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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.N. Deshmukh V.V. Kamat, JJ.
Gnyandeo s/o Duraji Pirange.. Petitioner.
Versus
Pandurang Jyoti Pirange.... Respondent.
Writ Petition No. 907 of 1985, decided on 11/12-1-1994.
Advocates appeared :
A.M. Kanade, for petitioner.
Cultivation expenses to be under taken by petitioner defendant at his expenses-:-Agricultural produce to be shared equally between parties of - No objection would be to taking steps regarding entry of name of petitioner m record of rights as a tenant-Petitioner be tenant of said land on basis of such attested and proved document.
HYDERABAD TENANCY AGRICULTURAL LANDS ACT, 1956.
Sections 4-A, 5-A and 99-A-Transfer of Property Act, Chapter V - Scope of.
The question that is required to be considered in this petition is the application of Section 4-A of the said Act. This is because there is a written document of lease dated February 17, 1969, Section 4-A of the Act clearly enacts that the provisions of Chapter V dealing with lease under the Transfer of Property Act, 1882 shall apply insofar as the said provisions are not inconsistent with the provisions of Hyderabad Tenancy and Agricultural Lands Act, 1950, to tenancies and leases of land to which the Agricultural Tenancy Act applies.
Under the Transfer of Property Act, a transfer means an act conveying property by a living person to another living person. Chapter V of the said Act defines a lease to be a transfer of a right to enjoy property in consideration of price paid or promised either in terms of money, a share of crops, service or any other thing of value to be rendered periodically or on specified occasions to the transferer by the transferee who accepts the transfer on such terms. What is required to considered is as to whether there is a property conveyed under the document for consideration.
Consideration may be of a kind as defined in Section 105 of the Transfer of Property Act. It is essentially an agreement as in this petition there is a document dated February 17, 1969. In regard to this document, wl1at is required to be considered is as to whether the said document is inconsistent with any of the provisions of the Hyderabad Tenancy and Agricultural Lands Act 1950. If such an agreement is not inconsistent, then it would be a document valid in law creating relationship under the said document of lease.
Illustratively, but not exhaustively, occasions can be contemplated where under inspite of relationship connecting the parties to the lease even to the extent of they being the members of a family either a continuing Hindu joint family or a separated one, there are factors and occasions which would necessitate on clear understanding the formation of such relationship.
The landlord may be unable to exercise his rights of ownership either he being at a far distance from the land in question, or he being unable to go agricultural jobs by reason of his old age, infirmity or difficulties of similar character, it cannot be ignored that the relationship is a basis factor for the genesis of an implicit faith and if for conveying property, a relation is chosen with full open eyes, it will have to be accepted for its legal consequences, it would be a transfer by the transferer in favour of the transferee. What is required to be considered is not the relationship but satisfaction of the conditions of the relationship as emerged in Section 105 of the Transfer of Property Act and a further satisfaction that such relationship is not inconsistent with the provisions of this Act.
In reaching conclusions with regard to the above to aspects, examination of the document would be necessary and equally well, the examination of the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950, would be equally necessary.
Chapter V.-See Hyderabad Tenancy and Agricultural Land Act, 1956, Sections 4-A, 5-A and 99-A.
2. The petitioner-Gnyandeo Pirange, being aggrieved by the order dated April 30, 1985, of the Maharashtra Revenue Tribunal, Aurangabad, dismissing the revision application under section 99-A of the Hyderabad Tenancy and Agricultural Lands Act, 1950, has approached this Court. The proceeding before the tenancy authorities arose out of the reference under section 99-A of the said Act as to whether the defendant (the present petitioner) proves that he is a tenant of the suit land on the strength of the lease-deed.
3. The lease-deed is dated February 17, 1969. It is a written document between the defendant and the plaintiff in the civil suit. The petitioner-defendant started cultivation of the suit land on the strength of this written lease-deed and consequently his name is recorded to that effect in the record of rights with regard to the lands which are Survey Nos. 95/E and 97/E of village Manzari-Haveli Tq. Dist. Beed. This is for the years 1969-70 upto 1974-75.
4. The plaintiff-Pandurang Pirange filed Regular Civil Suit No. 63 of 1974 for possession of the suit property and the petitioner-defendant contested the suit on the basis that he is in possession under the contract. One Jyoti was the owner of the suit property and Pandurang (the plaintiff) claimed to be the adopted son. The question that Pandurang was the adopted son came to be finally concluded and on its conclusion, the present suit is filed by the plaintiff-Pandurang against the petitioner-Gnyandeo Pirange. As the contention raised by the present petitioner could not be adjudicated by the Civil Court, a reference came to be made to the tenancy Court.
5. On the basis of evidence led before the tenancy authority (Additional Tahsildar, Sub-Division, Beed), a finding is recorded that the lease-deed dated February 17, 1969, is amply proved and further that the petitioner-defendant is in possession of the suit property by virtue of this written document executed by the original land-holder. There was a dispute between the original land-holder and Pandurang with regard to the status of Pandurang on adoption which was finally concluded. Under a written lease-deed, the original owner-Jyoti had granted lease to the petitioner-defendant-Gnyandeo and in pursuance of which he was in possession of the disputed land. The trial Authority held this relationship to be on the basis of lease-deed dated Febraury 17, 1969, and recorded its finding accordingly.
6. This fact finding is confirmed by the appellate authority (Deputy Collector, Land Reforms, Beed). The appellate authority also held that Pandurang was the rightfully adopted son of the original land-holder Jyoti, a concluded situation in the earlier litigation. It was during the pendency of this dispute between Jyoti and Pandurang, the petitioner-defendant was in actual possession of the suit land and it is for this reason that the adopted son-Pandurang instituted the present civil suit. The appellate authority held that the present petitioner-defendant came into possession of the suit property on the basis of the lease-deed and continued in possession thereof as such. However, the appellate authority held that this would not create a situation of tenancy because as observed, a separated member of the joint family cannot be a tenant of the land belonging to another separated member of the joint family. The appeal was allowed holding that the petitioner-defendant cannot be given a status of a tenant of the suit land.
7. The Revenue Tribunal considered the question with reference to the relations between the parties and on facts came to the conclusion that the parties are relations, such that they are the children of common ancestors. The original owner Zuraji had 2 brothers Maruti and Zuraji. Pandurang is the adopted son of Maruti, whereas present petitioner-defendant Gnyandeo is the son of Zuraji. Recording these factual findin
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