High Court dismissed writ petitions challenging a sale certificate granted to a respondent under the Hyderabad Tenancy and Agricultural Lands Act, 1950, holding that the petitioners' rights were extinguished due to lapse of time and lack of continuous possession.
Petitions dismissed with no order as to costs; rule discharged.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
( 1 )
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 889 OF 1991
1. Mahada s/o Kashiba Pandhavle
Since deceased, by L.Rs.1A. Rukhminbai w/o Mahadu @ Mahadeo1B. Lahu s/o Mahadu @ Mahadeo Both r/o Deolali,Tq. and Dist. Osmanabad.1C. Mirabai w/o Sitaram Sontakke, R/o Keshegaon, Tq. andDistrict Osmanabad.2. Dagdu s/o Kashiba Pandhavle, R/o as above.
3. Baban s/o Kashiba Pandhavle, R/o as above.
4. Apparao Kashiba Pandhavle, R/o as above.
5. Bali s/o Kashiba Pandhavle, R/o as above.
PETITIONERS
VERSUS
1. Murlidhar s/o Narhari Mundhe, R/o Khot-Galli, Osmanabad.
2. Ashok s/o Narhari Mundhe, R/o as above.
3. Chandrakant s/o Narhari Mundhe, R/o as above.
4. Baban s/o Narhari Mundhe, R/o as above.
5. Vyankat s/o Vithoba Mali Since deceased, by L.Rs.
5-i Vatsalabai w/o Vyankatrao Mali5-ii Janardhan Vyankatrao Mali5-iii Suresh @ Anna Vyankatrao Mali5-iv Sou. Sunanda w/o Digambarrao Mule5-v Sou. Revita w/o Suryakant Pange( 2 )
5-vi Sou. Jaishri w/o Chandrakant Gore,
R/o Deolali, Post. Ruibhar, Tq. and District Osmanabad.6. The State of Maharashtra, through Maharashtra Revenue Tribunal, Aurangabad. RESPONDENTS
WITH
WRIT PETITION NO. 895 OF 1991
1. Mahada s/o Kashiba Pandhavle, R/o Deolali, Post Ruibhar, Tq. and District Osmanabad.
2. Dagdu s/o Kashiba Pandhavle, R/o as above.
3. Babu s/o Kashiba Pandhavle,
R/o as above.4. Apparao Kashiba Pandhavle, R/o as above.
5. Bali s/o Kashiba Pandhavle, R/o as above. PETITIONERS VERSUS
1. Murlidhar s/o Narhari Mundhe, R/o Khot-Galli, Osmanabad.
2. Ashok s/o Narhari Mundhe, R/o as above.
3. Chandrakant s/o Narhari Mundhe, R/o as above.
4. Baban s/o Narhari Mundhe, R/o as above.
5. Vyankat s/o Vithoba Mali Since deceased, by L.Rs.
5-i Vatsalabai w/o Vyankatrao Mali 5-ii Janardhan Vyankatrao Mali 5-iii Suresh @ Anna Vyankatrao Mali 5-iv Sou. Sunanda w/o Digambarrao Mule 5-v Sou. Kavita w/o Suryakant Pange 5-vi Sou. Jaishri w/o Chandrakant Gore, R/o Deolali, Post. Ruibhar, Tq. and District Osmanabad.
( 3 )
6. The State of Maharashtra, through Maharashtra Revenue Tribunal, Aurangabad. RESPONDENTS
.....
Mr. Suresh M. Kulkarni, advocate for the petitioners
in both the writ petitions.
Mr. V.G. Mete, advocate for respondents No. 1 to 4 and
5 (i) to 5 (vi), in both the writ petitions.
Mr. N.H. Borade, AGP for the respondent No. 6/State
in both the writ petitions.
.....
[CORAM : V.R. KINGAONKAR, J.]
[DATE : 25th February, 2010]
ORAL JUDGEMENT :
1. Both these petitions are being decided together
in as much as they arise out of common judgement and
order rendered by the Maharashtra Revenue Tribunal,
Aurangabad, in revision application Nos. 73/B/89-O and
No. 74/B/89-O.
2.A few background facts may be noticed.
Admittedly, Narhari Nagoba Mundhe owned the land Survey
No. 69/3, admeasuring 8 acres 11 gunthas, situated at
village Deolali, under Taluka and District Osmanabad.
( 4 )
The petitioners are legal representatives of deceased
Kashiba Pandhavle. Allegedly, said Kashiba was
cultivating the land in question as a tenant prior to
his dispossession which had occurred somewhere before
1956. He died on 26th October, 1978. It is undisputed
that he never was in possession of the said land till he
was alive, after the dispossession prior to 1956. The
petitioners too were dormant for a long-drawn period.
The deceased respondent No. 5 Venkat Vithoba Mali was in
possession of the land in question as an ordinary
tenant, for some period before 1985. He and the
landlord jointly filed an application under section 38
(6) of the Hyderabad Tenancy and Agricultural Lands Act,
1950 (for short, “the HT&AL Act”) for determination of
price of the land in question and effecting of sale of
the said land in his favour. The Tahsildar determined
the price of the land. The amount of price was deposited
by said Venkat. Consequently, statutory purchase
certificate was issued in his favour under section 38
(6) of the HT&AL Act on 3rd March, 1986. The
petitioners thereafter commenced proceedings by filing
( 5 )
an application dated 05-06-1987 for issuance of sale
certificate. They submitted that they wanted to purchase
the land in question under section 38 (6) on basis of
their tenancy rights which were inherited by them from
deceased tenant Kashiba. They also preferred an appeal
against the sale certificate granted in favour of the
deceased respondent No. 5Venkat. The application of the
petitioner was allowed by the Tahsildar. Being
aggrieved thereby, deceased respondent No. 5 Venkat
preferred an appeal. His appeal was allowed by the
learned Deputy Collector (L.R.). The appeal preferred
by the petitioners against issuance of certificate to
the deceased respondent No. 5 Venkat was dismissed on
the ground that no appeal can lie against mere issuance
of certificate under section 38 which was only an
administrative act and could not be treated as judicial
order. The petitioners were aggrieved by both judgements
and orders rendered by the Deputy Collector (L.R.), one
by which the appeal preferred by deceased respondent No.
5 Venkat was allowed and another by which their appeal
against issuance of certificate under section 38 (6) of
the HT&AL Act was dismissed. Both the revision
applications were jointly considered and heard by the
Maharashtra Revenue Tribunal (M.R.T.). The learned
Member of the M.R.T. dismissed both the revision
applications vide the impugned judgement and order.
Hence, the two separate petitions.
3. Heard learned counsel.
4.The questions of significance involved in these
petitions are as follows :
(i)Whether the petitioners could have
challenged mere issuance of certificate of sale
under section 38 (6) issued in favour of
deceased respondent No. 5 Venkat without
challenging the relevant order whereby the
proceedings of enquiry were determined ?
(ii)Whether the application filed by the
petitioners for issuance of sale certificate in
the exercise of their alleged right to purchase
the land in question as tenants, was
( 7 )
maintainable or that it was barred by
limitation and, therefore, was rightly
dismissed by the impugned orders of the M.R.T.
and the Deputy Collector (L.R.) ?
5.Mr. Kulkarni submist that rights of the tenancy
were inherited by the petitioners and since deceased
Kashiba Pandhawle was the protected tenant, such rights
could not be taken away unless he was shown to have been
dispossessed in due course of law. He invited my
attention to certain observations in “Apparao Manaji v.
Sadhu s/o Sambhaji and others” 1972 Rev. R. 217. A
Single Bench of this Court observed in the given case
that the application of the tenant for restoration of
possession could not be held as barred because of
presumption of continuity of possession. The fact
situation in the given case was altogether different.
The tenant was found in possession up-till 1958-59 as
per the revenue record and the application for
restoration of possession was filed in June, 1961. There
was no scintilla of evidence to show that the tenant was
( 8 )
lawfully dispossessed during the interim period between
1959 till June, 1961 and that the landlord had taken
over possession by taking recourse to the law. It is in
the wake of such circumstances that the presumption of
continuity in respect of his possession could be drawn.
In the present case, however, it is an admitted fact
that for long-drawn period, deceased Kashiba Pandhawle
was not in actual possession of the land in question,
nor the petitioners were ever in possession thereof.
6.At this juncture, it may be noticed that during
his lifetime, said Kashiba Pandhawle was not declared as
a protected tenant. His name did not appear in the
register of protected tenants which is required to be
prepared under Rule 14 (2) of the Hyderabad Tenancy and
Agricultural Lands Rules, 1958 (for short, “the HT&AL
Rules). The procedure contemplated under Rule 14 was
never followed. It is provided under Rule 14 (1) that
the Tribunal is required to hold necessary enquiry and
to prepare a provisional list in Form-VIII containing
the details enumerated therein. Obviously, a
provisional list is required to be prepared and is
( 9 )
required to be published as contemplated under sub-rule
(2) of Rule 14 and after considering the objections, if
any, it has to be made final as contemplated under sub-
rule (3) of Rule 14. Needless to say, unless such due
procedure is followed and name of the tenant appears in
the register of protected tenants, it cannot be
positively said that he was the protected tenant, within
the meaning of section 37A of the HT&AL Act.
7.The petitioners heavily rely upon entries in
the relevant revenue record which purport to show that
deceased Kashiba was the dispossessed tenant. The
relevant entry is indicated in copy of the register
which was prepared for implementation of sections 37A,
38E, 43C and 43G of the HT&AL Act. The relevant column
No. 14 of the said register provides for entry
pertaining to the tenant in possession as on 12th June,
1956. This column is kept blank. In other words, as on
12th June, 1956, nobody was in possession as a tenant of
the land in question. Name of deceased Kashiba
Pandhawle (Dhangar) is indicated in column No. 10, which
shows that he was a dispossessed tenant. There is no
( 10 )
evidence to show as to when had he been dispossessed and
in which manner he had been dispossessed. This aspect is
rather important. For, deceased Kashiba Pandhawle never
applied for restoration of his possession during his
lifetime. He died after more than 20 years after
preparation of the relevant record and obviously, after
much more period than that of his dispossession. In the
fact situation of the present case, assuming that said
Kashiba had some rights to claim statutory ownership in
view of the provisions of the HT&AL Act, it must be said
that his rights were extinguished in view of section 27
of the Limitation Act. Section 27 of the Limitation Act
reads as follows :
“27.Extinguishment of right to property. - At
the determination of the period hereby limited
to any person for instituting a suit for
possession of any property, his right to such
property shall be extinguished.”
The impact of section 27 of the Limitation Act is not
restricted to only the contractual or personal rights.
A plain reading of section 27 of the Limitation Act
( 11 )
would make it manifestly clear that all the rights, may
be even contemplated statutory rights, will stand
extinguished by lapse of the statutory period enumerated
in the said section. The extinguishment of rights is the
gradual process which could be stalled if deceased
Kashiba had taken any step to assert his rights during
the lifetime and within the given span of period. That
he never had done. As stated before, even the
petitioners did not show signs of awakening till the
certificate of ownership was issued in favour of the
deceased respondent No. 5 – Venkat. Their actions were
belated and the intention was to put spokes in the
relevant certificate of purchase as issued in favour of
deceased respondent No. 5 Venkat.
8.Mr. Mete invited my attention to observations
in “Radhu Gokul Gawali and others v. Mohan Kishan Gawali
and others” 2007 (6) Mh.L.J. 117. A Single Bench of
this Court held that it would not be justified for a
person, who has purchased the property in the year 1966,
to face proceedings under section 98 after about lapse
of 18/19 years, though no limitation is provided for
such action. The petitioners failed to explain delay
and latches. The view taken by the Maharashtra Revenue
Tribunal cannot be regarded as perverse or arbitrary.
Needless to say, in the exercise of supervisory
jurisdiction under Article 227 of the Constitution, it
is difficult to interfere with concurrent findings of
the Deputy Collector (L.R.) and the Maharashtra Revenue
Tribunal. Considering these aspects, I do not find any
substance in the petitions.
9.In the result, the petitions are dismissed with
no order as to costs. Rule discharged.
NPJ/wp889-895-91
3 issues framed by the court
Whether the petitioners could have challenged mere issuance of certificate of sale under section 38(6) without challenging the relevant order?
Whether the application for issuance of sale certificate in the exercise of alleged right to purchase land was maintainable or barred by limitation?
Whether the petitioners' rights were extinguished by the lapse of time under section 27 of the Limitation Act?
Colour shows how this judgement treated each authority
Apparao Manaji v. Sadhu s/o Sambhaji and othersDistinguished¶86
Apparao Manaji v. Sadhu s/o Sambhaji and others 1972 Rev. R. 217
Radhu Gokul Gawali and others v. Mohan Kishan Gawali and othersExplained¶115
Radhu Gokul Gawali and others v. Mohan Kishan Gawali and others 2007 (6) Mh.L.J. 117 · Who else cites this
4 provisions across 4 enactments
Mahada s/o Kashiba Pandhavle
Dagdu s/o Kashiba Pandhavle
Murlidhar s/o Narhari Mundhe
The State of Maharashtra
V.R. Kingaonkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court