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PETITIONER: WAMANRAO KESHAVRAO DESHMUKH & ORS.

       Vs.

RESPONDENT: DINKARRAO BHAUSANEB DESHMUKH & ORS.

DATE OF JUDGMENT:       28/10/1998

BENCH: S.P. KURDUKAR, M. JAGANNADHA RAO.

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T S.P.  Kurdukar, J. The lands bearing Survey Nos.  9/1B, 8B, 3B, 4B, and 5B situate in villages Shivgaon, Taluka  Khanapur,  District Sangli,  were  owned by one Mahadeo Mohite (since deceased). These lands were Watan lands of Class IV and the said  Watan was  abolished  under  the  provisions of Bombay Pargana and Kulkarni Watan Act, 1950.  From 1.5.1959,  the  interest  in these  lands  vested  in  the  State  Government pending the regrant.  Concededly, the first respondent  Dinkar  Deshmukh was  the  tenant  in  lawful  possession of these lands till 8.2.1959 on which date according  to  the  Watandar  Mahadeo Mohite,  the  tenant had voluntarily surrendered his tenancy right in his favour.    The  lands  were  regranted  to  the Watandar  by  the  State  Government on payment of occupancy price on 8.8.1963.  Before such regrant  was  made,  Mahadeo Mohits,  the  former  Watandar,  had sold these lands to M/s Hanumant Rao Deshmukh and Wamanrao Ddeshmukh the  appellants herein, by registered sale deed dated 4.4.1959.  Pursuant to this  sale  transaction,  mutation  was sought to be made in favour of  the  appellants  to  which  the  tenant  objected claiming that he was wrongfully dispossessed by the Watandar and the purchasers. After  dispossession,  the  first  respondent-tenant (for  short  tenant) filed an application on 25.9.1959 under Section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short Act) for possession on the ground  that  the appellants  are  in  unauthorised occupation of these lands. This application was made to the Deputy Collector who  after hearing   the  parties  by  his  judgment  and  order  dated 3.11.1960 dismissed the same on the ground that the same was not maintainable.  The tenant’s appeal  to  the  Maharashtra Revenue  Tribunal  also  came  to be dismissed on 30.6.1961. Both these authorities held that the tenant’s remedy was  to file  an  application  under  Section  29  of Act before the Tahsildar for restoration of possession of these lands.  The tenant on 30.6.1991 filed an application under Section 29(1) of the Act  for  restoration  of  possession  to  which  the appellants as well as the Watandar Mahadeo Mohit were joined as respondents.    The appellants and raised a plea that the

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tenant’s application was barred by limitation since  he  did not  file  the application within two years from the date of dispossession.  The tenancy Awal Karkoon (Tehsildar) by  his Judgment and  order  dated  5.10.1966.    rejected  the said application of the tenant holding  that  it  was  barred  by limitation.  On appeal to the Deputy Collector by the tenant the  same  was  also dismissed but, however, the Maharashtra Revenue Tribunal vide its order dated 7.4.1972 remanded  the matter  to  the  Tehsildar  to  find  out the actual date of dispossession and thereafter pass appropriate  order.    The tenant  moved  the  High Court by way of Writ Petition which came to be dismissed on 19.9.1977. On  remand,  the TAK Tehsildar after considering the material on record, dismissed the tenant’s application  vide its  order  dated  28.2.1979  holding  that it was batted by limitation.  The tenant’s appeal was also dismissed  by  the Collector vide  order dated 15.2.1983.  Revision application filed by the tenant to the  Maharashtra  Tribunal  was  also dismissed on  24.2.1985.  Against these concurrent judgments passed by the tenancy authorities, the  tenant  preferred  a Writ  Petition to the High Court and the High Court vide its judgments  of  the  tenancy  authorities  holding  that  the tenant’s  application  was  within  time  after  giving  him benefit of Section 14 of the Limitation Act.  The High Court directed that the possession of these lands be  restored  to the tenant.  Against this order passed by the High Court the appellants  by  special leave have filed this appeal to this Court. Mr.  Mohta, the learned senior counsel appearing  in support  of  this  appeal,  urged  that  the  High Court had committed a patent error while setting aside the  concurrent findings  of  facts recorded by the tenancy authorities that the tenant’s application was barred by limitation.  He urged that the tenancy  authorities  found  that  the  tenant  was dispossessed  some  time  in  April, 1958 and therefore, his application under Section 29 filed on 30.6.1961 was  clearly beyond the prescribed period of limitation of two years from the  date  of  dispossession  and, therefore, it was rightly dismissed by the tenancy authorities.    He  also  submitted that  the tenant in his original application neither pleaded that the benefit of Section 14  of  the  Limitation  Act  be given to him nor raised a contention that he was prosecuting the  application under Section 84 of the Tenancy Act in good faith before the Deputy Collector and the Revenue  Tribunal. The appellants were not given any opportunity to contest the alleged claim of bons fide prosecution of the proceedings by the tenant under Section 84 of the Tenancy Act and therefore the  matter  be  remanded  to  TAK-Tahsildar for disposal in accordance with law. Mr.   Ganpule,  the learned senior counsel appearing for the respondent-tenant, supported  the  judgment  of  the High Court and urged that the high Court was fully justified in given  benefit  of  Section 14 of the Limitation Act.  He urged that it was open to the appellants  to  challenge  the tenants  plea  under Section 14 of the Limitation Act on all grounds including the bonafides.  Having  not  done  so,  it would  be too late to accept such a contention at this stage and seek remand of the matter to  the  tenancy  authorities. He  also urged that the tenant who had been fighting for his rights under the Act was successfully kept out of possession for more than 40 years and therefore, this Court should  not interfere in the present appeal. We  have  gone  through   the   judgments   of   the authorities below  and  the relevant material on record.  It was not the appellant’s plea before the High Court that  the

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provisions  of  the  Limitation  Act  are not applicable and therefore, we need not deal with this aspect in the  present proceedings.   We do not, therefore, permit the said plea of non-applicability of the  Limitation  Act  for  being  taken before us  for  the  first  time  in  this  Court.  The only question that  survives  for  our  consideration  is  as  to whether  the  tenant  was  prosecuting his application under Section 84 in good faith.  From the material on  record,  it is  quite  clear  that the tenant has been struggling to get back the possession on the ground that he was unauthorisedly dispossessed by the Watandar.  The tenants application under Section 84 of the Act was dismissed on the ground  that  the relationship  of  landlord and tenant existed on the date of application and therefore, the proper course for the  tenant was  to  make an application under Section 29 of the Tenancy Act.  It is only  after  this  finding  by  the  Maharashtra Revenue  Tribunal  on 30.6.1961, the tenant on the very same day filed an application under Section  29(1)  of  the  Act. The  High  Court,  therefore,  was right in holding that the tenant was prosecuting the proceedings under Section  84  of the  Act  bona  fide  and  in  good  faith  and consequently justified in condoning the delay in filing  the  application under Section  29  of the Act on 30.6.1961.  The judgment of the High Court  in  our  view,  dies  not  suffer  from  any infirmity.   It  also  needs  to be stated that the Watandar Mahadeo Mohite who had suffered an aoverse order in the High Court did not  leave  petition  or  joining  himself  as  an appellant in this appeal. In the result, the appeal  fails  and  the  same  is dismissed with costs.