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PGK

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

Writ Petition No.5666 of 1991

Majid Miyasaheb Shaikh

...

... Petitioner

v/s.

Gangadhar Shridhar Bachchuwar,

since deceased, through heirs & ors.

... Respondents

Mr.G.R. Rege i/by Mrs.Shakuntala Mudbidri for Petitioner.

Mr.Prafulla B. Shah for Res.Nos.1 to 9.

Mr.A.M. Joshi for Res.Nos.3A & 3B.

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CORAM : SMT.ROSHAN DALVI, J.

Date of reserving the judgment :

25^th February, 2010

Date of pronouncing the judgment :

23^rd March, 2010

JUDGMENT :

1.The Respondents are the owners of Gat No.7 admeasuring

7 Hectares 68 Ares of village Mangoli in South Solapur,

District Solapur. The Petitioner is the tenant of the

Respondents. The original landlord one Shridhar, who

was the predecessor-in-title of the Respondents, died

in 1944. He left behind his widow Subhadrabai, 3 sons

Gangadhar, Mahadeo and Vishwanath and 5 daughters.

2.The name of Gangadhar was recorded in the record of

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rights as Karta (Manager) of the joint family. On

1.3.1955, several years after the death of his father,

Gangadhar made an application to the Talathi,

intimating to the Talathi to delete his name and to

substitute the record of rights by his mother s name. A

mutation entry came to be effected on 21.3.1955 being

Mutation Entry No.398. Subhadrabai was shown as the

owner of the entire disputed land from 1955 until she

died on 17.7.1979.

3.The Petitioner s father was the tenant of the disputed

agricultural lands of the Respondents on 1.4.1957, the

tillers day. He was deemed to have purchased the land,

which he personally cultivated, on the Tiller s Day.

4.The Petitioner took out proceedings for purchase of the

lands and for determination of the purchase price in

1958-59. These proceedings were dropped on the ground

that Subhadrabai, whose sole name was on the record of

rights in respect of the disputed lands, was the widow.

On 30.9.1983, the Petitioner applied for fixation of

the purchase price. It was disputed on the ground that

the Petitioner did not contest his right under Section

3(f) of the Tenancy Act within a period of one year of

the death of Subhadrabai and hence he lost his right to

purchase the lands.

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5.The Tahsildar rejected the Petitioner s application on

5.6.1989. The Appeal filed by the Petitioner was also

dismissed on 19.10.1989. Revision filed thereafter

before the Maharashtra Revenue Tribunal (MRT) of Pune,

came to be dismissed on 7.10.1991. That order has been

impugned. All the orders of the Talathi, Sub

Divisional Officer (SDO) in Appeal and the MRT in

Revision thereafter have considered the merits of the

case similarly.

6.The Petitioner s father was admittedly cultivating the

lands. He died in 1958. The Petitioner s brother

entered into an agreement for sale with Subhadrabai for

half the portion of the lands cultivated by the

Petitioner s father. The Petitioner did not enter into

a similar transaction with Subhadrabai. He instead

made an application under Section 32G of the Tenancy

Act for determination of the price of the land, of

which he claimed ownership as a tiller.

His

application was dropped on the ground that Subhadrabai

was a widow in 1958-59.

7.It is the contention of Mr.Rege on behalf of the

Petitioner that Subhadrabai was not the only heir of

Shridhar and the entire property could not survive to

her or succeed to her. Hence it is his contention that

Section 32(f) of the Tenancy Act did not come into

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play. Consequently, his application made on 30.9.1983

cannot be taken to be barred by the Law of Limitation.

8.It is contended on behalf of the Respondents that

Subhadrabai was shown as the owner of the property.

That mutation entry was never challenged by the

Petitioner or his father. Subhadrabai must, therefore,

be accepted as the sole owner of the disputed land