Dismissed

Vishwas Devidas Todkari and Others. v. Subhash Narharrao Malkhare (L.Rs.)Sushilabai and Ors.

Bombay HC3 May 2012WP/2688/1993

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a sale certificate issued under Section 38-A of the Hyderabad Tenancy and Agricultural Lands Act, 1950. The Court upheld the tribunal and Collector's view that the certificate enjoys finality and the issue of legal necessity was outside the tenancy authority's jurisdiction.

What did the court decide?

Petition dismissed with costs awarded to the respondent.

Vishwas Devidas Todkari and Others. Vs Subhash Narharrao… — Landlord and Tenant | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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WRIT PETITION NO. 2688 OF 1993

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1.	Vishwas Devidas Todkari ( died through LRs)
A)	Smt. Pushpa wd/o Vishwas Todkari (died) age 40 years, occ. household r/o Kot Galli, Osmanabad.
B)	Santosh Vishwas Todkari age 25 years, occ. business r/o Kot Galli, Osmanabad.
C)	Suvarna Vishwas Todkari age 24 years, occ. household r/o Mantri Chandak Complex Solapur.
D)	Shivkumar Vishwas Todkari age 22 years, occ. student r/o Kot Galli, Osmanabad.
E)	Savita Vishwas Todkar age 23 years, occ.household r/o Kot Galli,
2.	Dattatraya s/o Devidas Todkari age 26 years, occ. agriculture r/o Osmanabad, Tq. & Dist. Osmanabad.
3.	Suresh s/o Devidas Todkari ( deceased through his LRs)
3-A)	Sunita w/o Suresh Todkari aged 38 years, occ. household
	r/o Kot Galli, Osmanabad.

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3-B)	Prathamesh s/o Suresh Todkari
	aged 8 years, minor under guardianship of his real mother Sunita w/o Suresh Todkari aged 38 years, occ. household r/o Kot Galli, Osmanabad.
4	Chandrakant s/o Devidas Todkari ( Deceased )
a.	Smt. Jagdevi w/o Chandrakant Todkari age 35 years, occ. household Osmanabad.
b.	Ashish s/o Chandrakant Todkari age 10 years, occ. minor under guardianship of his real mother Smt. Jagdevi w/o Chandrakant Todkari age 35 years, occ. household r/o Kot Galli, Osmanabad.
c.	Swapnil d/o Chandrakant Todkari age 14 years (Minor) under guardianship of her real mother Smt. Jagdevi w/o Chandrakant Todkari age 35 years, occ. household r/o Kot Galli, Osmanabad. .. PETITIONERS
VERS	US
1.	Suresh s/o Narharrao Malkhare ( deceased through LRs )
1A	Sushilabai w/o Subhash Malkhare aged 41 years, occ. household r/o Rishala Road, near Youth Hostel Aurangabad.
1B	Shashank s/o Subhash Malkhare
	aged 22 years, occ. business

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r/o Rishala road, Near Youth Hostel Aurangabad.

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1C Sanjay s/o Subhash Malkhare aged 17 years, minor under guardianship of his mother Sushilabai w/o Subhash Malkhare aged 41 years, occ. household r/o Rishala road, near Youth Hostel Aurangabad.

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1D Swati d/o Subhash Malkhare aged 13 years, minor, under guardianship of her mother Sushilabai w/o Subhash Malkhare aged 41 years, occ. household r/o Rishala road, near Youth Hostel Aurangabad. .. RESPONDENTS

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Mr. S.S. Choudhari, advocate for petitioners. Mr. V.D. Hon, advocate for respondent nos. 1A to 1D.

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=====

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CORAM : R.M. BORDE, J. DATE : 3rd May, 2012.

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ORAL JUDGMENT :

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Petitioners who are the heirs of original landlord are challenging the

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order passed by the Maharashtra Revenue Tribunal, Aurangabad, dated

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26-2-1990 whereby the order passed by the Deputy Collector, Land Reforms,

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Osmanabad has been confirmed by the tribunal.

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Original land holder i.e. father of present petitioners and the original

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defendant approached the Agricultural Lands Tribunal, Osmanabad, for

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issuance of sale certificate under section 38A of the Hyderabad Tenancy

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and Agricultural Lands Act, 1950. Agreed price of the land was settled at Rs. 11,000/-. On consideration of contentions raised by the original landlord and tenant, the competent authority issued sale certificate and the sale was registered. Tenant died in the year 1969 and during his lifetime he was in possession of the property. After his demise, his legal heirs are in possession of the property. The proceedings are initiated by the heirs of landlord by tendering application challenging the sale certificate issued in the year 1965. Proceedings are initiated after lapse of about 17 years by tendering appeal before the Deputy Collector, Land Reforms, Osmanabad, on 12-2-1982. Challenge is raised by the heirs of landlord to issuance of sale certificate on the ground that their father was Karta of the family and he had no legal necessity to alienate the land. It is contended that he was

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addicted to vices. It is also contended that their father did not receive total consideration amount and the sale certificate has been issued by the authority without following the procedure prescribed under section 38-A of the Act. It is observed by the Deputy Collector that there is no explanation

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or any reason given for inordinate delay in challenging the certificate.

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Appellate Court has also taken in account the ages of appellants which wer

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recorded as 27, 24 and 21 years and it is observed that even from the date of attaining majority, appeal is not presented within limitation. It is further observed by the Deputy Collector that the question regarding existence of legal necessity for alienating the property on the part of father of the applicant is not open for adjudication by the tenancy authority. The judgment and order passed by the Deputy Collector was subjected to challenge before the Maharashtra Revenue Tribunal. The tribunal has also upheld the findings recorded by the Deputy Collector.

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Mr. Choudhari, learned counsel for petitioners has invited my attention

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to a judgment delivered by the Deputy Collector, Land Reforms, Osmanabad on 30-6-1982, prior to remand of the matter by Maharashtra Revenue Tribunal and, contended that the findings recorded by the Deputy Collector were not liable to be upset by his successor. It is contended that

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the procedure prescribed under section 38-A of the Act for issuance of certificate has not been followed. There is no evidence in respect of payment of consideration amount to the father of the petitioners. Objection

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is also raised to issuance of sale certificate under section 38-A of the Act on

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the ground that the tenant in whose favour the certificate has been issued

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was infact not in possession of the property in his capacity as tenant.

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I have gone through the judgment delivered by the Deputy Collector,

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Land Reforms, Osmanabad, on 30-6-1982 and also heard arguments advanced by learned counsel for respective parties. It is to be noted that the sale certificate has been issued under section 38-A of the Act in the year 1965 which is subjected to challenge by the heirs of deceased landlord after lapse of about 17 years. There is no explanation as to why challenge is raised to the certificate after such huge delay. Apart from the aspect of delay, it is to be taken note of that deceased landlord during his lifetime has never objected issuance of sale certificate by tenancy authority nor he disputed receipt of consideration amount towards sale of agricultural property. The question as to whether father of petitioners was addicted to vices and there

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was no legal necessity to alienate the property cannot be considered by the tenancy authority as the issues are required to be dealt with and considered

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by different forum. Capacity of respondent as tenant to enter into transaction has also not been objected by deceased landlord during his lifetime nor for a period of about 17 years by anybody after issuance of sale certificate. The correctness or otherwise of the entries recorded in the year 1963-1964 and 1964-1965 in favour of tenant need not be gone into after

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lapse of more than 17 years. There is finality attached to the certificate

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issued under section 38-A of the Act and the tenant is deemed to have

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become owner of the tenanted property. Both the authorities i.e. Deputy

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Collector, Land Reforms, Osmanabad as well as Maharashtra Revenue

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Tribunal, Aurangabad, have adopted correct approach in the matter. The

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reasons recorded by the tribunal as well as the Deputy Collector in support of the order are quite reasonable and in any case cannot be termed as

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perverse. In exercise of powers conferred under Article 227 of the Constitution of India, no interference is called for in the instant matter. Petition being devoid of substance stands dismissed. Rule discharged. No

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costs.

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Pending civil application, if any, does not survive and stands disposed

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of.

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dyb

Vishwas Devidas Todkari and Others. v. Subhash Narharrao Malkhare (L.Rs.)Sushilabai and Ors.

Case brief

What is this about?

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Vishwas Devidas Todkari and Others. v. Subhash Narharrao Malkhare (L.Rs.)Sushilabai and Ors.

Case brief

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What did the court decide?

What the court decided

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