Full Judgment Text
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PETITIONER:
BALU LAXMAN KHATIK (DEAD) THROUGH LRS. & ORS.
Vs.
RESPONDENT:
BIRU RAMCHANDRA KOTMIRE
DATE OF JUDGMENT: 23/11/1998
BENCH:
G.T.NANAVATI, S.P.KURDUKAR.
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S.P.KURDUKAR, J.
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 Baluz ïlLaxman 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 Agricultural Lands Act,
1948 (for short The Act.)
2.Some time 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 32 of the Act, such of the tenants who were
cultivating the land on Ist 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,
32-G proceedings under the Act were initiated but, however,
these proceedings came to be drooped 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 sugar
cane. The significance of this statement is that if the
lands were leased out for growing sugar cane. Under Section
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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 foxing the price of
these lands under Section 33-C of the Tenancy Act. The
Tehsildar after notice to the parties by his judgment
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 Maharashtra 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 Social 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 re-judicata
was also not deal with by these authorities since these
issues were vital in deciding the rights of the parties.
The High Court while remanding the matter observed as under
:-
"For such a contention to be upheld, it
would be necessary to work out interaction
between the provisions of Section 43A, 88C
and 33B of the Tenancy Act. Such a
discussion is not to be found in the
judgments of the Courts below because
apparently a pint 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 an 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 Social Deputy Collector is also
directed to rehear the said appeal in the
first place considering of 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
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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 sugar cane 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 sugar cane could not be accepted. The Deputy
Collector then held that the revenue record did not support
the plea of the landlord that the sugar cane was grown on
these land 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 recision
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 sugar cane.
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.
4.Mr. Mohta, the learned senior counsel appearing for
the appellants-tenants urged that the High Court had
exceeded its jurisdiction while interfering with the
findings of fact recorded by all the three tenancy
authorities. He urged that the learned judge of the High
Court has overlooked the other relevant evidence, namely,
the conduct of the landlord and his admission in the
application filed under Section 88-C of the Act. He then
urged that in the face of so many proceedings taken up by
the landlord against the tenant it would be highly
imorobable that the tenant would give an admission in favour
of the landlord saying that the lands were leased out to him
for growing sugar cane. It was then contended that the
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landlord had admitted in his evidence that he is in
possession of the lease deed showing that the lands were
leased out for growing sugar can e but failed to produce the
same and this fact itself is sufficient to draw an adverse
inference against him that in the event if such lease deed
was produced it would prove otherwise. The revenue record
filed on record also did not show that either the sugar cane
was grown on all these lands continuously or natural grass
was grown on Survey No. 161/2. Counsel, however, fairly
stated that sugar cane was grown in Survey No. 159/2 for
some years but that would not lead to an inference that
these lands were leased out for growing sugar cane. It was
therefore urged that the impugned order of the High Court is
unsustainable and the same should be set aside and the order
passed by the tenancy authorities be restored.
5.Mr. Ganpule, learned senior counsel appearing for
the landlord supported the impugned judgment and urged that
the High Court was fully justified in holding that the
tenant had failed to given any explanation as regards his
admission. The admission is a very vital place of evidence
and in the absence of any satisfactory explanation by the
tenant it must be held that the lands were leased out for
growing sugar cane. Counsel submitted that there is no
error in the impugned judgment and therefore appeal be
dismissed.
6.We were taken through the judgments of the tenancy
authorities as well as the High Court. We have perused the
record producer before us and in our considered view the
impugned judgment of the High Court is unsutainable. The
High Court while remanding the matter by its judgment and
order dated 14.2.1978, directed the Sub-Divisional Officer
to consider not only the so called admission of the tenant
in 32 (G) proceedings but also other evidence on record.
The Sub-Divisional Officer as well as the Revenue Tribunal
did consider the entire evidence led by the parties on
record, and thereafter held that the tenant is entitled to
purchase the land under Section 33-C on the postponed date
and accordingly the application made by him on 31.10.1969
for fixing the purchase price under Section 33-C of the Act
was maintainable and accordingly the price was fixed by the
Tahsildar and upheld by the Dy. Collector and Maharastra
Revenue Tribunal. In the face of these findings based on
appreciation of oral and documentary evidence on record. In
our opinion, the High Court was not justified in interfering
with the finding of fact recorded by the tenancy
authorities. A glaring mistake that appears to have been
committed by the High Court is that while considering the so
called admission of the tenant in 32-G proceedings, it has
overlooked the very admission of the landlord in his
application under Section 88-C of the Act wherein he
described the lands as Zirayat lands. The conduct of the
landlord unmistakably indicates that he wanted to take
advantage of the certificate obtained by him under Section
88-C of the Act by treating these lands as Zirayat lands and
accordingly applied for possession under Section 33-B of the
Act. After failing in these proceedings, in our opinion, it
would not lie in the mouth of the landlord to say that the
lands were given to the tenant for growing sugar cane and
therefore covered by Section 43-A(1)(b) of the Act and
therefore exempted from the operation of Section 32-G as
well as 33-C of the Act. Annexure R-I is the order passed
by the Second Additional Member and A.L.T on 13.5.1963 in
which the alleged admission of the tenant came to be
recorded. The order reads as under :-
"Both parties present. They state that
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land S.No 189/7 of village Are is leased
to the tenant for cultivation of sugar
cane and that sugar cane and paddy are
grown by rotation. The entries in VF.
VII-A x XII support their contention. In
view of this the proceedings under Section
32(G) are dropped."
7.It is not clear form this order as to whether any
separate statement of the tenant was recorded at all in the
said proceeding. All that the order recited is that "both
parties present. They state that land S.No.189/7 of village
Are is leased to the tenant for cultivation of sugar cane
and that sugar cane and paddy are grown by rotation. The
entries in VF. VII-A x XII support their contention. In
view of this the proceedings under Section 32 G are
dropped." This, in our opinion, could not be said to be and
admission of the tenant which could be said to be a
conclusive proof against him. The tenant was an illiterate
person. He did not seem to have been represented by an
Advocate before the said tenancy authority. Moreover, why
such proceedings were required to be initiated is also a
mystery because at that time admittedly the landlord’s
application under Section 33-B of the Act after obtaining
the certificate under Section 88-C of the Act was pending.
The landlord in his statement has nowhere given any
explanation whatsoever in this behalf. The landlord in his
statement recorded in the present proceeding, did not give
any explanation as to how he described these lands in his
88-C application as Zirayat lands. In the absence of any
explanation from the landlord, we are of the opinion that
this admission is also binding upon him. Assuming
therefore, that the tenant he made an admission in favour of
the landlord that the lands were leased out to him for
growing sugar cane but at the same time the landlord has
also made an admission that the lands were Zirayat while
making an application under Section 88-C of the Act. In
this view of the matter, instead of laying much emphasis on
the admissions given by the respective parties, we prefer to
accept the revenue record which was not disputed by either
parties in the courts below. The revenue record did not
disclose except for two or three years that one of these
lands was under the cultivation of sugar cane. On the
contrary, Zirayat crops were grown continuously on these
lands. The landlord had also not produced any rent receipt
given by the tenant indicating that the rent was paid on the
basis that sugar cane was grown. No evidence was also
produced by the landlord to indicate that sugar cane was
grown on these lands and it was sold to any sugar factory.
These are the vital circumstances on which the landlord
ought to have led evidence to non suit the tenant from his
rights under Section 33-C of the Act. In our opinion, the
High Court has failed to consider all these circumstances
and eventually committed an error while upsetting the
findings recorded by all the tenancy authorities including
the Maharastra Revenue Tribunal. The imougned judgment,
therefore, cannot be sustained.
8.In the result, the appeal is allowed. The judgment
of the High Court dated 19.6.1990 passed in Writ Petition
No. 2170 of 1980 is quashed and set aside and consequently
the said Writ Petition would stand dismissed. The judgment
and order dated 12.2.1980 passed by the Maharashtra
Tribunal, Kolhaour is confirmed. In the circumstances, there
will be no order as to costs.
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