Full Judgment Text
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PETITIONER:
WAMANRAO KESHAVRAO DESHMUKH & ORS.
Vs.
RESPONDENT:
DINKARRAO BHAUSANEB DESHMUKH & ORS.
DATE OF JUDGMENT: 28/10/1998
BENCH:
S.P. Kurdukar, M. Jagannadha Rao.
JUDGMENT:
S.P. Kurdukar, J.
The lands bearing Survey Nos. 9/1B, 8B, 3B, 4B, and
5B situate in villages Shivgaon, Taluka Khanapur, District
Sangli, were owned by one Mahadeo Mohite (since deceased).
These lands were Watan lands of Class IV and the said Watan
was abolished under the provisions of Bombay Pargana and
Kulkarni Watan Act, 1950. From 1.5.1959, the interest in
these lands vested in the State Government pending the
regrant. Concededly, the first respondent Dinkar Deshmukh
was the tenant in lawful possession of these lands till
8.2.1959 on which date according to the Watandar Mahadeo
Mohite, the tenant had voluntarily surrendered his tenancy
right in his favour. The lands were regranted to the
Watandar by the State Government on payment of occupancy
price on 8.8.1963. Before such regrant was made, Mahadeo
Mohits, the former Watandar, had sold these lands to M/s
Hanumant Rao Deshmukh and Wamanrao Ddeshmukh the appellants
herein, by registered sale deed dated 4.4.1959. Pursuant to
this sale transaction, mutation was sought to be made in
favour of the appellants to which the tenant objected
claiming that he was wrongfully dispossessed by the Watandar
and the purchasers.
After dispossession, the first respondent-tenant
(for short tenant) filed an application on 25.9.1959 under
Section 84 of the Bombay Tenancy and Agricultural Lands Act,
1948 (for short Act) for possession on the ground that the
appellants are in unauthorised occupation of these lands.
This application was made to the Deputy Collector who after
hearing the parties by his judgment and order dated
3.11.1960 dismissed the same on the ground that the same was
not maintainable. The tenant’s appeal to the Maharashtra
Revenue Tribunal also came to be dismissed on 30.6.1961.
Both these authorities held that the tenant’s remedy was to
file an application under Section 29 of Act before the
Tahsildar for restoration of possession of these lands. The
tenant on 30.6.1991 filed an application under Section 29(1)
of the Act for restoration of possession to which the
appellants as well as the Watandar Mahadeo Mohit were joined
as respondents. The appellants and raised a plea that the
tenant’s application was barred by limitation since he did
not file the application within two years from the date of
dispossession. The tenancy Awal Karkoon (Tehsildar) by his
Judgment and order dated 5.10.1966. rejected the said
application of the tenant holding that it was barred by
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limitation. On appeal to the Deputy Collector by the tenant
the same was also dismissed but, however, the Maharashtra
Revenue Tribunal vide its order dated 7.4.1972 remanded the
matter to the Tehsildar to find out the actual date of
dispossession and thereafter pass appropriate order. The
tenant moved the High Court by way of Writ Petition which
came to be dismissed on 19.9.1977.
On remand, the TAK Tehsildar after considering the
material on record, dismissed the tenant’s application vide
its order dated 28.2.1979 holding that it was batted by
limitation. The tenant’s appeal was also dismissed by the
Collector vide order dated 15.2.1983. Revision application
filed by the tenant to the Maharashtra Tribunal was also
dismissed on 24.2.1985. Against these concurrent judgments
passed by the tenancy authorities, the tenant preferred a
Writ Petition to the High Court and the High Court vide its
judgments of the tenancy authorities holding that the
tenant’s application was within time after giving him
benefit of Section 14 of the Limitation Act. The High Court
directed that the possession of these lands be restored to
the tenant. Against this order passed by the High Court the
appellants by special leave have filed this appeal to this
Court.
Mr. Mohta, the learned senior counsel appearing in
support of this appeal, urged that the High Court had
committed a patent error while setting aside the concurrent
findings of facts recorded by the tenancy authorities that
the tenant’s application was barred by limitation. He urged
that the tenancy authorities found that the tenant was
dispossessed some time in April, 1958 and therefore, his
application under Section 29 filed on 30.6.1961 was clearly
beyond the prescribed period of limitation of two years from
the date of dispossession and, therefore, it was rightly
dismissed by the tenancy authorities. He also submitted
that the tenant in his original application neither pleaded
that the benefit of Section 14 of the Limitation Act be
given to him nor raised a contention that he was prosecuting
the application under Section 84 of the Tenancy Act in good
faith before the Deputy Collector and the Revenue Tribunal.
The appellants were not given any opportunity to contest the
alleged claim of bons fide prosecution of the proceedings by
the tenant under Section 84 of the Tenancy Act and therefore
the matter be remanded to TAK-Tahsildar for disposal in
accordance with law.
Mr. Ganpule, the learned senior counsel appearing
for the respondent-tenant, supported the judgment of the
High Court and urged that the high Court was fully justified
in given benefit of Section 14 of the Limitation Act. He
urged that it was open to the appellants to challenge the
tenants plea under Section 14 of the Limitation Act on all
grounds including the bonafides. Having not done so, it
would be too late to accept such a contention at this stage
and seek remand of the matter to the tenancy authorities.
He also urged that the tenant who had been fighting for his
rights under the Act was successfully kept out of possession
for more than 40 years and therefore, this Court should not
interfere in the present appeal.
We have gone through the judgments of the
authorities below and the relevant material on record. It
was not the appellant’s plea before the High Court that the
provisions of the Limitation Act are not applicable and
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therefore, we need not deal with this aspect in the present
proceedings. We do not, therefore, permit the said plea of
non-applicability of the Limitation Act for being taken
before us for the first time in this Court. The only
question that survives for our consideration is as to
whether the tenant was prosecuting his application under
Section 84 in good faith. From the material on record, it
is quite clear that the tenant has been struggling to get
back the possession on the ground that he was unauthorisedly
dispossessed by the Watandar. The tenants application under
Section 84 of the Act was dismissed on the ground that the
relationship of landlord and tenant existed on the date of
application and therefore, the proper course for the tenant
was to make an application under Section 29 of the Tenancy
Act. It is only after this finding by the Maharashtra
Revenue Tribunal on 30.6.1961, the tenant on the very same
day filed an application under Section 29(1) of the Act.
The High Court, therefore, was right in holding that the
tenant was prosecuting the proceedings under Section 84 of
the Act bona fide and in good faith and consequently
justified in condoning the delay in filing the application
under Section 29 of the Act on 30.6.1961. The judgment of
the High Court in our view, dies not suffer from any
infirmity. It also needs to be stated that the Watandar
Mahadeo Mohite who had suffered an aoverse order in the High
Court did not leave petition or joining himself as an
appellant in this appeal.
In the result, the appeal fails and the same is
dismissed with costs.