Shamrao Maruti Patil and another vs Shantabai Dattatraya Salokhe

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1993 Supreme(Bom) 139

IN THE HIGH COURT OF BOMBAY
Dr. B.P. Saraf, J.
Shamrao Maruti Patil and another.... Petitioners.
Versus
Smt. Shantabai Dattatraya Salokhe.... Respondent.
Writ Petition No. 1429 of 1983 with W.P. Nos. 863, 865, 866 867 of 1989, decided on 3-12-1993.
In Writ Petition No. 1429 of 1983.
Advocates appeared :
L.V. Kapse with V.T. Walawalkar, for the petitioners in W.P. No. 1429 of 1982 and W.P. Nos. 863, 865, 866 867 of 1989.
S.S. Pandit, for the respondents in W.P. No. 1429 of 1982 and W.P. Nos. 863, 865, 866 867 of 1989.

Headnote:Sections 32-G, 43-A and 76-Civil Procedure Code, 1908-Section 100 - Constitution of India, Article 27 - Revision-Powers of-Scope-Held.
       If a decision is based on evidence, however, unsatisfactory the judgment may be, it does not cease to be question of fact and unless the Tribunal finds that there was no evidence for the finding of fact, the mere insufficiency of evidence or defect in the appreciation of evidence will not convert a question of fact into a question of law, whether the proof of a particular fact is satisfactory or not is for the fact finding authority to determine. Adequacy of evidence or sufficiency of evidence cannot be a question of law and the Tribunal, in exercise of its revisional jurisdiction, cannot reappreciate the evidence and give a fresh conclusion of its own unless it holds that the finding of the Appellate Authority is perverse. It is clear that the power of the Tribunal under Section 76 of the Act is a limited one and can be exercised on any of the grounds mentioned in the three clauses of sub-section (1) thereof. In the instant case, it is clear that non of the three grounds specified in Section 76 (1) is present. The Tribunal, on perusal of the order of the Appellate Authority and the records of the case, was correct in holding that the Appellate Authority which was the final fact finding Court having come to a conclusion that the land was leased out for the sugarcane cultivation, there was no ground to interfere with the said finding I do not find any cogent reason to interfere with the above decision of the Tribunal In court opinion, the Tribunal acted within the bounds of its jurisdiction in refusing to interfere with the finding of fact arrived at by the Appellate Authority on appreciation of all the material and documents on record.
       It was not open to the Tribunal to decide the adequacy of sufficiency of the evidence. The order of the Appellate Authority is very exhaustive and deals with all facts, circumstances and materials on the basis of which the conclusion in regard to the nature of the lease has been arrived at. Such a conclusion or finding of the Appellate Authority cannot be reversed by the Tribunal in exercise of its revisional powers under Section 76 of the Act. In my opinion, in the present case, the Tribunal for exceeded its jurisdiction in venturing to reappreciate the entire evidence and arriving at a fresh conclusion in regard to the nature of the lease Instead of confining itself to the three grounds specified in Section 76 (1) of the Act viz. (i) that the order of the Collector was contrary to law, (ii) that the Collector failed to determine some material issue of law, and (iii) that there was a substantial defect in following the procedure provided by the Act which has resulted in the miscarriage or justice. The order of the Tribunal is therefore wholly without jurisdiction and cannot be sustained.

JUDGMENT - Dr. B.P. SARAF, J.:-These writ petitions arising out of the orders passed by the Maharashtra Revenue Tribunal in proceedings initiated under the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Tenancy Act") are between the same parties and involve identical questions of law and fact. As such, all these petitions are taken up together for hearing and disposal.

2. Writ Petition No. 1429 of 1983 :--The petitioners are tenants of a plot of land bearing Survey No. 362/1 (Gat No. 983) admeasuring about 31 acres. The respondent is the landlady. The Additional Tahsildar and Agricultural Lands Tribunal started inquiry under section 32-G of the Tenancy Act in respect of the above land and after hearing the parties, by order dated 7th June, 1975, fixed the purchase price of the said land. Aggrieved by the above order, the landlady applied to the Deputy Collector and Special Land Acquisition Officer (hereinafter referred to as "the Appellate Authority"). Before the Appellate Authority, it was contended by the landlady that the land in question was leased out to the tenants for sugarcane cultivation and, as such, in view of the special provisions contained in section 43-A of the Tenancy Act, sections 32 to 32-R (including section 32-G) had no application. On the other hand, the contention of the tenants was that the land had not been leased for sugarcane cultivation and, as such section 43-A had no application. The Appellate Authority, on consideration of the facts of the case, arrived at a conclusion that the land in question had been leased out for sugarcane cultivation. While arriving at this conclusion, the Appellate Authority took note of the fact that there was no instrument of lease or Kabulayat between the landlady and the tenants. No rent notes were also produced by either of the parties. Under the circumstances, the Appellate Authority decided the factual controversy in regard to the nature of the lease on the basis of circumstantial evidence. Some of the factors taken into consideration for the purpose by the Appellate Authority are :

(a) The previous use of the land or its major portion;

(b) the use of the land during the currency of the lease;

(c) the knowledge which may be implied to the parties to the lease regarding the intention of the tenant to use the land;

(d) the suitability of the land for growing a particular crop, the area on which the land is situated and the nature of the use to which the surrounding lands are put;

(e) whether the land is under the command of irrigation canal.

The Appellate Authority observed that the tenant had himself stated in cross-examination that there was irrigation facility in the village and the land in question was under irrigation and he was paying education cess whenever he was raising sugarcane crop. It was also stated by the tenant that he was raising sugarcane crop in the alternate years. The Appellate Authority also found that the sugarcane crops were grown on the surrounding lands. The tenants were sending sugarcane crop to one Bhagwati factory. This fact was also not in dispute. The Appellate Authroity also observed that the quality of the soil was good and there was evidence to show that during the year 1954-55, sugarcane crop was raised on the said land. The Appellate Authority also took note of the prevailing practice in the area that when sugarcane crop is raised for a year or two continuously, paddy crop is to be taken in alternate years. Considering the totality of the facts and circumstances and the statement of the tenant himself, the appellate authority arrived at a definite finding of fact that the suit land was leased out for sugarcane cultivation. The Appellate Authority, therefore, held that section 43-A of the Tenancy Act was applicable and the land was exempted from the operation of provisions of section 32 to 32-R. The order of the lower Court passed under section 32-G of the Act, was therefore, set aside.

3. The tenants went i

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