As such, I am in respectful agreement with the above
observations from the judgment of this Court in the case of Mesaji
Laxman Ubare (supra).
In my view when Section 98 does not
prescribe any limitation and looking to the scheme of the Act of
1950, the intent and object of the legislature is quite clear. When
an agriculturist has been wrongfully dispossessed and a person is
in unauthorised occupation or wrongful possession of the said land,
law has been empowered to summarily evict such a person who is
in wrongful possession. I find that the legislature does not intend
to fetter the scope and ambit of proceedings under Section 98 with
any limitation. The nonprescription of any limitation in Section 98
is, therefore, to be construed to mean a specific object which the
legislature intends to achieve.
WRIT PETITION NO. 623 OF 2001
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
Laxman s/o Shankar Bandgar (died)
Through L.Rs.
VERSUS
Venkat S/o Rama Bandgar (died)
Through L.Rs.
CORAM : RAVINDRA V. GHUGE, J.
Judgment pronounced on: 28th April, 2014
Citation; 2014(6) ALLMR 661
By order dated 20-04-2001, this Court admitted the matter.
Taking into consideration the affidavit in reply and accompaning
copy of the Panchanama of delivery of possession to the
respondents in terms of the impugned order, interim relief was
denied to the petitioner. However, the respondents were directed
not to create any third party interests in the suit property and not to
part with the possession of the suit property till the disposal of the
petition.
The petitioner contends that they are the legal heirs of the
3.
deceased Laxman S/o Shankar Bandgar. They are owners and in
possession of the agricultural land bearing Survey No. 171/A ad-
meausuring 10 Acres and 34 Gn. situated at Halgada, Tq. Nilanga,
Dist. Latur. Narsu Khandu Bandgar is the original assese. He had
two sons namely Shankar S/o Narsu and Rama S/o Narsu who are
therefore real brothers. Shankar had one son namely Laxman and
Rama had a son Venkat who are therefore cousin brothers.
Petitioner No. 1 is the widow of Laxman. Petitioners Nos. 2 & 3 are
sons of petitioner No. 1 and the deceased Laxman.
Survey No. 171/1 was noted in favour of the deceased
4.
Laxman and survey No. 171/2 for the deceased Venkat.
The
original respondents i.e. Venkat Rama, Kasibai w/o Venkatrao,
Baburao S/o Venkatrao have died. The respondents therefore, are
Narsing S/o Baburao and Vithal S/o Venkatrao.
5.
The dispute is between the petitioners and the respondents
with reference to Survey No. 171/1.
There is no dispute with
reference to Survey No. 171/2. According to the petitioner, he is
the landlord of Survey No. 171/1 (which is also recorded in some
document as Survey No. 171/A) ad-measuring 10 Acres and 34
Gunthas.
It is contended that the respondents moved an application
6.
under section 98 of the Hyderabad Tenancy and Agricultural Lands
Act, 1950. The said application is dated 15-01-1995.
Since there
is no limitation prescribed under section 98, the respondents have
shrewdly filed the said application making wild allegations and
The in-charge Dy. Collector (Land Reforms) allowed the
7.
claims.
application dated 15-01-1995 filed by respondent No. 1 Venkat
under section 98, by its judgment and order dated 02-01-1996.
The petitioners challenged it by filing an appeal No. 7/A/96/LR/2
before the Maharashtra Revenue Tribunal, which came to be
dismissed by judgment and order dated 11-01-2001.
8.
Paragraph Nos. 4 & 5 of the said application dated
15-01-1995 are read out to suggest that
a]
The deceased Venkat S/o Rama was a protected
tenant.
b]
The final protected tenancy register, 1951 to 1953
mentions his name.
c]
His name similarly appears in the Khasara from the
year 1954-1955 to 1960-61.
It is submitted that the respondents family were
d]
tilling the land.
e]
Claim
was
that
the
protected tenants from 1945 till 1973-74 and were therefore
petitioners
ancestors
had
dispossessed them in the year 1974-75.
9.
Shri Patil's first and foremost objection therefore is that, if at
all the deceased respondents were claiming to be protected
tenants and allegedly dispossessed, they could have approached
the competent Court/ Authority under Section 32 of the Tenancy
Act, 1950 and not under Section 98. To escape the clutches of
limitation, they have shrewdly resorted to section 98.
10.
His further objection is that if the deceased Venkat was
claiming to be a tenant and allegedly dispossessed in 1973-74, it
took him twenty years to realize this aspect. The said issue could
not have been dug up after a passage of twenty years. Such
application could have been filed within three years of the cause of
action.
11.
Shri Patil's further submits that no claim for tenancy could
have been raised within a family. According to him, section 5(a) of
the Tenancy Act, 1950 prohibits a member of the land holders
family to make a claim as a deemed tenant. According to him, the
explanation below Section 2 (1) (g) pertains to the case of an
undivided Hindu family whose land is deemed to be cultivated
personally, by any member of such family. He then referred to
section 2(n) which states that a person shall also mean an
undivided family.
12.
He therefore states that though an undivided family is defined
in the Act, section 5 sub section (a) shall have to mean a member
of the lease holders family. He refers to the family tree on page
No. 3 of the petition memo to submit that the application under
section 98 was filed by a member of his family as they are blood
relatives. Venkat being the real cousin brother of Laxman on
account Rama being the real brother of Shankar, would bring the
claim of the applicant within the meaning of section 5(a).
He
therefore states that such application was not maintainable in view
of Section 5.
13.
Shri Patil has taken me through Section 32, 38 and Section
38-E of the Tenancy Act.
He therefore submits that the said
Tenancy Act has prescribed a specific scheme, object and purpose
for respecting the rights of the tillers and for bestowing upon him
the rights of protected tenants.
According to him, there is no
declaration by the competent authority so as to entitle the
respondents father Venkat to claim that he was a protected tenant.
The Hyderabad Tenancy Agricultural Land Act, 1950 has
14.
been brought into operation on 10-06-1950. According to Mr. Patil
with the introduction of the said Act in the event the respondents
were tenants, they should have been issued with a certificate as
protected tenants.
A false and untrue claim has been put forth by
the respondents, on the basis of some entries in the tenancy
15.
register.
According to him, a disputed claim like the one raised by the
respondents could have been gone into by the competent authority
in light of the Judgment of this Court reported at 1988, Mh. L.R.
Volume II, 1725 in the case of Nagaya V/s. Bhujaya.
He has
placed reliance on the said judgment to suggest that a disputed
claim between two brothers relating to ownership of property could
not have been considered in an application under section 98 of the
Tenancy Act.
16.
He has then referred to a reported Judgment of this Court in
the case of Syed Ibrahim Syed Ashraf And Another Vs. Zamarrudbi
Nizamuddin And Others, reported at 1990 (1) Mh.L.J. 631. He has
drawn my attention to paragraph Nos. 10 to 13 of the said
judgment, wherein the Court has considered the word 'family'.
Cultivation by nephew on behalf of his uncle was held to be
covered by the meaning of family and the said meaning was not to
be restricted only to a Hindu Joint family. It was therefore held that
such cultivation by the nephew will be cultivation for and on behalf
of the uncle and therefore he would not be a deemed tenant under
section 5 of the Tenancy Act.
17.
He therefore submits that even if the summary eviction
application under section 98 of the Tenancy Act was held to be
maintainable, the same could not have been brought out of the
purview of section 5 since the said application was disguised to be
in fact an application under section 32.
I am unable to accept
these submissions since it was never the case of the petitioners
that the respondents were cultivating the land on behalf of the
petitioners.
18.
Shri Patil has then contended that though section 98 did not
prescribed a limitation, no litigant can be allowed to file an
application after about twenty years.
He has relied upon the
judgment of this Court in the case of Radhu Gokul Gawli died
through L.Rs. Vs. Mohan Kishan Gawali died through L.Rs. & Ors,
reported at 2007(5) Bom.C.R. 93. In the said case, issue of filing
an application under section 98 after a delay of nineteen years was
considered and the Court concluded that such an application could
be preferred within a reasonable time of three years.
Shri Patil has then relied upon the Judgment of the Hon'ble
19.
Supreme Court in the case of Santosh kumar Shivgonda Patil &
Ors. Vs. Balasaheb Tukaram Shevale & Ors, reported at 2009 (9)
SCC 352. In this judgment, the Apex Court has held reasonable
time to mean three years and not seventeen years as was the case
before it. Though the said case is under section 257 of the MLRC,
Code 1966, Shri Patil states that it lays down the law to define as to
Shri Patil has then relied upon the judgment of this Court in
20.
what would reasonable time mean.
the case of Kerba Bhiwaji Shinde Vs. Salubai Nagorao & Ors,
reported at 1983 Mh.L.J. 1009. He has referred to paragraph No. 8
and submits that an application by a tenant against the land lord for
possession can only be filed under section 32 (1) and not under
section 98 of the Tenancy Act.
21.
Shri Patil has then submitted that the said application should
have been made within three years from the date of the cause of
action. In the absence of any limitation period prescribed under
Section 98, no litigant can be permitted to raise a stale claim. For
this purpose three years should be considered to mean a
reasonable period so as to hold the application under section 98
within time.
He has relied upon reported judgments of this Court in the
22.
matter of Radhu Gokul Gawali died through L.Rs. (supra), and the
judgment of the Hon'ble Supreme Court in the case of Santosh
Kumar Shivgonda Patil & Ors.(supra). According to him, the ratio
laid down in the said judgments defines a reasonable period within
Shri Patil thereafter, submits that the petitioners were
23.
which an application under section 98 can be preferred.
cultivating the land for twenty one years. Revenue receipts for the
period 1973 onwards indicate this fact. He has then relied upon a
reported judgment of this Court between Eknath s/o Raghoba and
others V. Somla s/o Lalu Lamani through his legal heirs & others,
reported at 1991 (3) Bom.C.R. 519. He submits that an application
under 98-A (c) is maintainable only when there is no other remedy
available. For a tenant who is in possession on the appointed day,
remedy under Section 38-E(1) is available when he is not in
possession.
24.
Shri Patil has then submitted that survey Nos. 171/1 is the
only property available to the petitioner and which is his ancestral
property. The application under Section 98 of the Act does not
mention the area and portion under the survey. It is plainly stated
in the said application that 10 acres and 34 Gunthas in survey No.
171 belong to the respondent.
25.
Shri Patil has then referred to an order at page 26 which was
subject matter of appeal. According to him, the said order dated
02-12-1996 was passed by the S.L.A.O. and in-charge Deputy
Collector.
He had no jurisdiction.
However, Shri Patil then
submitted that he would not prefer to agitate this point in this
He has then drawn my attention to the issues framed in
According to him, in one single issue, the appellate
appeal.
26.
petition.
authority in a sweeping manner has encompassed all the grounds
According to him, had issues been
raised by the petitioner.
properly framed, the impugned order would not have been passed.
27.
He has then relied upon Radhu Gokul Gawli (supra)
to
contend that the ambit of adjudication under section 32 and 98 of
the Act operate in different fields and the case of the respondents
could not have fallen within the ambit of section 98.
He has
however, stated that since the date of the impugned judgment of
the M.R.T. Court (11-01-2001), the petitioners have been forcibly
dispossessed.
He has therefore prayed that the petition be
allowed.
28.
Shri S.M. Kulkarni, learned Advocate for the respondents
submits that this petition is wholly misconceived and deserves to
His submissions can be summarised in
be rejected with costs.
a]
brief as follows :-
The pleadings of the respondents to substantiate their
case are evident from paragraph 2,3 & 4 of its application
under section 98.
b]
The deceased respondent (legal heirs are on record)
c]
was declared a protected tenant.
Paragraph 3 of the application under section 98 of the
Act, indicates the pleadings that his name was entered in the
final register of protected tenants.
Paragraph 4 of the application under section 98 of the
d]
Act, indicates that the names of the great grandfather and the
grandfather of the respondents were entered in the “Pahani
Patrak” and the “Khasara Pahani Patrak”.
e]
Paragraph 5 of the said application, reflects the
pleadings that the respondents were illegally dispossessed
from 1974.
f]
The deceased petitioner had filed its written statement,
opposing the application under section 98 of the Act.
g]
The petitioners have never raised any objection as
regards their relation with the respondents, or that the
respondents cannot claim tenancy against the petitioners, in
view of section 5 of the Act.
It is admitted by the petitioners in the written statement
h]
thirty (30) years prior to 1974.
i]
The
respondents
have
that, the respondents were in possession of the said land for
produced
the
document
mentioned in the second paragraph in its application.
j]
From the Record and proceedings produced before this
Court, documents at page 27, 33, 35, 37 & 39, would indicate
At Page 22 of the petition paper book, the issues cast
k]
the tenancy rights of the respondents.
are before the Court. This would indicate that the petitioners
never raised any issue as regards the relations between the
petitioners and the respondents in connection with the claim
of tenancy.
l]
Page 30 of the petition paper book is the impugned
judgment which reproduced the grounds raised by the
petitioners in their appeal, clearly indicating that the issue of
relationship between the petitioners and the respondents was
not raised by the petitioners.
m]
In the event, the petitioners were conscious of their
rights, they could have approached the competent authority
under section 19-A (2) and 28.
n]
The petitioners have not approached any authority
since they were aware that the whole issue of the illegal
dispossession of the respondents would have been opened
and it would have been proved that the petitioners had
o]
illegally dispossessed the respondents.
Since the respondents had acquired the status of
ownership, there was no need to approach any authority
under section 32 of the Hyderabad Tenancy Act, which is
analogous to section 29 and 31 of the Bombay Tenancy Act.
Since the respondents names were entered in the final
p]
register of protected tenant, they had acquired the status of a
q]
land-lord.
If the petitioners had any grievance about the above
said status, they could have approached the authorities
under section 35 of the Act. They have failed to do so.
r]
The rights of the protected tenant have been defined
under Section 38 of the Act.
s]
Section 38-E was introduced on 04-02-1954, which
defines the rights of a protected tenant.
t]
By a notification dated 01-02-1957, it was declared as
a notified date and the respondents/ protected tenants,
therefore, have become full owners of the land under section
38-E.
u] In light of the above, the respondents had the remedy
only under
Section
98
of
the
Act
against
unlawful
dispossession.
During the pendency of the proceedings before the
v]
Maharashtra Revenue Tribunal (MRT), the petitioners sold
This aspect was pointed out by the
three acres of land.
respondents to the MRT, which declared it to be illegal under
section 50-B of the Act. As such, the respondents resorted
to execution proceedings and the said land was restored
back to the respondents.
This aspect was also brought to
the notice of this Court and, therefore, this Court refused
Section 98 of the Act is available to the respondents
w]
petition was admitted.
interim relief to the petitioner on 20-04-2001, when this
because the petitioners were unauthorisedly occupying the
land and since the respondents became owner of the land.
x]
Rule 23 provides for the compulsory transfer of
ownership to the tenants and by the notification in the
Gazette No. TMC/5756/169055, issued by the Government of
Bombay dated 31-01-1959, the ownership undisputedly was
vested in the concerned respondents.
y]
Since the issue of relationship between the petitioner
and the respondents is an aspect to be proved based on the
pleadings, the said issue cannot be raised now since it is not
purely a question of law.
z]
The name of the ancestors of the respondents were
entered in the register termed as final register of protected
tenants under section 38 of the Act. Page 27 of the Record
and Proceedings is the extract of the said register.
The petitioners if were aggrieved by the tenancy claim
aa]
of the respondents, they could have resorted to appropriate
ab]
remedies to extinguish the tenancy of the respondents.
The Revenue record is maintained for the purposes of
tenancy rights under Section 148 (b) of the Maharashtra
Land Revenue Code, 1966 (MLRC). Record of rights,
Under section 149 of the MLRC, the name of the
ac]
therefore, favours the respondents.
ad]
respondent’s ancestors came to be recorded.
Section 157 of the MLRC provides for presumption and
correctness of entries.
ae]
Section 114 of the Evidence Act provides for a
presumptive existence of certain facts if they are visible from
the statutory records.
af]
Under Section 115 of the Evidence Act, the petitioners
are now estopped from raising
any issue as regards the
status of the respondents.
ag]
The final register of tenancy rights under rule 23 (i) of
the Hyderabad Tenancy and Agricultural Lands (Rules),
1950, is maintained in form XV. The said register contains
the names of the ancestors of the petitioners. Therefore, in
these circumstances, the case of the petitioners squarely
falls under section 98 of the Hyderabad Tenancy Act.
The learned Advocate for the respondents relied upon the
29.
following reported judgments of the Hon’ble Supreme Court, and
this Court in the cases of :-
a]
Uttam Namdeo Mahale Vs. Vithal Deo, reported at
1997 (6) SCC 73.
b]
Rangnath Vishnu Mulluck and another Vs. Vithoba
Rama Rahane and others, reported at AIR 1999 Supreme
Court, 534.
c]
Jagdishchandra Girjashanker Vs. Mohanbhai Hathibhai
(Dead) through L.Rs., reported at (2002) 10 Supreme Court
cases 540.
d]
Mesaji s/o Laxman Ubare Vs. Ramchandra (Dr.) s/o
Laxminarayan Thoshniwal & others, reported at [2011 (4)
Mh.L.J.] 668.
e]
Apparao Manaji Vs. Sadhu s/o Sambhaji and others,
reported at 1972 Rev. R., 217.
f]
Bharatlal s/o Hemraj Vs. Kondiba s/o Govinda Jadhav
& Ors., reported at 2001 (2) ALL MR 167.
g]
Sau Saraswatibai Trimbak Gaikwad Vs. Damodhar D.
Motiwale, reported at 2002 (4) SCC 481.
h] M/s. Nicks (India) Tools Vs. Ram Sarat and another,
reported at AIR 2004, Supreme Court, 4348.
i]
Prakash s/o Raosaheb Pawade & others Vs. Deorao
s/o Hari Pawade & others, reported at [2011 (6) Mh.L.J.] 198.
j]
U.P. Gram panchayat Adhikari Sangh & Ors. Vs. Daya
Ram Saroj & Ors., reported at 2007 (2) SCC 138.
k]
Limbaji Shankar Munde (deceased through L.Rs.) Vs.
Bhaurao Baliram Munde (deceased through L.Rs.) and
others, reported at [2010 (3) Mh. L.J.] 138.
l]
Vithoba Ram Rahane & another Vs. Bhalchandra
Sadashiv Joshi since deceased by heir and others, reported
at [1993, (1) Mh.L.J. 419].
m]
Malhari s/o Amruta Surnar deceased through L.Rs.
Haribai Malhari Surnar and others Vs. Rangnath Amruta
Kachave died through L.Rs. Rajaram s/o Rangnath Kahave
and others, reported at 2010 (5) Mh.L.J., 895.
30.
In reply submission, the petitioner has contended that none
of the cases relied upon by the Respondents are of any assistance
I have considered the submissions of the respective sides
31.
and their case is an after thought.
and gone through the petition paper book with their assistance and
the reliance placed on reported judgments.
32.
As such, the issues as to whether the application of the
respondents is hit by limitation, manner in which the petitioners
acquired possession of the said land, whether the petitioners are in
lawful possession and whether the issue of relationship between
the petitioners and the respondents can be raised after a passage
of about three decades, arise for the consideration of this Court.
33.
So far as the issue of limitation is concerned, the petitioners
have relied upon the reported judgments in the cases of
Ramchandra Balwantrao Dubal Vs. Dhondiram Tatoba Kadam
(supra), Santosh Kumar Shivgonda Patil & Ors. Vs. Balasaheb
Tukaram Shevale & Ors. (supra), and Radhu Gokul Gawli died
through L.Rs. & Ors. Vs. Mohan Kishan Gawali died through L.Rs.
34.
(supra).
In the case of Ramchandra Balwantrao Dubal (supra), the
case pertained to a right of a tenant who is entitled to the
possession of any land, to make an application within two years
from the date on which the right to obtain possession was deemed
to have been accrued to him. The Court held that since the tenant
did not take steps within two years to obtain the possession of the
suit land, the remedy was barred by limitation, the remedy was lost
and the right as a tenant was also extinguished. The said situation
is not before this Court and the said case Ramchandra Balwantrao
Dubal (supra), is not applicable to this case since the facts are
distinguishable.
35.
In the case of Santosh Kumar Shivgonda Patil & Ors.
(supra), the Hon’ble Apex Court was invited to decide the issue of
limitation under Section 257 of the Maharashtra Land Revenue
Code, 1966 (M.L.R.C.). Question was of resumption and recording
of Inam lands. It was, therefore, held that where no time limit for
exercising revisional power is prescribed, it does not mean that it
can be exercised at any time, rather the same should be exercised
within reasonable time. Therefore, the Apex Court concluded that
three years would mean reasonable time for preferring
the
revision. Since the facts of the said case are distinguishable from
the facts of this case, the ratio laid down in the said judgment
would be of no assistance to the petitioners.
36.
In the case of Radhu Gokul Gawli died through L.Rs. & ors.
(supra), this Court dealing with Section 98 of the Act of 1950,
concluded that if no limitation is provided in a Statute, power should
be exercised within a reasonable period depending on the facts of
the case. It was held that the provisions of Section 98 under the
Tenancy
and
Hyderabad
Agricultural
Lands
Act,
1950,
is
akin/similar to Section 84 of Bombay Tenancy and Agricultural
Lands Act, 1948. The petitioners have, therefore, stressed that the
judgment delivered by the learned Single Judge is squarely
applicable to this case.
37.
The respondents have placed reliance upon the judgments in
the cases of Rangnath Vishnu Mulluck and another Vs. Vithoba
Rama Rahane & others (supra), Mesaji s/o Laxman Ubare Vs.
Ramchandra (Dr.) s/o Laxminarayan Thoshniwal & others (supra),
and Malhari s/o Amruta Surnar deceased through Lrs. Haribai
Malhari Surnar & others Vs. Rangnath Amruta Kachave died
through L.Rs. Rajaram s/o Rangnath Kachave & others (supra). It
is noteworthy that the judgment of Radhu Gokul Gawli (supra), has
been considered in the case of Mesaji s/o Laxman Ubare (supra),
38.
and Malhari s/o Amruta Surnar (supra).
It was observed in para No. 21 of Mesaji Laxman case
(supra), that “ this Court has noticed that in Radhu Gokul Gawli
died through L.Rs. & Ors. Vs. Mohan Kishan Gawali died through
L.Rs (supra), learned Single Judge has not laid down proposition
that in every case application under Section 98 of 1950 Act will not
be maintainable after lapse of eighteen to nineteen years. It is also
noticed that the applicability of relevant provisions or its availability
needed to be decided looking to the facts available at hand. Court
has then noticed that remedy is required to be availed within
reasonable period but then absence of any limitation in Section 98
has been noted. It is found that Statute prescribes no limitation to
avail
remedy
against
person
in
wrongful
possession
unauthorisedly.
39.
In para No. 22 of the Mesaji s/o Laxman Ubare’s judgment
(supra), this Court has held as under :-
“
In scheme of various sections noted above by
me, whenever Legislature thought it fit to prescribe
period of limitation, the said period has been
specifically mentioned.
In section 98 only Collector
has been enabled to summarily evict a person in
unauthorised occupation or wrongful possession.
It
does not contemplate filing of any application by any
party to initiate proceedings under section 98. Thus,
it only casts obligation on the Collector to evict such
unauthorised or wrongful occupant. The fact of such
wrongful or unauthorised occupation may come to
knowledge of Collector belatedly through different
sources and in various situations.
It is therefore
obvious that Legislature has only conferred the powers
upon the authority to act in furtherance of provisions
and for the purposes of 1950 Act to see that its aims
and objects are achieved and preserved. No period of
limitation therefore has been deliberately prescribed
as such fact of unauthorised occupation or wrongful
possession may also be deliberately suppressed by
the parties from the Collector by adopting various
means and measures.
When the legislature has
vested title in protected tenant on tiller’s day against
the wishes of landholder, it is obvious that its design to
advance the said cause, to protect or preserve that
title from unscrupulous influences whenever it comes
across such instances cannot be allowed to be
defeated by such technical pleas. I find the absence
or nonprescription of any period of limitation in section
98 is deliberate and in tune with that object.”
40.
As such, I am in respectful agreement with the above
observations from the judgment of this Court in the case of Mesaji
Laxman Ubare (supra).
In my view when Section 98 does not
prescribe any limitation and looking to the scheme of the Act of
1950, the intent and object of the legislature is quite clear. When
an agriculturist has been wrongfully dispossessed and a person is
in unauthorised occupation or wrongful possession of the said land,
law has been empowered to summarily evict such a person who is
in wrongful possession. I find that the legislature does not intend
to fetter the scope and ambit of proceedings under Section 98 with
any limitation. The nonprescription of any limitation in Section 98
is, therefore, to be construed to mean a specific object which the
legislature intends to achieve. In these circumstances, I respectfully
disagree with the view expressed in the case of Radhu Gokul Gawli
died through L.Rs. & ors. (supra) to the extent of ‘reasonable time’.
Similarly, this Court in the case of Limbaji Shankar Munde
41.
(deceased through L.Rs.) considered whether there was any
limitation provided in tendering an application under Section 84 of
the Bombay Tenancy Act, 1948. Reliance was placed on the
Division
Bench
judgment
of
this
Court
in
the
case
of
Ghanshyamprasad Natwarlal Bhatt Vs. Gendalsingh Vakhatsing
and others in Special Civil Application No. 764/1955.
The
observations of the Division Bench are as follows :-
“
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
If there is no limitation
other provision of law.
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.”
Section 84 of the Act of 1948 is akin to Section 98 of the Act
In view of the above observations of the Division Bench of
42.
of 1950.
this Court in Ghanshyamprasad Natwarlal Bhatt (supra), Limbaji
Shankar Munde (supra) and Mesaji s/o Laxman Ubare, I find it
appropriate to follow the view taken in the aforesaid three
judgments and, therefore, conclude that Section 98 of the Act of
1950, cannot be fettered with limitation. As such, I conclude that
the application preferred by the applicants under Section 98 of the
Act of 1950 was maintainable and has been correctly so held by
the Deputy Collector, Land Reforms and the Maharashtra Revenue
Tribunal, Aurangabad.
43.
So far as the issue as to how did the petitioners come into
possession of the land is concerned, there is no explanation
forthcoming from the petitioners. The petitioners are non committal
on the manner in which they obtained possession of the suit land
and as regards the justification of being in possession.
Land
revenue receipts have been produced in the record and
proceedings of the matter. Nevertheless, the 7/12 extract that was
placed on record clearly evidences that the name of Venkat Rama
Bandgar (now deceased) was recorded as a tenant. Several 7/12
extracts from 1961 till 1973-74 stand in the name of Venkat and
from the year 1975-76 onwards, they stand in the name of the
In this backdrop, it is clear that the petitioners cannot explain,
44.
deceased Laxman Shankar.
much less justify being in possession of the suit land.
I am,
therefore, in agreement with the view taken by both the lower
authorities that the petitioners have unlawfully been in the
possession of the suit land. Nevertheless, Section 98 of the Act of
1950 which is akin to Section 84 of the Bombay Act of 1950, vests
no legal right in the petitioners to remain in possession of the suit
land.
45.
So far as the issues of relationship raised before this Court
for the first time is concerned, the petitioners have no where taken
this stand in their written statement filed before the first authority as
well as in their Appeal before M.R.T.
Relationship has to be
pleaded and proved. Much ado has been made by the petitioners
before this Court as regards issue of relationship and invoking of
Section 5-A of the Act of 1950.
It is seen from the original record that the names of the great
46.
grandfather and grandfather of the respondents were entered in
‘Pahani Patrak’ and ‘Khasara Pahani Patrak’.
The respondents
were in possession of the land for three decades prior to 1974.
Page Nos. 27, 33, 35, 37, 39 indicate crystallization of their tenancy
rights. By the introduction of Section 38-E, the respondents who
were protected tenants became full owners of the land from the
notified date. Page 27 of the Record and proceedings indicates
that the names of the ancestors of the respondents were entered in
the register termed as final register of protected tenants under
Section 38 of the Act. The entry is found in the final register of
tenancy rights maintained under 23(i) of the Rules of 1950 in form
XV.
47.
The Hon’ble Apex Court in the case of Rangnath Vishnu
Mulluck and another (supra), concluded that when the tenant had
not surrendered his tenancy rights in respect of those lands and the
land-lord had not obtained possession thereof in a lawful manner,
application made by the tenant under Section 84 was rightly held
proper since the land-lord was in unauthorised possession.
In
Apparao Manaji’s case (supra), this Court held that application for
restoration of possession is maintainable since the tenant is forcibly
ousted and the presumption is that the tenant remains in
possession until dispossessed in accordance with the process of
48.
law.
In the case of Bharatlal s/o Hemraj (Supra), this Court
concluded that the land-lords have ample opportunities to dispute
the
declaration
of
protected
tenancy
under
Section
38-E.
Ownership certificate under Section 38-E is a formal certificate of
Appeal
against
a
declaration of protected tenant in respect of property held by him.
declaration
under
section
38-E
is
not
maintainable. The said certificate confers ownership of the land in
favour of the protected tenant.
49.
In the case of Prakash s/o Raosaheb Pawade & others
(supra), it was held that on 25-05-1957 when the notification in
relation to Section 38-E was issued, the said date was construed to
be the notified date.
Lands held by protected tenants stood
transferred to and vested in protected tenant from the date of the
notification. The protected tenant was, therefore, deemed to have
become full owner of such land.
50.
In the case of Malhari s/o Amruta Surnar (supra), this Court
has held that explanation added to Section 38-E by Maharashtra
Act, 45 of 1961, does not obliterate and wipe out the tenancy rights
of a protected tenant in any manner.
In the light of the above, and in view of the fact that the
51.
respondents and their ancestors have been in possession of the
said land since about three decades prior to their dispossession in
1974 and in view of the petitioners having not even whispered
about the relationship between the two so as to prevent a claim of
tenancy, I am unable to accept the plea of the petitioners that the
respondents could not have made a claim of tenancy against the
petitioners who were related to them. The rights of the respondents
have been crystallised decades ago and the petitioners have
acquiesced their right to object to the same. The doctrine
‘Acceptance sub-silentio’ is applicable to the petitioners.
52.
The petitioners have handed over the possession of the said
land to the respondents on 20-02-2001, when the ‘Taba Pawati’
was prepared in the presence of witnesses and panchanama was
drawn. The proceedings for possession filed by the respondents
were, therefore, fructified. The petitioners do not dispute this
position. In light of the said fact, this Court refused interim relief to
the petitioners by its order dated 20-04-2001.
53.
I, therefore, do not find any perversity in the judgment of the
Deputy Collector, Land Reforms dated 02-01-1996 and the
Judgment of the Maharashtra Revenue Tribunal delivered on
11-01-2001. There has to be a finality to the litigation, which I find
is going on for practically two generations between the two sides.
The process of law ought to lead to finality in the adjudication of the
rights of the parties. In view of my observations set out herein
above, I do not find any merit in the challenge posed by the
petitioners. The Writ Petition is devoid of merits and is, therefore,
dismissed. Rule is discharged. No order as to costs.
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