Decided on September 05,1990


Cited Judgements :-



Kasliwal, J. - (1.)This appeal by the grant of certificate under Art. 136 of the Constitution is directed against the judgment of the Bombay High Court dated 7-4-1978. This litigation has a long chequered history. The dispute relates to agricultural land bearing survey No. 784/1 situated within the municipal limits of Miraj town in Sangli District, Maharashtra. The area of the land is 1 acre 20 gunthas. Dhondiba Santu Lamdade was the original tenant of the land. He died issueless on 1-3-64. Dhondiba Santu Lamdade during his lifetime had taken two wives one of whom died during his lifetime but the other Dhondibai alias Sakhubai survived Dhondiba. On the evidence led before the Tenancy Aval Karkun (Special Tehsildar), he came to the conclusion that there was a divorce between Dhondiba Santu Lamdade and Sakhubai by a document dated 9-10-1947.
(2.)This land originally belonged to Sanmukh family and was purchased by Gurumukhsing Narayansing Chadda ( appellants ) on 21-8-64. After the death of Dhondiba, the present respondent Ganpati Narsinga Lamdade being the nephew of Dhondiba claimed tenancy rights in the land. He filed an application under S. 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act) on 26-3-68. Special Tehsildar, Miraj by his order dated 31-10-68 dismissed the application as time barred and further held that he was not a tenant. On appeal, the Deputy Collector, Miraj Sub-Division dismissed the appeal by order dated 31-5-69. In this appeal it was held that late Dhondiba Santu Lamdade was a tenant, the application filed by Ganpati Narsinga for possession was time barred and he was not an heir to the deceased tenant. Ganpati Narsinga Lamdade then filed a revision before the Maharashtra Revenue Tribunal. The Tribunal by its order dated 23-12-70 held that the deceased Dhondiba was the tenant of the suit land from the year 1959-60, and his name appeared in the 'Kul and Khand' column. The Tribunal further held that Ganpati Narsinga Lamdade was contending that he was an heir of the deceased tenant under S. 40 of the Act. In the Kabjedar's column, Shri Imam Babaji Jamadar's name is shown in ink as Kabjedar and afterwards his name was deleted and the name of Ganpati Narsinga Lamdade and others were shown in Kabjedar's column. Shri Dhondiba Santu Lamdade died in 1964, and after his death the revision applicant (Ganpati Narsinga Lamdade) and the other heirs were cultivating the suit land. Not only that but they had also paid assessment of the suit land. It was contended before the Tribunal that the appellant tried to obstruct them and therefore they had filed this application. The appellant had taken the stand that Dhondiba was their servant and not a tenant and in support of this produced a "Nokarnama". The Maharashtra Revenue Tribunal held that both the parties had produced documentary evidence before the appellate authority. The revision applicant had produced a divorce deed but the other side had not been given an opportunity to rebut it. It is the duty of the lower Court to give an opportunity to both the parties in the interest of justice. The Tribunal observed that prima facie, it appears that the revision applicant shown that he is the heir of the deceased Dhondiba that he had paid the assessment of the suit land and that without any order of competent authority the revision opponent (appellant) had dispossessed him. The Tribunal set aside the orders of both the authorities below and remanded the case to the trial Court for disposal according to law.
(3.)After the remand of the case, the Tenancy A. K. Miraj on 21-4-72 held the divorce deed as proved. He further held that ,Ganpati Narsinga Lamdade proved that they were the tenants of the suit land. On the basis of these findings he declared that Sh. Ganpaii Narsinga Lamdade was a tenant of the suit land as per provisions contained in S. 70(b) read with S. 40 of the Act and directed that he should be put in possession of the suit land after the appeal period is over. Aggrieved against the aforesaid order, appeals were filed by Gurumukhsing Narayansing as well as by Shankar Ganpati Sanmukh. The Deputy Collector on 31-3-73 upheld the order of the lower Court and dismissed the appeals. Shri Gurumukhsing Narayansing then filed a revision before the Maharashtra Revenue Tribunal. The Tribunal by its order dated 15-10-73 set aside the order of both the courts below and rejected the original application filed by Ganpati Narsinga Lamdade on 26-3-68. It was held by the Tribunal that Dhondiba was a tenant in the land and Ganpati Narsinga Lamdade was the nephew of Dhondiba but the important question to be considered was whether Ganpati Narsinga Lamdade and his brothers were the heirs of the deceased Dhondiba. The Tribunal found that Ganpati Narsinga Lamdade had specifically admitted that Dhondiba's wife was alive and she did not know whether there was a divorce deed. As regards possession it was held by the Tribunal that Ganpati Narsinga Lamdade did not get possession of the land after the death of Dhondiba which took place on 1-3-64. In view of this, their application for possession filed on 26-3-68 was clearly time barred under S. 29 of the Act, even if, there was a scope to hold that these persons were the heirs of deceased Dhondiba. The view of the Appellate Court (Deputy Collector) that point of limitation was not open cannot be supported, because the Tribunal in its earlier order had remanded the entire case to be disposed of according to law.

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