Subhash vs Mohan

S.S. Shinde, J.(Oral)—This writ petition takes an exception to the judgment and order dated 14th October, 1991 passed by the learned Member, Maharashtra Revenue Tribunal, Aurangabad in File bearing No. 1976/B-91-0.

Background facts of this case for filing this writ petition are as follows:

It is the case of the Petitioner that one Vithal s/o Rangrao Lomte was the original landlord bearing Survey No.100/C and 104/C i.e. Gat No.285 admeasuring 9 Hectares, 71 Ares situated at village Hasegaon (Shiradhon), Taluka Kallam District Osmanabad. Said Vithalrao has one daughter by name Kondabai, who died prior to the death of Vithal Lomte. Vithal Lomte died on 11th December, 1966. The Petitioner is the son of Kondabai, daughter of Mr.Vithalrao. The case of the Petitioner is that the deceased Vithalrao executed registered willdeed on 2nd December, 1966 in favour of the Petitioner. The Revenue Authority has mutated the name of the Petitioner in revenue record by mutation entry No.27. It is the case of the Petitioner that he is the only legal representative of the deceased Vithalrao and has become owner of the suit property.

The Petitioner filed an application under Section 28(1) read with Section 32(2) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 on 31st December, 1990 for possession of the suit land before the learned Tahsildar, Kallam, District Osmanabad contending therein that, the Respondent in making the payment of rent from the year 1966-67, 1967-68 and 1968-69 had made default, in spite of intimation to the Respondent for termination of tenancy on 25th November, 1967, 30th November, 1968 and 31st December, 1969 as provided under Sections 19 and 28 of the said Act.

The Respondent filed his written statement on 25th August, 1971 before the Tahsildar wherein he has alleged that, he has no knowledge that deceased Vithalrao had executed a will-deed in favour of the Subhash - Petitioner herein. It was further brought to the notice that, the Respondent has deposited the rent after obtaining the permission from the Tahsildar in the Bank on 19th September, 1967, 10th April, 1968 and 15th April, 1969. Therefore, according to the learned counsel for the Respondent, as stated in the written statement, Respondent did not commit any default in payment of rent and therefore, his tenancy cannot be terminated.

The Naib Tahsildar, Kallam, Osmanabad by its judgment and order dated 14th January, 1988 rejected the application filed by the Petitioner. The Petitioner being aggrieved by the said judgment and order, of the Additional (Naib) Tahsildar, Kallam preferred an appeal bearing No.1988/TNC-A-7 before the Deputy Collector, Land Reforms, Osmanabad.

The Deputy Collector, Land Reforms, Osmanabad was pleased to allow the said appeal by setting aside the Additional Tahsildar''s order dated 14th January, 1988. Directions was given by the Deputy Collector, Land Reforms, Osmanabad that the possession of the suit land should be handed over by the Respondent to the Petitioner.

Being aggrieved by the said judgment and order dated 24th April, 1991, passed by the Deputy Collector, Land Reforms, Osmanabad, the Respondent herein i.e. original tenant filed Revision Petition No.76/B/91-0 before the learned Member, Maharashtra Revenue Tribunal, Aurangabad. By the judgment and order dated 14th October, 1991, the Maharashtra Revenue Tribunal, Aurangabad allowed the revision petition filed by the original tenant thereby setting aside the judgment and order dated 24th April, 1991 passed by the Deputy, Collector, Land Reforms, Osmanabad. Hence, this writ petition.

The learned counsel for the Petitioner invited my attention to the notices issued to the Respondent - tenant and submitted that in spite of three notices sent to the Respondent - tenant for depositing the rent, no rent was deposited by the Respondent and therefore, there was default in making payment towards rent in view of the provisions of Section 28(3) of the said Act, the Petitioner, who is landlord is entitled for possession of the suit land. It is submitted that the Tahsildar has not properly appreciated the provisions of Section 28 of the said Act. The tenant is supposed to send rent to the landlord by way of money order and in case of refusal by the landlord to receive the said rent, in that case only, the tenant can approach the Tahsildar and after obtaining necessary permission, he can deposit the rent in the office of the Tahsildar. However, in the present case, there was no endeavour by the Respondent - tenant to send rent to the landlord and there was no any refusal by the landlord i.e. Petitioner herein, and therefore, merely because the Respondent - tenant has deposited the rent in the Bank with the permission of the Tahsildar is not inconformity with the provisions of Sub-Section (3) of Section 28 of the said Act. According to the learned counsel for the Petitioner, the tenant in the first instance has to send the rent to the landlord and if there is a refusal by the landlord to accept the said rent, in that case, the tenant can approach the Tahsildar as contemplated under the said provisions and then only, the Tahsildar can grant permission to deposit the rent in the Tahsil Office. At the cost of repetition, the learned counsel for the Petitioner would submit that the stand taken by the tenant that he was not aware about the fact that the Petitioner has become owner of the suit property, is falsified by the fact that, three notices were sent to the Respondent - tenant. The learned counsel for the Petitioner would submit that, it is different matter if the Respondent is not aware about the fact that the Petitioner has become owner at the time of receiving first notice. However, three notices were sent by the Petitioner i.e. landlord sent notices to the Respondent in the years 1967, 1968 and 1969 and therefore, it is indigestible that the Respondent was not aware that the Petitioner has become owner of the suit property. The learned counsel further invited my attention to the grounds taken in the writ petition, annexures thereto and submitted that this writ petition deserves to be allowed.

Though, the Respondent is served, none appears for the Respondent. With the able assistance of the learned counsel for the Petitioner, I have carefully perused the judgment and order passed by the Tahsildar.

Upon perusal of the judgment and order of the Additional Tahsildar, it is mentioned that the Respondent - tenant has deposited the rent in the year 1966-67, 1967-68 and 1968-69 with the permission of the Tahsildar in the treasury of the Government. The dates of such deposits and amount are also mentioned in the said judgment. It is also recored by the Additional Tahsildar that, till the death of the original landlord, the Respondent - tenant has deposited the rent regularly and there was no any default on his part. The Tahsildar has also noted that, the original landlord has executed a will-deed on 2nd December, 1966 in favour of the Petitioner. However, the Revenue Entry is taken after thirteen years i.e. on 2nd September, 1979 that the Petitioner has become owner of the suit property. It is also observed that the said entry has been taken beyond the period of limitation. Therefore, the Additional Tahsildar, Kallam, District Osmanabad by its judgment and order dated 14th January, 1988 held that the Petitioner i.e. original landlord is not entitled for the possession of the suit land.

Upon careful perusal of the judgment and order of the Deputy Collector, Osmanabad, it appears tat there is no discussion that, when the Petitioner has become owner of the suit property. The Deputy Collector in its reasoning part has not discussed anything about the contention of the Petitioner / Applicant that by virtue of will-deed executed in the month of December 1966, the Petitioner has become owner. There is also no discussion on the basis of the said registered will-deed, when mutation entries are taken and the Petitioner has actually become owner.

The Additional Tahsildar in his judgment has referred to the will-deed dated 2nd December, 1966 and has taken a note of fact that the mutation entry has been taken on 2nd September, 1979 in the name of the Petitioner on the basis of the registered will-deed dated 2nd December, 1966 in favour of the Petitioner by the original landlord - Vithal s/o Rangrao Lomte. Therefore, the Maharashtra Revenue Tribunal was constrained to observe in its judgment that, the Deputy Collector has not discussed or has recorded the finding when the Petitioner has become owner of the suit land and whether the fact that he has become owner was communicated to the Respondent - tenant. Therefore, the Maharashtra Revenue Tribunal while setting aside the judgment and order of the Deputy Collector, has recorded a finding that the Respondent - tenant was not communicated about the fact that the Petitioner herein has become owner of the suit property and therefore, in absence of such communication, the tenant did approach the Tahsildar and with the permission of the Tahsildar, has deposited the rent in the Bank on 19th September, 1967, 10th April, 1968 and 15th April, 1969. The Maharashtra Revenue Tribunal has also taken a note of the fact that, though there is a registered will-deed in favour of the Petitioner executed by the original landlord, mutation entry in the revenue record is taken only on 2nd August, 1979. The Maharashtra Revenue Tribunal while setting aside the judgment of the Deputy Collector, has also held that the intimation / notices, which were given by the Petitioner to the Respondent - tenant were given on 3rd November, 1976, 1st November, 1977 and 3rd November, 1979 and all these intimations were given after 31st October of each year. So that, intimations were given not within six months of each default, but they are given subsequently in contravention of the provisions of Section 28(1) of the said Act.

The contention of the learned counsel for the Petitioner is that in view of the provisions of Sub-Section (3) of Section 28 of the said Act, the Respondent - tenant should have sent the rent to the Petitioner and in case of refusal only, he should have approached the Tahsildar for depositing the rent in the Tahsil Office and therefore, there is a default in payment of rent, is devoid of any merits. There is nothing on record to suggest the fact that the Petitioner has become owner of the suit property, was communicated to the Respondent with any documentary proof. It is also an admitted position that though the will-deed is registered in the year 1966, mutation entry No.27 on the basis of the will-deed is sanctioned on 2nd August, 1979 in the name of the Petitioner herein. Therefore, in absence of such revenue record indicating the ownership of the Petitioner, the Respondent - tenant approached the Tahsildar and with due permission of the Tahsildar, deposited the rent on 19th September, 1967, 10th April, 1968 and 15th April, 1969 in the Bank. The contention of the learned counsel for the Petitioner is that, such rent amount was required to be deposited in Tahsil Office, however, same is deposited by the Respondent in the Bank is contrary to the provisions of Sub-Section (3) of Section 28 of the said Act, deserves no consideration in view of the fact that though the Respondent - tenant has deposited the said rent amount in the Bank, the said deposit was with due permission of the Tahsildar, and the Forum below has recorded the fact that the said deposit of rent was in the Government treasury. Therefore, on such ground, no interference is warranted in the well written judgment of the Maharashtra Revenue Tribunal. Therefore, viewed from any angle, the judgment and order passed by the Maharashtra Revenue Tribunal is inconsonance with the facts of the case and also in conformity with the provisions of Sub-Section (3) of Section 28 of the said Act. Since, Respondent - tenant did deposit the rent even before disposing of the proceedings by the Tahsildar and the intimations sent by the Petitioner were not inconformity with the provisions of Section 28 (1) of the said Act, in my considered opinion, the judgment and order passed impugned in this petition, needs no interference. The same stands confirmed.

12 The writ petition is devoid of any merits and the same stands dismissed. Rule stands discharged.