11-8-1948.  That was a matter for  the Deputy  Collector  whose  judgment has been  upheld  by  the Tribunal.  The High Court while exercising the powers  under Article  227  was not entitled to discuss the  evidence  and come to its own conclusion, on the evidence as to who was in possession  of the land.  The High Court has  plainly  over- stepped  the limits of its power under Article 227. [903  E- 904 A]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 1941  and 1942 of 1967. (Appeals  by Special Leave from the Judgment &  Order  dated the 13th/14th July 1967 and 10th August, 1967 of the  Bombay High Court in S.C.A. No. 73 of 65) S.   T.  Desai, Venkatrao Pawar, Gadgil and  Gopalakrishnan, for the appellant. 900 N.D. Karkhanis, V.N. Ganpule, A.N. Karkhanis and P.C. Kapur, for the respondent. The Judgment of the Court was delivered by ALAGIRISWAMI,  J.--In the year 1932 one  Shantappa  Wathare, father  of  respondents 1 and 2 in.  C.A. 1942,  executed  a document  (we  are  using the  word  document’  because  the character  of  the  document  was  the  subject  matter   of subsequent litigation) in respect of the western 1/3rd share of  Survey  No. 99 measuring 7 acres and 30 gunthas  in  the village  of  Bamani  in the State, of  Miraj  in  favour  of Nabisha  Pirajde  of Miraj.  In 1936 he executed  a  similar document in respect of middle 1/3rd and in 1941 Dashrath and Bhima, belonging to another branch of the family, executed a similar document in respect of the eastern 1/3rd portion  of the  land in favour of the said Nabisha Pirjade.   On  11-8- 1948 Miraj State merged in the then Bombay Province and from that date the Bombay Tenancy Act, 1939 became applicable  to the  lands  in  question.  On 15-9-1,948  the  Bombay  Agri- cultural  Debtors Relief Act, 1947 became applicable to  the areas of the former Miraj State and on 28-12-1948 the Bombay Tenancy and Agricultural Lands Act, 1948 came into force  in the same area.  In 1949 the two branches of Wathares started two   separate   sets  of  proceedings  under   the   Bombay Agricultural   Debtors  Relief  Act  contending   that   the documents  of  1932, 1936 and 1941 were mortgages  and  they were  entitled  to  redeem them.  They  succeeded  in  their contention.  To these proceedings the appellant Maruti  Bala Raut  was  not  a party.   The  appellant  obstructed  their attempt  to  take  possession on the ground that  he  was  a tenant  of these lands even before the Bombay  Tenancy  Act, 1939  became  applicable to them and was  thus  a  protected tenant.   There  is  no dispute that  if  on  11-8-1948  the appellant  had been a tenant of these lands he was  entitled to succeed., As   a  result  of  the  obstruction  there  were   numerous proceedings between Yeshwant and Jinappa, sons of  Shantappa Wathare, oil the one hand and the appellant on the other, as also  another  set  of  proceedings  between  Bhimarao   and

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Dashrath  Wathare on the one hand and the appellant  on  the other, the appellant claiming that be was a tenant  entitled to  the  benefits  of  Tenancy  Act  and  the  two  sets  of respondents contending that he was not.  In the  proceedings by  Yeshwant and Jinappa the question whether the  appellant was a tenant was referred to the Mamlatdar under S. 70-B  of the  Bombay Tenancy Act.  There was a similar order  in  the proceedings between the appellant and Bhimarao and Dashrath. in  the  proceedings  by Bhimarao  and  Dashrath  the  Prant Officer  (Deputy  Collector) held that the appellant  was  a tenant  in  possession on 11-8-1948.  The Mamlatdar  in  the proceedings initiated by Yeshwant and Jinappa also came to a similar conclusion.  Against the Mamlatdar’s order  Yeshwant and  Jinappa  filed  an appeal  before  the  Special  Deputy Collector   and   succeeded.   There   were   two   Revision Applications to the Maharashtra Revenue Tribunal, one by the appellant who had failed before the Special Deputy Collector and the other by Bhimarao and Dashrath who had 901 failed  before the Prant Officer.  Both  these  applications were   heard  together  and  the  Tribunal   dismissed   the application  filed by Bhimarao and Dashrath but allowed  the application  filed by the appellant and set aside the  order of  the Special Deputy Collector holding that the  appellant was  a  tenant  on the land on 11-8-1948.   There  were  two petitions under Article 227 of the Constitution against  the order  of  the  Revenue Tribunal  by  the  two  unsuccessful parties.  They were heard together and allowed by a  learned Single-Judge  of the Bombay High Court.  The  learned  Judge held  that  there was no justification for the  Tribunal  to interfere  with the finding of fact recorded by the  Special Deputy  Collector.   He also allowed the petition  filed  by Bhimarao and Dashrath.  These two appeals have been filed by Special  Leave granted by this Court against the  orders  in the two petitions. At  an earlier stage of the proceedings one question  loomed large before the courts below and that was whether a  tenant who  had  been  let  into  possession  by  a  mortgagee   in possession was entitled to continue in occupation under  the Bombay Tenancy and Agricultural Lands Act.  This controversy has  now been set at rest by the decision of this  Court  in Dahya Lal v. Rasul Mohammed Abdul Rahim (1963 3 SCR 1).  The only  question  for  decision  therefore  was  whether   the appellant was in possession on 11-8-1948. Let us first deal with the order of the Maharashtra  Revenue Tribunal.   The Tribunal’s powers are found in s. 76 of  the Bombay  Tenancy  and Agricultural Lands Act which  reads  as follows :               "76. (1) Notwithstanding anything contained in               the  Bombay  Revenue Tribunal  Act,  1939,  an               application  for revision may be made  to  the               Maharashtra Revenue Tribunal constituted under               the   said  Act  against  any  order  of   the               Collector on the following grounds only :-               (a)   that  the  order of  the  Collector  was               contrary to law;               (b)   that  the Collector failed to  determine               some material issue of law; or               (c)   that  there was a substantial defect  in               following the procedure provided by this  Act,               which  has  resulted  in  the  miscarriage  of               justice.               (2)   In  deciding  applications  under   this               section the Maharashtra Revenue Tribunal shall               follow  the procedure which may be  prescribed

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             by  rules made under this Act after  consulta-               tion with the Maharashtra Revenue Tribunal." There  is  no  dispute that in these  two  cases  the  Prant Officer  (Deputy  Collector) as well as the  Special  Deputy Collector  is a Collector as defined in cl. (2E) of s. 2  of the  Act.  We have carefully gone through the order  of  the Maharashtra  Revenue Tribunal and are of opinion that in  so far as it reversed the order of the Special Deputy Collector 902 the Tribunal clearly exceeded its powers.  The order of  the Tribunal  is a very clear and concise one and if it were  an original  order or an order passed in exercise of  appellate powers  there is no doubt it would be a proper  order.   The Tribunal  clearly acted in complete disregard of its  powers and  proceeded  as though it were either  dealing  with  the matter  as  a  court of first instance or  as  an  appellate court,  It  first set out the main points  which  arose  for decision  in  the  two cases before it,  then  examined  the evidence relied upon by the Prant Officer and the  Mamlatdar and  stated  that it agreed with the view taken by  both  of them.   If the Revision Petitions before the  Tribunal  were against the decision of the Prant Officer and the  Mamlatdar there  would have been no need to say anything more and  the decision  of  the Tribunal would have been right.   But  the Tribunal  had before it the order of the Prant  Officer  and the order of the Special Deputy Collector on appeal  against the order of the Mamlatdar.  Therefore, the Tribunal had  to deal with the order of the Special Deputy Collector.   After mentioning  that the Special Deputy Collector had held  that the  appellant  was  not a tenant in  possession  under  the Bombay  Tenancy  Act,  1939, it went on to  state  that  the Special Deputy Collector relied mainly upon the decision  of the   Assistant  Judge  in  the  appeal  under  the   Bombay Agricultural Debtors Relief Act proceedings to hold that the appellant  was not a tenant.  On the ground that  the  Civil Courts  had no jurisdiction to decide questions  of  tenancy and therefore the Assistant Judge’s decision was a  nullity, it  held that it was unnecessary to discuss the grounds  for that  decision  on  which  the  Special  Deputy  Collector’s decision  was based.  The Tribunal then went on  to  discuss the  evidence  and  held that it supports the  case  of  the appellant  that  he was all along in  possession  under  the Bombay  Tenancy Act, 1939.  The Tribunal remarked  that  the Special  Deputy  Collector merely followed the view  of  the Civil  Court  and  held that the Kabulayats  passed  by  the mortgagors were nominal without considering the  attestation of  one  of the respondents herein.  It then says  that  the Special  Deputy Collector relied mainly on  three  documents and  states  that  all  these  three  documents  have   been considered  by the Mamlatdar and as pointed out by him  they do  show that they relate to the lands in suit.  It  further remarks that the conclusion of the Special Deputy  Collector that the Kabulayats and Records of Rights entries are  false is  not correct.  It does not say why and then  proceeds  to say  that the conclusions arrived at by the  Special  Deputy Collector are not correct and cannot be accepted. Before us also on behalf of the appellant it was urged  that what   the  Special  Deputy  Collector  had  done   was   to incorporate the reasoning of the Assistant Judge and that he had not applied his mind, and therefore the Revenue Tribunal was  justified in setting aside his order.  But the  Special Deputy Collector had pointed out that prior to the appellant the  land was with Bala Satu Mahar and Khandu  Maruti  Koli, that in the notice issued by the Village officers the  entry of  Survey  No. 99 did not appear to be genuine and  that  a

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similar  notice was produced by Yeshwant and  Jinappa  which shows  the  name of Shantappa Raghu Wathare as  a  protected tenant.   He has also pointed out that the notice issued  by the Talathi to the landlord Ahmedsha 903 did  not show S. No. 99 in the possession of the  appellant. He also pointed to the receipt dated 23-5-1947 passed by the landlord  Usmansha  Ahmedsha Inamdar in favour  of  Yeshwant Shantappa  Wathare  on  account of rent and  also  that  the letter  dated 1-5-1949 from Ahmedsha Nabisha makes it  quite clear  that it was a demand for rent.  It is  further  shown that in the record of right entry the name of the  appellant has  been  shown as protected tenant whereas  the  certified copy  of  Mutation entry shows the  appellant  as  protected tenant  of R.S. No. 2/1 and 51/4 and not of the  suit  land. He  has therefore come to the conclusion that the  entry  in the other rights column of the suit land that the  appellant is  the protected tenant appears to be wrong and  incorrect. In  the  face  of  this  elaborate  discussion  the   rather infelcitious choice of words by the Special Deputy Collector calling it the inventory of the documentary evidence  cannot take  away  the importance of the fact that he has  in  fact discussed the evidence.  It is thereafter that he refers  to the  Assistant  Judge’s conclusion.  Even then  the  Special Deputy  Collector goes on to state that the entries  in  the record  of right do not prove the tenancy that there  was  a plan to create false record and to usurp the respondents  of their  legal rights, that the nominal rent notes  and  bogus entries  in  record of right have been  made  with  ulterior motive  that  the  receipt and  the  letter  dated  1-5-1949 clearly   establish  that  the  suit  land  was   with   the respondents for cultivation and that all these circumstances go to prove that the rent note dated 23-5-1947 was bogus and the  possession  in fact was with the respondent.   We  are, therefore  of opinion that the Tribunal exceeded its  powers in setting aside the order of the Special Deputy Collector. It  is  not merely the Tribunal that has been  in  error  in exceeding  its jurisdiction.  The High Court  has  similarly ignored  the limitations within which it, has to  act  while exercising  its powers under Art. 227 of  the  Constitution. It is unnecessary to discuss the reasons which weighed  with the  High Court for setting aside the order of the  Tribunal in  so far as the order of the Special Deputy  Collector  is concerned as we have also come to the same conclusion.   But in so far as the High Court interfered with the judgment  of the  Tribunal which merely upheld the Prant Officer’s  order it  was  plainly in error.  After the High  Court,  for  the purpose of setting aside the order of the Tribunal in so far as the Special Deputy Collector’s orders were concerned  had elaborately  discussed the evidence in the case and come  to the  conclusion that the Tribunal was wrong and the  Special Deputy  Collector was right, it wound up its  discussion  by saying  that there was no justification whatsoever  for  the Tribunal to interfere with the finding of fact recorded  by, the  Special  Deputy Collector and even  if  the  Tribunal’s judgment  was  to  be considered on  merits  it  was  wholly unsupportable.   If  it had been content with  holding  that there  was  no justification for the Tribunal  to  interfere with  the  finding of fact recorded by  the  Special  Deputy Collector  there would have been nothing more to say but  it discussed  the whole evidence for coming to that  conclusion and also saying that, even if the Tribunal judgment  was  to be considered on 904 merits  it  was  wholly unsupportable.  Even  so,  the  High

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Court’s  judgment has got to be sustained in regard  to  the order  of  the  Tribunal in respect of  the  Special  Deputy Collector’s  order which, as we have shown earlier,  suffers from   the   defect  that  the  Tribunal   overstepped   its jurisdiction. But  in dealing with the application filed by  Bhimarao  and Dashrath against the Tribunal’s order in so far as it upheld the order of the Prant Officer the High Court merely  relied upon its discussion in. the earlier part of its judgment and has  remarked  that  as it was now  held  that  Maruti  Bala (appellant)  was  not  the  tenant  of  the  petitioner  the petitioners would be entitled to possession.  It was not for *he  High  Court  to discuss the evidence and  come  to  the conclusion  as to whether the appellant was or was  not  the tenant  on  11-8-1948.   That was a  matter  for  the  Prant Officer,  whose  judgment has been upheld by  the  Tribunal. The  High Court while exercising its powers under  Art.  227 was not entitled to discuss the evidence and come to its own conclusion  on the evidence as to who was in  possession  of the land.  That was a matter for the revenue authorities and only  within  the  scope of Art. 227 could  the  High  Court interfere.   What we have discussed earlier would show  that the  High  Court has plainly overstepped the limits  of  its powers under Art. 227.  Its judgment in so far as this order is concerned cannot be supported. The  result would be that the judgment of the High Court  as far  as  the order of the Prant Officer is  concerned  would have to be set aside because the Tribunal merely upheld  his orders.  Civil Appeal No. 1941 of 1967 is therefore allowed. Even as far as the order of the Special Deputy Collector  is concerned,  the  judgment of the High Court as well  as  the Tribunal  would have to be set aside leaving it open to  the Tribunal  to decide the question afresh.  As the High  Court has taken a similar view of the Tribunal’s order as we  have taken we consider that no useful purpose would be served  by directing  the Tribunal to deal with the matter afresh.   In the  view  we have taken of the Special  Deputy  Collector’s order  it does not admit of being dealt with under s. 76  of the   Bombay  Tenancy  and  Agricultural  Lands  Act.    We, therefore, consider that it would be a useless formality  to send  the matter back to the Tribunal and it would  be  only prolonging  the agony as far as the parties  are  concerned. Therefore, Civil Appeal No. 1942 of 1967 is dismissed. The  result is no doubt rather curious.  In respect  of  the possession  over  different  parts  of  the  same  land  the Mamlatdar and the Prant Officer came to the same conclusion. The Mamlatdar’s order was, however, set aside by the Special Deputy  Collector  with  the  result  that  there  were  two conflicting  judgments in respect of different parts of  the same  land.  While the Special Deputy Collector  dealt  with the  Mamlatdar’s  order as an Appellate authority  and  was, therefore,  entitled to appreciate the evidence and come  to his own conclusion, the Tribunal while exercising its powers under s. 76 of the Bombay Tenancy and Agricultural Lands Act had  no such power.  In dealing with the order of the  Prant Officer  and upholding it the Tribunal had  not  overstepped the limits of its powers.  But in allowing the appeal 905 against  the Special Deputy Collector’s order  the  Tribunal seems to have been influenced by the feeling that there were two  conflicting orders before it and that it was  its  duty into  reconcile them, if possible.  This it proceeded to  do by dealing with the question before it as though it wore the Appellate authority, which it was not.  The High Court  was, therefore, right in setting aside the Tribunal’s order in so

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far as the Special Deputy Collector’s order is concerned. But the High Court fell into the same error as the  Tribunal while  dealing  with  the order of the  Prant  Officer.   It relied upon its discussion of the evidence in the other case for  holding  that the appellant was not the  tenant.   That again was beyond the powers of the High Court under  Article 227.    The  conflict  is  inherent  in  the  siuation   and unfortunately  neither the Tribunal nor the High  Court  had the  power to resolve it.  But they have proceeded to do  so by   setting  themselves  up,  so  to  say,   as   Appellate authorities, There will be no order as to costs. P.H.P. 906