S. P. Kurdukar, J. - (1.) The dispute in this appeal relates to agricultural lands bearing Survey Nos. 159/2, 161/2 and 189/7 situate at village Are, Taluka Karvir, Distt. Kolhapur. It is not disputed that Balu Laxman Khatik was the tenant of these lands. He died during the pendency of this appeal. The present appellants are the heirs and legal representatives of the said tenant. The respondent is the landlord. It is also not disputed that these lands are covered by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short 'The Act').
(2.) Sometime in 1957, the respondent- Landlord (for short 'landlord') made an application to the tenancy authority under Section 88-C of the Act for issuance of an exemption certificate and such a certificate was in fact issued on 1-4-1962. The landlord thereafter applied for possession of these lands on 7-6-1962 for bona fide personal cultivation under Section 33-B of the Act. Under the Scheme of Section 32 of the Act, such of the tenants who were cultivating the land on 1st April, 1957 would be entitled to purchase the said land and they shall be deemed to be the purchasers from the said date provided no proceedings at the instance of the landlord for possession under the Act were pending at that time. Since the landlord had applied for exemption certificate under Section 88-C prior to 1-4-1957 and since he had applied, after obtaining such certificate, for possession on 7-6-1962 under Section 33-B of the Act, the tiller's day stood postponed until the disposal of these proceedings. During the pendency of these two proceedings, Section 32-G proceadings under the Act were initiated but, however, these proceedings came to be dropped on 13-6-1963 as the tenant declined to purchase the lands under Section 32-G of the Act. The order of dropping the proceedings was made on the basis of the joint statement recorded by the tenancy authority of the landlord and the tenant. This statement of the tenant declining to purchase the land under Section 32-G of the Act was sought to be used by the landlord as an admission. The tenant had alleged to have made a statement that these lands were leased out to him for growing sugarcane. The significance of this statement is that if the lands were leased out for growing sugarcane, under Section 43-A (1) (b) then the provisions of Section 32 of the Act are not applicable. In the meantime, the application of the landlord under Section 33-B of the Tenancy Act was heard by the tenancy authorities and the final order in these proceedings was rendered by the Bombay High Court on 16-4-1977 by which the said application filed by the landlord stood rejected. It may also be noted that the landlord had filed a civil suit for recovery of the rent/damages against the tenant but the said suit was dismissed by the Civil Courts. On 31-10-1969, the tenant applied to the tenancy authorities for fixing the price of these lands under Section 33-C of the Tenancy Act. The Tehsildar after notice to the parties by his judgment and order dated 20-10-1971 fixed the purchase price holding that the tenant is entitled to purchase the land on the postponed date under Section 33-C of the Act and accordingly fixed the price of the lands. The appeal filed by the landlord came to be dismissed. The landlord's revision to the Maharasthra Revenue Tribunal was also dismissed. However, the High Court in Special Civil Application No. 2583 of 1974 (with Second Appeal No. 702 of 1975) by its judgment and order dated 14-2-1978 partly allowed the Special Civil Application filed by the landlord and remanded the matter back to the Sub-Divisional Officer for disposal in the light of the directions contained therein. The High Court was of the opinion that the appellate authority as well as the Revenue Tribunal did not consider the admission of the tenant and the other evidence on record properly. The High Court also found that the contention of the tenant as regards the issue of res judicata was also not dealt with by these authorities since these issues were vital in deciding the rights of the parties. The High Court while remanding the matter observe as under:- "For such a contention to be upheld, it would be necessary to work out interaction between the provisions of Sections 43-A, 88-C and 33-B of the Tenancy Act. Such a discussion is not to be found in the judgments of the Courts below because apparently a point to that effect was not taken by either of the parties. This being a question of law, it may be raised for the first time before the Court of the Special Deputy Collector to whom I am now remanding this case with a direction that in view of the decision of this Court in Dattatraya Shripati Mohite's case he, as a final Court of facts, is bound to consider the evidentiary value of the admissions made by the respondent in the previous proceedings which were apparently in respect of the same subject-matter. The petition, therefore, will have to be allowed and is hereby allowed." The High Court then directed:- "The Special Deputy Collector is also directed to rehear the said appeal in the first place considering (sic) the entire evidence on record and in particular the evidentiary value of the admissions made by the respondent in the previous proceedings and the explanation if any given by him in the present proceedings. Secondly, he will also consider the legal effect of the order passed by the Maharashtra Revenue Tribunal on 10th September, 1969 to which I have already made a reference above." After remand the Deputy Collector heard both the parties and by his judgment and order dated 31-3-1979 dismissed the appeal holding that unless these admissions are supported by cogent, documentary and other evidence the admissions cannot be held as a conclusive proof. The Deputy Collector also found from the record that the lands were not leased out for growing sugarcane inasmuch as the landlord had admitted that he was in possession of the lease deed in question but did not produce the same on record. He further held that the landlord's application under Section 88-C of the Act was on the footing that the lands were Zirayat lands and, therefore, his plea that the lands were leased out for growing sugarcane could not be accepted. The Deputy Collector then held that the revenue record did not support the plea of the landlord that the sugarcane was grown on these lands continuously for all these years. Consistent with these findings the Deputy Collector dismissed the appeal filed by the landlord. The landlord aggrieved by the said order preferred the revision application to the Maharashtra Revenue Tribunal and the said Tribunal by its judgment and order dated 12-2-1980 dismissed the revision application. It may be stated that both these authorities have considered the evidence on record minutely and very carefully and thereupon held that the alleged admission of the tenant is not sufficient to reject his claim as a statutory purchaser under Section 33-C of the Act. There are several other circumstances on record to indicate that the landlord treated these lands as Zirayat lands and, therefore, it could not be held that these lands were leased out for growing sugarcane.
(3.) The landlord aggrieved by the above decisions of the Deputy Collector and the Maharashtra Tribunal preferred Writ Petition No. 2170 of 1980 to the High Court. The said Writ Petition was heard by the same learned single Judge who by his judgment and order dated June 19, 1990 set aside the concurrent findings recorded by the three tenancy authorities and held that the admission made by the tenant is binding upon him and in the light thereof it must be held that the lands were leased out for growing sugar- cane and, therefore, Section 43-A (1)(b) of the Act applies. In this view of the matter, the tenant is not entitled to purchase the land under Section 32-C of the Act. The learned single Judge accordingly allowed the writ petition filed by the landlord and set aside the orders passed by the Revenue Authorities and dismissed the application filed by the tenant on 13-1-1969 for fixing the purchase price under Section 33-C of the Act. The tenant aggrieved by this order of the High Court filed this appeal after obtaining the special leave.;