Dismissed

Maltibai Keshavrao Deolgaonkar Deceased Lrs v. Tukaram ....

Bombay HC3 May 2014RA/140/2007

Case brief

AI extract

What is this about?

The Bombay High Court dismissed a review application seeking to challenge a judgment dismissing a Letters Patent Appeal. The court held that the applicant attempted to exercise appellate jurisdiction by reaping merit on evidence appreciation, which is impermissible under Section 114 and Order XLVII of the CPC, as the applicant had previously admitted the defendants' possession. Any earlier omissio

What did the court decide?

The review application was dismissed as it was devoid of substance and an attempt to challenge the previous decision on merits.

Maltibai Keshavrao Deolgaonkar Deceased Lrs Vs Tukaram .... — Landlord and Tenant | Bombay HC (2014)

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RA 140/07 in LPA 12/04 in WP 3284/03

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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REVIEW APPLICATION NO.140/2007
 IN
 LETTERS PATENT APPEAL NO.12/2004
 IN
 WRIT PETITION NO.3284/2003

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Maltibai w/o Keshavrao Deolgaonkar
(deceased) through L.R. :
Vasudeo s/o Narayanrao Sahastrabudhe,
age 71 yrs., occu.pensioner and
agri., r/o 22-A, Radhamohan Colony,
Aurangabad. Dist.Aurangabad.
...Applicant..

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Versus

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Tukaram Amruta Dukre,
(deceased) through his L.Rs.:

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1] Anusayabai w/o Tukaram Dukre, major,

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2] Arjun Tukaram Dukre, major,

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3] Ramchandra Tukaram Dukre, major,

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4] Subhash Tukaram Dukre, major,

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 All r/o village Amala
 Tq. & Dist.Hingoli.

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5] Maharashtra Revenue Tribunal,
 Aurangabad.
...Respondents...

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 .....

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RA 140/07 in LPA 12/04 in WP 3284/03

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Shri P.R. Katneshwarkar, Advocate for applicant.
Shri V.B. Nayak, Advocate for respondent nos.1 to 4.
Shri M.M. Nerlikar, AGP for respondent no.5.

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 .....

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CORAM: R.M. BORDE &

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A.M. BADAR, JJ.

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ORDER RESERVED ON 21.3.2014 ORDER PRONOUNCED ON 03.05.2014

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ORDER :

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1]Heard learned counsel appearing for the parties and
perused the record made available.

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2]In the instant application, the applicant / original
plaintiff is seeking review of the judgment and order
passed by this Court on 23.2.2004 in Letters Patent
Appeal No.12/2004 whereby intra-Court appeal filed by the
present applicant / plaintiff was dismissed.

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3]The facts necessary for deciding the present
application are thus:-

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[a] Present applicant / plaintiff presented a suit

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for possession of the agricultural land on the basis
of ownership. That suit was registered as Regular

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Civil Suit No.174/1987. Respondents were the

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RA 140/07 in LPA 12/04 in WP 3284/03

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defendants in that suit. Defendants raised a plea

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of tenancy in their written statement. Therefore,

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the learned Civil Judge (J.D.), Hingoli, on whose

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file the suit was pending, framed the issue
regarding tenancy and referred that issue for
decision thereon to the Tahsildar, Parbhani, u/s 99-

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A of the Hyderabad Tenancy and Agricultural Lands
Act, 1950 (the Hyderabad Tenancy Act for the sake of
brevity). The issue so referred reads thus :

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"Do the defendant nos.4, 5 & 6 prove that the
defendant no.5 is the tenant of suit land Survey
No.33/5 and 43/2 ?

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 The Tahsildar and Additional Land Tribunal,

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Parbhani, on 31.1.1997 gave finding on this issue

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and informed the learned trial Court that on

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verification of tenancy record and on the basis of

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evidence taken, Shri Tukaram s/o Amruta r/o Amala

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(defendant no.5 in the suit) is the tenant and he is
in actual possession of suit land bearing Survey No.

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33/5 and 43/2 of village Amala Tq.Hingoli. The

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reference made by the learned Civil Judge as such
was answered in affirmative by the Tahsildar and
Additional Land Tribunal, Parbhani.

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RA 140/07 in LPA 12/04 in WP 3284/03

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[b] Being aggrieved by the said finding, the
present applicant / plaintiff preferred Tenancy
Appeal bearing No.TNC1/1-A/2000 before the Collector

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and by his judgment and order dated 19.1.2001, the
learned Additional Collector, Hingoli, was pleased
to dismiss that appeal by confirming the finding on

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issue of tenancy by the Tahsildar, Parbhani. The
learned Additional Collector has elaborately dealt
with the evidence recorded by the Tenancy Tahsildar

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and gave a finding that 7/12 extracts show that
defendant no.5 - Tukaram s/o Amruta is tenant of
suit land. The appellate authority considered that
name of defendant no.5 - Tukaram Amruta is recorded
in the revenue record as cultivator of the suit land
from the year 1972-73 onwards.

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[c] Being dissatisfied with the judgment and order
dismissing the tenancy appeal by the learned
Additional Collector, Hingoli, present applicant /
plaintiff challenged the same by filing a revision

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petition bearing No.28/B/2001/11 before the Member,
Maharashtra Revenue Tribunal, Aurangabad. After
hearing both the parties and after considering the

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RA 140/07 in LPA 12/04 in WP 3284/03

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material on record, the learned Member of the
Revenue Tribunal came to the conclusion that
impugned orders passed by the authorities below were

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neither perverse nor patently illegal and,
therefore, revision petition came to be dismissed on
18.9.2001. While dismissing the revision petition,

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the learned Member of the MRT, Aurangabad, has duly
considered the fact that entries in 7/12 extracts of
the suit land show name of defendant no.5 - Tukaram
s/o Amruta as cultivator and the evidence on record

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shows his longstanding possession over the suit
land. The learned Member further noted that after
death of said Tukaram s/o Amruta, his son Arjun
(defendant no.2 in the suit) was in possession and
cultivating the suit land. Admission given by the
plaintiff in her evidence that her husband had given
the land to defendant nos.4 to 6 for cultivation was
duly considered by the learned Member of the MRT to
come to the conclusion that the orders passed by the
authorities below were in tune with the evidence on
record.

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[d] The matter was further carried to the High

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RA 140/07 in LPA 12/04 in WP 3284/03

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Court by the present applicant / plaintiff by filing
Writ Petition bearing No.3284/2003 and after hearing
the parties, the learned Single Judge of this Court

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was pleased to dismiss the writ petition by
confirming the orders passed by the authorities
below.

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[e] The said judgment and order rejecting the writ petition on 25.11.2003 was challenged by filing Letters Patent Appeal No.12/2004 by present applicant / plaintiff. The Division Bench of this Court on 23.2.2004 was pleased to dismiss the LPA in limine . This judgment and order is sought to be reviewed by present applicant / original plaintiff by way of present review application.

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4] The learned counsel for the applicant vehemently
contended that the issue regarding tenancy cannot be
framed unless particulars of tenancy are available and,

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therefore, the learned trial Court ought not to have
framed that issue. According to him, the Maharashtra

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Revenue Tribunal under revisional powers ought not to

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have substituted and expanded the scope of reference by
the civil Court by mentioning the land Survey No.33/1 in

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RA 140/07 in LPA 12/04 in WP 3284/03

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its order and, therefore, the order passed by the learned

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MRT is an example of the exercise of jurisdiction not

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vested with the Tribunal. It is contention of the
applicant that deceased defendant no.5 - Tukaram's
deposition was not referred to and taken into
consideration and the issue regarding tenancy was merely

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decided on the basis of evidence of the present
applicant. The burden lay on defendant no.5 - Tukaram to
prove that he is tenant of the suit land. It is further
evidence of the present applicant / original plaintiff is

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incorrectly appreciated by all the authorities and the
entries in revenue record could not have been used to
come to the conclusion that defendants are tenants over

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the suit land. It is submitted on behalf of the
applicant that evidence of deceased Tukaram (defendant
no.5) is not properly considered.

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5] As against this, on behalf of the respondents, it

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was argued that the ownership certificate is already
issued by the Tahsildar, Hingoli, u/s 30(6)(a) r/w 38(B)
and Rule 22 of the Hyderabad Tenancy Act and, therefore,
the review application has become infructuous.

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RA 140/07 in LPA 12/04 in WP 3284/03

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submissions made at Bar and carefully perused the
material available on record. Under the guise of review

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application, the applicant has virtually presented an
appeal challenging the judgment in the Letters Patent
Appeal No.12/2004. While deciding the LPA on 23.2.2004,

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this Court has considered depositions of original
plaintiff / deceased Maltibai and concluded that her
evidence indicates that right from the years 1958-59 to
1971-72, Tukaram (deceased defendant no.5) was shown as

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the cultivator in actual possession of the agricultural

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land and on his demise, name of his L.Rs. came to be
recorded as cultivators in actual possession of suit land

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in the 7/12 extracts. It was also considered by this
Court that the applicant in her deposition before the
Additional Tahsildar in no uncertain words accepted that

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during the life time of her husband, Tukaram was
cultivating the subject land and he was in physical
possession. This Court has taken note of admission of

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the applicant that Tukaram (deceased defendant no.5) used

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to give some share of crops every year. It was further
noted that deceased Maltibai never took a plea that she

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RA 140/07 in LPA 12/04 in WP 3284/03

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was physically cultivating the land at any point of time.
Thus, on considering the material on record, the LPA came
to be dismissed.

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7] At this juncture, it is apposite to note that

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review is reconsideration or judicial re-examination of

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the earlier decision by the same Court, which has the

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normal feature of finality and, therefore, power of
review cannot be exercised in order to entertain an
appeal in disguise. The power of review of the judgment
needs to be exercised within the frame-work of Section

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114 r/w Order 47 of the Code of Civil Procedure. It is

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settled that the review can be based on any of the
following reasons :-

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1]Discovery of new and important matter or
evidence.

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2]Mistake or error apparent on the face of
record, or

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3]Any other sufficient reason, which means that
the reason must be one sufficiently analogous to
those specified in the rule.

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It is, thus, obvious that erroneous decision on

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merits or erroneous view of law is not an error apparent
on the face of record. The power of review can be

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RA 140/07 in LPA 12/04 in WP 3284/03

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exercised for correction of a mistake and not to

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substitute a view. In the case in hand, the applicant is
mainly contending that there is improper appreciation of
evidence of the applicant as well as deceased defendant
no.5 and that evidence of deceased defendant no.5 was not
considered, but the finding regarding tenancy was arrived

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only on the basis of evidence of Maltibai. It is well
settled that burden of proof can be discharged even by
relying on evidence of other side. In the case in hand,
as rightly and consistently held by all the authorities

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below, the applicant Maltibai has herself admitted that
during the life time of her husband, Tukaram (deceased
defendant no.5) was cultivating the subject land and he

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was in physical possession thereof. Such a finding
cannot be assailed by invoking powers of review as that
would tantamount to exercising appellate jurisdiction.

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8] Similarly, there is no merit in the contention of

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the applicant that land Survey No.33/1 for the first time
crept in the order of the MRT. The Tenancy Tahsildar has
answered the issue referred to him by the civil Court and

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that finding is confirmed firstly by the appellate
authority and secondly by the MRT. Even that contention

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RA 140/07 in LPA 12/04 in WP 3284/03

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was not raised by the present applicant in the writ
petition and, therefore, it cannot be said that there was
any mistake or error apparent on the face of record while
deciding the writ petition as well as the letters patent
appeal. The attempt on the part of the applicant to
reopen the case on merits is not permissible under the
review.

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9]The net result of foregoing discussion requires us
to hold that the review application is devoid of
substance and, therefore, the same is dismissed. There
shall be no order as to costs.

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ndk/mkd

Maltibai Keshavrao Deolgaonkar Deceased Lrs v. Tukaram ....

Case brief

What is this about?

What did the court decide?

Maltibai Keshavrao Deolgaonkar Deceased Lrs v. Tukaram ....

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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