The provision of section 40 of the Act shows
that rights of Gopinath who was tenant on the relevant
date had passed to his heirs, sons, and it was possible for
the heirs of Gopinath to partition the land amongst
themselves for cultivating the respective portions
separately. This could have been done subject to
conditions mentioned in section 40(2) of the Act. On the
basis of this provision the tenancy shall be deemed to
have been continued in favour of all heirs of the tenant
and so Pandharinath alone cannot claim that he had
become tenant after the death of Gopinath. Further, the
landlord was treating all the heirs of Gopinath as tenant.
For the same reasons, when more heirs are present, one
heir of the tenant cannot become exclusive owner under
the law. At the most the heir who has paid the purchase
price can say that if other heir wants to assert his right,
he should pay the price in respect of his share.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.1411 of 2014
Vishwanath Gopinath Borude,
V
Pandharinath Gopinath Borude,
CORAM: T.V. NALAWADE, J.
DATE : 23 AUGUST 2016
Citation: 2017(2) MHLJ 75
1) Rule. Rule made returnable forthwith. Heard
both sides for final disposal by consent.
2) The first two proceedings (Writ Petition
Nos.1411/2014 and 1432/2014) are filed to challenge the
orders made by the Tenancy Court and the appellate
authorities like the order of the Tahsildar Paithan dated
30-11-2009, the order of the appellate authority, Sub
Divisional Officer given in Appeal No.3/2011 and the order
of the revisional authority – M.R.T. (Maharashtra Revenue
Tribunal, Aurangabad) in Revision No.61-B-2012. The
Tahsildar, Tenancy Court, has given direction to issue
ownership certificate under the provision of Section 38(6)
of the Hyderabad Tenancy and Agricultural Lands Act,
1950 (hereinafter referred to as “the Act”) in favour
respondent No.1 Pandharinath Borude (now deceased
and represented by his legal representatives). It is the
case of the petitioners of the present two petitions who
are brothers of Pandharinath that all the brothers of
Pandharinath are entitled to get the certificate under
section 38(6) of the Act as successors of the father
Gopinath, who was inducted as tenant in the suit lands by
the owner.
3) The disputed property consists of two portions
of agricultural lands bearing Gat No.19 (old Survey No.6)
to the extent 10 acres and Gat No.123 (Old Survey No.53)
to the extent of 11 acres situated at village Dinnapur,
Tahsil Paithan, District Aurangabad. One Madhavrao
Khatik was the owner of these two lands and respondent
Nos.3-A to 3B-II-b are the successors of Madhavrao.
Gopinath, father of Pandharinath was cultivating entire
area of these lands on Batai basis from prior to the year
1955. Name of Gopinath was entered in the revenue
record as tenant and as per crop cultivation column he
was in possession till his death. He died in the year 1957.
4) Gopinath left behind four sons, viz Murlidhar,
Pandharinath, Vishwanath and Dashrath. One Rangnath
was eldest son of Gopinath but he had died prior to the
death of Gopinath. The present matters involve only four
sons of Gopinath. Petitioner No.1 of the first proceeding,
respondent No.1 and respondent No.4 of the first
proceeding are the sons of Gopinath. Heirs of other
deceased son were on the record during the hearing of the
proceeding.
5) It is the case of the petitioners of the first two
proceedings that Murlidhar was the second son of
Gopinath but as Murlidhar was simpleton person, after the
death of Gopinath, Pandharinath gave report to the
revenue authority and got entered his name in the
revenue record as tenant but his name was entered as
successor of Gopinath and his name was entered for the
joint Hindu family consisting of all the successors of
Gopinath. It is the case of these petitioners that the owner
Madhavrao Khatik died prior to 1959 and he was
succeeded by his two widows like Sunderabai and
Anusaya. It appears that Sunderabai had no issue and she
bequeathed her property to her brother Limba Garad who
was on the record. Limba died during pendency and his
legal representatives are brought on the record.
Sunderabai died in the year 1967, Ansabai died in the
year 1971 and her heirs are already on the record who
are two daughters.
6) It is the case of the petitioners of the first two
proceedings that during her life time, prior to 1959,
Sunderabai had started proceeding under section 44 read
with section 32 of the Act for possession of the entire area
of two lands. It is contended that after the death of
Sunderabai, the proceeding was prosecuted by Limba
Garad in view of the will executed in his favour but Limba
could not succeed in the said proceeding and the
proceeding came to be dismissed The said decision
became final in the year 1984.
7) It is the case of the petitioners that as Gopinath
was in possession of these lands as tenant till his death,
till the year 1957, and as all his sons had become tenants,
due to the provisions of the law, and as they were in
possession of the lands, they were entitled to purchase the
lands as provided by the law. It is contended that on the
relevant date like 26-1-1956 Gopinath was in possession
and on subsequent dates like 11-7-1958 and in the year
1965 successors of Gopinath were in possession and so
the successors of Gopinath were entitled to get
declaration under the provisions of the Act like Sections
38-E or 38-F. It is the case of the petitioners that they
could have got the declaration and certificate of
ownership automatically in view of the provisions of law
and the issuance of declaration or the certificate under
section 38(6) of the Act was mere formality but that could
not be done due to aforesaid proceeding which was
started under the provision of section 44 read with 32 of
the Act by Sundarabai. It is contended that the certificate
could have been issued even after making declaration
under section 38G of the Act as in the year 1965 also the
successors of Gopinath were in possession of the lands.
8) It is the case of the petitioners of the first two
proceedings that declaration was not issued under section
38E of 38F, 38G of the Act till the year 1984, till the
decision given in the proceeding started by Sundarabai
became final. It is contended that in the past suit was filed
by all the successors of Gopinath against the owners as
the owners were illegally interfering in the possession of
the successors of Gopinath over the lands. It is contended
that the four sons of Gopinath then started cultivating
separate portions in accordance with the shares to which
they were entitled and accordingly entries were made in
the revenue record from the year 1985 onwards. It is
contended that their names were also then entered as
owners in the revenue record by effecting the mutation
entries on the basis of report given by all the brothers. It
is contended that till year 2006, there was no dispute
amongst these brothers and Pandharinath had not
disputed the rights of the petitioner and other brothers to
get the shares as successors of Gopinath in the two lands.
9) It is the case of the petitioners of the first two
proceedings that in the year 2006 Pandharinath joined
hands with the revenue authority and paid the price in
respect of aforesaid two portions of the two lands for
obtaining declaration and sale certificate. It is contended
that no notices of these proceedings were issued to the
petitioners or other brothers of Pandharinath but the
record was created to show that the notices were served.
It is contended that even when there was revenue record
of aforesaid nature showing that all the sons of Gopinath
were entitled to succeed to the property as they were the
tenants in possession, some record of the year 2007-08
was created in favour of Pandharinath. It appears that
there was one proceeding between the owner and these
brothers in which order of possession was also made in
favour of the owner and due to that possession was shown
to be taken over by owner and then proceeding under
section 145 of the Criminal Procedure Code was started.
There is some record like handing over the possession to
Pandharinath on the basis of ownership certificate but the
revenue record and the sale transactions made by
brothers of Pandharinath show that they had transferred
portions of their shares on the basis of mutation.
10) Under the order under challenge declaration is
made in respect of 21 acres of land (10 acres from first
Gat number and 11 acres from second Gat number, one
family holding) and certificate is ordered to be issued in
respect of these portions under section 38(6) of the Act.
11) Writ Petition No.3534/2014 is filed by
successors of the owner, Madhavrao Khatik, daughters of
Ansabai. It is their case that Ansabai was entitled to have
equal share in the property left behind by the owner but
neither Ansabai nor her legal representatives were
brought on the record in the proceeding which was
started for issuing certificate under section 38(6) of the
Act and so the said order of the tenancy Court is not
binding on them. Thus, the decision of the Tenancy Court
is challenged by the brothers of Pandharinath and also the
successors of the owner.
12) The other writ petitions are filed either by
successors of deceased Gopinath or by the purchasers
from the petitioners and other successors of Gopinath of
some portions of the two lands. It is already mentioned
that one mutation was effected in favour of all the four
sons of Gopinath and they were shown as owners in the
revenue record. On that basis they had sold portions
separately under separate sale deeds in favour of the
petitioners of the remaining petitions and one petition is
filed by son of Dashrath, the grand son of Gopinath (Writ
Petition Nos.1939/2014). Writ Petition No.1944/2014 is
filed by Sumanbai who is daughter of other son of
Gopinath like Vishwanath as action is taken against her
also and the property is shown to be transferred in her
name due to partition. It appears that as the transfers in
favour of these persons are shown to be made, separate
proceeding is started by authority under the Act, under
the provisions of Section 50-B read with section 98 of the
Act. These persons are afraid that possession of the land
will be taken from them as the transfers are hit by
provision of section 50-B of the Act. So, they have also
challenged the orders of Tenancy Court made in favour of
Pandharinath.
13) Before Tahsildar, there was nobody to contest
the claim of Pandharinath that he was only entitled to get
the certificate. Due to this circumstance not much
discussion of the record is made by the Tenancy Court, the
Tahsildar about the record and the position of law. In
appeal filed by the brothers of Pandharinath, Sub
Divisional Officer, appellate authority, has held that there
is no record on the basis of which inference is possible
that Pandharinath got the possession of the lands as Karta
of joint Hindu family consisting of Pandharinath and his
brothers. After making such observations it is held that
only Pandharinath was in possession and so declaration
needs to be given in his favour and certificate needs to be
issued in his favour. The revision filed against this decision
of the Sub Divisional Officer before the Maharashtra
Revenue Tribunal is dismissed.
14) It is the case of Pandharinath that he had taken
the land for cultivation from the original owner and as he
was in possession of the land on the relevant dates
mentioned above, he is entitled to declaration and the
certificate.
15) The parties are Hindus. Pandharinath never
disputed that the owner of the land had given the land for
cultivation on Batai basis to Gopinath. Till his death,
Gopinath was cultivating the land as tenant. There is also
revenue record in that regard. Khasra Pahani Patrak of
the years 1955-56, 1956-57 and 1957-58 show that
Gopinath was cultivating these lands on Batai basis as
tenant. It is not disputed that Gopinath died in the year
1957. Thus on the first relevant date, 26-1-1956
Gopinath was in possession of the lands as tenant and his
name was also entered in the record accordingly. It is not
disputed that Sundarabai, daughter of the owner had
stated proceeding under sections 44 and 32 of the Act for
getting possession of these lands in the year 1959. In that
proceeding Sundarabai had contended that the lands were
given by her father to Gopinath for cultivation and after
the death of Gopinath all his sons were in possession of
the lands as tenant. These contentions of the landlord
cannot be ignored. On the other hand there is no record
whatsoever with Pandharinath to show that after the
death of Gopinath, the lands were given to him for
cultivation by the landlord on Batai basis. The admission
of the landlord is consistent with the aforesaid revenue
record. This record was created prior to the starting of
the dispute, prior to year 1960 and so the record needs to
be given due weight. On the 7/12 extracts there is entry
showing only due to death of Gopinath name of
Pandharinath was entered and it was as successor of
Gopinath. This record is ignored by the Tahsildar, the Sub
Divisional Officer and the Maharashtra Revenue Tribunal.
16) It is not disputed that in the revenue record, in
crop cultivation column, entries of the names of all the
brothers of Pandharinath were made from 1985-86 and
they were shown to be in possession of separate portions.
It is the case of the petitioners that partition had taken
place and accordingly separate possession was given to
the brothers of different portions. It can be said that even
when no declaration was made under the law about the
tenancy rights and no sale certificate was issued in favour
of these brothers, these brothers were shown even as
owners in the revenue record on the basis of so called
partition effected by them. On the basis these mutations
most of the portions which had come to the shares of
brothers of Pandharinath were sold by these brothers
under sale deeds to third parties who have filed aforesaid
different writ petitions. The record shows that even
Pandharinath had agreed to sell his share. Such mutation
was sanction in year 1995-96 and on that basis the
transactions were made by these brothers. Due to these
circumstances, the Tahsildar, Court under the Act has
started proceeding against the purchasers.
17) The provision of section 50-B of the Act puts
restrictions on the transfers of the lands purchased or sold
under the Act. These restrictions are applicable to the
lands purchased by tenant under sections 38-A, 38-E and
38-F and also 38-G. The provision shows that it is
mandatory that before any such transaction previous
sanction of the Collector is taken. The provision of section
50(B)(2) shows that transfer without sanction of the
Collector shall be invalid. Under section 98 of the Act
summary eviction of the persons in whose favour such
transfer is effected is made possible. In view of this
settled position of law, the purchaser cannot contest the
proceeding if it is taken to conclusion under section 98 of
the Act. So the proceedings filed by the purchaser cannot
be allowed.
18) It is true that the mutation and the transactions
could not have been made, the fact remains that these
circumstances are certainly against the claim of
Pandharinath that the land was given to him for
cultivation by the owner and he alone was the tenant in
possession on the relevant dates.
19) Regular Civil Suit No.285/1989 was filed by
Pandharinath and his two brothers like Murlidhar and
Vishwanath against the owner and also the persons who
were acting through the owner. The suit was filed for
relief of declaration and injunction. Declaration was
claimed to the effect that Pandharinath and his brothers
were in possession as tenants for more than 50 years and
injunction was claimed to prevent the owners from
interfering in the possession without following due
process of law. The record shows that in this suit civil
court had made order of reference to the Tenancy court
and following issue was referred to he Tenancy Court :-
“Whether the plaintiffs prove that they are tenants
in the suit land ?
Copy of order dated 29-1-1993 is on the record and it
shows that this issue is answered in affirmative by the
Tenancy Court. There is nothing on the record to show
that the landlord challenged this finding. Pandharinath
was plaintiff in that suit and it can be said that in one way
the finding was against Pandharinath if he wants to
contend that he alone is the tenant in possession of the
land. This record is not considered by the Tahsildar and
the Sub Divisional Officer. The present matter was
decided by the Tahsildar on 30-11-2009 but previous
decision of the tenancy Court given in the year 1993 that
all the brothers are the tenants was there and so the
Tenancy Court ought to have presumed that all the
brothers were entitled to declaration and they are entitled
to get certificate under section 38(6) of the Act. Thus it
was not possible for the Tahsildar in the year 2009 to hold
that only Pandharinath was the tenant in possession on
the relevant date.
20) It appears that Regular Civil Suit No.176/1999
was filed by Murlidhar against Pandharinath for the relief
of partition and present lands were included in that suit.
The said suit was dismissed. From the record it can be
said that the decision of 1993 given by the Tenancy Court
in the previous proceeding was not made available to the
Civil Court when Regular Civil Suit No.176/1999 was
decided. Further, there was no declaration and sale
certificate was also not available and so the Civil Court
dismissed the suit. Even if some observations are made by
the Civil Court in the suit filed by Murlidhar in favour of
Pandharinath those observations cannot be used in
support of the case of Pandharinath as such declaration
can be given only by Tenancy Court and the Civil Court
has no jurisdiction in that regard. Thus Pandharinath
cannot make out much on the basis of the decision of
Regular Civil Suit No.176/1999.
21) The provisions of section 40 run as under :-
"40. Rights of tenants are heritable:-- (1) Where a
tenant dies, the land holder shall be deemed to have
continued the tenancy -
(a) if such tenant was a member of an undivided
Hindu family, to the surviving members of the said
family, and
(b) if such tenant was not a member of an undivided
Hindu family, to his heirs, on the same terms and
conditions on which such tenant was holding it at
the time of his death.
(2) The surviving members, or as the case may be,
the heirs to whom the tenancy is continued under
sub-section (1) shall be entitled to partition and
subdivided the land leased subject to the following
conditions.
(a) each sharer shall hold his share as a separate
tenant.
(b) the rent payable in respect of the land leased,
shall be apportioned among the sharer according to
the share alloted to them.
(c) the area allotted to each sharer shall not be less
than the unit which the State Government may, by
general or special order, specify in this behalf
having regard to the productive capacity and other
circumstances relevant to the full and efficient use
of the land for agriculture.
(d) the area is less than the unit referred to in
clause (c), the sharer shall be entitled to enjoy the
income jointly, but the land shall not be divided by
metes and bounds.
(e) if any question arises regarding the
apportionment of the rent payable by the sharers,
it shall be decided by the Tahsildar whose decision
shall be final."
22) The provision of section 40 of the Act shows
that rights of Gopinath who was tenant on the relevant
date had passed to his heirs, sons, and it was possible for
the heirs of Gopinath to partition the land amongst
themselves for cultivating the respective portions
separately. This could have been done subject to
conditions mentioned in section 40(2) of the Act. On the
basis of this provision the tenancy shall be deemed to
have been continued in favour of all heirs of the tenant
and so Pandharinath alone cannot claim that he had
become tenant after the death of Gopinath. Further, the
landlord was treating all the heirs of Gopinath as tenant.
For the same reasons, when more heirs are present, one
heir of the tenant cannot become exclusive owner under
the law. At the most the heir who has paid the purchase
price can say that if other heir wants to assert his right,
he should pay the price in respect of his share.
23) On the aforesaid point learned counsel for the
petitioners from Writ Petition No.1411/2014 placed
reliance on the cases reported as (1) 2001 (3) Mh.L.J. 90
(Bombay High Court) (Vasudeo Ramchandra v. Vijay
Bhikaji); and, (2) (2011) 3 SCC 755 (Ramdeo v. Board
of Revenue, Uttar Pradesh). In these cases it is laid
down that only one heir cannot be declared as exclusive
tenant when there are other heirs, co-sharers. Similar
observations are made by this Court in the case reported
as 2010 (2) Mh.L.J. 970 (Sarjerao vs. Pralhad).
24) Learned counsel for the landlord placed
reliance on the case reported as 2010 (6) Bom.C.R. 787
Aurangabad Bench (Vaijnath v. Afsar Begum). In view of
the facts of that case, this Court had observed that when
no record is available to prove that a party was protected
tenant, entries made to the effect that party had become
statutory owner under section 38 of the Tenancy Act need
to be treated as null and void and the certificate of
ownership issued on the basis of such entry also can be
declared as null and void. There cannot be dispute over
this proposition. The relevant facts of the present matters
are already quoted. At least on two occasions the Tenancy
Court has held that Gopinath was the tenant and his
successors like Pandharinath and brothers of
Pandharinath are the tenants and there is also admission
to that effect of Pandharinath in legal proceeding.
25) The learned counsel for Pandharinath placed
reliance on the observations made in one case reported as
2001(3) Mh.L.J. 380 Bombay High court (Bharatlal v.
Kondiba). In this case, the procedure for declaration to
be made under section 38-E of the Act is discussed and it
is laid down that there is no provision to issue notice to
the landlord or others before issuing declaration and so no
appeal would lie against the declaration given under this
provision. The facts show that it was the challenge of the
landlord to the declaration. It is already observed that the
relevant record contains the declaration that all the heirs
of Gopinath were the tenants. When there was such
declaration which was with the Tenancy Court, the
Tenancy Court could not have issued the certificate only in
favour of one successor of Gopinath by holding that said
successor, Pandharinath, was the tenant and he was not
holding the property for his brothers. So, in the present
matter, the observations made by this Court in the case of
Bharatlal (cited supra) are of no use.
26) In view of the discussion made, this Court holds
that the Tenancy Court has committed error in giving
direction to issue certificate under section 38(6) of the Act
only in favour of Pandharinath. Such decision cannot
sustain in law. However, there is no need to interfere in
other action taken by the Tenancy Court like taking action
for making transaction in breach of the provision of
section 50-B of the Act. In the result, following order is
made.
27) Writ Petition Nos.1411/2014 and 1432/2014 are
allowed. The order made by the Tahsildar which is
confirmed by the first appellate Court is hereby set aside.
The orders of the Tahsildar, the Sub Divisional Officer and
the Maharashtra Revenue Tribunal are hereby set aside.
Direction is given to issue certificate in favour of all the
four sons of Gopinath in respect of one family holding. In
those terms rule is made absolute. The other writ petitions
stand dismissed and rule is discharged in those
proceedings.
Sd/-
(T.V. NALAWADE, J. )
Print Page
that rights of Gopinath who was tenant on the relevant
date had passed to his heirs, sons, and it was possible for
the heirs of Gopinath to partition the land amongst
themselves for cultivating the respective portions
separately. This could have been done subject to
conditions mentioned in section 40(2) of the Act. On the
basis of this provision the tenancy shall be deemed to
have been continued in favour of all heirs of the tenant
and so Pandharinath alone cannot claim that he had
become tenant after the death of Gopinath. Further, the
landlord was treating all the heirs of Gopinath as tenant.
For the same reasons, when more heirs are present, one
heir of the tenant cannot become exclusive owner under
the law. At the most the heir who has paid the purchase
price can say that if other heir wants to assert his right,
he should pay the price in respect of his share.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.1411 of 2014
Vishwanath Gopinath Borude,
V
Pandharinath Gopinath Borude,
CORAM: T.V. NALAWADE, J.
DATE : 23 AUGUST 2016
Citation: 2017(2) MHLJ 75
1) Rule. Rule made returnable forthwith. Heard
both sides for final disposal by consent.
2) The first two proceedings (Writ Petition
Nos.1411/2014 and 1432/2014) are filed to challenge the
orders made by the Tenancy Court and the appellate
authorities like the order of the Tahsildar Paithan dated
30-11-2009, the order of the appellate authority, Sub
Divisional Officer given in Appeal No.3/2011 and the order
of the revisional authority – M.R.T. (Maharashtra Revenue
Tribunal, Aurangabad) in Revision No.61-B-2012. The
Tahsildar, Tenancy Court, has given direction to issue
ownership certificate under the provision of Section 38(6)
of the Hyderabad Tenancy and Agricultural Lands Act,
1950 (hereinafter referred to as “the Act”) in favour
respondent No.1 Pandharinath Borude (now deceased
and represented by his legal representatives). It is the
case of the petitioners of the present two petitions who
are brothers of Pandharinath that all the brothers of
Pandharinath are entitled to get the certificate under
section 38(6) of the Act as successors of the father
Gopinath, who was inducted as tenant in the suit lands by
the owner.
3) The disputed property consists of two portions
of agricultural lands bearing Gat No.19 (old Survey No.6)
to the extent 10 acres and Gat No.123 (Old Survey No.53)
to the extent of 11 acres situated at village Dinnapur,
Tahsil Paithan, District Aurangabad. One Madhavrao
Khatik was the owner of these two lands and respondent
Nos.3-A to 3B-II-b are the successors of Madhavrao.
Gopinath, father of Pandharinath was cultivating entire
area of these lands on Batai basis from prior to the year
1955. Name of Gopinath was entered in the revenue
record as tenant and as per crop cultivation column he
was in possession till his death. He died in the year 1957.
4) Gopinath left behind four sons, viz Murlidhar,
Pandharinath, Vishwanath and Dashrath. One Rangnath
was eldest son of Gopinath but he had died prior to the
death of Gopinath. The present matters involve only four
sons of Gopinath. Petitioner No.1 of the first proceeding,
respondent No.1 and respondent No.4 of the first
proceeding are the sons of Gopinath. Heirs of other
deceased son were on the record during the hearing of the
proceeding.
5) It is the case of the petitioners of the first two
proceedings that Murlidhar was the second son of
Gopinath but as Murlidhar was simpleton person, after the
death of Gopinath, Pandharinath gave report to the
revenue authority and got entered his name in the
revenue record as tenant but his name was entered as
successor of Gopinath and his name was entered for the
joint Hindu family consisting of all the successors of
Gopinath. It is the case of these petitioners that the owner
Madhavrao Khatik died prior to 1959 and he was
succeeded by his two widows like Sunderabai and
Anusaya. It appears that Sunderabai had no issue and she
bequeathed her property to her brother Limba Garad who
was on the record. Limba died during pendency and his
legal representatives are brought on the record.
Sunderabai died in the year 1967, Ansabai died in the
year 1971 and her heirs are already on the record who
are two daughters.
6) It is the case of the petitioners of the first two
proceedings that during her life time, prior to 1959,
Sunderabai had started proceeding under section 44 read
with section 32 of the Act for possession of the entire area
of two lands. It is contended that after the death of
Sunderabai, the proceeding was prosecuted by Limba
Garad in view of the will executed in his favour but Limba
could not succeed in the said proceeding and the
proceeding came to be dismissed The said decision
became final in the year 1984.
7) It is the case of the petitioners that as Gopinath
was in possession of these lands as tenant till his death,
till the year 1957, and as all his sons had become tenants,
due to the provisions of the law, and as they were in
possession of the lands, they were entitled to purchase the
lands as provided by the law. It is contended that on the
relevant date like 26-1-1956 Gopinath was in possession
and on subsequent dates like 11-7-1958 and in the year
1965 successors of Gopinath were in possession and so
the successors of Gopinath were entitled to get
declaration under the provisions of the Act like Sections
38-E or 38-F. It is the case of the petitioners that they
could have got the declaration and certificate of
ownership automatically in view of the provisions of law
and the issuance of declaration or the certificate under
section 38(6) of the Act was mere formality but that could
not be done due to aforesaid proceeding which was
started under the provision of section 44 read with 32 of
the Act by Sundarabai. It is contended that the certificate
could have been issued even after making declaration
under section 38G of the Act as in the year 1965 also the
successors of Gopinath were in possession of the lands.
8) It is the case of the petitioners of the first two
proceedings that declaration was not issued under section
38E of 38F, 38G of the Act till the year 1984, till the
decision given in the proceeding started by Sundarabai
became final. It is contended that in the past suit was filed
by all the successors of Gopinath against the owners as
the owners were illegally interfering in the possession of
the successors of Gopinath over the lands. It is contended
that the four sons of Gopinath then started cultivating
separate portions in accordance with the shares to which
they were entitled and accordingly entries were made in
the revenue record from the year 1985 onwards. It is
contended that their names were also then entered as
owners in the revenue record by effecting the mutation
entries on the basis of report given by all the brothers. It
is contended that till year 2006, there was no dispute
amongst these brothers and Pandharinath had not
disputed the rights of the petitioner and other brothers to
get the shares as successors of Gopinath in the two lands.
9) It is the case of the petitioners of the first two
proceedings that in the year 2006 Pandharinath joined
hands with the revenue authority and paid the price in
respect of aforesaid two portions of the two lands for
obtaining declaration and sale certificate. It is contended
that no notices of these proceedings were issued to the
petitioners or other brothers of Pandharinath but the
record was created to show that the notices were served.
It is contended that even when there was revenue record
of aforesaid nature showing that all the sons of Gopinath
were entitled to succeed to the property as they were the
tenants in possession, some record of the year 2007-08
was created in favour of Pandharinath. It appears that
there was one proceeding between the owner and these
brothers in which order of possession was also made in
favour of the owner and due to that possession was shown
to be taken over by owner and then proceeding under
section 145 of the Criminal Procedure Code was started.
There is some record like handing over the possession to
Pandharinath on the basis of ownership certificate but the
revenue record and the sale transactions made by
brothers of Pandharinath show that they had transferred
portions of their shares on the basis of mutation.
10) Under the order under challenge declaration is
made in respect of 21 acres of land (10 acres from first
Gat number and 11 acres from second Gat number, one
family holding) and certificate is ordered to be issued in
respect of these portions under section 38(6) of the Act.
11) Writ Petition No.3534/2014 is filed by
successors of the owner, Madhavrao Khatik, daughters of
Ansabai. It is their case that Ansabai was entitled to have
equal share in the property left behind by the owner but
neither Ansabai nor her legal representatives were
brought on the record in the proceeding which was
started for issuing certificate under section 38(6) of the
Act and so the said order of the tenancy Court is not
binding on them. Thus, the decision of the Tenancy Court
is challenged by the brothers of Pandharinath and also the
successors of the owner.
12) The other writ petitions are filed either by
successors of deceased Gopinath or by the purchasers
from the petitioners and other successors of Gopinath of
some portions of the two lands. It is already mentioned
that one mutation was effected in favour of all the four
sons of Gopinath and they were shown as owners in the
revenue record. On that basis they had sold portions
separately under separate sale deeds in favour of the
petitioners of the remaining petitions and one petition is
filed by son of Dashrath, the grand son of Gopinath (Writ
Petition Nos.1939/2014). Writ Petition No.1944/2014 is
filed by Sumanbai who is daughter of other son of
Gopinath like Vishwanath as action is taken against her
also and the property is shown to be transferred in her
name due to partition. It appears that as the transfers in
favour of these persons are shown to be made, separate
proceeding is started by authority under the Act, under
the provisions of Section 50-B read with section 98 of the
Act. These persons are afraid that possession of the land
will be taken from them as the transfers are hit by
provision of section 50-B of the Act. So, they have also
challenged the orders of Tenancy Court made in favour of
Pandharinath.
13) Before Tahsildar, there was nobody to contest
the claim of Pandharinath that he was only entitled to get
the certificate. Due to this circumstance not much
discussion of the record is made by the Tenancy Court, the
Tahsildar about the record and the position of law. In
appeal filed by the brothers of Pandharinath, Sub
Divisional Officer, appellate authority, has held that there
is no record on the basis of which inference is possible
that Pandharinath got the possession of the lands as Karta
of joint Hindu family consisting of Pandharinath and his
brothers. After making such observations it is held that
only Pandharinath was in possession and so declaration
needs to be given in his favour and certificate needs to be
issued in his favour. The revision filed against this decision
of the Sub Divisional Officer before the Maharashtra
Revenue Tribunal is dismissed.
14) It is the case of Pandharinath that he had taken
the land for cultivation from the original owner and as he
was in possession of the land on the relevant dates
mentioned above, he is entitled to declaration and the
certificate.
15) The parties are Hindus. Pandharinath never
disputed that the owner of the land had given the land for
cultivation on Batai basis to Gopinath. Till his death,
Gopinath was cultivating the land as tenant. There is also
revenue record in that regard. Khasra Pahani Patrak of
the years 1955-56, 1956-57 and 1957-58 show that
Gopinath was cultivating these lands on Batai basis as
tenant. It is not disputed that Gopinath died in the year
1957. Thus on the first relevant date, 26-1-1956
Gopinath was in possession of the lands as tenant and his
name was also entered in the record accordingly. It is not
disputed that Sundarabai, daughter of the owner had
stated proceeding under sections 44 and 32 of the Act for
getting possession of these lands in the year 1959. In that
proceeding Sundarabai had contended that the lands were
given by her father to Gopinath for cultivation and after
the death of Gopinath all his sons were in possession of
the lands as tenant. These contentions of the landlord
cannot be ignored. On the other hand there is no record
whatsoever with Pandharinath to show that after the
death of Gopinath, the lands were given to him for
cultivation by the landlord on Batai basis. The admission
of the landlord is consistent with the aforesaid revenue
record. This record was created prior to the starting of
the dispute, prior to year 1960 and so the record needs to
be given due weight. On the 7/12 extracts there is entry
showing only due to death of Gopinath name of
Pandharinath was entered and it was as successor of
Gopinath. This record is ignored by the Tahsildar, the Sub
Divisional Officer and the Maharashtra Revenue Tribunal.
16) It is not disputed that in the revenue record, in
crop cultivation column, entries of the names of all the
brothers of Pandharinath were made from 1985-86 and
they were shown to be in possession of separate portions.
It is the case of the petitioners that partition had taken
place and accordingly separate possession was given to
the brothers of different portions. It can be said that even
when no declaration was made under the law about the
tenancy rights and no sale certificate was issued in favour
of these brothers, these brothers were shown even as
owners in the revenue record on the basis of so called
partition effected by them. On the basis these mutations
most of the portions which had come to the shares of
brothers of Pandharinath were sold by these brothers
under sale deeds to third parties who have filed aforesaid
different writ petitions. The record shows that even
Pandharinath had agreed to sell his share. Such mutation
was sanction in year 1995-96 and on that basis the
transactions were made by these brothers. Due to these
circumstances, the Tahsildar, Court under the Act has
started proceeding against the purchasers.
17) The provision of section 50-B of the Act puts
restrictions on the transfers of the lands purchased or sold
under the Act. These restrictions are applicable to the
lands purchased by tenant under sections 38-A, 38-E and
38-F and also 38-G. The provision shows that it is
mandatory that before any such transaction previous
sanction of the Collector is taken. The provision of section
50(B)(2) shows that transfer without sanction of the
Collector shall be invalid. Under section 98 of the Act
summary eviction of the persons in whose favour such
transfer is effected is made possible. In view of this
settled position of law, the purchaser cannot contest the
proceeding if it is taken to conclusion under section 98 of
the Act. So the proceedings filed by the purchaser cannot
be allowed.
18) It is true that the mutation and the transactions
could not have been made, the fact remains that these
circumstances are certainly against the claim of
Pandharinath that the land was given to him for
cultivation by the owner and he alone was the tenant in
possession on the relevant dates.
19) Regular Civil Suit No.285/1989 was filed by
Pandharinath and his two brothers like Murlidhar and
Vishwanath against the owner and also the persons who
were acting through the owner. The suit was filed for
relief of declaration and injunction. Declaration was
claimed to the effect that Pandharinath and his brothers
were in possession as tenants for more than 50 years and
injunction was claimed to prevent the owners from
interfering in the possession without following due
process of law. The record shows that in this suit civil
court had made order of reference to the Tenancy court
and following issue was referred to he Tenancy Court :-
“Whether the plaintiffs prove that they are tenants
in the suit land ?
Copy of order dated 29-1-1993 is on the record and it
shows that this issue is answered in affirmative by the
Tenancy Court. There is nothing on the record to show
that the landlord challenged this finding. Pandharinath
was plaintiff in that suit and it can be said that in one way
the finding was against Pandharinath if he wants to
contend that he alone is the tenant in possession of the
land. This record is not considered by the Tahsildar and
the Sub Divisional Officer. The present matter was
decided by the Tahsildar on 30-11-2009 but previous
decision of the tenancy Court given in the year 1993 that
all the brothers are the tenants was there and so the
Tenancy Court ought to have presumed that all the
brothers were entitled to declaration and they are entitled
to get certificate under section 38(6) of the Act. Thus it
was not possible for the Tahsildar in the year 2009 to hold
that only Pandharinath was the tenant in possession on
the relevant date.
20) It appears that Regular Civil Suit No.176/1999
was filed by Murlidhar against Pandharinath for the relief
of partition and present lands were included in that suit.
The said suit was dismissed. From the record it can be
said that the decision of 1993 given by the Tenancy Court
in the previous proceeding was not made available to the
Civil Court when Regular Civil Suit No.176/1999 was
decided. Further, there was no declaration and sale
certificate was also not available and so the Civil Court
dismissed the suit. Even if some observations are made by
the Civil Court in the suit filed by Murlidhar in favour of
Pandharinath those observations cannot be used in
support of the case of Pandharinath as such declaration
can be given only by Tenancy Court and the Civil Court
has no jurisdiction in that regard. Thus Pandharinath
cannot make out much on the basis of the decision of
Regular Civil Suit No.176/1999.
21) The provisions of section 40 run as under :-
"40. Rights of tenants are heritable:-- (1) Where a
tenant dies, the land holder shall be deemed to have
continued the tenancy -
(a) if such tenant was a member of an undivided
Hindu family, to the surviving members of the said
family, and
(b) if such tenant was not a member of an undivided
Hindu family, to his heirs, on the same terms and
conditions on which such tenant was holding it at
the time of his death.
(2) The surviving members, or as the case may be,
the heirs to whom the tenancy is continued under
sub-section (1) shall be entitled to partition and
subdivided the land leased subject to the following
conditions.
(a) each sharer shall hold his share as a separate
tenant.
(b) the rent payable in respect of the land leased,
shall be apportioned among the sharer according to
the share alloted to them.
(c) the area allotted to each sharer shall not be less
than the unit which the State Government may, by
general or special order, specify in this behalf
having regard to the productive capacity and other
circumstances relevant to the full and efficient use
of the land for agriculture.
(d) the area is less than the unit referred to in
clause (c), the sharer shall be entitled to enjoy the
income jointly, but the land shall not be divided by
metes and bounds.
(e) if any question arises regarding the
apportionment of the rent payable by the sharers,
it shall be decided by the Tahsildar whose decision
shall be final."
22) The provision of section 40 of the Act shows
that rights of Gopinath who was tenant on the relevant
date had passed to his heirs, sons, and it was possible for
the heirs of Gopinath to partition the land amongst
themselves for cultivating the respective portions
separately. This could have been done subject to
conditions mentioned in section 40(2) of the Act. On the
basis of this provision the tenancy shall be deemed to
have been continued in favour of all heirs of the tenant
and so Pandharinath alone cannot claim that he had
become tenant after the death of Gopinath. Further, the
landlord was treating all the heirs of Gopinath as tenant.
For the same reasons, when more heirs are present, one
heir of the tenant cannot become exclusive owner under
the law. At the most the heir who has paid the purchase
price can say that if other heir wants to assert his right,
he should pay the price in respect of his share.
23) On the aforesaid point learned counsel for the
petitioners from Writ Petition No.1411/2014 placed
reliance on the cases reported as (1) 2001 (3) Mh.L.J. 90
(Bombay High Court) (Vasudeo Ramchandra v. Vijay
Bhikaji); and, (2) (2011) 3 SCC 755 (Ramdeo v. Board
of Revenue, Uttar Pradesh). In these cases it is laid
down that only one heir cannot be declared as exclusive
tenant when there are other heirs, co-sharers. Similar
observations are made by this Court in the case reported
as 2010 (2) Mh.L.J. 970 (Sarjerao vs. Pralhad).
24) Learned counsel for the landlord placed
reliance on the case reported as 2010 (6) Bom.C.R. 787
Aurangabad Bench (Vaijnath v. Afsar Begum). In view of
the facts of that case, this Court had observed that when
no record is available to prove that a party was protected
tenant, entries made to the effect that party had become
statutory owner under section 38 of the Tenancy Act need
to be treated as null and void and the certificate of
ownership issued on the basis of such entry also can be
declared as null and void. There cannot be dispute over
this proposition. The relevant facts of the present matters
are already quoted. At least on two occasions the Tenancy
Court has held that Gopinath was the tenant and his
successors like Pandharinath and brothers of
Pandharinath are the tenants and there is also admission
to that effect of Pandharinath in legal proceeding.
25) The learned counsel for Pandharinath placed
reliance on the observations made in one case reported as
2001(3) Mh.L.J. 380 Bombay High court (Bharatlal v.
Kondiba). In this case, the procedure for declaration to
be made under section 38-E of the Act is discussed and it
is laid down that there is no provision to issue notice to
the landlord or others before issuing declaration and so no
appeal would lie against the declaration given under this
provision. The facts show that it was the challenge of the
landlord to the declaration. It is already observed that the
relevant record contains the declaration that all the heirs
of Gopinath were the tenants. When there was such
declaration which was with the Tenancy Court, the
Tenancy Court could not have issued the certificate only in
favour of one successor of Gopinath by holding that said
successor, Pandharinath, was the tenant and he was not
holding the property for his brothers. So, in the present
matter, the observations made by this Court in the case of
Bharatlal (cited supra) are of no use.
26) In view of the discussion made, this Court holds
that the Tenancy Court has committed error in giving
direction to issue certificate under section 38(6) of the Act
only in favour of Pandharinath. Such decision cannot
sustain in law. However, there is no need to interfere in
other action taken by the Tenancy Court like taking action
for making transaction in breach of the provision of
section 50-B of the Act. In the result, following order is
made.
27) Writ Petition Nos.1411/2014 and 1432/2014 are
allowed. The order made by the Tahsildar which is
confirmed by the first appellate Court is hereby set aside.
The orders of the Tahsildar, the Sub Divisional Officer and
the Maharashtra Revenue Tribunal are hereby set aside.
Direction is given to issue certificate in favour of all the
four sons of Gopinath in respect of one family holding. In
those terms rule is made absolute. The other writ petitions
stand dismissed and rule is discharged in those
proceedings.
Sd/-
(T.V. NALAWADE, J. )
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