Writ Petition No. 2925 of 2022 · The High Court
Case Details
2025:BHC-AUG:10702 - 1 -wp2925.22.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 2925 OF 2022 Amol s/o Kashinath Patgeage 41 years, occ. Agriculturer/o Juni Peth, Omerga, Tq. OmergaDist. Osmanabad... Petitionerversus1.The Deputy Collector (Land Reforms)(General Administration), OsmanabadDist. Osmanabad.2.The Tahsildar,OmergaTq. Omerga, Dist.Osmanabad.3.Mahadppa Bandppa Patgeage major, occ. Agriculturer/o Juni Peth, Omerga, Tq. OmergaDist.Osmanabad.4.Ashok Basapa Patgeage major,occ. Agriculturer/o Juni Peth, Omerga, Tq. OmergaDist. Osmanabad.5.Basvraj Ramling Chorge(Deceased through LRs)5ASindhu w/o Basavraj Chorgeage 50 years, occ. Agriculturer/o Juni Peth, Omerga, Tq. OmergaDist. Osmanabad.5BSonali d/o Basvraj Chorgeage 28 years, occ. Agriculturer/o Juni Peth, Omerga, Tq. OmergaDist. Osmanabad. - 2 -wp2925.22.odt5CVaishali d/o Basavraj Chorgeage 26 years, occ. Agriculturer/o Juni Peth, Omerga, Tq. OmergaDist. Osmanabad.5DRam s/o Basavraj Chorgeage 24 years, occ. Agriculturer/o Juni Peth, Omerga, Tq. OmergaDist. Osmanabad... RespondentsMs. P. S. Talekar, Advocate holding for Talekar & Associates, for Petitioner.Mr. B. A. Shinde, AGP for the State.Mr. S. P. Urgunde, Advocate holding for Mr. V. S. Urgunde, Advocate for Respondent No. 4.Mr. V. D. Salunke, Advocate holding for Mr. D. S. Mali, Advocate for Respondent No. 5.Mr. V. S. Bedre, Advocate for Respondent No. 7. CORAM : R. M. JOSHI, J. RESERVED ON : 26th MARCH, 2025. PRONOUNCED ON : 7th APRIL, 2025.PER COURT : 1.By consent of both sides, heard finally at the stage ofadmission.2.This petition takes exception to the judgment and orderdated 20.12.2021, in Case No. 48-B-2020-O, passed by MaharashtraRevenue Tribunal, Aurangabad, (for short ‘MRT’).
Facts
- 3 -wp2925.22.odtFACTS OF THE CASE 3.The facts as they appear from record can be narrated inbrief as under :-It is the case of the Petitioner that he is tenant in respectof agricultural land bearing Survey No. 154 (Now Block No. 158)admeasuring 9 H 1 R situated at Omerga, Tq. Omerga, Dist.Osmanabad. In respect of the writ land, name of Basappa wasshown as tenant in Pahani Patrak of year 1955-1956, 1957-1958 andalso in the revenue record till 1961. Baappa and after his death, hislegal heirs are paying taxes in respect of the writ land and such taxesare paid till the year 2018. In or around 1965, land holder RamlingChorge claimed that Basappa has surrendered tenancy in the year1965. Basappa thereafter applied in July 1965 claiming that henever surrendered any tenancy. The Tahsildar accepted surrender ofthe tenancy to be proper so also revisional authority confirmed thesaid order passed by the Tahsildar. This order came to be challengedin Special Civil Application No. 774/1971. This Court, by orderdated 16.09.1974, directed remand of the said proceeding fordecision afresh. Even on remand, the Tahsildar held surrender to bevoluntary and that the land holder is eligible for possession of theland under Section of the 32 of Hyderabad Tenancy and Agricultural - 4 -wp2925.22.odtLands Act, 1950 (for short ‘Act of 1950’). Appeal against said orderbefore the Deputy Collector was successful. This order came to bechallenged before MRT. The Tribunal allowed the revision and setaside order of Collector and restored order of Tahsildar acceptingsurrender. This order was challenged in this Court in Writ PetitionNo. 375/1985. This Court, by order dated 16.03.1990 has held thatthe surrender of tenancy of writ land by Basappa is invalid. 4.Pursuant to the said order, tenant filed application forpossession of writ land. This application came to be allowed andtenant was put into possession of the land by order dated22.08.1990. There was challenge to this order before DeputyCollector who decided the same on 17.10.1992 relegating the matterback to the Tahsildar for decision. In the year 1995, land holder filedapplication for recovery of possession. This application however,came to be rejected by Tahsildar on 28.02.2003 holding that unlessthe order directing handing over of possession to the tenant is setaside, land holder cannot be given possession thereof. Pursuant tothe said order, mutation entry No. 5121 dated 18.12.2008 came to beeffected in the name of Ashok Basappa as restricted owner. Thisentry was called in question before the Sub-Divisional Officer under - 5 -wp2925.22.odtSection 247 of the Maharashtra Land Revenue Code (for short‘Code’). The Sub-Divisional Officer rejected said mutation entry byorder dated 25.12.2014. Challenge raised by Ashok to the said orderbefore the Additional Collector was unsuccessful. This authorityrejected the appeal by order dated 30.06.2015. It is thereafter,Petitioner requested the Talathi to record name of Petitioner inrespect of the writ land in revenue record. Instead of recording nameof the Petitioner, the Talathi recorded name of land holder bymutation entry No. 10992 dated 30.09.2015.5.Petitioner filed application for issuance of ownershipcertificate. Tahasildar allowed the application under Section 37A.Considering the statement of legal heirs of original land holder andconsent recorded by them for issuance of such certificate,panchanama dated 18.04.2016 also came to be drawn. Purchaseprice was fixed at Rs. 1,26,000/- and it was directed to issue tenancycertificate by order dated 06.06.2016. On the basis of thiscertificate, Petitioner filed application to mutate their names in therevenue record. As there occurred dispute between the Petitionerand the branch of Ashok Basappa, Regular Civil Suit No. 5/2011came to be filed for partition and separate possession. This suit was - 6 -wp2925.22.odtpartly dismissed against which Regular Civil Appeal No. 28/2018came to be filed. In this appeal, a settlement was arrived at betweenthe parties and it was agreed between them by virtue of compromisedecree that Basappa, Mahadappa and Kashinath are the tenants inrespect of the writ land. Against the order passed by Tahsildar on06.06.2016, land holder i.e. Respondent No. 5 herein preferredappeal before the Deputy Collector. The Deputy Collector dismissedthe said appeal by order dated 02.03.2020. This order came to bechallenged before the MRT in revision by legal heirs of land holder.During pendency of the proceeding, legal heirs of original land holdersold writ land to third party. The Tribunal, by impugned order dated20.12.2021, allowed the revision and set aside orders dated02.03.2020 passed by the Sub-Divisional Officer and 06.60.2016passed by the Tahisildar. As the Petitioner is aggrieved by this order,present petition.6.Respondent No. 5 who is legal heir of land holder filedaffidavit of Shivam Chorge. It is claimed by this Respondent that thewrit land is his ancestral property and the name of his great grandfather was recorded in the revenue record. It is alleged that thePetitioner has manipulated record to enter his name in connivance of - 7 -wp2925.22.odtrevenue authorities. Reference is made to old Khasra Patrak andPahani Patrak which according to him, shows the name ofSiddharam only. It is further claimed that though the Petitioner isclaiming tenancy over the land, there are no basic documents toshow that he was entered at tenant to cultivate the land and there isno record of tenancy.7.It is further alleged that during the intervening period atsome places manipulation has been done in the record indicatingname of predecessor of Petitioner. It is however not in dispute that inthe record of the year 1955-1958, name of Basappa has been shownas cultivator of the land. Basappa is father of Respondent No. 4. It isalso claimed that this entry too is manipulated for the purpose ofcreating record. In respect of further entries it is stated that name ofRespondent No. 4 came to be inserted in other rights column only forone year i.e. 1991 however, it was continued illegally till 2008. It isclaimed that mutation entry No. 4121 has been cancelled by Sub-Divisional Officer which order is confirmed by Additional Collector byorder dated 25.12.2014 and 30.06.2015 respectively. It is alsoclaimed that Petitioner or his uncles i.e. Respondent Nos. 3 and 4were not declared as protected tenants. Reference is made to - 8 -wp2925.22.odtmutation entry No. 10992 by which name of original land holder isrestored in the 7/12 extracts as the owner and in possession of thewrit land from the year 2014. In so far as proceeding beforeTahsildar for ownership certificate is concerned, it is claimed that theTahsildar has obtained consent recorded by the family members ofthe land owner stating that Ashok i.e. Respondent No. 4 was tenantand hence ownership certificate would be issued in his name. It isclaimed that no tenancy can be established nor any one can bedeclared as protected tenant on the consent of the landlord as nosuch procedure has been contemplated under the provisions of theact and the rules. It is further claimed that unless declaration isissued that the person is a protected tenant, there is no question ofissuance of ownership certificate. On these amongst othercontentions, legal heirs of original land holder opposed the Petitionand supported the impugned judgment and order passed by theTribunal.8.Respondent No. 4 filed affidavit-in-reply denying claim ofthe Petitioner about Basappa, Mahadappa and Kashinath beingmembers of joint Hindu family. It is claimed that Kashinath andMahadappa never stayed with Basappa nor cultivated the writ land.
Legal Reasoning
- 12 -wp2925.22.odtproceeding to the authorities below for decision afresh. It is herfurther contention that in view of the position of law settled by thejudgment of the coordinate bench of this Court, the order of issuanceof certificate of ownership is an administrative act and a such noexception thereto could have been raised by the Respondents. Insupport of her submission, she placed reliance on followingjudgments :-(i)Bharatlal s/o Hemraj vs. Kondiba Govinda Jadhav & others2001(3) Mh.L.J. 380(Declaration under Section 38E is not a decision or orderwithin meaning of Section 90 of the act and no appeal against suchdeclaration is maintainable. Secondly, when person wanted todispute the status of another person as protected tenant or deemedtenant, former is required to file application and invoke order fromAuthority – Para Nos. 16 and 17.)(ii)Prakash s/o Raosaheb Pawade & others vs. Deorao s/o HariPawade & others, 2011(6) Mh.L.J. 198(Statutory ownership under Section 37E – Issuance ofcertificate of ownership is only a formality and does not depend uponpayment of purchase price by them (Para Nos. 21, 22 and 26)(iii)Babu Hari Patil & another vs. Rama Ananda Jadhav & others2005(1) Mh.L.J. 1063(The law is clear that even without there being only entry in thetenancy column or a rent note or a rent receipt in favour of a person, - 13 -wp2925.22.odtwho is in lawful possession it must be declared as deemed tenantunder section 4 of the Tenancy Act. (Para No. 7)(iv)Vaijinath s/o Yeshwanta Jadhav & others vs. Afsar Begum w/oNadimuddin & others, (2020) 15 SCC 128(Supreme Court set aside order passed by this Court in 2010(4)ALL MR 906)11.Learned counsel for contesting Respondents i.e. legalheirs of original land holder contends that the case of the Petitioneris without any basis and infact it is based on fabrication of record. Inorder to support the said submission, he has made reference tovarious documents in order to canvass that record is apparentlymanipulated and on the basis of the said record it cannot be heldthat the Petitioner is a tenant. Reference is also made to documentindicating that Babu Helkar is tenant of the land. In so far as theorder passed by the Tahsildar is concerned, it is contended that theTahsildar had no authority to allow the application for ownershipcertificate on the basis of alleged consent of land holders. It is hissubmission that unless enquiry is conducted, no such order ofdetermination of purchase price can be done. He responded to thecontention of learned counsel for the Petitioner about the act ofissuance of ownership certificate to be administrative order by - 14 -wp2925.22.odtreferring to the order passed by the Tahsildar which, according tohim, not only deals with the issuance of certificate but alsodetermines the quantum of purchase price. Thus, it is hissubmission that this is not a case wherein the order of issuance ofownership certificate only came to be challenged. Thus, it is hissubmission that judgment in case of Bharatlal (supra) has noapplication to the case as the certificate issued only is notchallenged. It is his submission by referring to the judgment andorder of the MRT that the Tribunal has rightly taken intoconsideration the various aspects which are appearing from therecord and the Tribunal was within its jurisdiction to record the saidfinding and in exercise of writ jurisdiction no interference is requiredtherein. With regard to the jurisdiction of Tribunal reference is madeto the relevant provisions of the Act and rules framed thereunder. Itis his submission that in the event this Court comes to theconclusion that this is a case of remand of the proceeding, theremand needs to be made to the Tahsildar for decision of theproceeding afresh. To support his submissions, reliance is placed onfollowing judgments :-(i)Radhakisan Soni vs. Gangaram, 1978(1) LJSOFT 90(In case there is nothing on record to show any rent was paidby the petitioner. There is no documentary evidence on record to - 15 -wp2925.22.odtshow landlord-tenant relationship is created. If possession notlawful, provision of Section 5 would not apply and he cannot be saidto be deemed tenant (para No. 4)(ii)Govindrao Kanba Hatkar vs. Ramchandra Kishan Banjara1963 Mh.L.J. 7(Declaration of ownership is to be made after leaving with thelandlord area which is not less than twice the family holding)(iii)Meenakshi M. Gurao vs. Krishna S. Rahate,2006(6) ALL MR 475(Order by fraud and collusion with Tahsildar not sustainable.Proceedings arising out of application under Section 7B of BombayTenancy and Agricultural Lands Act.)(iv)Vaijinath Karpure & another vs. Mahadeo s/o Maruti Mote2010(12) LJSOFT 107(Mere relying upon revenue entry without any proof as to onwhat basis the said entry has been made, would not be sufficient tocome to conclusion of tenancy (Para Nos. 8, 9, 12 and 13)(v)Smt. Kubra Begum vs. IIIrd Addl. Dist. Judge, Moradabad &others, AIR 2006 ALLAHABAD 55(rent proved- no tenancy can be said to be created. Proceedingunder section 107 of Transfer of Property Act ) (Para No. 2)(vi)S. P. Chengalvaraya Naidu vs. Jagannath & othersAIR 1994 Supreme Court 853 - 16 -wp2925.22.odt(Decree is vitiated by fraud)(vii)T. Vijendradas & another vs. V. M. Subramaniam and othersAIR 2008 Supreme Court 563(suppression of facts)(viii)Wamanrao Trimbakrao vs. Bhaurao Mahadu(entitlement of protected tenant to purchase land in excess ofdouble of family holding.(ix)Gangubai w/o Bhagwanrao Pawatekar vs. Kishanrao s/o Limbajirao Kadam & others,2012(5) ALL MR 114(Revenue Tribunal under section 91 of Hyderabad Tenancy Act, 1950,application under section 8 of the act to seek declaration as tenant –lapse of long period of time not maintainable. (Para 15 and 14)(x)Vaijnath s/o Yashwant Jadhav vs. Smt. Afsar Begum w/oNadimuddin Kazi , 2010(4) ALL MR 906(This judgment though cited has been set aside by SupremeCourt by judgment dated 30.01.2020)12.Learned counsel for Respondent No. 4 i.e. son of Basappasubmits that Respondent No. 4 is not a tenant in respect of the writland and that Babu Helkar is tenant thereof. He has referred to theaffidavit filed by Respondent No. 4. It is his submission that in orderto end the dispute, Ashok Basappa has been made a party to the - 17 -wp2925.22.odtsale-deed effected by legal heirs of original land holder in favour ofthe subsequent purchaser.13.Learned counsel for Respondent No. 5, who is thepurchaser, has sought to support the impugned order.RELEVANT PROVISIONS OF ACT OF 1950. 14.In order to appreciate the submissions made across thebar on behalf of the rival parties, it would be relevant to take note ofsome of the provisions of the act. Section 2(m)(m) defines ‘OrdinaryTenant’ which means a tenant other than a protected tenant.Protected tenant as defined by sub-section (r) of Section 2 means aperson who is deemed to be a protected tenant under the provisionsof Section 34 to 37A. The definition also indicates family holding inview of section 2(h). Section 4 makes provision about thedetermination of area of family holding.15. Chapter III deals with tenants. Section 5 provides as towho are the persons who are deemed to be tenants. A person who islawfully cultivating any land belonging to another person shall bedeemed to be a tenant if such land is not cultivated personally by the - 18 -wp2925.22.odtland holder. The said provision however makes exception as providedin clause Nos. A to C. First proviso thereto makes it mandatory forthe land holder to apply within a period of one year from thecommencement of this act to Tahsildar for declaration that suchperson is or not a tenant. This provision makes it absolutely clearthat the person who is lawfully cultivating any land belonging toother person on the date of commencement of this act is deemed tobe the tenant of the land in question. Similarly it prescribes a oneyear period of limitation to the land lord/landholder for seekingdeclaration from the Tahsildar that such person is or not a tenant.Other provisions with regard to the tenant in this chapter deal withtenancy being not terminable by efflux of time, record of rights to bemutated and that Tahsildar to decide the question whether a personis a tenant etc. Section 19 deals with termination of tenancy.16.Chapter IV of the act deals with protected tenants.Section 34 defines protected tenant. It prescribes conditions underwhich a person shall be deemed to be the protected tenant. Theperiod of six years as specified in clause No. 1 to 3 read with ClauseNo. B that he is cultivating the said land personally during suchperiod enables him to get the status of a protected tenant. This - 19 -wp2925.22.odtprovision also deals with the claim of the person who has beendispossessed and is no longer in the possession of the land in whichhe is deemed to be a protected tenant. Sub section 3 deals with thesaid issue. It provides that the person who at the commencement ofthis at is no longer in possession of the land in respect of which he isdeemed to be the protected tenant shall notwithstanding anythingcontained in that sub section not to be deemed tenant if he wasevicted from such land in pursuance to a decree or order ofcompetent court or such land is being cultivated personally by landholder at least on year before the commencement of the act or apermanent structure has been built by the land holder on such landor such land has been permanently diverted by the landholder to nonagricultural uses. Thus even if a tenant /protected tenant is nolonger in the possession fo the land, his right shall not be affected ifhe is not removed from land in accordance with these provisions.17.Section 35 provides that if any question arises whetherany person or if so what person is deemed under section 34 to beprotected tenant in respect of any land the land holder or any personclaiming to be so deemed may within one year of the commencementof this act apply in the prescribed form to tahsildar for the decision of - 20 -wp2925.22.odtthe question and the Tahsildar shall enquiring into the claim orclaims in the manner prescribed declare what person is entitled to bedeemed to be a protected tenant or not so entitled. This provisionmakes it clear that in case land holder disputes a person to be aprotected tenant within one year of commencement of this act anapplication in prescribed form is required to be filed with theTahsildar so also any person other than the deemed tenant claimdeemed tenancy he may also apply within this period.Determination of such claim by the Tahsildar is conclusive. Havingregard to the nature of this provision, it would not be open for theland holder or any other person claiming to be tenant, to takeexception to the status of tenant.18.Section 37 deals with the situations in which the personsare not entitled under section 34 to be deemed protected tenants. Itis only in respect of the land holder being minor, till one year ofexpiry of date on which he attends majority or the land holder ispermanently incapable of cultivating the land by reason of mentaldisability and till one year of such mental disability being removed.However, in case of a joint holders, such conditions would not apply. - 21 -wp2925.22.odt19.A careful perusal of these provisions indicates that in anyevent even if the tenant does not comply with the order of thepayment of reasonable price, the consequence thereof would be thathe would not become the absolute owner of the land and wouldremain restricted owner. This has no consequence on the tenancyright as protected or ordinary tenant.20.Section 37A has been brought to the Statute in the year1956. This provision states that notwithstanding anything containedin this act, every person who at the commencement of the AmendedAct of 1955 holds as a tenant any land in respect of which he is notdeemed to be a protected tenant under this act shall be deemed to beprotected tenant if the total area of the land owned by the land holderincluding the land under cultivation of his tenant is more than threetimes of the area of family holding.21.This provision has application only to the cases in whichthe person was not holding the land or cultivating the land on thedate of coming into force of act of 1950 however, as on the date of theamendment act 1955, he holds the land. Thus, only in such cases,the question of the Tahsildar / tenancy tribunal going into the issue - 22 -wp2925.22.odtof conditions prescribed therein would arise. Explanation addedthereto by Mah. 45 of 1961, shows that where a person isimmediately before such commencement, in possession of land, thensuch person shall notwithstanding any judgment, decree of anyCourt or order of Revenue Board/Tribunal and the fact that he didnot hold/lease in conformity with provisions of Sections 6, 8 or 9 asthose sections stood immediately before 8th day of June 1958, bedeemed to hold land as tenant as such commencement for thepurpose of this sub-section.22.Chapter IV A deals with the right of protected tenants,ordinary tenants and land holders. It does not deal with the decisionas to whether a person is a protected tenant ordinary tenant orotherwise.23.Section 38 states about the right of protected tenant topurchase land and it deals with the procedure for the purpose ofdetermining the right of the protected tenant or even ordinary tenantto purchase the land. This prescribes the procedure, the manner inwhich the reasonable price is to be determined so also theconsequence of non deposit of the amount has been spelt. - 23 -wp2925.22.odt24.Section 38E is also an important provision to be lookedinto. This provides that notwithstanding anything in this chapter orany law for the time being in force or custom, uses etc. theGovernment by notification in official gazette declare in respect of anyarea from such date as may be prescribed that the ownership of alllands held by the protected tenants which they are entitled topurchase from the land holder in such area under the provisions ofthis chapter shall stand transferred to and vest in the protectedtenant holding them and from such date the protected tenant shall bedeemed to be full owners of such land. Section 38G speaks aboutthe transfer of ownership of land to tenants from notified datedeclaring area from such date as may be specified that the ownershipof all lands held by ordinary tenants which they are entitled topurchase from their landholders, shall stand/vest in such tenants asfull owners of such land. As per Section 40 rights of tenants areinheritable. 25.The Act of 1950 came into force from year 1950 and forDistrict Aurangabad effective date for Section 38E is 26.01.1956,whereas 11.07.1956 is date effective for Section 38F. - 24 -wp2925.22.odt26.Thus, keeping in view the aims and objects of the Act,the facts of the case need to be considered and correctness orotherwise of order is required to be decided.27.Carefully considered plea of rival parties, submissionsmade, case laws cited and documents placed on record.ANALYSIS28. Before dwelling upon application filed by Petitionerbefore the Tahsildar under Section 38G of the Act of 1950, it wouldbe relevant to take note of the orders passed by this Court as well asCivil Court in respect of issue of tenancy as well tenancy beingjoint/ancestral of Basappa and his two brothers in respect of the writland.29.There is no dispute about the fact that Basappa wastenant in respect of writ land and that he had filed application underSection 19 of the Act before the Tahsildar raising objection to thealleged surrender of tenancy by him in favour of the land holder.Tahsildar as well as Sub Divisional Officer rejected the contention of - 25 -wp2925.22.odtthe tenant. Tenant, therefore, preferred an application being Misc.Civil Application No. 774/1971, wherein this Court has relegated thematter back to the Tahsildar for decision afresh. In the second roundof litigation on this application under Section 19 of the Act, similarorders came to be passed by Tahsildar as well as the appellateauthority. Being aggrieved by the said orders, Writ Petition No.375/1985 was filed before this Court. This Court, by order dated16.03.1990, decided the issue of surrender of tenancy in favour ofthe tenant. It would be material to take note of certain observationsof this Court while passing the order impugned which read thus :-“5.There are also Rules governing the surrender. Rule7 of the Hyderabad Tenancy and Agricultural LandsRules, 1958, provides as to how the Tahsildar shouldsatisfy himself as to voluntary surrender of tenancy. Forsatisfying himself that the surrender is made voluntarilyand in good faith, the Tahsildar shall secure the presenceof the tenant, examine him on oath by putting himquestion to ascertain whether the tenant understands thenature and consequences of the surrender whether he hasany objection to surrender and, thirdly, any other matter,which the Tahsildar deems necessary to know from thetenant. Sub-rule (2) of rule 7 further provides that theTahsildar shall thereupon record his finding as to whetherthe surrender has or has not been made in good faith tohis satisfaction. - 26 -wp2925.22.odt6.These are the requirements of law regardingvoluntary surrender made by the tenant. When the HighCourt directed to consider the surrender on merits, theauthorities should have considered the merits on thebasis of law prevalent in the year 1965, when thesurrender was alleged to have been made. This stringentrequirement is provided for regarding the surrender oflands since 1954 and the provisions continue to be sametill today.7.Neither the Additional Tahsildar nor theRevenue Tribunal has considered the surrender from thispoint of view at all. Instead of considering the surrender,they have considered the evidence regarding thesurrender. From the record, I have seen the originalsurrender application and the endorsement of theTahsildar on it. Though the application of surrender isverified by the Tahsildar, there is no endorsement or orderregarding satisfaction of the Tahsildar as to voluntarinessof the surrender. The rules regarding surrender prescribethat mere application of surrender and verification of it byand before the Tahsildar is not enough, but for surrenderto be effective, the Tahsildar has to record his finding asto whether the surrender has or has not been made ingood faith and to his satisfaction. This provision is madeknowing fully well that most of the tenants are illiteratesand are poor persons, have no knowledge of law and are
Arguments
- 9 -wp2925.22.odtInfact in the affidavit, he has stated about not raising any claim inrespect of land being Block No. 158.9.On behalf of the State, Ratan Kajale, Naib Tahsildar, filedaffidavit. In unusual manner, he does not support the order passedby the Tahsildar but takes altogether different stand than the onetaken by the Tahsildar while passing order dated 06.06.2016. Healso claims that as per record name of Basappa is shown as theowner. It is claimed that Basappa, Mahadappa and Kashinath werenot declared as protected or otherwise tenant of the writ land andthere was no agreement, no receipt etc. in regard to the land. It isalso claimed that they were not in continuous possession of the landin question.SUBMISSIONS 10.At the outset, learned counsel for the Petitioner hasdrawn attention of the Court to the previous litigation between theparties. It is her submission that the order passed by this Court inWrit Petition No. 375/1985 and order passed in Misc. CivilApplication No. 774/1971 clearly demonstrate that Basappa wastenant in respect of the writ land. It was claimed by the predecessor - 10 -wp2925.22.odtof Respondent No. 2 that Basappa had surrendered the writ land infavour of the land holder. The orders passed by the Tahsildar andconfirmed by other authorities on this issue came to be set aside bythis Court by order dated 16.03.1990 in Writ Petition No. 375/1985by holding that there was no surrender of tenancy. According to her,name of Basappa appears on 7/12 extracts of writ land as tenantand owing to the provisions of Act of 1950, he is deemed tenantthereof, consequently the land holder is required to take objection tothe tenancy of the tenant within a period of one year before theTahsildar by moving an application before the Tahsildar. In this case,according to her, since the same has not been done, the issue oftenancy stood concluded in favour of Basappa. It is her furthersubmission that the dispute arose between legal heirs of Basappaand his brothers Mahadappa and Kashinath and in this contextreference is made to Regular Civil Suit No. 5/2011 for partition andthe decree passed in Regular Civil Appeal No. 28/2018 indicatingthat the tenancy was joint family tenancy and as such legal heirs ofall three brothers are entitled to become tenants thereof. According toher, this compromise decree has attained finality for want of anychallenge thereto. It is submitted that the dispute before the revenueauthority was in respect of mutation of name of the Petitioner and in - 11 -wp2925.22.odtthe said proceeding, there was no right with the revenue authority inorder to go into the issue of tenancy as tried to be canvassed bylearned counsel for the contesting Respondents. To oppose thesubmissions sought to be canvassed on behalf of the contestingRespondents about no application being filed for obtainment ofownership certificate for long time, it is argued that there is no periodof limitation prescribed for seeking ownership certificate by tenant inrespect of the land in question. It is her submission that in view ofSection 37 of the act, on the date of issuance of notification, ordinarytenants as well as protected tenants have become deemed owners ofthe land in question. It is submitted that confusion is sought to becreated on behalf of the contesting Respondents in respect ofordinary tenant and protected tenant and which, according to her,has no relevance in view of the various provisions of the act. It issubmitted that the Tribunal has considered the case of land holderas if it was a proceeding for determining status of Petitioner as tenantor otherwise. It is her submission that on expiry of period oflimitation of one year, the said issue of tenancy can not be gone intoby any authority much less by authority under Land Revenue Code.It is submitted that even if it is considered that the MRT hasexceeded its jurisdiction, this is not a fit case for remand of the
Decision
- 27 -wp2925.22.odtlikely to be misled by the landlords or other persons.Therefore, it was for the Tahsildar himself to satisfy afterexplaining to the tenant regarding the nature andconsequences of the surrender and further requirement isthat he has still to satisfy himself. The satisfaction relatesnot only to the mode and manner of surrender, butbasically, he has to consider whether the surrender ismade in good faith. If, independently, he comes to theconclusion that the surrender is not in good faith, the factof surrender by the tenant is irrelevant. I have seen fromthe original record the application of surrender andendorsement by the Tahsildar thereon. Except bareverification, there is nothing that is recorded by theTahsildar, indicating that he had applied his mind to thequestion regarding good faith of the surrender of as towhether he has apprised the tenant of the consequencesof the surrender.10.In the result, I set aside the orders passed byRevenue Tribunal and the Deputy collector as also ofTahsildar holding surrender to be voluntary and legal. Ihold that the surrender is not valid as per the provisionsof section 19 of the Hyderabad Tenancy Act and therelevant rules. This petition is accordingly allowed. Rulemade absolute. There will however be no order as tocosts. - 28 -wp2925.22.odtThis order was not taken exception to by any party andas such this order has become final and is binding on the parties tothe litigation. It also demonstrates that there was no surrender oftenancy by tenant in accordance with provisions of the Act.30.Pursuant to the order passed by this Court, applicationwas moved by tenant for seeking possession of the writ land. Theconcerned authorities handed over possession of the writ land to thetenant by drawing panchanama. Entry of the same was taken in therecord of rights as other mutations. The said mutation reads thus :- brj QsjQkj fnukad 22@10@08vtZnkj v’kksd clIik irxs ;kauh fnysY;k vtkZo#u uksan ?ks.;kr ;srsdh] mejxk f’kokjkrhy tehu losZ ua- 158 {ks= 9-10 ps 7@12 ps oghrh jdk.;kr vtZnkjkps uko vkgs- eaMG vf/kdkjh mejxk ;kauh i= dz- 1990@vkj vks vkj@MCY;w@653 fnukad 23@8@90 ps vkns’k uqlkj 22@8@90yk ,y vkj rgflynkj mLekukckn ;kaps gk;dksVZ fu.kZ;kuqlkj rkck ns.ks ;ksX; v’kk fu.kZ;kuqlkj vtZnkjkl 15@8@90 jksth lnj tehuhpk rkck ns.;kr vkysyk vkgs- fn- 17@10@1992 ykMs- dysDVj mLekukckn ;kapsdMs o fn- 28@2@2003 yk vij rgflynkj ,u lh mejxk eq[;ky; mLekukckn ;kaps dksVkZr jkefyaxflnk~eIik pksjxs ;kauh vihy dsyh gksrs gs nksUgh vihy b ukeatqj QsVkGys dsysys vkgs- l/;k lnj tehu v’kksd clIik irxs ;kaP;k rkC;kr vkgs- rlk iapukek dsysyk vkgs- rjh vtZnkjkaps vtkZuqlkjekx.kh uksan gks.kslkBh o 7@12 yk R;kaP;k vaey dj.kslkBh uksan ?ksmuUksVhl rkehG izfrca/khrekyd Eg.kwu izLrkohruksan eatqj lgh@&18@12@08eaMG vf/kdkjhfoHkkx mejxk31.Land holder thereafter moved an application before theAdditional Tahsildar for seeking re-possession of the land. This - 29 -wp2925.22.odtauthority, by passing order dated 28.02.2003 rejected the applicationfiled by the land holder on the ground that the land holder has notfiled any proceeding before the appellate Court for seeking possessionof the writ land. It was therefore, held that the land holder is notentitled for possession of the same. There is no material on record toindicate that this order was challenged by the land holder. It is thus,clearthat from 28.02.2003, the land holder has not taken any actionagainst the tenant in respect of seeking possession of the writ landfrom him and the possession of land continued to remain withPetitioner and legal heirs of Basappa and Kashinath. Interestingly,though now Respondent No. 4 Ashok claims that he has no claim inrespect of writ land, however, he does not dispute that Basappa,Mahadappa and Kashinath were real brothers and formed jointfamily.32.In this backdrop, a dispute occurred between the legalheirs of Basappa, Mahadappa and Kashinath for the reason thatname of Basappa only was mutated in the record as a tenant.Mahadappa, therefore, filed suit being Regular Civil Suit No. 5/2011against Ashok Basappa and others for partition and perpetualinjunction in respect of Gat No. 158. Trial Court, by passing - 30 -wp2925.22.odtjudgment and decree dated 18.02.2017 partly decreed the suitgranting injunction but relief of partition was not granted. Beingaggrieved by the said order, legal heirs of Kashinath filed RegularCivil Appeal No. 28/2018. In this appeal, settlement took placebetween the parties. Ashok Basappa, Respondent No. 4 herein, isalso party to the said settlement. In view of the said settlement anddecree passed by the Appellate Court, they were held to be jointtenants and entitled for share in the said property. This judgmentand decree passed by the Appellate Court in Regular Civil Appeal No.28/2018 has attained finality for want of any challenge thereto byparties to the said proceeding or any other person.33.The aforestated undisputed facts therefore indicate thatBasappa was tenant in respect of the writ land and the said tenancywas not individual tenancy of Basappa but it was joint family tenancyand a such Basappa, Mahadappa and Kashinath were tenants inrespect of the same. It can therefore be said without hesitation thatBasappa and his two brothers held the tenancy in respect of writland. Thus, surrender of claim by any one person amongst others,like Ashok, Respondent No. 4, would be of no consequence on theright of tenants. - 31 -wp2925.22.odt34.Record further indicates that since the name of Petitionerwas not mutated in the record, an application was moved before theTahsildar. The Tahsildar, instead of recording name of Petitioner,removed name of tenant from the 7/12 extracts and included nameof the land holder and his legal heirs therein. This exercise done bythe Revenue Authority sans decision of Authority under Act of 1950,is wholly impermissible in law. No legal consequences therefore canbe attached to such entry taken in favour of legal heirs of land holder.35.Petitioner moved an application for ownership certificateand determination of purchase price of the writ land under Section38E of the Act of 1950. In the said proceeding, legal heirs of originalland holder appeared and recorded no objection for issuance ofownership certificate in favour of the Petitioner. Similarly, noobjection was raised with regard to determination of purchase price.Roznama recorded by Tahsildar indicates voluntary appearance oflegal heirs of land holder in the said proceeding. The signatures oflegal heirs of original land holder and also Ashok Basappa beingparty to the said proceeding and statements made therein confirmtheir appearance and conceding to pass appropriate order as sought - 32 -wp2925.22.odtby Petitioner. In the said proceeding certificate of ownership wassought in the name of legal heirs of Basappa, Mahadappa andKashinath. This application came to be allowed by the Tahsildar bypassing order dated 06.06.2016. It would be relevant to take note ofthe observations made by Tahsildar while passing the said orderwhich read thus :- vkns'k1-frUgh vtZnkjkps fouarh vtZ dqG dk;n;kps dye38¿xÀ izek.ks eatqj dj.;kr ;srkr-2-gSnzkckn dqG ofgokV vkf.k 'ksrtehu vf/kfu;e 1950ps dye 38¿4À vkf.k 50¿dÀ izek.ks tehuhph fdaer vf/kdcka/kdke] foghjh vkf.k >kMs oxSjsph oktoh fdaer #1]26]000@& ¿v{kjh ,d yk[k lOohl gtkjÀ Bjfo.;kr ;srs ogh jDde fr?kkauh feGwu ok"khZd vkB gIrs Eg.ktsp izR;sdo"khZ # 15]750@& gh jDde pyuk}kjs Hkj.kk djkoh ojhy>kMs] cka/kdke oxSjsph fdaer eaMG vf/kdkjh mejxk ;kapsfnukad 18@4@2016 jksthP;k iapukE;krhy fdaerhizek.ks vkgs- - 33 -wp2925.22.odt3-laiq.kZ jDde Hkj.kk dsY;kuarj gSnzkckn dqG oghokVvkf.k 'ksr tehu vf/kfu;e 1950 ps dye 38¿6À izek.ksfoghr uequk QkWeZ ua 13 o frUgh vtZnkjkaP;k ukos ekydhgDdkps izek.ki=k ns.;kr ;sbZy-4-i{kdkjkauk dGok o lafpdk vfHkys[k d{kkr oxZ djk-36.At this stage, it would be relevant to take intoconsideration provisions of Section 38G of the Act of 1950. As perthis provision, once notification has been issued in the official gazettedeclaring in respect of any area from such date as may be specified insuch notification the ownership of the land holder by ordinarytenants which they are entitled to purchase from other land holdersin such area under any of the provisions of this Chapter shall standtransferred to and vests in such tenants and from such date suchtenants shall be deemed to be owners of such land. As observedhereinabove, there is no dispute about the fact that the Petitionersalong with legal heirs of Basappa and Kashinath is tenant in respectof the writ land. In view of this provision, they are deemed to be fullowners of such land and that no formal declaration is required inthat regard. Only option which was available for the land holder or - 34 -wp2925.22.odtany other person claiming right as a tenant or protected tenant as thecase may be was to have filed application before the Tahsildar withina period of one year from the date of commencement of this Act.Admittedly, no such application has been filed either on behalf of theland holder or any other person within this statutory period. In theproceedings for issuance of declaration, it would not be open for theland holder to raise any other issue in respect of tenancy of thePetitioner. In so far as the right of deemed owner to purchase theland is concerned, as provided by Section 38 of the Act of 1950, thereis no time limit prescribed for making such application. In view ofprovisions of Section 38G, since the tenant shall be deemed to be fullowner of such land, it is immaterial as to the time at which suchpurchase price is sought to be fixed. Even otherwise, while fixing thepurchase price the authority was required to only enquire into theissue with regard to the price as provided therein. In so far as thisissue is concerned, land holder by recording no objection to grantcertificate and by not taking exception to the reasonable pricedetermined by the Tahsildar, said issues were not open for the landholder or his legal heirs to agitate in any proceeding before the higherauthorities. Perusal of Section 38 of the Act of 1950 does notcontemplate enquiry into any other aspect, for determination of price - 35 -wp2925.22.odtand as to the fact of family holding within permissible limit. Here inthis case, no such case ever was sought to be made out by theoriginal land holder before Tahsildar. As a result of this, there wasno issue before the Tahsildar for determination of tenancy ofPetitioner and others so also entitlement of the Petitioner to getpurchase price determined and to get certificate of ownership.Consequently, question of posing those issues before the Collector orMRT do not arise. 37.Record indicates that at no point of time, legal heirs ofland holder have claimed that the order of Tahsildar has beenobtained by fraud. The appearance before the Tahsildar is notdenied, nor it is a case made out that the statements recorded by thesaid authority were in fact not made. In absence of any such casebeing made out, it is not open for these Respondents to challenge theorder of Tahsildar. It is further pertinent to note that the proceedingswere initiated before the Tahsildar in the year 2013 and the ordercame to be passed in the year 2016. Thus, this is not a case whereinthe Tahsildar has passed order in haste or without considering thecontentions of the land holder. - 36 -wp2925.22.odt38.Above order passed by the Tahsildar clearly indicates thatbefore this authority the legal heirs of the original land holderrecorded no objection for issuance of ownership certificate so also noobjection was raised with regard to the computation of purchaseprice. However, they preferred appeal under Section 90 of the Act of1950 before the Deputy Collector (Administration), Osmanabad. Thisappeal came to be filed by taking exception to the status of thePetitioner as tenant of the writ land. In the appeal, it was contendedthat there is no entry in the revenue record indicating Petitioner orhis predecessors are continuously tenants for a period of six years. Itis however, not disputed even in this appeal that from 1958-1961,name of Basappa, father of Respondent No. 4, was reflected in therecord. As far as name of the Petitioner is concerned, there isallegation that the said name has been inserted in the record by wayof fabrication. It is also further sought to be contended that theoccupier of the writ land of the year 1951 was shown as BabuHelikar. Objection was also sought to be raised with regard to thepossession of the predecessor of Ashok over the writ land. In thisregard, reference has been made to the orders passed by theauthorities on the application filed by the predecessor of contestingRespondents. It is specifically averred in the memo of appeal that the - 37 -wp2925.22.odtconsent letter obtained from legal heirs of original land holder isillegal and the same is obtained by luring them with money.39.Perusal of the memo of appeal and the case sought to bemade out before the Deputy Collector indicate that the contestingRespondents have tried to take exception to the status of the tenantof the Petitioner or his predecessor for first time in this appeal. Thereis no dispute made with regard to the fact that consent was given bythe legal heirs of land holder before the Tahsildar in the proceedingfor obtaining ownership certificate and for determination of purchaseprice. Once it is not a case of the legal heirs of the original landholder that consent obtained from them is by force, coercion etc, it isnot open for them to retract from the same. Though in the appealthe issue of determination of purchase price was sought to be raised,however, before the Tahsildar, no such objection was raised andinfact, the amount determined by the Tahsildar was practicallyaccepted by the legal heirs of the land holder.40.The Deputy Collector, by order dated 02.03.2020,dismissed the appeal against which, revision was preferred before theMRT. In the revision also, same issues were raised as sought to be - 38 -wp2925.22.odtraised before the Deputy Collector. The Tribunal has gone into theissue with regard to the tenancy of the Petitioner or his predecessor.The question arises as to whether it was open for the Tribunal to gointo the said issue and to record any finding thereon. Owing to theprovisions of Section 38E of the Act of 1950, the issue before theTahsildar and consequently issue before the appellate authority soalso revisional authority would be with regard to the determination ofpurchase price. In so far as the status of the parties of tenancy isconcerned, the issue could not have been gone into. As observedhereinabove by referring to the provisions of Section 35 that anydispute with regard to the status of tenant whether ordinary orprotected, ought to have been raised by the land lord or even by anyother person claiming tenancy within one year from the date ofcommencement of the Act. Once no such issue was raised withinperiod of limitation, the said issue is not open for agitation in otherproceeding. The MRT has decided the revision as if it wasundertaking revision against the order passed under Section 35 ofthe Act determining the objection to the status of the tenant. Evenotherwise, the MRT has dealt with the issues and the documentssought to be placed on record which were not dealt with by theauthorities below. In exercise of revisional powers, it was not open - 39 -wp2925.22.odtfor the MRT to undertake said exercise and to practically hold thatthe Petitioner or his predecessors are not tenants of the writ land.41.Now, question arises as to whether it is a fit case forrelegating the matter back to the authorities below for the purpose ofdetermination of the issues afresh. Having regard to the provisions ofSection 38G and the mandatory provision of prescribing period oflimitation of one year for challenging the status of the tenant, itwould not be open for the authorities to go into the said issue at thisstage. As in this case, there is order of this Court accepting thesurrender of tenancy by the predecessor of the Petitioner to be notvalid and pursuant thereto the possession of the land has beenhanded over to them, the question of going into that issue in theproceeding under Section 38G of the Act of 1950 does not arise.Hence, no purpose would be served by relegating the matter backeither to the Tribunal or to the authorities for reconsideration of thesame. One more reason for not doing so is that there is consentrecorded by legal heirs of land holder before the Tahsildar. The saidconsent has not been obtained by force or coercion nor any fraud isalleged to have been played therein. Contesting Respondents aretherefore precluded now to claim that the said consent is not binding - 40 -wp2925.22.odton them. It was open for them to contest determination of purchaseprice of the land before the Tahsildar. This opportunity was notavailed by them and as such, this amounts to waiver on their part totake exception to determination of price by the Tahsildar.42.Apart from this, since no specific case has been made outby the Respondents about excess holding of the Petitioner, thequestion of getting into the said issue also does not arise. It ispertinent to note that the Deputy Collector in its order hasspecifically recorded finding that the tenants have no other land andsource of income except for the writ land. There is no specificchallenge raised by the contesting Respondents to this finding. In theresult, this is not a fit case for relegating back the matter forrehearing before any authority.43.Before parting, it needs to be recorded in unprecedentedmanner, Naib Tahsildar in reply to this petition has taken standcontrary to the order passed by Tahsildar, which came to be set asideby MRT. The said affidavit however being not in consistence with theposition of law, deserves to be kept out of consideration. Similarly,statement made by Ashok, Respondent No. 4, about he having no - 41 -wp2925.22.odtinterest in the writ land is not bonafide. During course of hearing,this Court is informed that Ashok is party to the sale-deed executedby legal heirs of land holder in favour of third party. If Ashok had noconcern about the land or not tenant thereof, there was noreason/question of he being party to the said sale-deed. In any case,having regard to the previous litigation, and more particularly, orderpassed by this Court in Writ Petition No. 375/1985 and compromisedecree passed in Regular Civil Appeal No. 28/2018, the contention ofRespondent No. 4 deserves to be rejected. The contention of thepurchaser deserves no consideration as the said third party is boundby the order passed against the land holder. 44.As a result of above discussion, the order impugnedpassed by MRT being not in accordance with law and hence notsustainable. Impugned order dated 20.12.2021 passed by theTribunal is set aside. Order passed by the Tahsildar dated06.06.2016 stands restored. Petition, therefore stands allowed interms of prayer clause A.( R. M. JOSHI) Judge dyb - 42 -wp2925.22.odtLATER ON :1.After pronouncement of judgment, learned counsel forRespondent No. 5 seeks stay to the order passed by this Court for aperiod of eight weeks to approach the Hon’ble Supreme Court.2.Learned counsel for the Petitioner opposes the saidrequest.3.It is right of the party to take exception to the orderpassed by any Court into the higher Court.4.Hence, order passed by this Court stands stayed for aperiod of six weeks from today.5.Interim relief granted by this Court to continue for aperiod of six weeks.( R. M. JOSHI) Judge dyb