Heard learned counsel for the respective parties.
2. This petition is directed against the judgment and order passed by the learned Member, Maharashtra Revenue Tribunal, Aurangabad (“MRT”), in Appeal No. 121.A/96.Nanded dated 26-11-1987.
3. Respondents 1 and 2 had filed an application bearing No. 85.TNC/98.CR-15 before learned Deputy Collector (Land Reforms), Nanded under section 98 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (“Act of 1950”) for eviction of the present petitioners. It came to be rejected on 13-4-1986.
4. Respondents 1 and 2 had challenged the said order by filing an Appeal No. 121.A/1986 before the MRT. This appeal was allowed on 26-11-1987, by which the Deputy Collector (Land Reforms) was directed to hand over possession of land S. No. 18 to the extent of 18 acres and 16 gunthas (“suit land”), situated at village Hasrapur, Taluka and District Nanded by evicting the original respondents as per the provisions of law. This order, as said above, is questioned in the present writ petition.
5. It is not in dispute that the suit land was initially owned by one Sitaram, who after his death, is succeeded by his brother Ramdas. It is also not in dispute that on 18-2-1966, the petitioners had purchased the suit property by registered sale deed from Ramdas. It is alleged by the petitioners that this sale deed is attested by one Kisan. It is contention of respondents 1 and 2 that they are legal heirs of said Kisan, who has expired in 1981. However, respondents 1 and 2 are not admitting the fact of said Kisan attesting the sale deed dated 18-2-1966 in favour of the petitioners - purchasers. For the sake of convenience, the petitioners are referred as “purchasers” and respondents 1 and 2 are referred as “tenants” hereinafter.
6. Learned Deputy Collector referred the documents and observed that Kisan's name is appearing in column No. 9 of the tenancy register. According to him, said Kisan was in possession of the suit land upto 1963-1964. Erstwhile land owner Ramdas was in possession of the suit property in the years 1964-1965 and 1965-1966 and thereafter, he sold the suit property to the purchasers for the consideration of Rs. 14,000/-. Learned Deputy Collector also referred to 7/12 extracts of the year 1966-1967 i.e entries in the record of rights post sale transaction in favour of the purchasers. Learned Deputy Collector did not accept the contention of the purchasers that Kisan was servant of original owner Sitaram. The Deputy Collector held that possession of Kisan as a tenant was upto 1963-1964. He further observed that Kisan left the possession of the suit land since 1964-1965. Learned Deputy Collector has considered the conduct of Kisan, who died in the year 1981, that till his death he did not raise any grievance regarding sale deed of the suit property. According to him, Kisan was aware of the fact that the suit property was sold by original owner Ramdas to the purchasers. He did not initiate any action for possession of the suit property under section 32(1) of the Act of 1950, despite the fact that said Kisan was dispossessed. Learned Deputy Collector was of the opinion that the remedy for Kisan was to seek possession of the suit property under section 32(1) of the Act of 1950. With these observations, the learned Deputy collector held that the purchasers have not dispossessed Kisan or his two sons, who are respondents 1 and 2 in this petition. The theory of dispossession propounded by respondents (tenants) therefore, was not accepted by the learned Deputy Collector. The learned Deputy Collector also held that possession cannot be sought under section 98 of the Act of 1950 by the legal heirs of tenant Kisan.
7. The learned Member of the MRT, on appeal, heard the parties. He referred to 7/12 extracts and other material on record. According to the learned Member, Kisan was the protected tenant of the suit property. He has also called for 7/12 extracts from the authorities concerned after giving opportunity to the Advocates appearing for the parties, himself looked into the record of rights. According to learned Member, there is overwriting in relation to crop cultivation column and mode of cultivation in relation to 7/12 extract of the suit property. The learned Member was of the opinion that the petition filed by the tenants is maintainable under section 98 of the Act of 1950 and since tenant has been dispossessed illegally, possession can be restored under section 98 of the Act of 1950. Status of respondents being children of deceased Kisan is considered to be tenants by the learned Member in view of section 40 of the Act of 1950. With these findings, the learned Member allowed the appeal and directed restoration of possession of the suit property in favour of respondents/tenants.
8. Shri Vaishnav, learned counsel for the petitioners submitted that the application filed by tenants cannot be entertained under section 98 of the Act of 1950. According to him, in the first place, Kisan was not protected tenant. There is no material on record in support of such plea of protected tenancy of Kisan. There is no declaration or order passed by any competent authority under the provisions of Act of 1950 declaring Kisan as protected tenant. He also submits that there is no declaration granted by any authority under sections 8, 34 or 37A of the Act of 1950. Ultimately he submits that if the application filed by tenants is to be considered as application under section 98 of the Act of 1950. Such application was never filed by deceased Kisan during his lifetime. He points out that death of Kisan was in the year 1981 i.e after 16-17 years from the date of sale deed dated 18-2-1966. He also submits that even after demise of Kisan, application under section 98 came to be filed by tenants for the first time on 2-11-1985. According to him, this application, therefore, is hopelessly time barred. He concedes that there is no limitation provided under section 98 of the Act of 1950. He, however, submits that in the absence of any limitation provided under section 98, reasonable time has to be considered. The application filed by tenants after about 17 years of the date of sale deed could not have been entertained by the MRT.
9. Shri Natu, learned Advocate appearing for respondents 1(a) to (g) has invited my attention to the copy of the 7/12 extract. According to him, name of deceased Kisan was shown as protected tenant. He also refers to 7/12 extract produced on record. According to him, Kisan was protected tenant in the suit property and he was dispossessed somewhere in 1965-1966 and therefore, application under section 98 came to be filed by tenants. According to him, there is no limitation provided under section 98 of the Act of 1950 by the legislature in its wisdom. Therefore, no yardstick of any span of time can be made applicable and plea of limitation cannot be raised. According to him, the order passed by the MRT is legal, proper and in accordance with the provisions of law.
10. The Act of 1950 has defined “protected tenant” under section 2(r) to mean a person, who is deemed to be a protected tenant under the provisions of sections 34 to 37A. Chapter IV of the Act of 1950 refers to “protected tenant” to mean that a person, subject to the provisions of sub-sections (2) and (3) of section 34, be deemed to be a protected tenant in respect of land if he has held such a land as a tenant continuously for a period of not less than six years, being a period wholly included in the Fasli years 1342 to 1352 (both years inclusive) or for a period of not less than six years immediately preceding the 1st day of January, 1948 or for a period of not less than six years commencing not earlier than the 1st day of the Fasli year 1353 (6th October, 1943) and completed before the commencement of this Act and if has cultivated such land personally during such period, subject to proviso to sub-section (1) shall be deemed to be a “protected tenant”. If any question arises whether any person, and if so what person, is deemed under section 34 to be a protected tenant in respect of any land, the decision on such claims are to be given by the Tahsildar as per section 35 of the Act of 1950. Section 37 of the Act has carved out a class of persons not entitled under section 34 deemed in certain circumstances to be protected tenants. Section 8 of the Act empowers the Tahsildar to decide the question, whether a person is a tenant or otherwise. In case on hand, there is no such adjudication order produced on record. However, along with the list of documents dated 19-2-1986, some documents have been produced on record. One of them is a copy of the extract of the register maintained under sections 37A and 38E of the Act. Copy of this extract refers to the name of village Hasrapur, Taluka and District Nanded. Name of the owner shown in this extract is Ramdas s/o Manandas. The land in dispute is S. No. 18 admeasuring 19 acres and 16 ares. Regarding name of the protected tenants, it is clear that Kisan is shown as a protected tenant. This extract, in my view, in the absence of any order passed under the relevant sections of the Act of 1950 can be accepted to be a proof for the plea raised by the original petitioners that Kisan was the protected tenant of the suit property. This finding, along with extract of 7/12, recorded by MRT, in my view is legal and proper. Therefore, it is not possible for me to accede to the submissions of Shri Vaishnav, learned counsel for the petitioners that Kisan was not the protected tenant and he was servant of landholder Ramdas.
11. The next question that requires decision in this writ petition is regarding remedy available to the protected tenant. Learned counsel for the petitioner has submitted that remedy under section 32 of the Act is proper remedy for the tenants to take possession of the suit property. According to him, period of limitation provided is two years from the date of commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1957, or on which date the right to possession is accrued to him, whichever is later. He, therefore, submits that considering the admitted fact that the present application was filed on 2-11-1985, it is barred by limitation. He also submits that this application cannot be treated or considered as an application under section 98 of the Act of 1950.
12. Shri Vaishnav, in support of his submissions, relied upon the judgment of the learned Single Judge of this Court in the matter of Ramchandra B. Dubai v. D.T Kadam, 1981 Mah. L.R Bom. 90. In the facts of the cited judgment, learned Single Judge of this Court has held that the tenant is entitled to possession of land. He must make an application within two years from the date on which the right to obtain possession of land is deemed to have been accrued to him.
13. Shri Vaishnav, learned Advocate further relied upon the judgment in the case of Radheshyam v. Maharashtra Revenue Tribunal, 1969 Mh. L.J 689, in which, it has been held that section 36(1) of the Limitation Act is applicable in the absence of express provisions under the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act. This judgment is only on the point of applicability of section 13 of the Limitation Act.
14. Shri Vaishnav, learned Advocate also relied upon the decision in the case of Kerba Bhiwaji Shinde v. Salubai Nagorao, 1983 Mh. L.J 1009. This judgment is on the point of maintainability of application filed by the tenant under section 32(1) of the Act of 1950.
15. Other decision, on which reliance is placed by Shri Vaishnav, Advocate for the petitioner is in the case of Sampat Sampat S/O Zingu… v. Farooq Ali S/O Chunnilal & Others…, 1996 (2) Mah. LR 578. In the facts obtaining in the decided case's judgment, the learned Single Judge of this Court has held that the remedy available to the tenant was under section 32(1) read with section 8 and proceedings under section 98 are not maintainable.
16. Per contra, Shri Natu, learned Advocate for the respondents, relied upon a decision of the learned Single Judge of this Court in the case of Vithoba Ram Rahane v. Bhalchandra Sadashiv Joshi, 1993 Mh. L.J 419. In the said matter, it appears that the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (sections 84, 29 and 32) were considered. The tenant in possession of the lands on Tiller's day acquiring status of deemed purchaser was illegally dispossessed from the said land. Application under section 84 for summary eviction of person not entitled to occupation of such lands was held maintainable. It was also held that section 29 does not apply to such a case since erstwhile tenant having on Tiller's day become a deemed purchaser.
17. Shri Natu, learned Advocate has also relied upon another judgment of the learned Single Judge of this Court in the matter of Withal Baba v. Ahmed Khan Nanhe Khan, 2004 (1) Mh. L.J 81. In this judgment following decisions have been referred.
(1) Kerba Bhiwaji Shinde v. Salubai Nagorao, 1983 Mh. L.J 1009, (2) Kashinath Maruti Labase v. Gulab Tulsiram Kolhe, 1990 (2) Mah. L.R 210, (3) Trambaklal Harinarayan Jani v. Shankarbhai Bhaijibhai Vagri*, (1960) 62 BLR 261, (4) Murlidhar Bhima Vaidya v. Nababbi Yousufkhan, 2000 (1) Mah. L.R 427, (5) Ramchandra Keshav Adke v. Govind Joti Chavare, 1975 Mh. L.J 515 (SC) : (1975) 1 SCC 559 : AIR 1975 SC 915, (6) Ranganath Vishnu Mulluck v. Vithoba Rama Rahane, (1999) 1 SCC 69 : AIR 1999 SC 534.
18. In the matter of Vithal Baba (supra), the petitioner had initially filed an application under section 32(1) of the Act of 1950 before learned Tahsildar, Bhokar, District Nanded seeking eviction against his landlord. Said proceeding had culminated and by a panchanama dated 20-11-1966, he was put in possession of the suit land as the petitioner claimed to be a protected tenant of the suit property. Original landlord had executed an agreement of sale in favour of respondent No. 1 thereon 10-5-1967. It is alleged by respondent No. 1 therein that the petitioner had signed as a consenting party/witness to the agreement of sale executed between original landlord and respondent No. 1. Thereafter, the landlord had executed a sale deed in favour of respondents 1 and 2 on 3-2-1968 in respect of the suit land. Sale deed is at page 83 of the record and proceedings in that case. The petitioner has executed an affidavit before the learned Tahsildar on 9-5-1967 and had willingly handed over possession and had surrendered his tenancy rights. On 5-10-1974, the petitioner had filed an application before the Tahsildar seeking possession of the property in question from respondents 1 and 2. Said application was registered under section 32(1) of the Act of 1950 and said application was rejected by the Tahsildar on 30-12-1974. Petitioner Vithal preferred an appeal before the Collector, Nanded, who held that such application was maintainable under section 98 of the Act of 1950 and allowed the appeal by his order dated 11-11-1975. Respondents in that case, preferred revision and said issue was taken up before the MRT, which set aside the order of the Collector and remanded the matter back to Tahsildar. After remand, the Tahsildar decided the matter afresh by treating the proceeding as one under section 32(1) of the Act of 1950 and dismissed the same by his order dated 28-8-1979 on the ground of limitation. Petitioner preferred an appeal before the Deputy Collector, which also came to be dismissed by the order dated 15-10-1981. Said judgment was under challenge by the petitioner. He, thereafter, approached Deputy Collector, Nanded by filing an application under section 98 of the Act of 1950 on 25-1-1982 and said application, after hearing the parties, came to be dismissed by the learned Deputy Collector by the order dated 27-7-1983. Tenancy appeal against the said judgment also came to be dismissed by the MRT on 11-11-1985. That order was subject-matter of the writ petition.
19. Learned Single Bench of this Court referring the judgments, which are noted in that judgment itself, held that petitioner Vithal had given reasonable explanation as to why he did not prosecute further proceedings initiated by him under section 32(1) after loosing first round of litigation in MRT. He termed his initial proceeding under section 32(1) to be void ab-initio. In the background of this facts and circumstances, learned Single Bench has held that such filing and disposal of the application under section 32(1) would not debar the petitioner from prosecuting the remedy under section 98. Learned Single Bench has held that in the facts and circumstances of the case, remedy available to the petitioner was under section 98 of the Act of 1950 and said application was maintainable.
20. Shri Natu, learned Advocate has heavily relied upon this judgment. According to him, the facts are nearly identical to the facts appearing in the case at hand.
21. Applicability of the provisions laid down under section 32 and/or section 98 of the Act of 1950 has to be decided by the Court, considering the fact situation obtaining in the case. Facts in each case may differ and therefore, the Court has to record a finding regarding the maintainability or remedy available to the party concerned.
22. I have perused the judgments cited on behalf of the learned counsel for parties. I have consciously referred to the facts of the said judgment. Taking into consideration the ratio laid down in the facts and circumstances of the judgment, I have considered the facts obtaining in the case at hand.
23. At the cost of repetition, it is to be noted that there is no dispute about the ownership of the land i.e suit property earlier owned by one Sitaram and succeeded by his brother Ramdas. From the record it is also clear that sale deed came to be executed in favour of Radhu, Shamlal, Shankar and Babulal by Ramdas on 18-2-1966. Copy of the sale deed is on record. Consideration shown is Rs. 14,000/-. The recital of the sale deed shows that possession of the land was with seller i.e Ramdas and it was handed over to the purchasers. There are two attesting witnesses to this document. One put his thumb impression which is referred to be left hand thumb impression of Kisan and another put his signature. Undisputedly, Ramdas is not joined as a party to this proceeding since beginning. It is also not in dispute that Kisan has died somewhere in the year 1981 and during his lifetime, he did not file any proceeding, either under section 32 or section 98 of the Act of 1950 for the eviction and/or seeking restoration of possession of the suit property.
24. Thus, now the dispute is in between the original petitioners who are claiming to be legal heirs of protected tenant Kisan and purchasers of the suit property. The allegation of the petitioners in the petition is regarding dispossession of tenant Kisan during 1965-1966. I have already recorded a finding that Kisan was protected tenant of the suit property. Shri Vaishnav, learned Advocate has given the date of notification under section 38-E to be 25-5-1957 in relation to Nanded district. Considering these facts in this case and the provisions laid down under sections 32 as well as 98 of the Act of 1950, in my view, the petitioners i.e legal heirs of deceased Kisan have justifiably maintained the application under section 98 of the Act of 1950. It cannot be said that protected tenant Kisan had surrendered his tenancy and handed over possession to landlord Sitaram in accordance with the provisions of Act of 1950. The sale transaction dt. 18-2-1966 also cannot be said to be valid and according to the provisions of the Act of 1950. If the tenant did not seek to enforce a right arising under any of the provisions of the Act but claim possession on his own title as a tenant, section 32 would not apply and his remedy would be under section 98 of the Act of 1950. For this proposition, useful reference can be made to the judgment of the Apex Court in the matter of Vallabhai v. Bai Jivi, 1969 Mh. L.J 958. Here tenant's legal heirs were/are seeking to enforce their right against third parties i.e purchaser, who were/are in wrongful possession of the suit land. They claimed possession not under the provisions of the Act but on their own title, albeit as legal heirs of protected tenant Kisan. In my view, their application cannot be considered to be an application under section 32 of the Act of 1950. Thus, the application filed by the petitioners, in my opinion, can be considered to be an application under section 98 for summary eviction of respondents.
25. Shri Vaishnav, learned counsel for the petitioners has invited my attention to section 98 of the Act of 1950, which reads as under:—
“98. Any person unauthorisedly occupying or wrongfully in possession of any land—
(a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act, or
(b) the management of which has been assumed under the said provisions, or
(c) to the use and occupation of which he is not entitled under the said provisions, may, if the said provisions do not provide for the eviction of such person, be summarily evicted by the Collector.”
26. Learned counsel for the parties have also invited my attention to various judgments of this Court and the Apex Court under section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 (“Act of 1948”). In my view, therefore, provisions of section 84 of the Act also needs to be considered. It reads as under:—
“84. Any person unauthorisedly occupying or wrongfully in possession of any land.—
(a) the transfer or acquisition of which either by the act of parties or by the operation of law is invalid under the provisions of this Act, or
(b) the management of which has been assumed under the said provisions, or
(c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such person, may be summarily evicted by the Collector.”
27. A bare look to the provisions of section 98 of the Act of 1950 and section 84 of the Act of 1948 would show that these two provisions are virtually identical. Marginal note for these two sections is common i.e “Summary Eviction”. Under section 84 of the Act of 1948, one expression “or acquisition” under sub-clause (a) of section 84 seems to have been added/inserted by the bombay act xiii of 1956. This expression “or acquisition” is not available under section 98 of the Act of 1950. Under section 84, three contingencies have been provided, which are listed as sections 84(a), (b) and (c). Section 84(a) is followed by (b) and thereafter “or” is provided and thereafter (c) has followed. Under section 98 of the Act of 1950, after section 98(a) “or” is provided and after section 98(b) also “or” is provided. Thus, section 84 can be said to be pari materia to that of section 98 of the Act of 1950. The silent feature of both these sections is regarding absence of any period of limitation. In other words, any person can move such authority, provided under sections 84 and 98 at any point of time. Thus, absence of clause of limitation under section 98 and section 84 is also identical. In this premise, the judgment of the Apex Court in the matter of Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim, (1997) 6 SCC 71 is relied upon by the learned counsel for the petitioners.
28. The Apex Court in the said case has held that where no time limit is prescribed for exercise of power under a statute, it should be exercised within a reasonable time. Factually, in the said case, it appears that the action was initiated by the competent authority under section 84-C of the Act of 1948 after about 3½ years post sale deed. It is in this background, the Apex Court has held that suo motu action or bar has to be exercised by the authority concerned within a reasonable time, despite the fact that no time limit is prescribed by the statute i.e section 84-C of the Act of 1948.
29. The Division Bench of this Court in the matter of Gulabrao Bhaurao Kakade v. Nivrutti Krishna Bilare, 2001 (4) Mh. L.J 31, has considered the provisions laid down under section 32 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. There also no period of time limit is prescribed under section 32 for the Settlement Commissioner to exercise the powers. The Division Bench of this Court has held that what would be reasonable period to exercise a bar under section 32(1) by the Settlement Commissioner may depend on the facts and circumstances of each case. However, said bar can only be exercised within reasonable period in any case. Factually, exercising such power by the authority in that case after about 15 years was not approved of by the Division Bench of this Court to be exercise of power within the reasonable time.
30. The learned Single Judge of this Court in the matter of Radhabai Balkrishna Deshpande v. Babu Dhondu Shewale, 2001 (1) Mh. L.J 629 was also considering the scope of section 84-C of the Act of 1948. It was held that suo motu proceeding under section 84-C initiated after lapse of 15 years of transaction cannot be accepted to be an act within a reasonable period.
31. Coming to the case at hand, undisputedly deceased Kisan - a protected tenant, since date of sale deed i.e 18-2-1966 till his death, never filed any application raising any plea in relation to the suit property and/or his right as a protected tenant and/or regarding transaction in question i.e sale deed dated 18-2-1966 or his illegal dispossession. The exact date of death of Kisan is not on record. From the record it appears that he died somewhere in the year 1981. Date of filing of the application, as noted in the foregoing paragraphs is 10-11-1985. About 18/19 years have been passed for filing such an application by the original petitioners i.e legal heirs of Kisan. It would not be justified for a person, who has purchased the property in the year 1966 to face such a proceeding under section 98 after about lapse of 18/19 years. Finality to the actions has to be there. Even though no limitation is provided under section 98, it has to be accepted to be a reasonable time either for the authority initiating suo motu action or the party concerned, resorting to section 98 of the Act of 1950.
32. Shri Natu, learned Advocate for the respondents has invited my attention to the judgment of the learned Single Judge of this Court in the matter of Eknath Raghoba v. Somla Lalu Lamani, 1992 (1) Mh. L.J 541 : 1992 (1) Mah LR 861. In the said case, this Court has referred to the observations of the Division Bench's judgment in Special Civil Application No. 764 of 1955, which are reproduced hereinbelow:—
“You cannot apply limitation by analogy. Limitation either bars a remedy or extinguishes a right of a party and it is unthinkable that any Court would bar a remedy or extinguish a right when the Legislature has not done so by importing the principles of some other statute and drawing analogy from some other provision of law. If there is no limitation provided by the Legislature then the only thing that the Tribunal has to do is to permit the application to be made irrespective of passage of time.”
33. It seems that the Division Bench of this Court was considering the question of limitation under section 98 of the Act of 1950. The judgment of the Apex Court in the matter of Mohamad Kavi (supra) is in relation to section 84-C and suo motu action by the authority concerned. In my view, the Apex Court judgment in Mohamad Kavi (supra) as well as Division Bench judgment of the year 1998 has to be preferred to that of the Division Bench Judgment of this Court in Special Civil Application No. 764 of 1955.
34. Looking from another angle to the matter, such a long span of time is un-conceivable in the absence of plausible explanation, and material for the same. Original petitioners have not explained anywhere in the application, the circumstances under which they were prevented from any disability for this long span of time and after removal this disability they have diligently filed the application. In fact, the petition under section 98 filed by the original petitioners is devoid of any explanation for this purpose.
35. In the foregoing paragraphs of this judgment, I have considered the judgment of the learned Single Judge of this Court in the matter of Vithal (supra). Factually, in that case, the protected tenant initially had filed an application under section 32(1) of the Act of 1950. In the second round of litigation, he switched over to an application under section 98. In that application, ultimately, learned Single Judge of this Court has held that the proper remedy to be resorted by the petitioner is under section 98. The fact remains that the petitioner in that matter was vigilant since beginning, as is evident from the judgment itself. On the point of limitation, the judgment of the learned Single Judge of this Court in the matter of Vithal (supra) cannot be compared to the facts of the present case. Thus, in my considered view, such belated application under section 98 could not have been entertained by the authorities concerned. The observations of the MRT, while allowing the appeal, in my view, are perverse. The petition, in this view of the matter, needs to be allowed.
36. In the result, the petition is allowed in terms of prayer clause (A). Rule is made absolute. No order as to costs.
Petition allowed.
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