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2012 Supreme(Bom) 2250
High Court of Judicature at Bombay
B.P. DHARMADHIKARI, J.
Jamatul Muslimin Jama Mashid Mandiwali & Others
Versus
Allimiya Shaikh Ahmed Bangi & Another
WRIT PETITION NO.987 OF 1995
Decided on : 05-12-2012
For the Petitioners:R.M. Nakhwa i/b, A.H. Palekar, Advocates.
For the Respondents:R1, Neeta Karnik, R2, Laxmikant Satelkar, Advocates.
Headnote:Bombay Tenancy & Agricultural Lands Act, 1948 - Sections 70(b) and 74 - Dismissal of appeal.
Order of appellate authority, S.D.O., dismissing appeal against order of Tahsildar allowing application under Section 70(b) of Act for declaration of tenancy, being not in accordance with standards declared in 2001 (3) SCC 179, not sustainable. - On an erroneous appreciation of documents, the findings reached by SDO is that the lower Court has applied its mind before on said documents. Thus, what are documents, what was the objection raised by the appellant and how and why the said Tahasildar’s appreciation is justified has not been discussed. In the last para, which is again of 4 to 5 lines but of a single sentence, the S.D.O has accepted the findings of the lower Court during its proceedings under Section 70(b) of the Tenancy Act. Therefore, again there is no appreciation of the contentions and objections raised by the appellants before it. The order therefore can be safely labelled as unreasoned. Obligation and duty of the appellate Court has been declared by the Court in its judgment delivered 1975 Mah LJ 746 (Janha Barke v. Rajesh ) and in the Judgment reported by the Hon’ble Apex Court in 2001 (3) SCC 179 (Santosh Hazari v. Purshottam Tiwari ). The impugned judgment of the S.D.O. dated 16.11.1991 fails to meet said standards. The petitioner has made similar effort before the revenue authority and the Revisional Authority has overlooked their challenge particularly in relation to limitation. As the Appellate Court judgment delivered by the first Appellate Authority is itself not satisfactory and sustainable, it is apparent that the findings of fact that respondent No. 1 is a deemed purchaser is not final and binding. The said judgment dated 16.11.1991 delivered by the S.D.O. is therefore, set aside. Consequently, the Judgment and order of the M.R.T. dated 2.12.1994 in Tenancy Revision No. 11 of 1992 also falls to ground. Proceedings in Tenancy Appeal No. 11 of 1991 are restored back to the file of S.D.O. Dapoli for its fresh consideration in accordance with law.
1. The Petition was heard earlier on 19.11.2012 and thereafter today. After hearing respective Counsel as this Court found that the S.D.O-. statutory authority expected to decide the Appeal as per provisions of section 74 of Bombay Tenancy and Agricultural Act, 1948 (Hereinafter referred to as Tenancy Act) has failed to appreciate the rival contentions and consideration therein is cryptic. In view of this finding which is reached after hearing, the facts and rival contentions are only briefly mentioned below for the purposes of record.
2. The Petitioners claim that suit land i.e. survey No.85/1 admeasuring 0.34 Gunthas of village Mandivali Taluka District Sindhudurg in Taluka Dapoli District Ratnagiri has been gifted to them by its owner on 13.9.1985. In terms of that gift mutation entry at serial No.11 was taken and its name was recorded on said lands. Present Respondent no.1 claiming to be a tenant challenged that mutation entry in Appeal under section 247 of Maharashtra Land Revenue Code before the S.D.O. Dapoli. The S.D.O. Dapoli found that claim of Respondent no.1 as tenant was not substantiated and in any case was not relevant as there was no adjudication under section 70 (b) of Tenancy Act. His Appeal was therefore rejected. The said Respondents thereafter on 23.11.1987 filed an application under section 70b of Tenancy Act before the Tahsildar. The Tahsildar has allowed that application on 29.6.1991 and in those proceedings present Petitioners as also the original owner were parties. Rival contentions, documents produced have been appreciated and then a finding in favour of Respondent no.1 has been returned. This was questioned by the Petitioner in Appeal before the S.D.O and their Appeal has been dismissed on 16.11.1991. The said Judgment of S.D.O was further questioned by Petitioners in a Revision under section 76 of Tenancy Act before the M.R.T. That Revision has been dismissed on 2.12.1994.
3. Learned counsel for the Petitioner has pointed out that because of law as laid down by the Full bench of this Court in 1989 Mh.L.J. 710 (Panpoi Dharmal Sansthan Dhotarkherda vs Bhagwant S/o Maroti Dhakulkar) Respondent no.1 could have applied under section 70 (b) of tenancy Act within six months of his alleged dispossession. That dispossession as claimed by him in Civil Suit was in the year 1985. The suit was later on withdrawn. The Appeal preferred by Respondent no.1 tenant in mutation matter was dismissed on 31.1.87. Application under section 70 (b) has not been moved within six months even from said date. It is therefore, urged that initial application by which cognizance has been taken by Tahsildar is itself barred by limitation when the said provisions of section 70 (b) read with section 71 are appreciation in the background of the provisions of Mamlatdar Court's Act and above referred Full bench.
4. In the alternative, without prejudice it is urged that being the First Appellate Authority-the SDO was duty bound to atleast refer to the objections raised before him by present Petitioners. Those objections are not even mentioned and mechanically order by Tahsildar has been upheld. This was further questioned in Revision before the M.R.T. and in Revision specifically the aspect of limitation has been raised in grounds 9 to 11. The Revisional Authority has also overlooked that aspect. The learned counsel therefore submits that the order passed by the Appellate authority as also the Revisional authority shows total non application of mind and as there is failure to exercise jurisdiction, the same need to be quashed and set aside. Attention is invited to order dated 8.4.1995 passed by this Court while admitting the Writ Petition to attempt to show how prima facie necessary findings have been reached and possession of the Petitioner has been protected.
5. Learned counsel for Respondent no.1 has supported the order of the Tahsildar. It is urged that filing of a Civil Suit is of no consequence in present matter as questi
