High Court

Legal Reasoning

(1)wp10108.19IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.10108 OF 2019Kundlik Madhav Shingate, …PETITIONERAge-52 years, Occu-Agri,R/o. Village Rui, Tq. Washi,Dist. OsmanabadVERSUSShivajirao Hanumantrao Kulkarni (died)...RESPONDENTSthrough his LRsSmt. Nirmala Shivajirao Kulkarni and othersANDWRIT PETITION NO.8740 OF 2021Shahaji Dnyandev Ghadge,...PETITIONERThrough its GPA holderMr. Vilas Bhagwat GhadgeAge-44 years, Occu-Agri,R/o. Rui, Tq. Washi, Dist. OsmanabadVERSUSShivaji Hanumant Kulkarni (Died)...RESPONDENTS Through LRSSmt. Nirmala Shivaji KulkarniAge-55 years, Occu-Household,R/o. Village Pargaon, Tq. Washi,Dist. Osmanabad and others Mr. V. S.Undre, Advocate for the petitioner Mr. S. B. Choudhary, Advocate for the respondent Nos. 1-A to 1-E in both the petitions1 of 10 (2)wp10108.19CORAM:KISHORE C. SANT, J.RESERVED ON:10th FEBRUARY, 2025PRONOUNCED ON:18th MARCH, 2025P. C. 1. Heard the parties.2.By consent of the parties the matter is taken up forfinal disposal at the stage of admission.3.In both the petitions contesting respondents i.e. heirsof Shivajirao Kulkarni (died) are the same.4.The petitioners in both the petitions are formalrespondents in petitions of each other and the dispute isidentical. Both the orders under challenge are in respect of thesame land, the matters are therefore, taken up together.5.In Writ petition No. 10108/2019 the challenge is toan order dated 25-09-2018 passed in Revision No. 54/A/2017/02 of 10 (3)wp10108.19by the learned President, MRT, Aurangabad and in Writ PetitionNo.8740/2021 is arising out of the order passed by the PresidentMRT, Mumbai dated 31-01-2020 in Revision NO.77/B/2019/O.6.Few facts giving rise to the petitions are as under:-7.The petitioners by different proceeding approachedthe Tahasildar for getting declaration that they are protectedtenants in the land under Section 38-E of the HyderabadTenancy and Agricultural Lands Act, 1950 on the land to theextent of 50% of the land in land Survey No. 68-E, from villageRui, Tq. Washi.8.It is the case of the Shingte that his great grandfatherRaghu Tatya Shingte was a protected tenant. The said land ason today is in his possession to the extent of 50%, same is thecase of Ghadge that his great-grandfather Vithoba was inpossession of remaining 50% land of respondents. Shingte filedthe proceeding 2011/Jama-1/Kavi/63. Ghadge filed the3 of 10 (4)wp10108.19proceeding 2011/Jama/1/Kavi/63. The learned Tahasildar inboth the cases held that the petitioners have proved that theyare tenants in the land and allowed the proceeding by charging60 times amount of land revenue and declared them as ownersof land. This order was passed on the basis of the orders intenancy proceeding dated 03-03-1967 passed by the learnedTahasildar and the order dated 21-03-1963 passed by thelearned Sub-Divisional Officer and thereafter order passed bythe Tahasildar dated 10-10-1970. The learned Tahasildar furtherconsidered the Tenancy Register of 1950 till 1960-1961 and alsoconsidered 7/12 extract from 1958-1959, 1967-1968 and 1973-1974 till 2009. Said order was challenged by the respondentsbefore the learned Sub-Divisional Officer. The learned SDOallowed the appeal and set aside the order passed by the learnedTahasildar. The petitioner, therefore, approached the MRT. Thelearned President, MRT dismissed the appeal and thus thepetitioners are before this court.9.The learned advocate for the petitioners in both the4 of 10 (5)wp10108.19petitions Mr. Undre vehemently argued that the learnedPresident MRT has committed irregularity. There is findingsrecorded that the great-grandfather of the petitioner was inpossession of the suit land on tiller’s day and they were shownto be protected tenants. This basic aspect is not considered bythe learned SDO and by the learned President MRT. The revenueentries continuously show possession of the tenants over theproperty. There is findings recorded by the Civil Court in theyear 1975 in favour of the petitioners. In WP/10108/2019wherein specific issues were framed. So far as petitionNo.8740/2021 he submits that respondents were not party andprays for remand of both the matters.10.The learned Advocate for the respondent Mr.Choudhari, for respondents vehemently argued that there aretwo lands i.e. 68/1, adm. 16-A 10-R and 68/2 adm. 7-R. Therewere two tenant Raghu and Nana. Forefathers of therespondents had filed an application for possession of the landfor personal cultivation. That proceeding was initiated in 19595 of 10 (6)wp10108.19against the predecessor of both the petitioners. By order dated14-04-1960 the application was allowed. The said order was notchallenged by Ghadge. The land to the extent of 8-A thus, wasresume TO the Landlord. Thus the right of Ghadge was closed.Thereafter, civil suit was filed in 1963 and this order was notpointed out to the Tahasildar. Both the petitioners approachedthe Tahsildar without pointing out this position. The DeputyCollector, Osmanabad however, rightly considered all theseaspects and allowed the appeals/revisions of the respondents onmerit. It is rightly considered by the learned SDO that there isviolation of principles of natural justice and same is rightlyconfirmed by the MRT. Thus, no interference is required.11.In view of this, this court has to consider as towhether the judgment and order passed by the learned Presidentis correct, whether any case is made out by the petitionershowing their right to get declaration under Section 38-E of theHyderabad Tenancy and Agricultural Lands Act, 1950. Whilereversing the judgment of the Tahsildar, the learned SDO6 of 10 (7)wp10108.19considered that from the revenue record of 1951-1952, tenancyis shown to have been cancelled. No name of Ghadge appearson land Survey No. 68/1 and 68/2 in possession column in 7/12extract since last twenty years. In tenancy proceeding thelearned Tahasildar by judgment dated 14-04-2006 held thatright of tenancy were on hold and therefore, no tenancy rightcould be given to them. It is also recorded that tenancy wasterminated by order dated 21-03-1963. The Revision waspreferred theiragainst also came to be rejected. The owner is inpossession of the land only to the extent of ceiling area. Noexcess land was available with the owners. No record isavailable of payment of rent by tenant. The learned SDO, thus,recoded that the learned Tahasildar passed the order withoutmaking the respondent owner as party and passed the order.Therefore, the appeal came to be allowed.12.From the order passed by the learned President,MRT it is seen that the learned President has also considered allthe record available. It is specifically held that no enquiry was7 of 10 (8)wp10108.19held while fixing the purchase price in 14-11-1963. The landwas within family holding of one family. The court consideredsection 38 (7) (c) of the Tenancy Act. Thus, if the land was to bepurchased by the tenant no sufficient land would have been leftwith the owners and that was considered. It is further held thatthe learned Tahasildar without adding the Landlord as party hasdeclared the petitioner as tenant. This order was against therecord and confirmed the order passed by the learned SDO. Toappreciate this case, this court considered the section 38 (e) and38(7)(c) of the Hyderabad Tenancy Act which reads as under:-“Section 38: Rights of protected tenant to purchase land:(7)The right of a protected tenant or as the case may be, ordinarytenant under this section to purchase from his landholder the landheld by him as a protected tenant or, as the case may be, ordinarytenant shall subject to the following conditions, namely;a.***b.***c.The extent of the land remaining with the landholder after thepurchase of land by the tenant whether to cultivate personally orotherwise shall not be less than one family holding [***]Section 38 (E): Ownership of lands held by protected tenants to standtransferred to them from a notified date:Notwithstanding anything in this chapter or any law for thetime being in force or any custom, usage, decree, contract or grant tothe contrary, the Government may, by notification in the [OfficialGazette], declare in respect of any area and from such date as may bespecified therein that ownership of all lands held by protected tenantswhich they are entitled to purchase from their landholders, in sucharea under any provision of this Chapter shall [***] stand transferredto and vest in the protected tenants holding them as from such datethe protected tenants shall be deemed to be the full owners of suchlands:Provided that the transfer under this sub-section shall be8 of 10 (9)wp10108.19subject to the conditions (a) and (b) mentioned in the sub-section (7)fo the section 38 and the further condition that the extent of the landremaining with the landholder after the purchase of the land by theprotected tenant, whether to cultivate it personally or otherwise, shallnot be less than twice the area of a family holding [***]Provided further that where in respect of any such land, anyproceeding under sections 19, 19A or 32 is pending on the date sonotified, the transfer of ownership of such land shall take effect on thedate on which such proceeding is finally decided and the tenantretains possession of the land in accordance with the decision in suchproceeding.” 13.Considering all above & from reading section, it isclear that the learned Tahasildar though had passed the order infavour of the petitioners that was passed in absence ofrespondent/ owner. The parties have placed on record thejudgment in RCS/817/2019 filed by Kundlik against theLandlord. In the said judgment, the learned Civil Judge JuniorDivision has dismissed the suit with cost. It is seen that thepetitioners have thus failed to prove their right even before theCivil Court. The respondent has also produced on record thejudgment in Civil Suit No. 75/1965 filed by one SumanDeshpande against the respondent for possession of the landand house property of the respondent wherein properties SurveyNo. 68/1 and 68/2 are also shown. Said suit also came to bedismissed as against present respondents. In the said suit Raghu9 of 10 (10)wp10108.19and Vithoba were directed to deliver symbolic possession to theplaintiffs from the land Survey No. 68/E and 68/2 by thejudgment and order dated 29/08/1975. It is thus clear that theywere not in possession. This fact also needs to be considered.14.On considering above, this court does not find anyright is vested in the petitioners. This court also does not findany perversity in the order passed by the MRT. There is nosubstance in the petitions. The petitions, therefore, deserves tobe dismissed and same are dismissed. No order as to costs. [KISHORE C. SANT, J.]VishalK/wp10108.1910 of 10