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IN THE HIGH COURT OF BOMBAY
S.S. Nijjar, J.
Shri Dattatraya Yamaji Bhutkar others ..... Petitioners.
Versus
Shri Vaijinath Madhav others .... Respondents.
Writ Petition No. 3550 of 1988, decided on 22-10-1997.
Advocates appeared :
G.S. Godbole, for the petitioners.
A.V. Datar, for D.B. Bhonsale, for respondent No. 1.
Article 227-Bombay Tenancy and Agricultural Lands Act, 1948, Sections 70(b) and 76-Tribunal concurrent findings of fact-Upset by MRT in revision to the effect that respondent is not a tenant on suit land-But came in possession by way of registered agreement for sale-Held-Tribunal has no jurisdiction to upset-Finding of fact recorded by courts below-Unless the same are perverse-Record and evidence clearly shows that respondent came in possession in the basis of registered agreement for sale.- That the tribunal has wrongly discarded the Mutation Entry No. 2631 which has been certificate by the competent authority. This entry is later in time and has been accepted by respondent No. 1 on the other hand the earlier Mutation Entry No. 2348 says that respondent No.1 is a tenant of respondent No. 3 only.
Respondent No. 2 has stated that he had never inducted respondent No. 1 as the tenant on the suit lands. It is categorically stated by the witness that respondent No.1 was given possession on the basis of Sathe Khat. Even the witness produced by respondent No.1 has stated that respondent No. 1 has been cultivating the suit land as the lower for the last 18 to 19 years. In these circumstances counsel is right that Section 4 would have no application to the facts and circumstances of the case. In any event the tribunal has no jurisdiction to substitute its own finding of fact recorded by the trial Court and the Appellate Court. The view of the court also finds support from a judgment of the Supreme Court in the case of Maruti Bala Raut v. Dashrath Babu Wathare and others, AIR 1974 SC 2051, wherein examining the scope of the powers of the Tribunal under Section 76 of the Act and the powers of the High Court under Article 227 of the Constitution of India it has been held as under :-
(1) Let us first deal with the order of the Maharashtra Revenue Tribunal. The Tribunals powers are found in Section 76 of the Bombay Tenancy and Agricultural Lands Act which reads as follows.
Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1939, an application for revision may be made to the Maharashtra Revenue Tribunal Act, 1939 against any order of the Collector on the following grounds only.
(a) That the order of the Collector was contrary to law.
(b) That the Collector failed to determine some material issue of law, or
(c) That there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice.
(2) In deciding applications under this section the Maharashtra Revenue Tribunal shall follow the procedure which may be prescribed by rules made under this Act after consultation with the Maharashtra Revenue Tribuna1."
There is no disputes in two cases the Prant Officer (Deputy Collector as well as the Special Deputy Collector is a Collector as defined in clause (22) of Section 2 of the Act. Court has carefully gone through the order of the Maharashtra Revenue Tribunal and are of opinion that in so far as it reversed the order of the Special Deputy Collector the tribunal clearly exceeded its powers. The order of the tribunal is a very clear and concise one and if it were an original order or an order passed in exercise of appellate powers there is no doubt it would be a proper order. The tribunal clearly acted in complete disregard of its powers and proceeded as though it were either dealing with the matter as a Court of first instance or as an Appellate Court.
2.The petitioner has filed a Civil Suit No. 251 of 1970 against the respondents in the Court of Civil Judge, Senior Division, Solapur in respect of the agricultural land bearing Gat No. 126 situate at village Wangi, Tal. Karmala, hereinafter referred to as "the suit land". It is stated by the petitioner that respondent Nos. 2 and 3 are the owners of the suit land. Respondent Nos. 2 and 3 were the Kartas of the family. On 8th April, 1958 respondent Nos. 2 and 3 executed a Sathe Khat in favour of respondent No. 1. By virtue of this Sathe Khat respondent No. 1 took possession of the suit land. The Sathe Khat (agreement for sale) is registered. Mutation Entry No. 2348 was made in the Revenue Record on 14th July, 1959 wherein respondent No. 1 is shown as tenant. This entry has been certified on 6th September, 1962. Thereafter Mutation Entry No. 2631 was recorded in the Revenue Records on 1-11-1964 which was certified on 18-11-64. This mutation entry records that respondent No. 1 has been put in possession of the suit land on the basis of the Sathe Khat. In the Civil Suit respondent No. 1 took a plea that the Sathe Khat was made for legal necessity. As an alternative plea it was stated that he is a tenant on the suit land. In view of this plea taken by the respondent No. 1, Reference was made under section 85-A read with section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as "the Act", to the Revenue Court. In the said reference an issue was framed to the effect "Does the defendant prove that he is a tenant of the suit land Gat No. 126 of the village Wangi, Tal. Karmala since 1958-59?" Accordingly notices were issued to both the parties and their statements were recorded. After considering all the evidence the Tahsildar Karmala decided the reference on 17th Feb. 1977 holding that respondent No. 1 is not a tenant on the suit land. Before arriving at the said conclusion the Tahsildar took note of the statement made by the respondent No. 1 to the effect that the suit lands was owned by respondent Nos. 2 and 3 and it was taken possession of by respondent No. 1 as tenant since 1958-59. Respondent No. 1 also produced extract of V.F. 7/12 in respect of the suit land showing that his name has been shown as a tenant in the Kul and Khand column. He also produced the extract of Mutation Entry No. 2348 in which his name had been entered as tenant from the year 1958-59. The Tahsildar also notices that in his cross-examination respondent No. 1 has deposed that no rent note was executed in the matter. He came in possession of the land by Sathe Khat dated 8th April, 1958. He also admitted that he has not paid any rent to the landlord. Respondent No. 1 also produced the extract of Mutation Entry No. 2631 dated 1-11-64 which showed that he came in possession of the land by Sathe Khat dated 8-4-58. It was further stated by respondent No. 1 that at first the land was leased out to him and the Sathe Khat was executed after 8 days. The petitioner had produced photo copy of the registered Sathe Khat. On perusal of the said Sathe Khat the Tahsildar came to the conclusion that the said document does not mention that the suit land was in possession of respondent No. 1 as tenant on the date of execution of Sathe Khat. On the contrary, the wording of Sathe Khat shows that the land was given in the possession of respondent No. 1 by respondent Nos. 2 and 3 with an agreement to sell the s
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