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1997 Supreme(Bom) 460
IN THE HIGH COURT OF BOMBAY
S.S. Nijjar, J.
Shri Ganpati Shankar Desai another ..... Petitioners.
Versus
Shri Rau Ganu Killedar others .... Respondents.
Writ Petition No. 3394 of 1983, decided on 1-9-1997.
Advocates appeared :
Nitin Dalvi h/f A.P. Mundargi, for the petitioners.
Headnote:Sections 32-G, 76 and 74Proof of tenancy-Revisional powers-Disputed tenancy-Landlord allowing tenants claim as their name recorded as protected tenants-Revenue Tribunal reversing the order-Ground -Tenants living as mortgage-Held-The revisional authority had no right to go to the facts-It could only interfere if, decision was haying any apparent error.-These was elaborate discussion on the evidence in the decision of the Special Deputy Collector. The revenue tribunal in revision, however, went into the evidence and after discussing the evidence set aside the order of the Appellate Court. The Supreme Court considered the powers of the tribunal under Section 76. It is observed that "The order of the tribunal is 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.
Section 76-Scope of revision- Tribunals power-Concurrent finding of facts-Interference in concurrent finding by Tribunal putting its own finding ultra vires and illegal-Held-Tribunal exceeded its jurisdiction-It is not the function of tribunal to appreciate the evidence led by the parties-Order is not sustainable.-It is not the function of the Tribunal to appreciate the evidence led by the parties. That is the function of the Trial Court or the Appellate Court. In view of this, it has to be held that the order of the Tribunal clearly suffers from an error apparent on the face of the record. Consequently, the order is not sustainable.
2. The petitioners are stated to be the tenants and the respondents the landlords of the suit land bearing Survey No. 7, admeasuring 2 acres and 23 gunthas of Village Palyachahuda in Bhudargad Tahsil of Kolhapur District. The Agricultural Land Tribunal started 32-G proceedings under the Bombay Tenancy Agricultural Lands Act, 1948 (herein after called as 'the Act'). After recording the evidence, an order for fixation of purchase price in favour of the tenants was passed on 25th July, 1974. This order was set aside in appeal in view of the fact that certain landlords were not impleaded as parties. After remand, the statement of the parties came to be recorded. After appreciating the evidence, the Tahasildar declared the purchase price. It was stated by the tenants that they are cultivating the suit land since 1944. They were paying rent at the rate of Rs. 50/- per year. They also paid rent and assessment to the Government. It was stated that they are willing to purchase the suit land. On behalf of the landlords, it is stated that the present petitioners were not lawful tenants of the suit land. They had not paid the rent and the suit land was Sanadi Inam land. After the regrant they have not exercised their rights for purchase of the suit land. Thus, it was stated that the purchase of the suit land may be declared ineffective. It was urged on behalf of the landlords that the suit land has been in possession of the petitioners as mortgagee and not as tenants. The respondents in their statement have stated that an amount of Rs. 200/ being price of the suit land has been paid to the landlords. The Tahasildar considered the evidence led by the parties. There is no documentary evidence as to whether or not the petitioners were cultivating the suit land as on 1-4-1957. It was observed that the tenants have led no oral or documentary evidence in support of their case. In view of the facts stated above, it was held that the proceedings under section 32-G of the Act in respect of the suit land should be dropped as there exists no relationship between the parties, of landlords and tenants. The petitioners filed an appeal against the said order in the Court of Assistant Collector, which was numbered as Appeal No. 23 of 1976. The Appellate Court has observed the arguments of the appellants as also the respondents/landlord.
3. It was submitted by the Counsel for the petitioners that V.F. VII-XII record of rights extract of the lower Court's papers show that the appellant's name is entered as "protected tenant" of the suit land as per Mutation Entry No. 2 3 in other rights. The landlord/respondents in their statement have admitted that the appellants cultivated the land and their father had lease the land. In the VII-XII extract, the rent at the rate of Rs. 7.72 is also mentioned. However, the respondents/landlords stated that the father of the petitioners had advanced a sum of Rs. 200/ to their predecessor in title. It was stated that the land was held by the petitioners as mortgagee. Conflicting evidence given by the petitioners was also pointed out. The lower Court examined the evidence and came to the conclusion that the name of the petitioners is mentioned as protected tenants in the record of rights extract. Their name is also shown as cultivators. The rent is shown to have been paid in the sum of Rs. 7.72. The land which was inam land was regranted in July, 1971. Relying on these entries in the record of rights, the Appellate Court accepted the case of the tenants. It has been held that these entr
