MARUTI BALA RAUT Vs. DASHRATH BABU WATHARE

JUDGEMENT

(1.) In the year 1932 one Shantappa Wathare, father of respondents 1 and 2 in C.A.1942, executed a document (we are using the word 'document' because the character of the document was the subject-matter of subsequent litigation) in respect of the western 1/3rd share of Survey No.99 measuring 7 acres and 39 gunthus in the village of Bamani in the State of Miraj in favour of Nabisha Pirjade of Miraj. In 1936 he executed a similar document in respect of middle 1/3rd and in 1941 Dashrath and Bhima, belonging to another branch of the family, executed a similar document in respect of the eastern 1/3rd portion of the land in favour of the said Nabisha Pirjade. On 11-8-1948 Miraj State merged in the then Bombay Province and from that date the Bombay Tenancy Act, 1939 became applicable to the lands in question. On 15-9-1948 the Bombay Agricultural Debtors's Relief Act, 1947 became applicable to the areas of the former Miraj State and on 28-12-1948 the Bombay Tenancy and Agricultural Lands act, 1948 came into force in the same area. In 1949 the two branches of Wathares started two separate sets of proceedings under the Bombay Agricultural Debtors Relief Act contending that the documents of 1932, 1936 and 1941 were mortgages and they were entitled to redeem them. They succeeded in their contention. To these proceedings the appellant Maruti Bala Raut was not a party. The appelants obstructured their attempt to take possession on the ground that he was a tenant of these lands even before the Bombay Tenancy act, 1939 because applicable to them and was thus a protected tenant. There is no dispute that if on 11-8-1948 the appellant had been a tenant of these lands he was entitled to succeed.

(2.) As a result of the obstruction there were numerous proceedings between Yeshwant and Jinappa, sons of Shantappa Wathare, on the one hand and the appellant on the other, as also another set of proceedings between Bhimarao and Dashrath Wathare on the other hand and the appellant on the other, the appellant claiming that he was a tenant entitled to the benefits of Tenancy Act and the two sets of respondents contending that he was not. In the proceedings by Yeshwant and Jinappa the question whether the appellant was a tenant was referred to the Mamlatdar under S.70(b) of the Bombay Tenancy Act. There was a similar order in the proceedings between the appellant and Bhimarao and Dashrath. In the proceeding by Bhimarao and Dashrath the Prant Officer (Deputy Collector) held that the appellant was a tenant in possession on 11-8-1948. The Malatdar in the proceedings initiated by Yeshwant and Jinappa also came to a similar conclusion. Against the Mamlatdar's order Yeshwant and Jinappa filed an appeal before the Special Deputy Collector and succeeded. There were two Revision Applications to the Maharashtra Revenue Tribunal, one by the appellant who had failed before the Special Deputy Collector and the other by Bhimarao and Dashrath who had failed before the Prant Officer. Both these applications were heard together and the Tribunal dismissed the application filed by Bhimarao and Dashrath but allowed the application filed by the appellant and set aside the order of the Special Deputy Collector holding that the appellant was a tenant on the land on 11-8-1948. There were two petitions under Article 227 of the Constitution against the order of the Revenue Tribunal by the two unsuccessful parties. They were heard together and allowed by a learned single Judge of the Bombay High Court. The learned Judge held that there was no justification for the Tribunal to interfere with the finding of fact recorded by the Special Deputy Collector. He also allowed the petition filed by Bhimarao and Dashrath. These two appeals have been filed by Special Leave granted by the this Court against the orders in the two petitions.

(3.) At an earlier stage of the proceedings one question loomed large before the courts below and that was whether a tenant who had been let into possession by a mortgagee in possession was entitled to continue in occupation under the Bombay Tenancy and Agricultural Lands Act. This controversy has now been set at rest by the decision of this Court in Dahya Lal v. Rasul Mohammed Abdul Rahim (1963) 3 SCR 1) . The only question for decision therefore was whether the appellant was in possession on 11-8-1948.