Mr. Ganpat Rama Kadam v. Shamrao Vithal Cooperative Bank Ltd.

Mr. Shankar Daulat Shinde r/at village Ovali Tal. Chiplun, Dist. Ratnagiri ...Petitioners …Respondent 2 wp6804.2000.sxw Mr. Arun H. Palekar for the petitioners. Mr. I.M. Khairdi for the respondent. CORAM: B.P.DHARMADHIKARI, J. 17th December, 2012. JUDGMENT: Heard Advocate Palekar for petitioner, Advocate Khairdi for respondents.

2. Challenge in this petition is to judgment and order of Maharashtra Revenue Tribunal dated 29th September, 2000 in Tenancy Revision TR/59/B/99 thereby accepting the contention of respondent-landlord that pre-decessor in title Shankar Daulat was mentally unsound on Tillers' day and hence it got postponed till after his death. The present petitioner-tenant in possession on Tiller's day did not exercise his right to purchase within one year of said death and hence the purchase in his favour became ineffective. The adjudication under Section 32P to that effect in favour of respondents and against petitioner has thus been maintained.

3. Shri Palekar has contended that finding of mental unsoundness has been recorded without there being any convincing and medical evidence on record. Submission is only on the strength of oral evidence, such a finding could not have been reached. Learned Counsel states that this oral evidence was earlier before Maharashtra Revenue Tribunal on 12th August, 1992 and after its proper appreciation, as MRT then found it insufficient, it remanded matter back for giving parties fresh opportunity. Though, thereafter, opportunity was offered, the landlord did not adduce any evidence again and faced the trial on the basis of very same evidence. Thus, in the light of this judgment dated 12 th August, 1992 it was not open to Tehsildar or other authorities to reach a finding to the contrary. 3 wp6804.2000.sxw

4. In alternative and without prejudice, his other contention is the SDO who decided appeal of present petitioner on 15th February, 1999 has not discharged his obligations as an Appellate Authority. Though he has recorded a judgment of concurrence, he has not appreciated the evidence and mechanically order of Tehsildar has been maintained. Thus there is failure to exercise the appellate jurisdiction thereby denying to petitioner effectively the remedy under Section 74 of the Bombay Tenancy And Agricultural Lands Act, 1948. He contends that thus when matter was argued before MRT in revision there were no findings on facts as settled by law and hence the order in revision is also to be quashed and set aside.

5. He explains that in order to defeat statutory vesting of tenanted property in present petitioner on 1st April, 1957 and the proceedings under Section 32G for determination of purchase price, the landlord devised a novel move and they came up with defence that Shankar Daulat was insane. As they came up with this case, burden was upon them to establish that insanity and evidence on record clearly shows that they have not succeeded in it. He is relying upon the judgment of learned Single Judge of this Court in the case of Annaji Balwant Bokil vs. Bhau Gopala Gaikwad {1974 TLR page 49} particularly paras appearing at page 48 and 49 of the report.

6. Learned Counsel for respondents has invited attention to previous history to show that at one point of time Maharashtra Revenue Tribunal itself has recorded that insanity of Shankar Daulat was accepted by petitioner-tenant himself. He contends that in this situation when again matter came before MRT, MRT has found that there was no scope for getting medical certificate or similar document on record to corroborate insanity of Shankar Daulat due to passage of time. The learned Counsel submits that oral evidence is available 4 wp6804.2000.sxw on record and its appreciation and finding returned thereafter cannot be labelled either as erroneous or perverse. He, therefore, prays for dismissal of writ petition.

7. In the case of Annaji Bokil (cited supra) the issue to be looked into was whether the landlord was under any disability so as to postpone the Tillers' day. The Agricultural Lands Tribunal had relied upon the Physical Disability Certificate and there was a Will executed by very same person. The Will was in favour of petitioner. Physical Disability Certificate was dated 18th April, 1959 and the Will is dated 1st October, 1956. The person subject to that disability and Executor of the Will namely Natha Dayal Mehta expired on 29 th January, 1961. It is in this background that the learned Single Judge has found it difficult to apprehend the legal status of document titled “certificate of physical disability”. Thus, doubt expressed is in the background of above facts and said judgment cannot be said to lay down a law for universal application in the matter.

8. Here perusal of earlier judgment delivered by MRT on 12th August, 1992 particularly para-11 shows that the tenant in his oral evidence admitted the fact of mental unsoundness. Similarly, there was some other oral evidence to support that fact. Maharashtra Revenue Tribunal then found that such a statement could have been made in ignorance by tenant and the villagers. They may have submitted affidavits because of some extraneous reasons. Because of this application of mind, MRT found it proper to give parties opportunity to lead evidence afresh.

9. The matter went back and statement of four witnesses were recorded by the Tehsildar in enquiry who were cross-examined by the Advocate of tenant. One amongst these witnesses was police Patil between 1962 to 1990 who also 5 wp6804.2000.sxw deposed and pointed out mental disability of landlord. On the basis of that evidence Tehsildar held that late landlord Shankar Daulat was suffering from mental disability and passed away in that condition only. It appears that present petitioner did not lead any additional evidence.

10. Though SDO has not referred to all these developments and the evidence recorded again, his order refers to previous history and also to the order of Tehsildar which he has maintained. The order passed by MRT in revision in detail considers this evidence and gives importance to statement of Police Patil and the statement of fact made by him. Thus, the finding of fact recorded by Tehsildar has been again reached by MRT. In this background when there was already a remand once, merely because SDO has not referred to evidence in detail, I am not inclined to hold that order of SDO is liable to be quashed and set aside.

11. Earlier judgment of MRT dated 12th August, 1992 shows statement by present petitioner-tenant admitting that Shankar Daulat was mentally unsound. The burden was, therefore, heavy upon him to explain that situation. He has not discharged that burden. After remand a responsible person i.e. ex police Patil appeared to have entered witness box. Petitioner has cross-examined him and a finding that Shankar Daulat was insane has been again reached thereafter by Competent Authority. All these findings are after appreciation of relevant material and cannot be labelled as erroneous or perverse. In this situation, I do not see any jurisdictional error. No case is made out warranting interference. Petition is dismissed. Rule discharged. No costs.

12. At this stage Shri Palekar points out that because of interim orders passed by this Court, the petitioner is in possession and said order should be continued for a period of 12 weeks. The request is being opposed by Mr. Khairdi. 6 wp6804.2000.sxw

13. In this situation, said interim order to continue for a period of six weeks and shall cease to operate automatically thereafter. L.S.Panjwani, P.A. (B.P. DHARMADHIKARI, J)