- (1.)THIS writ petition takes exception to the judgment and order passed by the Maharashtra Revenue Tribunal, Pune dated February, 11, 1985 in Revision No. MRT-NS-IV-1/80 (TNC. B. 112/80) Pune. The property in question is. eastern portion of section No. 698 admeasuring 32 gunthas situated at village Kumbhargaon, taluka Patan, Dist. Satara out of total area of 1 acre and 32 gunthas. It is the case of petitioners that the grand father of petitioner Nos. 2 and 3 Vithu Kalantre was permanent tenant in respect of the suit land. Mutation entry recording this fact came to be noted in the village record as back as on 17th October, 1949. After the death of original tenant his son Rama continued to remain in possession of the suit land. It is stated that the land was originally owned by the predecessor of respondent which was however, transferred in favour of Pandurang as guardian during the lifetime of Hindurao who was minor at the relevant time. Mutation entry recording this fact is noted on 23rd November, 1956 being Entry no. 7976. It is not relevant for our purpose to examine the effect of such transfer. Suffice it to observe that as the predecessor of the petitioners were in lawful cultivation of the suit land on the tillers day i. e. 1st April, 1957. Proceedings under section 32-G of the Bombay Tenancy and Agricultural lands Act, 1948 were commenced. In the said proceedings, the father of the predecessor of the respondent Hindurao appeared and made statement accepting the fact that the predecessor of petitioners was protected tenant and which fact was fortified by the Mutation Entry No. 6467 effected in the year 1949. However, the said proceedings under section 32-G came to be dropped on the reasoning that the predecessor of the respondent was minor at the relevant time. Be that as it may, later on in the year 1977, respondent pandurang instituted application under section 70 (b) of the Act for a negative declaration that the predecessor of the petitioners Rama was not the tenant in respect of suit land. That application was numbered as Tenancy Case No. 1/77. The Tahsildar before whom the case was contested, by his decision dated 30th November, 1978 allowed the application and declared that the predecessor of petitioners was not in possession of the suit land as tenant. The Tahsildar, although adverted to the Mutation Entry No. 6467 as well as the statement of Hindurao, preferred to decide the issue against petitioners and in favour of respondents on the reasoning that there was no written lease deed executed between the parties and that the petitioners failed to adduce any positive evidence in the shape of lease deed, rent receipt or to establish the factum of oral lease in respect of the suit land in their favour. The Tahsildar instead held that on considering oral evidence adduced by the respondents, the petitioners had failed to satisfactorily prove that they were tenants in respect of the suit land. Against this decision the matter was carried in appeal before the Assistant Collector being Appeal No. T. N. C. / appeal/ 16/79. The Appellate Authority was, however, pleased to overturn the finding of fact reached by the Tahsildar. The Appellate Authority instead, relying upon the mutation entry in the 7/ 12 extract being Entry No. 6467, which prevailed since 1949, indicating that the predecessor of the petitioners was protected tenant in respect of the suit land and which entry remained unchallenged besides the oral statement of respondents predecessor viz. , Hindurao, the father of Pandurang accepting the claim of the petitioners to be tenants in respect of suit land. The Appellate Authority made further observations with regard to the manner of transfer in favour of Pandurang. In the result, the appeal came to be allowed and the order passed by the Tahsildar was s,et aside and instead the petitioners were declared to be the tenant in respect of the suit land. Against this decision the matter was carried in revision at the instance of the respondents before Maharashtra Revenue Tribunal. The Tribunal on the other hand re-appreciated the evidence on record and chose to discard the subject Mutation entry No. 6467 as well as the statement of Hindurao recorded in section 32-G proceedings, accepting the claim of the petitioner therein in respect of the suit land. The revisional authority preferred to affirm the view expressed by the first authority and essentially relied upon oral evidence adduced on behalf of the respondents to support their claim that the petitioners were not in lawful cultivation of the suit land. It is this decision which is the subject-matter of challenge in the present petition.
(2.)LEARNED Counsel for the petitioner submits that the Tribunal has clearly exceeded its jurisdiction in overturning finding of fact reached by the authority which was impermissible in view of the decision of the Apex Court reported in A. I. R. 1974 S. C. 2051 in the case of (Maruti Bala Rout v. Dashrath Babu wathare ). It is further submitted that the revisional authority could not have discarded the documentary evidence in preference to the oral evidence given by the respondents to support the claim that the petitioners were not in lawful cultivation. The learned Counsel submits that the revisional authority has committed manifest error in re-appreciating evidence on record to take a different view of the matter.
(3.)ON the other hand, the learned Counsel for the respondents submits that no fault can be found with the conclusion reached by the revisional authority which in turn has affirmed the view taken by first authority. The learned Counsel has placed reliance on Mutation Entry No. 7594 to contend that the mutation entry noted, being Entry No. 6467 could not have been recorded in view of the exposition of the Apex Court in the case of (S. N. Kamble v. The Sholapur Borough Municipality and another), reported in A. I. R. 1966 s. C. 538. It is contended that after the introduction of the present Act of 1948 which came into effect from 28th December, 1948 no new protected tenancy could be created and as the Mutation Entry No. 6467 has been recorded much thereafter in the year 1949, the same is illegal and ought to be ignored. It is further submitted that in any case, the said mutation entry has undergone change by bracketing the name of original tenant Vithu Gopal and instead the heir of the said tenant has been brought on record vide Mutation entry No. 7594. It is contended that as the original entry has undergone change it pre-supposes that the petitioners predecessor was not in lawful cultivation on the relevant date when the landlord had become major which will have to be treated as tillers day. It is further submitted that the oral evidence adduced on behalf of the respondents would also establish the position that the predecessor of the petitioner was not cultivating the suit land or were in possession thereof as is claimed and that evidence cannot be discarded as it is coming from independent persons.