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2005 Supreme(Bom) 1752
IN THE HIGH COURT OF BOMBAY
Dhondi Rama Bhalekar
VERSUS
Ramchandra Dhondiba Bhalekar
Decided no: December 16, 2005
Headnote:Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 85, 32-M and 4 Suit filed by landowner for restoration of the suit land as well as mesne profit on the ground that defendant occupant had illegally started cultivation of suit land The landowner’s case that the defendant occupant had illegally cultivated the land could be put forth in the proceedings initiated under the Act for seeking benefits therein i.e. a deemed tenant or purchase certificate under Section 32-M In the absence of agreement being on record and containing such term as would specifically state that breach of the same would result in dispossession, suit was liable to be dismissed. The landowner approached the Civil Court in Regular Civil Suit and prayed for restoration of the suit land as well as the mesne profit on the ground that the occupant i.e. defendant had illegally started cultivation of the suit land. It was necessary for the plaintiff to demonstrate his right for a decree of eviction of the tenant on the basis of the agreement/contract or any statutory provision. Both the Courts below committed a manifest error in failing to consider this very foundation of the suit filed by the plaintiff and they seem to have been overwhelmed by the allegations that there was illegal cultivation. Illegal cultivation, even though accepted, by itself would not entitle the landowner for a decree of eviction unless the terms of the contract indicated so. Thus the concurrent view taken by both the Courts below is unsustainable and the plaintiff has utterly failed to make out a case for the decree of restoration of the suit land. The landowner’s case that the occupant had illegally cultivated the land could be put forth in the proceedings initiated under the Act for seeking the benefits therein i.e. a deemed tenant or purchase certificate under Section 32-M of the Act. In the absence of the agreement/contract being on record and containing such terms as would specifically state that breach of the same would result in dispossession of the occupant, the suit could not have been entertained by the Courts below and there is absolutely no evidence placed on record by the plaintiff in support of the claim so made. Thus the decrees passed by the Courts below are, in the absence of any evidence, leave alone any reliable evidence, patently erroneous and have resulted into miscarriage of justice. AIR 1964 SC 1320 Relied on.
( 2 ) THE land admeasuring 3 Hectares and 76 Ares located in R. S. No. 32 of village Shipur in Taluka gadhinglaj of Kolhapur District originally belonged to balkrishna Desai and it was inherited by Smt. Shantabai wife of Sadashiv Mutalik Desai. It appears that the said land was put in possession of Dhondi Rama bhalekar sometimes prior to the year 1954-55. However, after the tillers day i. e. 1/4/1957 the half portion on the eastern side of the said land was sold by the landlady to Shri Lingu Kabji Patil and this transaction appears to have taken place sometime in year 1959-60. Consequently, the remaining half portion on the western side remained in possession of dhondi Rama Bhalekar. In the year 1961-62 the land owner filed proceedings under Section 70 (b) of the bombay Tenancy and Agricultural Lands Act, 1948 ("the act" for short) for a negative declaration that Dhondi rama Bhalekar was not a tenant of the suit land. These proceedings came to be registered as Tenancy case No. 94 of 1961-62 and the Avval Karkun, gadhinglaj, acting as the Mamlatdar Court, allowed the application on 30/7/1962. Against the said order, a belated appeal came to be filed which was registered as Appeal No. 70 of 1973 and it was allowed by the Sub divisional Officer, Gadhinglaj Division, Gadhinglaj on 28/2/1974, by remanding the case to the Mamlatdar for fresh inquiry. This order passed by the SDO came to be challenged by the land owner before the Maharashtra revenue Tribunal, Kolhapur and the revision came to be registered as MRT. KP. 120/75 and the same was allowed by the Judgment and Order dated 17/12/1975 holding that the appeal filed by the occupant before the SDO was not maintainable under Section 74 of the Act. "2a. In the meanwhile, on the remand made by the sdo, the Tahsildar proceeded to fix the purchase price of the suit land under Section 32-G of the Act vide his order dated 21/3/1973. This order came to be challenged by the land owner in Tenancy Appeal No. 30 of 1975 and it was allowed. Thus, the order passed b
