Prakash Raosaheb Pawade and Ors. Vs Deorao Hari Pawade and Ors.

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 WRIT PETITION NO.: 918 OF 2000

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT

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AURANGABAD

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APPELLATE SIDE, CIVIL JURISDICTION

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WRIT PETITION NO.: 918 OF 2000

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***

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Prakash S/o Raosaheb Pawade, Age: 34 years, Occu.: Agril., R/o at Post Wadi Bk. Tq. & Dist. Nanded.

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Gulab S/o Raosaheb Pawade, Age: 32 years, Occu.: Agril., R/o at Post Wadi Bk., Tq. & Dist. Nanded.

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Sanjiv S/o Raosaheb Pawade, Age: 30 years, Occu.: Agril., R/o as above.

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Manik S/o Shriniwasrao Deshmukh, Age: 38 years, Occu.: Agril., R/o as above. ... PETITIONERS. [ORI. NONAPPLICANT NOS.3 TO 6].

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Versus

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Deorao S/o Hari Pawade, Age: 65 years, Occu.: Agril., R/o as Post Wadi Buzurg, Tq. & Dist. Nanded. (L.R. of Hari S/o Tukarm Pawade).

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The Tahsildar, Nanded, Taluka Nanded.

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2

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 WRIT PETITION NO.: 918 OF 2000

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The Additional Collector, Nanded, Dist. Nanded.

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The President, M.R.T., Mumbai. Camp at Aurangabad. ... RESPONDENTS [NO.1 ORIG. APPLICANT 7 NOS.2 & 3 ORIIGINAL NONAPPLICANT NOS.1 AND 2] [RESPONDENT NOS.2 AND 3 ARE DELETED AS PER COURTS ORDER DATED 2ND JULY, 2002] ***

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Mr. R. S. Deshmukh, Advocate for the Petitioner.
Mr. S. M. Kulkarni, Advocate for the Respondent.

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***

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CORAM: B. P. DHARMADHIKARI, J. DATED:- 26th APRIL, 2011.

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ORAL JUDGMENT:

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1. By this petition, filed under Article 227 of

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the Constitution of India, the petitioners who
claim to be subsequent purchasers of tenanted land
are assailing the judgment dated 1st December, 1999
delivered by Maharashtra Revenue Tribunal in
Revision Case No.31/B/94/A under section 91 of
Hyderabad Tenancy & Agricultural Lands Act, 1950
(hereinafter referred to as 1950 Act). By said
order, the Maharashtra Revenue Tribunal has allowed
revision filed by present Respondent no.1, has
quashed and set aside the judgment and order of
Tahsildar as also of Additional Collector and has

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 WRIT PETITION NO.: 918 OF 2000

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directed Tahsildar to proceed under section 38 (2)
(3)(4)(5)(7) and (8) of 1950 Act for determination
of purchase price and for its recovery from
Respondent No.1 Deorao. It is not in dispute that
this Court, while issuing rule in the matter, had
granted rule on interim relief and thereafter on
23rd July, 2002 also granted ad-interim relief in
terms of prayer clause (C) of the writ petition.

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2.The facts are not much in dispute. The lands
in dispute located in Nanded District initially
belonged to one Samdani Khatun and after her death
same devolved upon Yusuf Khan i.e. present
Respondent No.2. The father of Respondent No.1
viz. Hari (deceased) was protected tenant in
possession of these lands. The lands were disposed
of by sale deed dated 3rd November, 1970 by Yusuf
Khan to one Ramnath Gangusingh Rawal i.e. present
Respondent No.3. This was after a public notice
dated 20th October, 1970 declaring intention to
sale and inviting objections from all. It was
claimed that no objection was raised even by Hari
at that time. The mutation entry No.873 then
reflected name of Respondent No.3 Ramnath. Said
Respondent along with others then sold those lands
to petitioner No.1 and Petitioner No.2 on 15th

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 WRIT PETITION NO.: 918 OF 2000

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October, 1983. On 19th October, 1983 the remaining
suit lands were also sold to all the petitioners.
The relevant mutation entries were then sanctioned

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on 10th August, 1990.

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3.Protected tenant Hari Tukaram had filed

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Regular Civil Suit No.189 of 1970 contending that
he was in possession and Respondent No.3
Ramnathsing had no interest in the suit lands.
This suit was filed on 6th November, 1970 and was
decided on 21st July, 1983. It is not in dispute
that original owner viz. Yusuf Khan was not party
to it and present petitioners were not in picture
at that time.

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4.The fact that deceased Hari was declared as
protected tenant in 1980 i.e. in case No.92/B/77/N
dated 7th April, 1980 in possession over disputed
land is also not in dispute. In this background,
deceased Hari in 1985 moved Tahsildar by filing
application under section 150 of Maharashtra Land
Revenue Code for obtaining a mutation entry in his
name. Thereafter, in 1988 he filed another
application under section 38 (3) of 1950 Act for
determination of purchase price and for issuance of
ownership certificate. During pendency of these
proceedings, he expired on 12th October, 1988.

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5.Both these applications filed by deceased Hari

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were prosecuted by his son Deorao and have been
decided by common order on 7th January, 1993 by
Tahsildar. Tahsildar found status of Hari as
tenant undisputed but then further noted that Hari
was not in possession and he had no preferential
right to purchase. The other issues i.e. issue No.
3 on limitation, issue No.4 about cause of action
or issue No.5 about jurisdiction were, therefore,
not answered. Deorao then challenged this order of
Tahsildar in appeal before the Additional
Collector, Nanded. That authority decided the
appeal on 30th April, 1994. It maintained the
order of Tahsildar and found that Hari should have
approached Yusuf Khan immediately after he learnt
about the proposed sale. It was also found that he
was negligent in exercising his preferential right
to claim ownership and though there was no express

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period of limitation stipulated, his inaction for
considerable period dis-entitled him to such

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ownership. It was also noted that the tenancy
rights in suit land were given by Hari to his son
but that will appeared to have not been acted upon.

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Properties were therefore mutated in the name of
Deorao, his mother and sister after death of Hari.

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 WRIT PETITION NO.: 918 OF 2000

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Hence non-joinder of said mother and sister was
found fatal. Reliance was also placed on spot
inspection by Tahsildar to conclude that lands were
not in possession and under cultivation of
Respondent No.1. The Additional Collector

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ultimately found that Deorao therefore could not
establish that the disputed lands were under his
cultivation and he wanted to purchase them for his
bonafide personal cultivation. The appeal,

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therefore, came to be dismissed. Maharashtra
Revenue Tribunal in revision filed by Deorao vide
its judgment dated 1st December, 1999 reversed all
these findings. This reversing judgment of
Maharashtra Revenue Tribunal is questioned by
Advocate Mr. Deshmukh for petitioners.

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6.According to learned counsel, the concurrent

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findings reached by Tahsildar and Additional
Collector after appreciation of evidence on record
could not have been distinguished or disturbed by
Maharashtra Revenue Tribunal as under section 91 of

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the 1950 Act it has very limited jurisdiction. He
has relied upon judgments of Supreme Court in the
case of "Sita Ram Bhau Patil V/s Ramchandra Nago
Patil" reported in 1977 AIR (SC) 1712; in the case
of "Maruti Bala, Raut V/s Dashrath Babu Wathare and

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others" reported in AIR 1974 SC 2051 and judgment

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of this Court in the case of "Gulabrao Sahebrao
Shinde V/s Sayaji Shankar Shinde" reported in 2004

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(1) Mh.L.J. 873 to point out the scope of
jurisdiction available to Maharashtra Revenue
Tribunal in such matters. He contends that this
facet is over looked and material looked into by
Tahsildar or Additional Collector has also not been
considered. For instance, the visit of Tahsildar

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to spot and his findings thereon are not
appreciated by the Maharashtra Revenue Tribunal at
all.

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7.Attention is invited to discussion on the
aspect of non-joinder of necessary parties by
Additional Collector, with contention that
Maharashtra Revenue Tribunal has totally ignored
this aspect. Judgment of Honourable Apex Court in

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the case of "Khetrabasi Biswal V/s Ajaya Kumar

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Baral and others" reported in (2004) 1 SCC 317, and

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in the case of "Jagtu V/s Suraj Mal & Ors."
reported in 2011 ALL SCR 162 and judgment of this

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Court in the case of "Smt. Nakubai Walu Dhokane

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(Since Deceased through L.Rs.) V/s Shri.

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Bhagwansingh Prakash Chandra Kapoor" reported in
2008 (5) ALL MR 1 are pressed into service for said

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purpose. Learned counsel invites attention to the
reliefs claimed in application moved in the year
1985 and in the year 1988 by deceased Hari to urge
that reliefs claimed are mutually inconsistent.

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8.Attention is invited to provisions of section
38 (1) read with section 38 (7) of 1950 Act to
point out conditions in which right to purchase can
be exercised by a tenant like Hari. Provisions of
section 46-D of 1950 Act are also pressed into
service to show how the tenant can exercise that
right to purchase. The silence of tenant from the
year 1970 till 1988 or then in any case from the
year 1980 till 1988, according to him, in this
respect is very significant. Deceased tenant Hari
was aware of all sale deeds and, therefore, changes
in ownership and hence though law does not
expressly stipulate any limitation on said right to
purchase, he should have acted within reasonable
time. Reliance is being placed upon judgment in

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the case of "Mohamad Kavi Mohamad Amin V/s Fatmabai
Ibrahim" reported in (1997) 6 SCC 71, in the case
of "Janba (Dead) Through L.Rs. V/s Smt. Gopikabai"
reported in 2000 (5) SRJ 131, in the case of "Radhu
Gokul Gawali, Died, Through L.Rs. and others V/s
Mohan Kishan Gawali, Died through L. Rs. and

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others" reported in (2007 MCR 1029), in the case of

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"Waman Atmaram Lavand and another V/s Dattatraya @
Dattu Baba Lavand and others" reported in 2009 (5)
Mh.L.J. 442 and in the case of "Santoshkumar

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Shivgonda Patil and others V/s Balasaheb Tukaram
Shevale and others" reported in 2010 (2) Mh.L.J.
150. According to him, a person like Hari not in
possession, therefore, cannot aspire to purchase
the property at all and even if it is presumed that
Hari had any such right, he did waive the same
because of his inaction for long time.

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9.Lastly attention is invited to consideration

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of various sale deeds executed by Yusuf Khan in

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favour of petitioners in 1983 and to the
application of doctrine of lis-pendens and
provisions of section 48 (7) of 1950 Act. Learned
counsel states that first sale deed is dated 3rd
November, 1970 i.e. before filing of civil suit and
the other sale deeds are after final adjudication
in that civil suit. Therefore, the concept of lis-
pendens is not at all attracted. Support is being
taken from judgment of this Court in the case of
"Smt. Sarita Gopalkumar Chand V/s Madgu S/o Sitaram

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Ramteke and others" reported in 2010 (5) ALL MR
843. It is further contended that neither before

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Tahsildar nor before Additional Collector the
question of application of section 48 (7) was
raised either by Hari or than by Deorao. Before
Maharashtra Revenue Tribunal also the question was
not raised and cognizance of said provision by
Maharashtra Revenue Tribunal for the first time
directly in revisional jurisdiction is, therefore,
unsustainable.

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10.Advocate Mr. Kulkarni appearing for Respondent
no.1 has supported the impugned order. He has
invited attention to previous history of litigation
and then to various sale deeds. He contends that
status of deceased Hari as protected tenant was
never in dispute and has not been questioned at any

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point of time. The protected tenant, therefore,

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must be presumed to be in possession till his
tenancy is duly determined and is evicted therefrom
in accordance with law. Support is being taken

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from judgment of this Court in the case of "Apparao
Manaji V/s Sadhu S/o Sambhaji and others" reported
in 1972 Rev. R. 217.

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11.He further states that the earlier landlord
viz. Samdanibegum had initiated proceedings for
resumption against Hari and those proceedings
failed on 30th December, 1961. In this background,

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he relies upon express language of section 38 of
1950 Act to urge that it does not stipulate any
limitation. The procedure prescribed for sale by
landlord is also relied upon and for that purpose
attention is invited to section 48 of same Act.
The learned counsel states that all subsequent sale
deeds whether during pendency of suit before it or
thereafter, are rightly held bad and non-est
because of violation of said section, by
Maharashtra Revenue Tribunal.

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12.On the issue of limitation, learned counsel

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has contended that Tahsildar has expressly decided
that issue against present petitioners and
petitioners did not challenge that finding in
appeal before Additional Collector. The appeal was

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filed by Respondent No.1 Deorao only. Hence,
petitioners have given up the said challenge. It
is contended that the defect of non-joinder noticed

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by Additional Collector is also irrelevant because
the internal dispute (if any) between Respondent
no.1, his sister or mother has got no bearing on
adjudication of controversy. The Maharashtra
Revenue Tribunal has correctly appreciated the
controversy and in fact the jurisdictional errors
at the hands of Tahsildar and Additional Collector

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are corrected by that authority. Judgment of this
Court in the case of "Limbaji Shankar Munde
(deceased through L.Rs.) V/s Bhaurao Baliram Munde
(deceased through L.Rs.) and others" reported in
2010 (3) Mh.L.J.138 is pressed into service to urge
that no limitation as such is prescribed under
section 38E of 1950 Act. Judgment of Division
Bench in the case of "Ganpat Sakharam Deshmukh V/s
Yeshwant Digambar Deshmukh" reported in 2000 (1)
Mh.L.J. 126 is again relied upon for very same
purpose. To explain the scope of revision,
judgment in the case of "Rangrao Ganpatrao Kulkarni
V/s Syed Hakim S/o Syed Jafar and another" reported
in 2000 (2) Mh.L.J. 659 and in the case of "Ananda
Dattu Patil since deceased through his LRs.
Nivrutti Ananda Patil and others V/s Ramesh
Anandrao Patil and another" reported in 2003 (5)
Mh.L.J. 622 are relied upon.

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13.It is urged that under Article 227 of the
Constitution, the jurisdiction available to this
Court is very limited and as order of Maharashtra
Revenue Tribunal does not suffer any jurisdictional

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error or perversity this Court should not
interfere. Support is being taken from judgment of

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Honourable Apex Court in the case of "Radhy Shyam
and another V/s Chhabi Nath and others" reported in
2009 (5) SCC 616, in the case of "Jai Singh and
others V/s Municipal Corporation of Delhi and
another" reported in 2010 (9) SCC 385, and in the
case of "Sneh Gupta V/s Devi Sarup and others"
reported in 2009 (6) SCC 194.

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14.In reply arguments, Advocate Mr. Deshmukh has
contended that in Regular Civil Suit no.189 of 1970
or then the order of Additional Tahsildar dated

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26th July, 1977 there was no adjudication of title
of Respondent No.3 Ramnath or his predecessor. In
this background learned counsel further states that
when on account of spot inspection fact of absence
of possession is brought on record, the alleged
presumption of possession of protected tenant is
not available. It is further urged that the
petitioners have purchased the land from Ramnath in
1983 and they have been always contesting the
matters before various Courts. Hence, there is no
presumption of giving up of the plea of limitation.
It is lastly urged that in present facts provisions
of section 48 (7) are not violated as there is no
tenant on the land.

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15.After hearing respective counsel and after

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perusal of records, I find that status of deceased
Hari as protected tenant is not in dispute. The
said status crystalised in the year 1988 and in
absence of any further challenge thereto has
attained finality. The perusal of provisions of
Chapter IV-A of 1950 Act show that it deals with
rights of protected tenants, ordinary tenants and
land holders. The rights of protected tenant to
purchase land are given in section 38 (1). As per
that provision, such protected tenant like Hari is
entitled to purchase the land holders interest in
the land held by former as a protected tenant.
This provision has been given an overriding effect
and it operates notwithstanding anything to the
contrary in any law, usage or contract subject to
provisions of subsection (7). Subsection (7) puts
ceiling upon the extent of area which can be
purchased by such protected tenant and is not
relevant in present matter, at this stage. Section
38E confers ownership upon such protected tenants
statutorily from a notified date. It is not in
dispute that said provision has come into force in
Nanded District on 25th May, 1957. The said
provisionoperatesnotwithstandinganything
contained in Chapter IV-A or then notwithstanding

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any law for the time being in force or any custom

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or usage or decree or contract or grant to the
contrary. Thus, from the date of notification,
ownership of all lands held by protected tenants
which they are entitled to purchase from their land
holders, stands transferred to and vested in
protected tenant holding it and from that date the
protected tenant is deemed to have become full
owner of such lands. The position emerging is very
clear. Original landlord here had filed

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presumption proceedings against protected tenant
Hari and those proceedings met with failure on 30th
December, 1961. The date of notification under
section 38E (1) is 25th May, 1957. In view of
clear statutory provision, it is apparent that Hari
statutorily become owner on 25th May, 1957 itself.

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In other words, Samdanibegum or then Yusuf Khan
ceased to be owners of said land from same date.

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With the result, sale deed dated 3rd November, 1970
executed by them in favour of Respondent No.3
Ramnath has no legal existence because Yusuf Khan
did not possess or own any transferable interest in
suit lands on said date. It was not necessary for
Hari to file any suit against Yusuf Khan and as
Ramnath was trying to interfere with his poesssion,

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he filed suit only against Ramnath. In that suit,
trial Court framed an issue to find out whether
Hari proved his juridical possession on suit land
on the date of suit. It is not in dispute that
suit has been filed on 6th November, 1970 and trial
Court has answered that issue in favour of deceased
Hari. The other issues are consequential and not
very relevant. However, issue No.6 was about the
status of protected tenant and trial Court has
attempted to find out whether Hari was protected
tenant or then Ramnath was that protected tenant.
From facts discussed above, it is clear that
Ramnath had obtained a sale deed in his favour on
3rd November, 1970 i.e. before institution of suit

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and hence on that day he was not the tenant at all.
Still the issue was referred to Tahsildar for
adjudication and Tahsildar has after considering
relevant material found Hari to be protected
tenant. As already noted above, this finding has
not been questioned by anybody and has attained
finality.

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16.These findings, therefore, squarely show that
Hari was in possession as against Ramnath after 6th
November, 1970 and even on 21st July, 1983 when
Regular Civil Suit No.189 of 1970 filed by him,

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came to be decided. The sale deeds by Ramnath in
favour of the petitioners are dated 15th October,
1983 and 19th October, 1983. In the light of
discussion above, it is clear that Ramnath who
himself had no marketable title to suit lands could
not have conferred any title upon petitions and
those sale deeds are therefore inconsequential.

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17.The question of possession has been gone into
by Tahsildar firstly. The proceedings in which
that question has been gone into were instituted in
1985 and 1988. Hari died on 12th October, 1988.
An application for spot inspection was made on 27th
July, 1992 and spot has been inspected on 27th
August, 1992. The perusal of observations in his
report by Tahsildar reveal that he found both the
fields not under cultivation and fallow. However,
he has qualified it by stating that at few patches
of land few seeds of hybrid jowar were found
sprinkled and a very thin crop of jawar was seen
standing in about 3 to 4 Gunthas of land and here
and there, and between these patches of thin crop
of jawar land was grassy covered by shrubs and
trees. It is important to note that Tahsildar was
concerned with status of Hari and possession of
Hari. On the date of spot inspection Hari was not

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 WRIT PETITION NO.: 918 OF 2000

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alive and these remarks, therefore, are not

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sufficient to show that Hari was not in possession
during his life time. Possession of Hari during

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his life time was sufficient to answer the
controversy. Tahsildar has not taken any pains to
find out that position. Residence or service of
Deorao elsewhere was not at all relevant in this
matter.

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18.Even otherwise, it can be said that if Hari
was in possession, after him his son Deorao would
have come in possession. In other words, if Deorao
is not found in possession, it may imply that Hari
also was not in possession. The spot inspection
does not show an assertion by petitioners that the
thin crop of jawar was raised by them. The facts,
therefore, clearly show that it is Deorao who had
been in cultivating possession on the date of spot
inspection. This spot inspection report is further
looked into by Additional Collector while deciding
appeal. Said authority has found that after death

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of Tenant Hari his son (Deorao) had not cultivated

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the lands because of his service with Pune

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Municipal Corporation for long time. It also
noticed that in future he was not in position to
cultivate the lands personally because of same

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service. Additional Collector has also noticed the
finding of Tahsildar that Jawar crop was standing
in 3 to 4 Gunthas and rest of the land was
uncultivated. So, both the authorities have
accepted that about 3 to 4 Gunthas of suit land was
under cultivation. The appreciation of spot
inspection by Additional Collector and Tahsildar to
record a finding of absence of possession of Hari
is, therefore, unsustainable. Spot inspection does

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not support any such conclusion. In any case,
Maharashtra Revenue Tribunal has not expressly
relied upon it. Maharashtra Revenue Tribunal has
noted protected status of Hari and then noted
provisions of section 48(7). Though reference to
provisions of section 52 of Transfer of Properties

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Act by Maharashtra Revenue Tribunal in present
circumstances is misconceived, still it is apparent
that the Maharashtra Revenue Tribunal also did not
notice absence of title in Ramnath or then the
consequently absence of title in purchasers from
Ramnath i.e. present petitioners. All the three
authorities did not realise the scheme of Section
38E and effect of deeming fiction in it. Judgment

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in Smt. Sarita Gopalkumar Chand V/s Madgu S/o
Sitaram Ramteke and others (supra) need not

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therefore be looked into.

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19.Section 48 (1) of 1950 Act stipulates that
where a land holder intends to sell any land leased
to a tenant, he has to apply to Tribunal for
determination of reasonable price thereof. Tenant

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is given first right to purchase it. Under
provisions of section 48 (7) any sale made in
contravention thereof is invalid. Here, after 25th
May, 1957 lands had vested in Hari and thereafter
there was no land holder as such and hence when

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Yusuf Khan sold lands on 3rd November, 1970 to
Ramnath he was not a land holder. When Remnath
sold lands in 1983 to present petitioners, Ramnath
or his brothers were again not land holders. The
provisions of section 48, therefore, were not
relevant at all.

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20.The provisions of section 38 (1) show that a
protected tenant is entitled to purchase the land

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holder's interest "at any time" after the
commencement of Hyderabad Tenancy & Agricultural
Lands (Amendment) Act, 1954. Thus, Legislature has
not prescribed the time limit and for that has used

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the words "at any time". This scheme of section 38

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(1) undergoes a change in section 38E where the
Legislature has superseded not only the provisions

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of Chapter IV-A of 1950 Act but provisions of any

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other law for time being in force and has also
countermanded custom, usage, decree contract or
grant to the contrary. Thus from the date of
notification ownership stands vested in protected
tenant. This is further emphasised by deeming
fiction where Legislature has stated that from the
date of such notification such protected tenant

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"shall be deemed to be full owner". It is,
therefore, obvious that on 25th May, 1957 itself
Hari had become full owner of land and there were

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no questions of Hari moving anybody for
determination of either purchase price or for grant
of ownership certificate.

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21.Scheme of section 38 shows the procedure in
which right to purchase conferred upon him is to be
exercised by protected tenant. Its subsection (2)
requires such protected tenant to make an offer to

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the land holder stating the price which he is
prepared to pay for land holders interest. Under
section 38E every land holder of land situated in
the area specified in notification has to file an
application within 90 days of nofication before
Tribunal for determination of reasonable price of

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his interest in the land which is already

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transferred to the ownership of protected tenant
under subsection (1). This provision also
contemplates a situation in which such application
is not filed within said period by land holder but
a certificate under subsection (2) has been issued
by Tribunal. The Tribunal in that event can suo
motu proceed to determine the purchase price and
thereupon the provisions of subsection (4) to (9)
of section 38 mutatis mutandis apply to that
determination. It is therefore obvious that
submission of application for determination of
purchase price or for grant of ownership
certificate by Hari is superfluous. Effort of
petitioner to raise an issue of limitation by
linking it to applicationin moved by Hari in 1985
or 1988 therefore must be held to be misconceived.
He becomes stattory owner under section 38E,
issuance of ownership certificate in his favour is
only a formality and it does not depend upon
payment of purchase money by him. I find the
direction by Maharashtra Revenue Tribunal to
Tahsildar to proceed under section 38 (2) and (3)
improper because in the light of provisions of
section 38E the Tribunal has to proceed as per
provisions of subsection (4) to (9) of section 38.

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22.In view of this discussion, it is apparent

¶163

that the application for mutation filed by Hari in
the year 1985 under section 150 of Maharashtra Land
Revenue Code ought to have been granted as he had
become statutory owner from 25th May, 1957. It is
also clear that grant of ownership certificate in
his favour was only a formality flowing from
section 38E and it also ought to have been allowed.
In any case, action under section 38E (3) ought to
have been initiated. The various defences raised
on the basis of transactions by Yusuf Khan or by
Ramnath are irrelevant because statutory ownership
conferred upon deceased Hari cannot be taken away
by those transactions and that ownership cannot be
conferred back upon petitioners. The argument of
limitation or waiver being raised on the strength
of those transactions is again misconceived and in
any case it militates that clear intention of
Legislature flowing from section 38E read with 38
(1). The ownership is statutorily transferred and
section 38 (1) permits a tenant to make offer to
purchase at any time. Here, the question of such
offer does not arise as situation is covered by
provisions of section 38E.

¶164

23.In view of these findings, though I have noted

¶165

24

¶166

 WRIT PETITION NO.: 918 OF 2000

¶167

at length respective rival contentions raised
before me, I do not find it necessary to consider
the same pointwise here. Tahsildar and Additional
Collector both have misdirected the inquiry and
refused to implement the clear provisions of
beneficial legislation. Hari had become owner on
25th May, 1957 and proceedings filed by him in 1985
have been prosecuted by his son Deorao. After 25th
May, 1957 the family of Yusuf Khan ceased to have
any relation or isnterest in suit lands and Ramnath
or then purchaser from him also do not have any
interest in those lands. The question of
nonjoinder of necessary parties is therefore not
required to be gone into at their ins;tance. It is
a trivial issue which can be resolved by the legal
heirs of deceased Hari in accordance with relevant
provisions of law.

¶168

24. Before parting, it will be appropriate to note the precedents cited. Adv. Kulkarni has argued on the limited scope available to this Court under Art. 227 of the Constitution of India. As after considering the rival contentions on merit, I am proceeding to dismiss the petition, I do not find it necessary to refer to those judgments in more detail. In Jai Singh & Others vs. Municipal Corporation of Delhi & Another (supra), in para 25 Hon. Apex Court has declared that High Court can not correct all hardships or wrongs if decision of the tribunal is within jurisdiction. The power can be

¶169

25

¶170

 WRIT PETITION NO.: 918 OF 2000

¶171

used when in case of serious dereliction of duty & flagrant violation of fundamental principles of law. Discussion by Hon. Apex Court in para 29 in Radhy Shyam & Anr. v. Chhabi Nath & Anr . (supra) does not show a different result. Manifest miscarriage of justice can be corrected in this jurisdiction which is otherwise sparingly exercised. Here, it is convenient to refer to similar objections raised by Adv. Deshmukh to interference by MRT under S. 91 of 1950 Act with the concurrent findings. In AIR 1977 S.C. 1712 --" Sita Ram Bhau Patil v. Ramchandra Nago Patil ", S.76 of the Bombay Tenancy and Agricultural Lands Act (67 of 1948), what is "Error of law."as a ground for revision by Revenue Tribunal is considered & it is held that the Revenue Tribunal fell into error of entertaining the Revision when there was no error of law on the face of the record. The presumption which was said to arise due to the record of rights was before the Deputy Collector as well as the Mamlatdar. Discussion therein shows that If the authority entrusted with adjudication goes into the question and assesses the same, its decision may be right or wrong but that will not mean that there is any error of law on the face of record. AIR 1974 S.C. 2051-- " Maruti Bala, Raut v. Dashrath Babu Wathare " considers same provision & lays down that the when the findings of fact are already there, Revenue Tribunal has no power to appreciate evidence and come to its own conclusion. In Gulabrao vs. Sayaji (supra), learned Single Judge has considered this Apex Court judgment & taken a similar view on very same provision. In Rangrao Ganpatrao vs. Syed Hakim (supra) & Ananda vs. Ramesh (supra) this Court has held that when findings are perverse, interference in revision is permitted. As found by me above, the Tahasildar & Additional Collector both clearly failed to

¶172

26

¶173

 WRIT PETITION NO.: 918 OF 2000

¶174

understand the concept of statutory transfer of ownership on tillers day to Hari, deeming fiction enacted & consequential absence of any interest either in Ramnath or his vendors or then purchasers from him. Importance given by them to service or residence of Deorao at Pune is patently erroneous. Some errors are noted by MRT due to protected status of Hari & it has then resorted to S. 48(7) of 1950 Act. Interference by it is to secure implementation of beneficial provisions in favour of weakling like Hari. The refusal by Tahasildar & Additional Collector to exercise jurisdiction & to abide by S.38E is beyond comprehension & needed correction by MRT as also by this Court.

¶175

After death of Hari, the two applications filed by him were /are being prosecuted by his son Deorao. Wife or daughter of Hari are not brought on record. It is apparent that a third party like present petitioners who have no right to disputed lands can not derive any advantage out of it. The outcome of present litigation will be for the benefit of all legal heirs of Hari and their absence in no way prejudices the petitioners. In Khetrabasi Biswal vs. Ajay Kumar (supra), Hon. Apex Court has held that selectees whose names figured in list were being affected because of challenge & were therefore necessary parties. In Jagtu v. Surajmal (supra), when suit was for enforcement of certain rights relating to land, land-owner is held to be necessary party. In Nakubai Walu vs. Bhagwansingh (supra), the defendant, party to sale agreement , expired & plaintiff did not bring on record of suit for specific performance his two daughters but only widow was substituted as his legal representative. All these judgments therefore show an existing legal right in party not brought on record and its getting affected in the

¶176

27

¶177

 WRIT PETITION NO.: 918 OF 2000

¶178

adjudication. Deorao as legal heir of Hari can definitely prosecute the matter against ex-landowners, purchasers from them and no right of his mother or sister is being adversely affected.

¶179

It is already noted that objection on the ground of limitation is based on misconception that Hari had to take some steps in the matter. Case of Hari is squarely covered by S. 38E and he had become owner already in 1957 against the wish of Samdani Begum or Yousuf Khan. S. 46D operates in distinct field and Hari's case does not even fall under it. The Additional Collector has at one place observed that Hari ought to have approached Yousf Khan to redress his right to purchase but it is contrary to law & also scheme of the 1950 Act. Petitioners accept that there is no express provision prescribing any period of limitation but then, due to its absence, they contend that obligation to act within reasonable time is cast. Various judgments of Hon. Apex Court & this Court are relied upon. Sub-section 2 of S. 38 shows an option given to protected tenant to purchase. But under S. 38E of 1950 Act there is no such option either to landowner or to protected tenant. An ownership certificate can also be issued to tenant directly without any application either by him or landowners. No time limit is therefore prescribed for said purpose in the said provision. In Mohamad Kavi vs. Fatmabai (supra) necessity of initiating suo-motu inquiry into validity of sale-deeds by Mamalatdar within reasonable time is laid down after noticing that statute did not prescribe any time limit for it. In Janba vs. Gopikabai (supra), S.50 of Bombay Tenancy & Agricultural Lands (Vidarbha Region) Act,1958 is looked into with S.41(2) and it is like S. 38H of 1950 Act here. By said provision, tenant is required to exercise right to purchase within one year.

¶180

28

¶181

 WRIT PETITION NO.: 918 OF 2000

¶182

There is no such occasion or rider in S. 38E. In Radhu Gokul vs. Mohan Kishan (supra), learned Single Judge of this Court has considered necessity of initiating action for summary eviction under S.98 of 1950 Act for summary eviction within reasonable time. Though this court found that Kisan there was a protected tenant, impact of notification dated 25/5/1957 and scheme of S. 38E was not pressed into service and dispossession in 1965-66 in that capacity was the cause given for maintaining S. 98 application. Therefore in para 13 of the report, this Court has noted that there was no dispute about ownership of landholders even in 1966. Thus admitted dispossession & absence of claim to statutory ownership or to end of status as protected tenant are therefore the points which changed the entire perspective. In Santoshkumar vs. Balasaheb (supra) the absence of stipulation of any time limit to the exercise of revisionary powers under S. 257 of Maharashtra Land Revenue Code, 1966 is looked into and Hon. Apex Court has held that said power to revise needed to be invoked within reasonable time.

¶183

27.In Apparao Manaji vs. Sadhu (supra) this Court
has held that once the revenue records disclosed
possession, presumption of its continuity arises as
tenant can not be evicted or loose possession
otherwise than in due course of law. Here, I have
already held reliance on spot panchanama by
Tahasildar or by Additional Collector to answer
issue of possession against Hari unsustainable. In

¶184

29

¶185

 WRIT PETITION NO.: 918 OF 2000

¶186

Ganpat vs. Yeshwant (supra), the Division Bench of
this Court has noticed difference in scheme of S.
38 & 38E of 1950 Act and then found that deposit of
purchase money is not condition precedent for
issuance of ownership certificate under S. 38E(2)
and purchase can become ineffective only in
eventualities specified in its sub-section (3). In
Limbaji Shankar Munde vs. Bhaurao Baliram Munde
(supra) this Court has found Tahasildar justified
in entertaining an application by tenant under S.
38E(1) of 1950 Act and directing the delivery of
possession. It is held that said provision does not
contain any stipulation about limitation & same can
not be imported & read into it. In facts before me,
Hari & after him Deorao have been in possession of
disputed lands and application by Hari in 1985 &
1988 as discussed above is within four-corners of
law & maintainable.

¶187

28.With the result, though some of my reasons
are different than Maharashtra Revenue Tribunal, in
the end, I do not see any case made out warranting
interference in exercise of writ jurisdiction.
Petition is dismissed. No costs.

¶188

29.At this stage Advocate Shri Deshmukh seeks
continuation of interim order granted on 23rd July,

¶189

30

¶190

 WRIT PETITION NO.: 918 OF 2000

¶191

2002 for twelve more weeks. Shri Kulkarni is

¶192

strongly opposing the prayers. However, in the
interest of justice, the said interim order is
continued for twelve weeks more from today and
shall cease to operate automatically thereafter.

¶193

[B.P.DHARMADHIKARI, J.]

¶194

Dated:26/04/2011.
ans/918

¶195

31

¶196

WRIT PETITION NO.: 918 OF 2000

¶197

WRIT PETITION NO.: 918 OF 2000

¶198

Date of decision: 26th APRIL, 2011.

¶199

For approval and signature

¶200

THE HONOURABLE SHRI JUSTICE
B. P. DHARMADHIKARI.

¶201

Sd/-

¶202

Whether Reporters of local papers...Yes
may be allowed to see the judgment?
To be referred to the Reporter or not?...Yes
Whether Their Lordships wish to see ... No
fair copy of the judgment?

¶203

Whether this case involves a substantial... No
question of law as to the interpretation
of the Constitution of India, 1950, or any
order made thereunder?

¶204

Whether it is to be circulated to the... No
Civil Judges?

¶205

Whether the case involves an important... No
question of law and whether a copy of
the judgment should be sent to Nagpur,
Goa and Bombay offices?

¶206

Sd/-
[G. F. ANSARI]
PRIVATE SECRETARY TO THE
 HONOURABLE JUDGE

Prakash Raosaheb Pawade and Ors. v. Deorao Hari Pawade and Ors.

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Prakash Raosaheb Pawade and Ors. v. Deorao Hari Pawade and Ors.

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