AI Structured Summary
Not yet generated for this judgment
Judgment
A.K. Menon, J.—Heard.
Rule. Rule made returnable forthwith. By consent taken up for final disposal at the admission stage.
These two writ petitions arise out of disputes pertaining to plot of land bearing Survey No. 43, Hissa No. 1 and forming part of larger area admeasuring 22 acres and 25 gunthas of village Gorai, Taluka Borivali, Mumbai Sub-Urban District. For the sake of convenience I will deal with averments in Writ Petition No. 11886 of 2013.
Briefly stated the facts are as under : The petitioner is aggrieved by the order dated 1.12.2011 passed by the Sub-Divisional Officer in Tenancy Appeal No. DLN/TNC/6/2010 and subsequent order passed in appeal by Maharashtra Revenue Tribunal, Mumbai in TNC/REV/34/B/2012 dated 11.10.2013. The petitioner is the son of one Lawrence Alex Gudinho who was allegedly cultivating land admeasuring 12 acres and 27 gunthas hereinafter referred to as "said land". It is contended that the petitioner''s Uncle Johni Alex Gudinho was cultivating about 3 acres and 28 gunthas and other three persons were cultivating 3 acres and 22 gunthas respectively. According to the petitioner the entire area of Survey No. 43, Hissa No. 1 was cultivated by the families of aforesaid persons since prior to 1957. According to the petitioner the area in his cultivation and possession is about 12 acres 27 gunthas and is said to be bounded with stone masonry wall from all sides. The other lands in possession and cultivation of other family members of the petitioner are said to be similarly bounded by separate stone walls.
The petitioner''s father''s name was recorded in 7/12 extract of the suit land in 1971-72 as tenant although his father claimed to be continuous and uninterrupted in possession since the year 1950. It is contended that petitioner''s father''s name was recorded in Pick-Pani column of 7/12 extract only in the year 1971-72. After demise of his father, the petitioner claims to be in possession, occupation and cultivation of the land continuously, without interruption and till date. The petitioner relies upon certain factors to establish his possession. Some of these are as follows :
"(i) The petitioner claims to hold number of N.A. orders and assessment receipts in respect of the structures on the suit land.
(ii) A stone compound wall demarcates area in his possession. This is an old wall constructed by his father for irrigation of the land with electric meter fittings;
(iii) There are five structures on the suit land, two are used as stables for cattle, one is for Church and two are used as farm houses. The petitioner claims to be holding assessment receipts for these structures;
(iv) A water pipeline has been laid by the petitioner in the suit land;
(v) The petitioner also holds namuna form number 14 as also 7/12 extract in respect of the suit land."
In addition to above the petitioner claims to be in possession of the following documents :
"(i) A copy of the application dated 14.1.1980 submitted before the Sub-Divisional Officer by the father of the petitioner,
(ii) The panchnama dated 11.8.2006 along with report by Circle Inspector. The panchnama prepared by Tahsildar dated 28.5.2009,
(iii) Copies of police "Dainandini" dated 24.7.2006 and 28.7.2009.
(iv) He also relied upon evidence given by the predecessor of respondent Nos. 1 and 2 before Tahsildar as well as evidence given by the petitioner and witnesses who are neighbouring land owners."
It is further contended that although the petitioner''s father was in actual possession and occupation of the land, the predecessor of respondent Nos. 1 and 2 had threatened to dispossess his father from the suit land and with intention of disposing of the suit land. Such threats were given in the year 1986 and since then the father of the petitioner has apprehended forcible dispossession from the suit land at the hands of third parties. As a result the petitioner''s father filed a suit in Bombay City Civil and Sessions Court bearing No. 1697 of 1986 against the predecessor in title of respondent Nos. 1 and 2. The defendants in the suit were persons who were shown as "Kabjedar" column of 7/12 extract of the suit land. The suit was filed in order to protect occupation and cultivation of the land by the petitioner''s father, however, it is his case that the area in his possession was erroneously mentioned as 5 acres instead of 12 acres 27 gunthas in prayer clause in the suit.
The petitioner contends that the reference to 5 acres is a bonafide mistake on the part of the petitioner''s father. Nobody realised this mistake during lifetime of father who died in the year 1990. According to the petitioner, he is enjoying the suit land as if he was the absolute owner thereof and no action of any nature was initiated by respondent Nos. 1 and 2 against the father of the petitioner during his lifetime. The petitioner filed an application under section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short "BT&AL Act") seeking declaration that the petitioner is tenant of the suit land of 12 acres and 27 gunthas on the basis that the father of the petitioner was in possession and cultivation of the suit land prior to tiller''s day. The said application was filed before the Tahsildar Borivali who tried the said application as Case No. Ten/Bori/70(b)/6/2006. Respondent Nos. 1 and 2 were shown as opponents in the said application. Pursuant to the application the Tahsildar issued notices to respondent Nos. 1 and 2 and recorded evidence. According to the petitioner he produced voluminous documentary evidence to establish that his father was in possession prior to 1.4.1957. The petitioner examined witnesses who were adjacent land owners and witnesses examined by the petitioner were cross examined by respondent Nos. 1 and 2. The Tahsildar reportedly visited the suit land occupied by the parties and drew up a panchnama on 28.5.2009. This according to the petitioner was conclusive proof of his possession. Even earlier it is the petitioner''s case that a panchnama was made by revenue authorities on 11.8.2006 which shows the suit land to be in his possession.
The Tahsildar then heard the petitioner and rejected the Tenancy Case No. TEN/Bori/70(b)/6/2006 application vide order dated 23.4.2010 holding that the petitioner was not in legitimate possession of the land. Being aggrieved by the order of the Tahsildar, the petitioner filed an appeal before the Sub-Divisional Officer. The Sub-Divisional Officer after hearing the parties vide order dated 1.12.2011 allowed the appeal and set aside the order of Tahsildar and declared that the petitioner is the tenant of the suit land. During pendency of the matter before the Sub-Divisional Officer the petitioner came across public notice on 23rd July, 2011 issued by M/s. M.P. Savla & Co. Solicitors of Respondent Nos. 1 and 2 notifying the public at large that the respondents were negotiating that their clients to purchase the land which included suit land and invited objections from the public. On 29th July, 2011 the petitioner''s advocate objected to the proposed sale of the suit land. Mr. Almeida, learned counsel for the petitioner submitted that despite such objections it appeared that the agreement for sale was entered into and intending purchaser attempted to trespass on the suit land with intention to dispossess the petitioner whereupon the petitioner was advised to file a suit which he did. Accordingly, the suit No. 1562 of 2011 came to be filed in the City Civil Court at Bombay for injunction simplicitor. In the said suit, respondent Nos. 3 and 4 who are intending purchasers filed a chamber summons since they claim to have purchased the property by a registered deed of conveyance dated 14.12.2011. According to the petitioner the deed of conveyance is void ab initio in view of the provisions of the B.T.&A.L. Act. The said chamber summons and suit are stated to be pending. Respondent Nos. 1 and 2 applied to implead themselves in the proceedings. Despite opposition from the petitioner, they were impleaded. The tribunal meanwhile, after hearing parties, set aside the order of the Sub-Divisional Officer restricting the tenancy claim of the petitioner to an area of 5 acres based on the statement in the plaint in Suit No. 1697 of 1986.
Being aggrieved by the aforesaid order of the Maharashtra Revenue Tribunal the petitioner has approached this Court under Article 227 of the Constitution. According to the petitioner the tribunal failed to appreciate that the documents relied upon by the petitioner indicate that the petitioner was in possession of the suit land for 40 years and that the tribunal exceeded its jurisdiction in having reduced area of the land. The tribunal failed to consider the panchnama prepared by Tahsildar in presence of both the parties which held that the petitioner was in possession of the suit land i.e. 12 acres and 25 gunthas. According to the petitioner various documents relied upon and referred to in paragraphs 4 to 6 above clearly establish that the petitioners were in possession of and that they were cultivating the suit land along with other family members.
Mr. Almeida in the course of his submissions relied upon various documents and referred to and relied upon by the petitioner and submitted that the order of the Sub-Divisional Officer correctly records that the petitioner''s father was in possession prior to tiller''s day. Mr. Almeida relied upon findings of the Sub-Divisional Officer to the order dated 1.12.2011 passed in appeal under section 74 of the Act and that when the Tahsildar, Borivali visited site the petitioner was found to be cultivating cane and vegetable at 2 to 3 acres of land and on remaining land they were growing grass and there were fruit trees. The petitioner''s claim of having a well and a pump being installed was also found to be correct, thus, proving that the petitioner was in physical and enjoyment of the land. The Sub-Divisional Officer concluded that respondent Nos. 2 and 3 are not in possession of the land and never objected to the petitioner''s occupation or that the petitioner''s father''s occupation of the land. In the circumstances the Sub-Divisional Officer concluded that the petitioner was a tenant under section 70(b) and the order of the Tahsildar came to be set aside. Mr. Almeida thereafter referred to the reply issued by the petitioner to the public notice and submitted that after the public notice was published the petitioner vide his advocate''s letter dated 29.7.2011 objected the proposed sale.
Mr. Almeida then made reference to the suit filed by the present petitioner in the Bombay City Civil Court and submitted that the petitioner had contended that he is in occupation of 12 acres and 25 gunthas and that reference to father occupying 5 acres was erroneous. He submitted that the plaint from the said suit clearly detailed the area in occupation of the plaintiff''s possession. In paragraph 10 of the plaint Mr. Almeida referred to averments about various structures which had come up at the suit land including Church whereat the service is held on every Thursday and attended by 200 to 250 people. He drew my attention to the averments of stone compound wall which served as boundary wall to the property and panchnama made by the Circle Inspector of the area on 11th August, 2006 showing the plaintiff''s possession. He submitted that in the said plaint, the plaintiff had claimed adverse possession as seen from paragraph 13 of the plaint.
It is the plaintiff''s case before the City Civil Court that at the material time the claim was on the basis of adverse possession. According to Mr. Almeida the petitioner while filing Suit No. 1561 of 2011 had made an application under Order 2 Rule 2 of the Code of Civil Procedure and sought leave of the Court while filing the suit to make such other claims by way of substantial proceedings irrespective of the proceedings before the Maharashtra Revenue Tribunal under the B.T.& A.L. Act. Mr. Almeida submitted that right from the date of public notice his clients have denied contents of the respondents. The respondents had thereafter gone ahead with proposed transaction of sale/purchase at their own risk.
According to Mr. Almeida, the petitioner is entitled to occupation of land as a tenant thereof. He then drew my attention to the impugned order passed by the Maharashtra Revenue Tribunal and pointed out that the tribunal placed erroneous reliance upon averments in the plaintiff''s father''s suit that he was in possession of only 5 acres. The fact that the plaintiffs were claiming on the basis of adverse possession was also recorded by the tribunal in paragraph 6 of the order. The tribunal noted that on scrutiny of 7/12 extract of the year 1984-85 the name of Lawrence Alex Gudinho and Johni Alex Gudinho were bracketed against which area of 2 acres 27 gunthas is mentioned. Thereafter outside the bracketed portion 14 acres 6 gunthas is mentioned. Furthermore, the extract reveals that in the area of 2 acres 27 gunthas cultivation of vegetables was noticed whereas in the remaining portion of 11 acres and 19 gunthas grass was growing. The tribunal noted that till the year 1970-71 the landlords were shown to be personally in possession of the land and grass was growing on the entire land. In the year 1971-72 for the first time the name of petitioner''s late father appeared in pencil entry but only of an area of 2 acres and 27 gunthas over which vegetables were being grown. Thereafter in the year 2005-06 the names of the Petitioner was also shown as cultivator of Survey No. 43/1. According to the impugned order the original respondent Nos. 1 and 2 were shown in possession for 40 to 50 years cultivating vegetables. The Tribunal then went through entire recording of facts and evidence and observed that the petitioner''s father had not paid any rent since no one came to collect the rent.
The tribunal relied upon the decision of the Supreme Court in the case of Naginbhai Nathubhai Modi v. Naginbhai Ranchhodbhai and others reported in (1997) 10 SCC 407 and held that in order to stake claim of becoming the owner of a tenanted land, a tenant was required to prove that he was cultivating and in possession of the tenanted land as on the Tillers'' day and in that case the lands were specifically "grass land" which were never put to ploughing, sowing or cultivation. The tribunal noted the petitioner''s reiteration of the observations in the judgment in Jaganath Vithu Jadhav (thru Lrs) v. State Of Maharashtra that "it was not necessary to have an entry in the tenancy column or rent note or rent receipts was necessary to support the claim of the tenant for statutory tenancy" and that under section 4 of the said Act, all that was required was that the land should be lawfully cultivated by a person other than a member of the family of the landlord and subject to conditions set out in Section 4 .
Mr. Almeida, learned counsel for the petitioner submitted that observations of the tribunal that the petitioner''s father had claimed only 5 acres of land in 1986 and therefore the petitioner could not claim area over and above the said 5 acres and was sufficient to establish that revision application should be allowed. Accordingly, the order of Tahsildar and the Sub-Divisional Officer was set aside and the tribunal declared the petitioner as tenant of 5 acres. Mr. Almeida therefore submitted that on the finding of fact the tribunal was satisfied that the petitioner was in possession and cultivating the land. However, merely because in the suit filed by the father and erroneous representation was made by his father for relief in respect of 5 acres, the petitioner cannot be denied benefit of the entire 12 acres and 27 gunthas. According to the petitioner, therefore, the present petition deserves to be allowed.
Mr. Almeida, learned counsel for the petitioner relied upon the judgment of a Single Judge of this Court in Kishan Ramchandra Kumbhar and Others Vs. Dr. Kashinath Bandu Teli, Smt. Bayabai Bandu Teli and The Maharashtra Revenue Tribunal, through its designated member, Shri M.R. Deshpande, and submitted that it has been held that in case of deemed tenancy, there is presumption in respect of land where grass is growing and that the same is used for grazing cattle of the tenant and such land would be governed by the B.T.& A.L. Act. He relied upon the observations that merely because concurrent findings of the authorities below were to the effect that in about 13 acres of land grass was grown naturally that by itself was not sufficient to return a finding that the entire suit land was not governed by the provisions of Tenancy Act and that the land under cultivation by the tenant is governed by the provisions of the Act.
Mr. Almeida then referred to the decision of another Single Judge of this Court in Shri Babu Hari Patil and Shri Shivaji Subrao Patil Vs. Shri Rama Ananda Jadhav (since deceased his heirs Smt. Harubai Rama Jadhav, Shri Balu Rama Jadhav and Mrs. Hirabai Akaram Gaikwad), Shri Rangrao Rama Jadhav, Shri Vasant Rama Jadhav and Shri Shankar Sambhaji Nalavade, wherein the findings of fact were that the tenant was cultivating land for 7 to 8 years and therefore it gave rise to a finding that the tenant was cultivating the land and that neither original landlord and predecessor who were even in possession of the land would be sufficient to conclude that the petitioner was a deemed tenant. In that case also Mr. Almeida submitted that the Circle Inspector had drawn a panchnama which showed that the tenant was residing for about 7-8 years in a hut constructed on the land. The land was well ploughed and water was also supplied to the land. The original landlord had not filed any application for eviction of the tenant and the tenant was declared as a deemed tenant. In the circumstances there was no perversity in the order. Drawing a parallel to the present case, Mr. Almeida submitted that in this case as well, the petitioner was found to be in possession of the land by the panchnama so also the Sub-Divisional Officer recorded finding that the petitioner is in possession and that he is cultivating the land and therefore was entitled to reliefs in the present petition.
Mr. Almeida then referred to a decision of the Single Judge of this Court in Rama Vithal Kalantre since deceased by his heirs and legal representatives and Others Vs. Pandurang Hindurao Patil, wherein the final fact finding authority after appreciating the evidence has held that the petitioners predecessor was in lawful cultivation of the suit land and it was duly substantiated by the documentary and oral evidence. It was held that the revisional authority clearly exceeded its jurisdiction and has committed manifest error in interfering with the conclusion reached by the appellate authority on the factum of lawful cultivation of suit land by the petitioners predecessor. Mr. Almeida pressed into service the observation in this judgment to the effect that the revisional authority has interfered with the findings of fact was an error apparent on the face of record but on fair reading of the judgment of the tribunal that since two views were possible the tribunal took a different view from the one taken by the first authority. This Court found that it was impermissible to do so and while overturning the finding reached by the lower authority, the Court preferred to rely upon oral evidence adduced on behalf of the respondents. There was no attempt on the revisional authority to analyse evidence or discard evidence for legitimate reasons and accordingly it was not open for the revisional authority to take a different view merely because another view was also possible. Applying the ratio of this case to present set of facts Mr. Almeida sought to contend that the evidence in present case was overwhelmingly in favour of the petitioner and merely because another view was possible it did not mean that the order of the Sub-Divisional Officer was wrong. The Sub-Divisional Officer had relied upon the facts as established by the evidence and same could not be followed.
Mr. Almeida then referred to the decision of Johnathan Vithu Jadhav and Others v. State of Maharashtra and Others 2013 (2) Mh.L.J. and reiterated that as already discussed in the order of the tribunal, the Single Judge of this Court has found that it is not necessary to have an entry in the tenancy column or rent note or rent receipt to support the claim of statutory tenancy. Mr. Almeida then relied upon the judgment of this case in Shri Rajaram Tukaram Pawar and Others Vs. Smt. Muktabai Narayan Salunkhe and Others, and submitted that if proper procedure under section 64 was not followed the landlord could not execute sale deed in favour of the petitioner and challenge by the respondent tenant could be sustainable specially when the landlord has himself acknowledge that the respondent was tenant of the land.
Lastly, Mr. Almeida referred to the decision of the Supreme Court in the case of Dahya Lal and Others Vs. Rasul Mohammed Abdul Rahim, and submitted that under the B.T. & A.L. Act the tenant lawfully inducted by the mortgagee on the land will on redemption of the mortgage be deemed to be a tenant of the owner mortgagor and that whether or not is derived authority from the owner he must be treated as deemed tenant under section 4 of the Act. Mr. Almeida therefore submitted that even in some cases where the persons claim to be mortgagee the courts have recognised that the party/mortgagee in possession of the land and cultivating the land can claim to be a tenant.
On the other hand Mr. Godbole, learned counsel appearing on behalf of the respondents in the above petition and the petitioner in Writ Petition No. 59 of 2014 contended that on the facts there was no serious dispute. On the factual aspects, save and except the area of land claimed by the petitioner there was no serious dispute as regards persons occupying the land and various documents relied upon by the parties. The core issue according to Mr. Godbole was whether the petitioner was in lawful cultivation of the land. He submitted that under B.T.& A.L. Act section 4 provides that what was important was that party should be in legitimate possession of the land whereas in the present case the petitioner claims adverse possession.
Mr. Godbole relied upon 7/12 extract tendered by the petitioner, a copy of which seems to have been issued under RTI Act and submitted that total area of the land was shown to be 14 acres 55 gunthas out of which the petitioner is shown to be in possession of 2 acre and 27 gunthas leaving balance approximately 11 acres and 17 gunthas. He submitted that in column 2 cultivation is shown as Khand alluding to the fact that since 1954 right upto year 1973-74, the owner/landlord were cultivating the area of 11 acres and 6 gunthas and that only a small area of 2 acres and 27 gunthas were in possession of tenant which can be seen under column 4 "Reeth'' where the digit 3 is mentioned. According to Mr. Godbole an area of 22 acres and 25 gunthas forms part of Survey No. 43, Hissa No. 1 as evident from the said form. It is only 2 acres and 27 gunthas which is in possession of the tenant after 1972-73. Under the heading "Reeth" the numerical 1 is shown denoting that the occupant was cultivating the land. He therefore submitted that the petitioner''s case of being in possession of even 5 acres is questionable. He further submitted that in S.C. Suit No. 1697 of 1986 filed by the petitioner''s late father, the petitioner initially claimed to be in occupation of 22 acres and 25 gunthas as tenants for several years and that defendant No. 1 therein Marie D''silva was shown as kabjedar, however, in the prayer clause (a) the plaintiff has sought protection against dispossession from area admeasuring 5 acres out of 22 acres and 5 gunthas and sought permanent and temporary injunction against respondent No. 1 from interfering with plaintiffs'' possession of area of 5 acre out of plot of land of 22 acres 5 gunthas. Relying upon the said admission the learned counsel submitted that under the provisions of section 4 of the Act a person who claimed to be deemed tenant should be person lawfully cultivating any land belonging to the owner/another person and only if such land is not cultivated by the owner or a member of the owners family, not a servant on wages or hired labourer or mortgagee in possession, can such person claim to be a deemed tenant.
In other words, a member of the owners'' family, servant on wages, hired labourers under supervision of member or members of owners'' family or mortgagee in possession cannot claim to be deemed tenant. Mr. Godbole therefore submitted that given the factual matrix it is not possible for the petitioner to contend that he was in lawful possession and lawfully cultivating land since it was petitioner''s case that he is claiming by virtue of adverse possession. On this basis alone the learned counsel submitted that the petitioner is not entitled to relief in the present petition.
Mr. Godbole pointed out that the petitioner was at all times claiming by virtue of adverse possession. It is not the case of the petitioner that he was in lawful possession of the same. In fact, perusal of the plaint in Suit No. 1562 of 2011 reveals that the petitioner has claim to be in possession by virtue of adverse possession. Paragraph 13 of the plaint is material in this regard. Paragraph 13 read as under :
"13. The plaintiff says that the plaintiff is in peaceful open and continuous possession of the suit lands situate at Village Gorai, Taluka Borivali, Bombay, for over more than 30 years to the knowledge of the Defendants. The possession of the plaintiff submits that in circumstances mentioned herein, the plaintiff is entitled to a declaration that the plaintiff is in adverse possession of the suit lands being Survey No. 43, Hissa No. 1, C.T.S. No. 48, admeasuring 12 Acres 27 Gunthas situated at Gorai, Taluka Borivali, Bombay suburban District more particularly described herein and shown by plan Exhibit "B" hereto."
On perusal of paragraph 13 it becomes clear that the petitioner has always claimed adverse possession of the suit land admeasuring 12 acres and 27 gunthas. The plaintiff in the said suit relied upon a judgment in the case of Johni Alex Gudinho filed against respondent Nos. 1 and 2 herein in which judgment there was finding against Johni Alex Gudinho that the plaintiff has failed to prove that he has become owner of the land by virtue of adverse possession. The same reasoning would apply in the present case as well since in S.C. Suit No. 1697 of 1986 it is the plaintiff (Lawrence Alex Gudinho) that he is in actual possession of the land and that he is entitled to the land in his possession. He does not claim ownership of the land but only sought to safeguard his possession. Mr. Godbole pointed out that in appeal No. TN6/AN/6/2010 in the written notes of arguments filed by the appellant Desmond Lawrence Gudinho, once again claimed possession as a tenant. All of these references according to Mr. Godbole were in aid of protecting the possession of the petitioner which was admittedly adverse to the owners.
Mr. Godbole highlighted the fact that it is petitioner''s case that neither Desmond Lawrence Gudinho or his deceased grand father (father of the plaintiff) ever recognised any person including Marie D''silva or defendants in Suit No. 1562 of 2011 is landlord of the suit property at any time. Thus, the pleadings in Suit No. 1562 of 2011 reveals that the petitioner''s claim is based on the possession claimed by his father and grand father (both deceased) who were stated to have been cultivating whole suit land. In paragraph 8 of the plaint the plaintiffs stated as follows:
"8. The plaintiff states that in fact, plaintiffs father had not recognized any landlord, nor paid any rent or khand to anybody including said Mrs. Marie D'' Silva or the present defendants. The plaintiff therefore submits that the possession of the plaintiff father, said deceased was adverse to and recorded owner and continued so till date. The plaintiff further states that it is wrong on part the Revenue Officer record the name of the plaintiffs father under column tenant and that to part of area when he was in use and occupation of whole area of about 12 Acres and 27 Gunthas.
In paragraph 11 of the plaint, the plaintiff has relied upon the panchnama. The relevant averments reads as follows "Mr. Godbole submitted that this panchnama is prior to the application filed under section 70(b) which was filed on 19.8.2006. Mr. Godbole submitted that as far as extent of the land is concerned and assuming the petitioner it is evident that the plaintiffs cannot claim anything beyond the area of 2 acres and 27 gunthas referred to in 7/12 extract.
Mr. Godbole further submitted that even in response to the public notice inserted on behalf of respondent Nos. 3 and 4 the advocate of the petitioner had reiterated the facts contending that the petitioner was entitled to possession by virtue of his claim to adverse possession. Thus, according to Mr. Godbole the petitioner cannot be heard to argue anything contrary to the pleadings. Mr. Godbole made reference to the pleadings in Cross Writ Petition No. 59 of 2014 filed on behalf of the respondents and submitted that an application filed under section 70(b) read with 32G of the B.T.& A.L. Act was lacking any material particulars and contention that the applicant was in occupation, possession and cultivation of 12 acres and 27 gunthas is negated by the fact that in suit No. 1697 of 1986 the claim was in respect of only 5 acres of land wherein the petitioner''s father had claimed that he was in possession of 5 acres of land along with brother Johni Alex Gudinho and Kiter Zuran Soj. Thus, the aforesaid three persons had collectively claimed possession. Subsequently, in S.C. Suit No. 1456 of 2007 filed by the petitioner''s Uncle Johni Alex Gudinho, he had claimed adverse possession in respect of area of 3 acres and 28 gunthas, however, the said suit came to be dismissed after trial. Mr. Godbole submitted that the application filed under section 70(b) read with 32G was rejected by the order dated 23.4.2010 after which an appeal came to be filed before the Sub-Divisional Officer, once again claiming on the basis of adverse possession. He submitted that possession claimed was therefore adverse to the landlord and was not lawful.
Mr. Godbole submitted that before the Maharashtra Revenue Tribunal, Mr. Almeida appearing on behalf of the petitioner in that proceeding had argued that Suit No. 1562 of 2011 did disclose that the application under section 70(b) of the Tenancy Act had already been made and that plea of adverse possession was taken on the basis of wrong advice. Mr. Almeida had then submitted that merely because wrong plea was taken at subsequent stage would not preclude a claim to tenancy rights. Mr. Godbole further pointed out that in 7/12 extract right from the period 1954-55 till 1973-74 the landlord''s name was shown as being in possession till 1970-71 as also the fact that grass was grown on the entire land. He reiterated mode of cultivation was shown identified by the numerical "1" establishing that the owners were in possession. Subsequently, the name of father of the petitioner was entered in pencil in respect of 2 acres and 27 gunthas and that portion was shown under mode bearing numerical "3" which shows that the same was being cultivated by a third party. As far as the remainder of 11 acres and 18 gunthas is concerned it is clearly shown as "Khand" and grass is seen to be grown thereat. In the circumstances, he submitted that the order of the tribunal cannot be assailed on these grounds. The tribunal had also considered that in the suit filed by the petitioner''s father he had claimed possession only of 5 acres of land.
Having considered the facts and submission of counsel I find that it is petitioner''s case that his claim to the property is only on the basis of adverse possession supported by the following documents :
"(a) Copy of Namuna Number 14, which is annexed herewith as Exhibit "F".
(b) Copy of Application dated 14/01/80 submitted before sub-Divisional Officer, Bombay Suburban District, which is annexed herewith as Exhibit "G".
(c) Copy of Police Thane dainandini dated 24/07/2006, which is annexed herewith as Exhibit "H".
(d) Copy of Gorai Police Thane dainandini dated 24/07/2009, which is annexed herewith as Exhibit "I".
(e) Copy of cross examination of John Rosalind Saint prix dated 23/11/2009, which is annexed herewith as Exhibit "J".
(f) Copy of Affidavit of Gabur Duming D''mello, which is annexed herewith as Exhibit "K".
(g) Copy of Affidavit of Anton Joja Valis, which is annexed herewith as Exhibit "L".
(h) Copy of Affidavit of Barnard Denial Henriques, which is annexed herewith as Exhibit "M".
(i) Copy of Affidavit of Martis Anton Paulu, which is annexed herewith as Exhibit ''N''."
In my view he has not been able to establish that the petitioner was in lawful possession of the property. Faced with this insurmountable hurdle the petitioner has sought to contend that the claim of adverse possession was an error. Section 4 of the Act read as under :
"Section 4 - Persons to be deemed tenants
A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not
(a) a member of the owner''s family; or
(b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner''s family, or
(c) a mortgagee in possession."
(Emphasis supplied)
In paragraph 8 of Writ Petition No. 11886 of 2013 the petitioner has made the following averment :
"The Petitioner states that the Petitioner was enjoying the suit land as if absolute owner thereof as no action of any nature whatsoever was initiated by recorded Kabjedar i.e. predecessors of the Respondent No. 1 and 2 either against the father of the Petitioner during his life time or thereafter against the Petitioner."
(Emphasis supplied)
Furthermore, the documentary evidence that the petitioner claims to have produced did not establish lawful possession as on tiller''s day. Provisions of the Act do not equate possession of lands, cultivating it or payment of assessment tax to "lawfully cultivating" the land. The petitioners oft repeated claim to adverse possession. The plea that the claim of adverse possession was a result of ''wrong advise'' cannot help the petitioner. The attempt to resile from the adverse possession contention is purely by way of belated after thought.
The petitioner has contended that his possession is adverse to the owner that he has been in continuous possession since the Tiller''s day. This not established by 7/12 extract wherein the petitioner''s father''s name is only shown to be entered in the year 1972 and that to in respect of small area of 2 acres and 18 gunthas. The petitioner has therefore in my view failed to established that he was lawfully cultivating the land belonging to another person. He is therefore not entitled to claim deemed tenancy.
In the affidavit in reply to Petition No. 59 of 2014 the petitioner has merely proceeded on the basis of denials and submitted that petitioner Nos. 1 and 2 were staying in Mumbai and his forefathers were cultivating land. He contends that he was in lawful cultivation of the suit land, however, this averment is directly contrary to his claim of adverse possession and reliance upon plaint in Suit No. 1562 of 2011 wherein there is clear unequivocal statement that they have not considered the petitioner as owners of the land. Merely on the basis of panchnama it is not possible to hold that the defendant is in possession of entire area of 12 acres and 27 gunthas. He has also taken up contention that there was no Tahsildar''s office in Borivali area in 1956-57 and the officer from Gorai village used to visit by boat. No revenue officer used to visit in Gorai village and therefore no entry was made in 7 X 12 extract as to actual cultivation. Reliance upon document that the petitioner''s father was in possession prior to 1963 does not help in establishing lawful possession specially in view of the pleadings which are directly contrary to what is now sought to be argued. In paragraph 12 of the affidavit in reply the petitioner states that rejection of the case on the basis that the possession was lawful is erroneous. He further states as follows :
"I submit that if a person is in possession without any objection or no objection for more than 5 decades from any person such possession cannot be said to be unlawful at all. I submit that the appeal was rightly allowed by the S.D.O M.S.D. On the facts and circumstances of case."
It is not possible to accept such a contention. The record indicates that the petitioner''s predecessor were always claiming under adverse possession. The extent of area is also questionable. The tribunal has come to the finding that the petitioner is in lawful possession only to the extent of 5 acres without there being real evidence. In the circumstance I do not find that the petitioner has been able to establish that he is entitled to claim tenancy to 12 acres and 27 gunthas or even 5 acres.
Apropos the contention of the petitioner in Writ Petition No. 11886 of 2013 is to 12 acres and 27 gunthas I am of the view that the plaintiff has failed to establish possession in respect of entire land. Furthermore, the plaintiff has not been able to establish that he is in possession and cultivation of even the area of 2 acres and 27 gunthas. 7/12 extract has been relied upon by both the parties is issued on 27.7.2006 pursuant to the application made under RTI by Talathi Gorai, Tahsil Borivali. There is no reason to disbelieve the contents. Mr. Godbole also relied upon the fact that even otherwise the petitioner could not have claimed more than 5 acres of land, however, the plea of adverse possession was taken up on account of incorrect advice cannot be sustained as same is purely by way of after thought. Various judgments referred to by Mr. Almeida in support of his contention are no doubt valuable to determine the result of this claim of tenancy. However, the facts of the present case did not fit into any factual situation under consideration in the judgments. The petitioner is not merely pleading a case of deemed tenancy but claims under adverse possession. Merely because various decisions of this Court has held that no entries are required in tenancy column or rent receipts for claiming tenancy, does not entitle the plaintiff to any relief in the present petition. In my view the factual position in the present case is clearly distinguishable from those in all the judgments relied upon by Mr. Almeida since in the instant case the core issue is whether the petitioner was in lawful cultivation of the land. In the case at hand the petitioner claims by virtue of adverse possession.
In the circumstance I pass the following order :
"a) Writ Petition No. 11886 of 2013 is dismissed.
b) For the reasons aforesaid in Writ Petition No. 59 of 2014, Rule made absolute in terms of prayer clause (b)."
In view of the fact that the status quo has been in operation since 13th March, 2014 the parties in both the petitions shall maintain status quo for a period of eight weeks from today.