Sadanand Gajanan Mulye vs Shri Manka Dipa Pawar

A.V. Savant, J.—This is a petition by the original landlord arising out of proceedings initiated by respondent No. 1 tenant for declaration of his tenancy in respect of the suit land Survey No. 4, Hissa No. 4 measuring O-Acre 14.8 gunthas assessed at Rs. 2.51 situate at village Phansavale, Taluka and District : Ratnagiri. The case of the respondent was that he was cultivating the suit land for over 30 years, that is to say prior to April 1, 1957. An application was made before the Tahsildar purporting to be u/s 70(b) of the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter, referred to as the "Tenancy Act") on October 7, 1978. The respondent tenant examined himself and produced two witnesses viz. Shankar Sangare and Govind Pawar, in support of his contention that he was cultivating the suit land for the last several years. He also produced four receipts for payment of land revenue viz. receipts bearing No. 40/3, 35/5, 112/2 and 157/3. They pertain to the years 1964, 1965, 1970 and 1976. The respondent further contended that he had paid the rent or khand to the petitioner-landlord who never gave any receipts. The respondent was apparently constrained to admit that he never gave any receipts even to his other tenants when they paid the rent or the khand. There is a pencil entry in favour of the respondent for the year 1977-78. Despite this evidence, however, the Tahsildar came to the conclusion that the respondent was not a contractual tenant u/s 70(b) of the Tenancy Act and hence, refused to grant the declaration sought u/s 70(b) of the said Act. According to the Tahsildar the respondent could have produced better evidence in support of his contention that he was a tenant for such a long period. Reliance was also placed by the Tahsildar on the absence of rent receipts.

Being aggrieved by this order dated September 28, 1979 passed by the Tahsildar, the respondent No. 1 preferred an appeal before the Assistant Collector, Ratnagiri. The Appeal Court came to the conclusion that Section 4 of the Tenancy Act contemplated a person to be deemed as a ''tenant'' if the land was not cultivated personally by the owner and if such a person was not -

(a) a member of the owner''s family; or

(b) a servant on wages in cash or kind; or

(c) a mortgagee in possession.

The Appeal Court relied upon the evidence of respondent No. 1 and his two witnesses viz. Shankar Sangare and Govind Pawar and also the documentary evidence in the form of receipts for land revenue and the entries in the "peek-pahani". A. reference was made to the landlord''s admission that he did not give rent receipts even to the other tenants. In this view of the matter, the Assistant Collector came to the conclusion that the requirements of Section 4 of the Tenancy Act were satisfied and the respondent was a tenant of the suit land u/s 4 of the said Tenancy Act. In the result, appeal was allowed, on April 18, 1980.

Being aggrieved by the said order dated April 18, 1980 the petitioner had preferred a Revision Application to the Maharashtra Revenue Tribunal. The Tribunal came to the conclusion that the appreciation of evidence by the appellate authority was proper and having regard to the overwhelming evidence suggesting the cultivation of the respondent No. l over a period of 30 years, the Tribunal found no error of law or jurisdiction to intervene in a revision. The Tribunal also referred to the plea that there was some oral contract for sale of the land by the petitioner to the respondent No. l for a consideration of Rs. 750/- out of which Rs. 450/= was already paid and the balance payable, was Rs. 300/=. There is a post-card on record allegedly written by the petitioner-landlord, who denies his signature. Comparing some of the admitted signatures on the record, the Tribunal further came to the conclusion that the post-card was apparently written by the petitioner-landlord, which supported the respondent''s case that since he was a tenant on the suit land, it was agreed to be sold to him. In this view of the matter, the Revisional Court confirmed the finding of fact recorded by the appellate authority and dismissed the revision application.

Shri Limaye, the learned Counsel appearing on behalf of the petitioner, has not seriously disputed the correctness of the finding of fact recorded by the Assistant Collector on the basis of the evidence in support of the tenancy of the first respondent. The appellate authority found the evidence reliable and the evidence consisted of the first respondent''s deposition coupled with the depositions of two independent witnesses Shankar Sangare and Govind Pawar, who categorically supported the cultivation of the respondent for over 30 years as a tenant. The receipts for payment of land revenue arid the entries in the "peek-pahani" also supported the first respondent''s cultivation for over 30 years. Shri Limaye, therefore, fairly stated that in a Writ Petition under Article 227 of the Constitution of India it would be difficult for him to assail this finding of fact which is based on a proper appreciation of evidence on record. The fact that the petitioner-landlord himself did not cultivate the land at any time during the relevant period is clear from the evidence on record and further the fact that the petitioner never used to give receipts to the tenants who paid the rent or khand is also clearly admitted by the petitioner. In this view of the matter, Shri Limaye was not able to seriously dispute the correctness of the finding of fact.

However, Shri Limaye raised a purely technical plea viz. that strictly speaking the proceedings were initiated by the first respondent for a declaration u/s 70(b) of the Tenancy Act on the ground that he was a contractual tenant. If the order of the Tahsildar is to be considered as one falling strictly u/s 70(b) of the Tenancy Act, Shri Limaye''s contention is that such an order would not be appealable u/s 74 of the said Act. Sub-section (1) of Section 74 gives a long list of sections, orders under which are appealable. Under clause (a) of Sub-section (1) of Section 74, an order u/s 4 of the Act is made appealable. However, there is no specific mention of an order made under clause (b) of Section 70 in the long list of appealable orders u/s 74. A person who approaches the Court with a plea of contractual tenant may fail to make out a case of contractual tenancy, but nevertheless, he may be a deemed tenant within the meaning of Section 4 of the Bombay Tenancy Act. In such a case, an order rejecting the claim for a declaration u/s 70(b) could also be properly construed as an order passed u/s 4 of the Tenancy Act. Since every order u/s 4 is made appealable u/s 74, perhaps the legislature did not think it necessary to provide for an appeal specifically against an order made u/s 70(b). It would be inappropriate to assume that Section 4 is merely a defining section and confers no right on the person who claims deemed tenancy. The wide wording of Section 4 does not admit of excluding other kinds of tenancies from its purview. This is clear in view of the observations of a Division Bench of this Court in the case of Ebrahim Yusuf Lambe Vs. Abdul Razak Abdul Rahiman Mulla and Another, . The relevant observations are to be found in para. 9 of the Division Bench Judgment at page 24 of the Report. Shri Limaye did not dispute the correctness of this proposition. However, what Shri Limaye contends is that if an order were to be regarded a purely and strictly one u/s 70(b) without reference to Section 4, then in the light of the decision rendered by Malvankar, J. in Shantabai Ramchandra Ghatge and Others Vs. Pandurang Ramchandra Mandlik and Others, such an order would not be appealable. It has been observed in Para. 14 of the Judgment in Shantabai Ghatge''s case (supra) at page 209 of the Report that every decision on the status of the person under the Act cannot be treated as a decision u/s 4 of the Act and, therefore, appealable u/s 74(1) of the Act. Only a decision that a particular person is a deemed tenant coming u/s 4 of the Act would be appealable u/s 74(1)(a) of the Act. In the facts of Shantabai Ghatge''s case, the learned Single Judge took the view that the decision could not be treated as one falling u/s 4 and hence, was not available. Shri Limaye further invited my attention to the Supreme Court decision in the same case viz. Pandurang Ramchandra Mandlik (Since Deceased) by his Lrs. and Another Vs. Shantibai Ramchandra Ghatge and Others, where the decision of the learned Single Judge (Malvankar, J.) has been upheld. But Shri Limaye very fairly pointed out that the Supreme Court had no occasion to consider the question as to whether the order was u/s 4 or u/s 70(b) so as to be appealable or not. Shri Limaye very fairly pointed out, and in my opinion rightly, that the said decision of the Supreme Court rests on the question of the plea of jurisdiction of the Civil Court and the plea of res judicata, A perusal of the Supreme Court decision in the said case of Pandurang Ramchandra Mandlik (since deceased by his Lrs.) v. Smt. Shantabai Ramchandra Ghatge, clearly justifies Shri limaye''s submissions. The fact, however, remains that the Division Bench decision in Ebrahim Yusuf Lambe''s case (supra) is a clear answer to the technical plea raised by Shri Limaye.

Thus, in the facts of the present case, it is clear that the decision rendered by the Tahsildar was one u/s 4 of the Bombay Tenancy Act. If the said decision is one u/s 4 of the Tenancy Act, then Shri Limaye does not dispute that such a decision would be appealable u/s 74(1) of the Tenancy Act. On merits, Shri Limaye has fairly stated that there would be limitations on his disputing the correctness of the pure finding of fact that the first respondent was a deemed tenant on the suit land.

In this view of the matter, there is no merit even in the technical plea raised by Shri Limaye and hence, the Writ Petition fails. Rule is accordingly discharged, with no order as to costs.