Dismissed

Prabhakar Yashwant Mohale Lrs Suman and Others v. Gangadhar Shankar Garde.Lrs Chandrabhaga and Others

Bombay HC21 Oct 2013LPA/99/2013

Case brief

AI extract

What is this about?

The Letters Patent Appeal challenging the Single Judge's order dismissing a writ petition was dismissed. The Court found no jurisdictional error or perversity in the Single Judge upholding the Revenue Tribunal's decision to remand the matter to the trial authority due to failure to consider relevant evidence regarding tenant possession. Reference was made to a prior Supreme Court judgment on appel

What did the court decide?

None as the Letters Patent Appeal was dismissed disposing the matter.

Prabhakar Yashwant Mohale Lrs Suman and Others Vs… — Property and Title | Bombay HC (2013)

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(1)

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

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Letters Patent Appeal No. 99 of 2013 (Against order dated 24-1-2013, in Writ Petition No. 1919 of 1989)

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Prabhakar Yeshwant Mohale, Since deceased through his L.Rs. :

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Smt. Suman Wd/o. Prabhakar Mohale, Age : 73 years, Occupation : Household, R/o. Plot No. 139, Yashodhan Building, Block No.4, Swami Wallabhdas Road, Road No. 24, Sain (West), Mumbai.

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Sanjay s/o. Prabhakar Mohale, Age : 53 years, Occupation : Business, R/o. As above.

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Uday s/o. Prabhakar Mohale, Age : 49 years, Occupation : Retired, R/o. As above.

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Girish s/o. Prabhakar Mohale, Age : 43 years, Occupation : - , R/o. as above.

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.. Appellants

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(Original petitioner)

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versus

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Gangadhar s/o. Shankar Gorde, Since deceased through L.Rs. :

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(2)

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1-A. Smt. Chandrabhaga w/o. Gangadhar Gorde,

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Age : 65 years, Occupation : Household, R/o. Dhandharphal (Bk.), Taluka : Sangamner, District : Ahmednagar.

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1-B. Manik s/o. Gangadhar Gorde, Age : 46 years, Occupation : Agriculture, R/o. as above.

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1-C. Yashwant s/o. Gangadhar Gorde, Age : 42 years, Occupation : Agriculture, R/o. as above.

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1-D. Smt. Girija Aarote, Age : 48 years, Occupation : Household, R/o. Ambernath, Dist. Thane.

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1-E. Sarja d/o. Gangadhar Shete, Age : 44 years, Occupation : Household, R/o. Dhandharphal (Bk.), Taluka : Sangamner, District : Ahmednagar.

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1-F. Hirabai d/o. Gangadhar Gorde, Age : 36 years, Occupation : Household, R/o. Sangamner, Dist. Ahmednagar.

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1-G. Mukta d/o. Gangadhar Gorde, Age : 38 years, Occupation : Household, R/o. Dhandharphal (Bk), Taluka : Sangamner, Dist. Ahmednagar.

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Santu s/o. Shankar Gorde, Since deceased through L.Rs. :

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(3)

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2-A. Datta s/o. Santu Gorde,

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Age : 45 years, Occupation : Agriculture, R/o. Dhandharphal (Bk), Taluka : Sangamner, District : Ahmednagar.

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2-B. Tukaram s/o. Santu Gorde, Age : 42 years, Occupation : Agriculture, R/o. as above.

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2-C. Yeshwant s/o. Santu Gorde, Age : 39 years, Occupation : Agriculture, R/o. as above.

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2-D. Govinda s/o. Santu Gorde, Age : 36 years, Occupation : Agriculture, R/o. as above.

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2-E. Smt. Jijabai w/o. Dnyandeo Sonwane, Age : 33 years, Occupation : Household, R/o. Yeral, Taluka : Sangamner, District : Ahmednagar.

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Chandrabhan Shankar Gorde, Since deceased through L.Rs. :

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3-A. Smt. Sitabai w/o. Chandrabhan Gorde, Age : 40 years, Occupation : Household, R/o. Dhandharphal (Bk), Taluka : Sangamner, District : Ahmednagar.

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3-B. Rajendra s/o. Chandrabhan Gorde, Age : 23 years, Occupation : Student, R/o. as above.

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(4)

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3-C. Tulshiram s/o. Chandrabhan Gorde, Age : 21 years, Occupation : Student, R/o. as above.

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3-D. Udhav s/o. Chandrabhan Gorde, Age : 26 years, Occupation : Agriculture, R/o. as above.

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3-E. Manda w/o. Vasantrao Kotkar, Age : 30 years, Occupation : Household, R/o. Devgaon, Taluka : Sangamner, District : Ahmednagar.

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Vithal s/o. Shankar Gorde, Age : Major, Occupation : Agriculture, R/o. Dhandharphal (Bk), Taluka : Sangamner, District : Ahmednagar.

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Somnath s/o. Shankar Gorde, Age : Major, Occupation : Agriculture, R/o. Dhandharphal (Bk), Taluka : Sangamner, .. Respondents District : Ahmednagar. (Original respondents)

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Mr. P.S. Paranjape, Advocate, for the appellants.

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Mr. S.T. Shelke, Advocate, for respondent nos.4 and 5.

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(5)

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CORAM : B.P. DHARMADHIKARI & RAVINDRA V. GHUGE, JJ.

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DATE : 21ST OCTOBER 2013

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COURT'S ORDER (Per B.P. Dharmadhikari, J.) :

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Heard Adv. Mr. P.S. Paranjape for the appellants, and Adv. Mr. S.T. Shelke for respondent nos.4 and 5.

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Adv. Mr. Paranjape submits that there is delay of one day in filing Letters Patent Appeal and separate Civil Application is filed for getting it condoned. Adv. Mr. Shelke appearing for respondent nos.4 and 5 submits that he has no objection if delay is condoned and Letters Patent Appeal is heard for admission.

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In this background, we have heard Adv. Mr. Paranjape and Adv. Mr.Shelke on admission, as the file of Court shows that on 26-7-2013 this Court has set aside order of Registrar refusing registration of Letters Patent Appeal and Letters Patent Appeal was restored.

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Adv. Mr. Paranjape submits that only question is about scope of jurisdiction available under Section 76 of the Bombay Tenancy & Agricultural Lands Act, 1948 [For short, "1948 Act" ]. He submits that it is settled by various judgments of this Court, as also by Hon'ble Apex Court, that fresh appreciation of evidence could not have been undertaken by revisional authority. He contends that the learned Single Judge has overlooked this limitation and has, therefore, maintained order of remand

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(6)

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to trial authority by revisional authority.

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Adv. Mr. Shelke submits that the present respondents, in revision filed under Section 76 of 1948 Act, pointed out to the Maharashtra Revenue Tribunal, error in jurisdiction by appellate court. That jurisdictional error has been accepted and hence a need of remand to first authority has been established. Accepting that argument and challenge, the Maharashtra Revenue Tribunal has placed back the matter before trial authority. He contends that as the learned Single Judge has not committed any error of jurisdiction and there is no perversity, there is no scope for interference in Letters Patent Appeal.

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Perusal of the order passed by the learned Single Judge on 24-1-2013, while dismissing Writ Petition No. 1919 of 1989 shows that the learned Single Judge has looked into the appellate order and noted that question of fact which fell for determination before that authority was not gone into at all. The first authority has found holding of tenant within ceiling limits and, therefore, held him entitled to purchase and determined purchase price. The appellate authority found that tenant was possessing land in excess of ceiling limit. This finding ignored 7/12 extract available on record which revealed that said original tenant Shankar Gorde was joint with his sons and hence entire land could not have been calculated as falling to his share. The learned Single Judge, in this background, has applied mind further and upheld the application of mind by the Maharashtra Revenue Tribunal.

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The document available on record has not been looked into by

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the appellate authority while reversing the order of first authority, namely, Tahsildar. The parameters of exercise of jurisdiction in first appeal, particularly while writing judgment of reversal, are well known and reference can be made to the judgment of Hon'ble Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwari deceased by L. Rs. [2001(2) Mh.L.J. 786] .

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In this situation, we do not find any jurisdictional error or perversity. The Maharashtra Revenue Tribunal having found failure to exercise jurisdiction by first appellate authority, has rightly placed back the disputed question before Tahsildar i.e. the trial authority. The learned Single Judge has also refused to interfere in the matter. No case is, therefore, made out for interference.

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Letters Patent Appeal is accordingly dismissed. No costs.

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( RAVINDRA V. GHUGE ) ( B.P. DHARMADHIKARI )

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JUDGE JUDGE

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bgp/lpa99

Prabhakar Yashwant Mohale Lrs Suman and Others v. Gangadhar Shankar Garde.Lrs Chandrabhaga and Others

Case brief

What is this about?

What did the court decide?

Prabhakar Yashwant Mohale Lrs Suman and Others v. Gangadhar Shankar Garde.Lrs Chandrabhaga and Others

Case brief

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What did the court decide?

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