High Court
Facts
1 WP.3657-2013, Jud.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.3657 OF 2013Govindlal S/o Hanumandas Totala,Since deceased through his L.Rs.1.Phuladevi W/o Govindlal Totlala,Age: 68 yrs. Occu: H.H.2.Rajendrakumar S/o Govindlal Totala,Age: 50 Yrs Occ: Business,3.Anilkumar S/o Govindlal Totala,Age: 47 Yrs Occ: Business,Petitioners No.1 to 3 R/o A-1 Chowk Akkalkot,Tq. Akkalkot Dist Solapur,4.Ravikumar S/o Govindlal Totala,Age: 43 Occ: Business,R/o Samartha Canvassing Market Yard,Latur, Tq and Dist Latur.5.Sow. Sangita W/o Ramesh Toshniwal,Age: 45 Occ: HH.,R/o C/o Ramesh Kiranana,Main Road Murud, Tq. and Dist. Latur.Petitioners No.1 to 5 through their Special Power of Attorney HolderMr Dhirajkumar S/o Kishorkumar Totala,Age: 29 years, Occ: Service,R/o ‘Suraj’ Shanti Society, Mantri Nagar,Latur - 413512. … Petitioners.Versus1.Maruti S/o Anantrao Ambekar,Age: major Occ: Agri.,2.Indrajit S/o Anantrao Ambekar,Age: Major Occ: Agri., 2 WP.3657-2013, Jud.odtBoth R/o Tavshi-Gad,Tq. Lohara, Distt. Osmanabad … Respondents....Advocate for Petitioners : Mr. P. R. Katneshwarkar i/bMr. Girish N. Kulkarni (Mardikar).Advocate for Respondent Nos. and 2 : Adv V. D. Gunale.…CORAM : S. G. MEHARE, J.RESERVED ON : 15.01.2024PRONOUNCED ON : 12.04.2024JUDGMENT :- 1.Rule. The rule is made returnable forthwith and heardfinally by consent of the parties.2.The petitioner claimed to be the tenant in the suit landsince 1958 and impugned the order of the learned MemberMaharashtra Revenue Tribunal. Aurangabad passed in RevisionCase No.26/B/2004/O/TNC, dated 08.02.2013, and the orderof learned Deputy Collector (LR), Osmanabad, in fileNo.2003/TNC/A-44, dated 31.03.2004. 3.The facts of the case, in brief, were that in 1957, theoriginal tenant took the lands for cultivation from respondentsNos.1 and 2, who were claimed to be the owners of the suitland and the lands from the adjacent Gut numbers from village 3 WP.3657-2013, Jud.odtTavshiGad. Govindlal (original tenant) was cultivating the suitland as a tenant. His name was entered into the revenuerecord. The tenant, Govindlal and the respondent's fathermutually agreed to enter into the contract of sale of the suitland for consideration of Rs.5,000/-. On 07.06.1958, theyentered into an agreement. An affidavit was also executed inthe form of an agreement. The petitioner paid Rs.4,500/- tothe father of the respondents. Since then, the said land was inpossession of Govindlal Totla. The brothers and stepmother ofthe original tenant had filed a suit for partition. The suit landwas allotted to the share of Vijaykumar Kishorkumar, thebrothers of the original tenant and the stepmother SoorjabaiTotla. It was an inter se family compromise in 1982. Since1982, the petitioners have been in possession. 4.The petitioner has filed the proceeding in 2003 underSection 38 of the Hyderabad Tenancy and Agricultural LandsAct, 1950 (for short 'Act 1950’) for the execution of the saledeed of the suit land. The Tahsildar held that the suit landswere in possession of the original tenant in 1958 andaccordingly allowed the application. The respondents hadimpugned the order of the Tahsildar before the DeputyCollector, Land Reforms, Osmanabad. He in turn, reversed the 4 WP.3657-2013, Jud.odtorder of the Tahsildar. The petitioner preferred the revisionbefore M.R.T. The M.R.T. also dismissed the revisionapplication. Hence, he is before this Court.5.Learned counsel for the petitioners has reiterated thefacts of the case. He submitted that pursuant to the agreement,the petitioners were in possession of the suit land. He wouldsubmit that the respondents executed an agreement admittingthe petitioners' possession over the suit land in 1958. Hereferred to the definition of "tenant" under Section 5(2) of theAct 1959 and argued that the petitioner was the deemedtenant. There was no evidence that the landlord wascultivating the land any time after handing over the possessionto Govindlal. He relied on the case of Rama Ananda Jadhavsince deceased, his legal heirs Harubai Rama Jadhav; 2005 BCI(0) 124 and argued that though the entry of the tenant into thetenancy register or having no rent is not essential. The personin lawful possession must be declared as a deemed tenantunder Section 4 of the Act, irrespective of the fact whether ornot the Authority of such person is derived directly from theowner of the land. The lawful cultivation by a person otherthan a member of the family of the landlord is subject to otherconditions laid down in Section 4 of the Bombay Tenancy and
Legal Reasoning
8 WP.3657-2013, Jud.odtmust be a lease for the person claiming the right under the Act1958, or said person should be a deemed tenant. Tenancyrefers to the relationship between the rent holder and thetenant. The petitioner has no case in which Govindlal waspaying either the rent or the share of the disputed land to thelandlord.10.There is no dispute of execution of the agreement to sellbetween the father of the respondent and Govindlal on07.06.1958. Govindlal claimed that before the agreement tosell, he had been cultivating the land, and thereafter pursuantto the agreement to sell, Govindlal remained in possession, andthen the said land was partitioned and came to the share of thefamily of the petitioner. So Govindalal was in possession underthe contract. The person claiming tenancy under Section 5must have been inducted on the land by land holder. A furthercondition is that the said induction should be in the capacity ofa tenant. Section 5 of the Act 1950, by itself, does not confertenancy rights or status of tenant. It raises only the rebuttablepresumption of the person being a tenant. The case of thepetitioner, in which Govindalal had an agreement to sell afterthe so-called possession before the agreement, is evident thatthere was no landlord-tenant relationship. 9 WP.3657-2013, Jud.odt11.Section 38 provides for the rights of protected tenants topurchase the land. A person who at the time of thecommencement of the Act 1955 holds a tenant any land inrespect of which he is not deemed to be a protected tenantunder the Act 1950, is deemed to be a protected tenant if thelandholder, including the land under cultivation of his tenants,is more than three family holding. The condition to claim aprotected tenant the landlord must have land of more thanthree family holdings. The petition is silent about the type oftenancy of the petitioner. Therefore, it may be presumed thathe was an ordinary tenant. Section 38 also applies to theordinary tenant. The ordinary tenant has to offer the landlord aprice for the land for which he desires. The petitioner also hasno case as such. The petitioner's case is very specific, andGovindlal was in possession pursuant to the agreement to sell.His contention itself indicates that there was no landlord-tenant relationship between Govindlal and the originallandlord. There is no evidence or the petitioner's case that,pursuant to the agreement to sell, Govindlal filed a suit forSpecific Performance of Contract against the original landlord.Therefore, in the circumstances of the case, the ratio laid downin the case of Rama Ananda (supra) that without there being 10 WP.3657-2013, Jud.odtentry in the tenancy column or the rent note or rent receiptshould be declared as deemed tenant would not apply. 12.The petitioner has no explanation for why he did notimpugn the cancellation of mutation entry No.85, which wascancelled in 1962. Though the petitioners were in possessiontheir possession was not arising out of the relation of rentholder and tenant. In other words, they were not in possessionas a tenant. The execution of the agreement to sell itself showsthat it was a contractual relationship. However, such a lawfulcultivation would not be read in the context of the rightsgranted to the tenants under the Act of 1950. Section 4 of theAct 1950 recognize contracts under the Transfer of PropertyAct and excluded Chapter V of the said Act as far as applyingto the tenancy and leases of the lands to which the Act 1950.13.As far as the consent letter placed on record indicatesthat the respondent admitted the possession of the petitioner, itwould not give the petitioner any right to claim the tenancyunder the Act 1950. The respondent never denied thepossession. However, he has denied that the possession was notunder the lease or a tenancy. Therefore, this document wouldnot help the petitioners to believe that they were the tenantsunder the Act 1950.
Arguments
5 WP.3657-2013, Jud.odtAgricultural Lands Act. He also referred to the findings of theS.D.O. and the M.R.T. and vehemently argued that both Courts,under misconceptions of the law arrived at the wrongconclusion. The petitioner was entitled to purchase the landand certificate under Section 38(e) of the Act, 1958. TheTahsildar has passed the reasoned order and correctly held thatthe petitioner was in lawful possession as tenant. He prayed toallow the writ petition.6.Learned counsel Mr. Gunale for respondents hasvehemently argued that except the name in the cultivationcolumn, there was no evidence that Govindlal was the tenant.Bare possession does not entitle him to seek the sale certificate.The prayer was for a sale deed under Section 38(e) of the Actof 1958 was untenable. He has referred to Section 5 of the Actof 1950 and argued that the person lawfully cultivating is onlydeemed to be a tenant. The case of the petitioner was thatGovindlal was in possession for only one year before the so-called agreement to sell. Thereafter, he was in possessionpursuant to the agreement for sell. Govindlal was the merchantand not the agriculturist. Therefore, he ceased to be deemedtenant as he was in possession under the contract. Govindlalnever filed a suit for Specific Performance of Contract. 6 WP.3657-2013, Jud.odtTherefore, he was not entitled to claim relief under the Act of1950. The petitioner never impugned the cancellation of themutation entry No.85. The said entry was cancelled in 1962 ashe was not cultivating the land. The Tahsildar did notdetermine the price. The lands were not more than two familyholdings. As per Section 38(2)(aa), the ordinary tenant has tomake an offer to the landholder stating the price at which heprepared to purchase the landholder's interest. Therefore, alsohe is not entitled to the protection of the right to purchase theland. If the landlord refuses to execute the sale deed withinthree months from the date of the offer, the protected tenantor, as the case may be, the ordinary tenant may apply to theTribunal to determine. The petitioner has also not done this.Therefore, the law does not recognise his claim that he was theprotected tenant. The S.D.O. correctly held that the name ofthe so-called tenant was not entered in the tenancy register,which was proof of holding the possession and cultivating theland as a protected tenant. Since the mutation entry wascancelled in 1962, he cannot be said to be a tenant. The so-called tenant was never in lawful possession. He relied on thecase of Hanmanta Daulappa Nimbal since deceased by hisheirs and others Vs. Babasaheb Dajisaheb Londhe; AIR 1996 7 WP.3657-2013, Jud.odtSupreme Court 223. He prayed that there was no substance inthe writ petition. Hence, the petition deserves to be dismissed.7.In reply, learned counsel Mr. Katneshwarkar for thepetitioners would submit that the procedure prescribed underSection 38 of the Act of 1950 provides for the purchase of theland by ordinary the tenant. Section 2 (m)(m) defines the term"ordinary tenant" that means a tenant other than the protectedtenant.8.The first question is, "Was the petitioner a tenant asdefined under the Act 1950? If yes, what type of tenant washe?9.The term "tenant" has been defined in Section (v) of 5(2)of the Act. That means an Asami, Shikhmi, who holds the landon lease and includes a person who is deemed to be a tenantunder the provisions of this Act. Further, the Act also definesthe "protected tenant" as a person who is deemed to be aprotected tenant under the provisions of Section 34 to 37A.Clause (mm) of Section 2 of the Act 1950 defined the term"Ordinary Tenants" as a tenant other than a protected tenant.On reading, there were three types of tenants under the Act1950. Reading the definition of "tenant", it is clear that there
Decision
11 WP.3657-2013, Jud.odt14.Perused the impugned judgments and orders. The S.D.O.and M.R.T. has appreciated the evidence and arrived at thecorrect conclusion that the petitioner was not entitled toprotection under the Act of 1950. There are no errors of law inthe impugned judgments and orders.15.For the above reasons, the writ petition stands dismissed.16.Rule stands discharged.17.No order as to costs. (S. G. MEHARE, J.)...vmk/-18.Learned counsel for the petitioners states that thesituation of the matter kept as it is for six weeks. Thepetitioners have claimed that they are in possession since 1958.The petitioners have apprehension that respondents may createthird party interest. 12 WP.3657-2013, Jud.odt19.Considering the length and nature of dispute, this Courtis of the view that this is not a fit case to pass the order asprayed. (S. G. MEHARE, J.)...vmk/-