1. Heard, learned Advocates.
2. By order dated 20-04-2001, this Court admitted the matter. Taking into consideration the affidavit in reply and accompanying copy of the Panchanama of delivery of possession to the respondents in terms of the impugned order, interim relief was denied to the petitioner. However, the respondents were directed not to create any third party interests in the suit property and not to part with the possession of the suit property till the disposal of the petition.
3. The petitioner contends that they are the legal heirs of the deceased Laxman S/o Shankar Bandgar. They are owners and in possession of the agricultural land bearing Survey No. 171/A admeasuring 10 Acres and 34 Gn. situated at Halgada, Tq. Nilanga, Dist. Latur. Narsu Khandu Bandgar is the original assese. He had two sons namely Shankar S/o Narsu and Rama S/o Narsu who are therefore real brothers. Shankar had one son namely Laxman and Rama had a son Venkat who are therefore cousin brothers. Petitioner No. 1 is the widow of Laxman. Petitioners Nos. 2 and 3 are sons of petitioner No. 1 and the deceased Laxman.
4. Survey No. 171/1 was noted in favour of the deceased Laxman and survey No. 171/2 for the deceased Venkat. The original respondents i.e. Venkat Rama, Kasibai w/o Venkatrao, Baburao S/o Venkatrao have died. The respondents therefore, are Narsing S/o Baburao and Vithal S/o Venkatrao.
5. The dispute is between the petitioners and the respondents with reference to Survey No. 171/1. There is no dispute with reference to Survey No. 171/2. According to the petitioner, he is the landlord of Survey No. 171/1 (which is also recorded in some document as Survey No. 171/A) ad-measuring 10 Acres and 34 Gunthas.
6. It is contended that the respondents moved an application under section 98 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. The said application is dated 15-01-1995. Since there is no limitation prescribed under section 98, the respondents have shrewdly filed the said application making wild allegations and claims.
7. The in-charge Dy. Collector (Land Reforms) allowed the application dated 15-01-1995 filed by respondent No. 1 Venkat under section 98, by its judgment and order dated 02-01-1996. The petitioners challenged it by filing an appeal No. 7/A/96/LR/2 before the Maharashtra Revenue Tribunal, which came to be dismissed by judgment and order dated 11-01-2001.
8. Paragraph Nos. 4 and 5 of the said application dated 15-01-1995 are read out to suggest that -
a] The deceased Venkat S/o Rama was a protected tenant.
b] The final protected tenancy register, 1951 to 1953 mentions his name.
c] His name similarly appears in the Khasara from the year 1954-1955 to 1960-61.
d] It is submitted that the respondents family were protected tenants from 1945 till 1973-74 and were therefore tilling the land.
e] Claim was that the petitioners ancestors had dispossessed them in the year 1974-75.
9. Shri Patil's first and foremost objection therefore is that, if at all the deceased respondents were claiming to be protected tenants and allegedly dispossessed, they could have approached the competent Court/ Authority under Section 32 of the Tenancy Act, 1950 and not under Section 98. To escape the clutches of limitation, they have shrewdly resorted to section 98.
10. His further objection is that if the deceased Venkat was claiming to be a tenant and allegedly dispossessed in 1973-74, it took him twenty years to realize this aspect. The said issue could not have been dug up after a passage of twenty years. Such application could have been filed within three years of the cause of action.
11. Shri Patil's further submits that no claim for tenancy could have been raised within a family. According to him, section 5(a) of the Tenancy Act, 1950 prohibits a member of the land holders family to make a claim as a deemed tenant. According to him, the explanation below Section 2 (1) (g) pertains to the case of an undivided Hindu family whose land is deemed to be cultivated personally, by any member of such family. He then referred to section 2(n) which states that a person shall also mean an undivided family.
12. He therefore states that though an undivided family is defined in the Act, section 5 sub section (a) shall have to mean a member of the lease holders family. He refers to the family tree on page No. 3 of the petition memo to submit that the application under section 98 was filed by a member of his family as they are blood relatives. Venkat being the real cousin brother of Laxman on account Rama being the real brother of Shankar, would bring the claim of the applicant within the meaning of section 5(a). He therefore states that such application was not maintainable in view of Section 5.
13. Shri Patil has taken me through Section 32, 38 and Section 38-E of the Tenancy Act. He therefore submits that the said Tenancy Act has prescribed a specific scheme, object and purpose for respecting the rights of the tillers and for bestowing upon him the rights of protected tenants. According to him, there is no declaration by the competent authority so as to entitle the respondents father Venkat to claim that he was a protected tenant.
14. The Hyderabad Tenancy Agricultural Land Act, 1950 has been brought into operation on 10-06-1950. According to Mr. Patil with the introduction of the said Act in the event the respondents were tenants, they should have been issued with a certificate as protected tenants. A false and untrue claim has been put forth by the respondents, on the basis of some entries in the tenancy register.
15. According to him, a disputed claim like the one raised by the respondents could have been gone into by the competent authority in light of the Judgment of this Court reported at 1988, Mh. L.R. Volume II, 1725 in the case of Nagaya V/s. Bhujaya. He has placed reliance on the said judgment to suggest that a disputed claim between two brothers relating to ownership of property could not have been considered in an application under section 98 of the Tenancy Act.
16. He has then referred to a reported Judgment of this Court in the case of Syed Ibrahim Syed Ashraf And Another Vs. Zamarrudbi Nizamuddin And Others, reported at 1990 (1) Mh.L.J. 631. He has drawn my attention to paragraph Nos. 10 to 13 of the said judgment, wherein the Court has considered the word 'family'. Cultivation by nephew on behalf of his uncle was held to be covered by the meaning of family and the said meaning was not to be restricted only to a Hindu Joint family. It was therefore held that such cultivation by the nephew will be cultivation for and on behalf of the uncle and therefore he would not be a deemed tenant under section 5 of the Tenancy Act.
17. He therefore submits that even if the summary eviction application under section 98 of the Tenancy Act was held to be maintainable, the same could not have been brought out of the purview of section 5 since the said application was disguised to be in fact an application under section 32. I am unable to accept these submissions since it was never the case of the petitioners that the respondents were cultivating the land on behalf of the petitioners.
18. Shri Patil has then contended that though section 98 did not prescribed a limitation, no litigant can be allowed to file an application after about twenty years. He has relied upon the judgment of this Court in the case of Radhu Gokul Gawli died through L.Rs. Vs. Mohan Kishan Gawali died through L.Rs. and Ors, reported at 2007(5) Bom.C.R. 93. In the said case, issue of filing an application under section 98 after a delay of nineteen years was considered and the Court concluded that such an application could be preferred within a reasonable time of three years.
19. Shri Patil has then relied upon the Judgment of the Hon'ble Supreme Court in the case of Santosh kumar Shivgonda Patil and Ors. Vs. Balasaheb Tukaram Shevale and Ors, reported at 2009 (9) SCC 352. In this judgment, the Apex Court has held reasonable time to mean three years and not seventeen years as was the case before it. Though the said case is under section 257 of the MLRC, Code 1966, Shri Patil states that it lays down the law to define as to what would reasonable time mean.
20. Shri Patil has then relied upon the judgment of this Court in the case of Kerba Bhiwaji Shinde Vs. Salubai Nagorao and Ors, reported at 1983 Mh.L.J. 1009. He has referred to paragraph No. 8 and submits that an application by a tenant against the land lord for possession can only be filed under section 32 (1) and not under section 98 of the Tenancy Act.
21. Shri Patil has then submitted that the said application should have been made within three years from the date of the cause of action. In the absence of any limitation period prescribed under Section 98, no litigant can be permitted to raise a stale claim. For this purpose three years should be considered to mean a reasonable period so as to hold the application under section 98 within time.
22. He has relied upon reported judgments of this Court in the matter of Radhu Gokul Gawali died through L.Rs. (supra), and the judgment of the Hon'ble Supreme Court in the case of Santosh Kumar Shivgonda Patil and Ors.(supra). According to him, the ratio laid down in the said judgments defines a reasonable period within which an application under section 98 can be preferred.
23. Shri Patil thereafter, submits that the petitioners were cultivating the land for twenty one years. Revenue receipts for the period 1973 onwards indicate this fact. He has then relied upon a reported judgment of this Court between Eknath s/o Raghoba and others V. Somla s/o Lalu Lamani through his legal heirs and others, reported at 1991 (3) Bom.C.R. 519. He submits that an application under 98-A (c) is maintainable only when there is no other remedy available. For a tenant who is in possession on the appointed day, remedy under Section 38-E(1) is available when he is not in possession.
24. Shri Patil has then submitted that survey Nos. 171/1 is the only property available to the petitioner and which is his ancestral property. The application under Section 98 of the Act does not mention the area and portion under the survey. It is plainly stated in the said application that 10 acres and 34 Gunthas in survey No. 171 belong to the respondent.
25. Shri Patil has then referred to an order at page 26 which was subject matter of appeal. According to him, the said order dated 02-12-1996 was passed by the S.L.A.O. and in-charge Deputy Collector. He had no jurisdiction. However, Shri Patil then submitted that he would not prefer to agitate this point in this petition.
26. He has then drawn my attention to the issues framed in appeal. According to him, in one single issue, the appellate authority in a sweeping manner has encompassed all the grounds raised by the petitioner. According to him, had issues been properly framed, the impugned order would not have been passed.
27. He has then relied upon Radhu Gokul Gawli (supra) to contend that the ambit of adjudication under section 32 and 98 of the Act operate in different fields and the case of the respondents could not have fallen within the ambit of section 98. He has however, stated that since the date of the impugned judgment of the M.R.T. Court (11-01-2001), the petitioners have been forcibly dispossessed. He has therefore prayed that the petition be allowed.
28. Shri S.M. Kulkarni, learned Advocate for the respondents submits that this petition is wholly misconceived and deserves to be rejected with costs. His submissions can be summarised in brief as follows:-
a] The pleadings of the respondents to substantiate their case are evident from paragraph 2,3 and 4 of its application under section 98.
b] The deceased respondent (legal heirs are on record) was declared a protected tenant.
c] Paragraph 3 of the application under section 98 of the Act, indicates the pleadings that his name was entered in the final register of protected tenants.
d] Paragraph 4 of the application under section 98 of the Act, indicates that the names of the great grandfather and the grandfather of the respondents were entered in the œPahani Patrak? and the œKhasara Pahani Patrak?.
e] Paragraph 5 of the said application, reflects the pleadings that the respondents were illegally dispossessed from 1974.
f] The deceased petitioner had filed its written statement, opposing the application under section 98 of the Act.
g] The petitioners have never raised any objection as regards their relation with the respondents, or that the respondents cannot claim tenancy against the petitioners, in view of section 5 of the Act.
h] It is admitted by the petitioners in the written statement that, the respondents were in possession of the said land for thirty (30) years prior to 1974.
i] The respondents have produced the document mentioned in the second paragraph in its application.
j] From the Record and proceedings produced before this Court, documents at page 27, 33, 35, 37 and 39, would indicate the tenancy rights of the respondents.
k] At Page 22 of the petition paper book, the issues cast are before the Court. This would indicate that the petitioners never raised any issue as regards the relations between the petitioners and the respondents in connection with the claim of tenancy.
l] Page 30 of the petition paper book is the impugned judgment which reproduced the grounds raised by the petitioners in their appeal, clearly indicating that the issue of relationship between the petitioners and the respondents was not raised by the petitioners.
m] In the event, the petitioners were conscious of their rights, they could have approached the competent authority under section 19-A (2) and 28.
n] The petitioners have not approached any authority since they were aware that the whole issue of the illegal dispossession of the respondents would have been opened and it would have been proved that the petitioners had illegally dispossessed the respondents.
o] Since the respondents had acquired the status of ownership, there was no need to approach any authority under section 32 of the Hyderabad Tenancy Act, which is analogous to section 29 and 31 of the Bombay Tenancy Act.
p] Since the respondents names were entered in the final register of protected tenant, they had acquired the status of a land-lord.
q] If the petitioners had any grievance about the above said status, they could have approached the authorities under section 35 of the Act. They have failed to do so.
r] The rights of the protected tenant have been defined under Section 38 of the Act.
s] Section 38-E was introduced on 04-02-1954, which defines the rights of a protected tenant.
t] By a notification dated 01-02-1957, it was declared as a notified date and the respondents/ protected tenants, therefore, have become full owners of the land under section 38-E.
u] In light of the above, the respondents had the remedy only under Section 98 of the Act against unlawful dispossession.
v] During the pendency of the proceedings before the Maharashtra Revenue Tribunal (MRT), the petitioners sold three acres of land. This aspect was pointed out by the respondents to the MRT, which declared it to be illegal under section 50-B of the Act. As such, the respondents resorted to execution proceedings and the said land was restored back to the respondents. This aspect was also brought to the notice of this Court and, therefore, this Court refused interim relief to the petitioner on 20-04-2001, when this petition was admitted.
w] Section 98 of the Act is available to the respondents because the petitioners were unauthorisedly occupying the land and since the respondents became owner of the land.
x] Rule 23 provides for the compulsory transfer of ownership to the tenants and by the notification in the Gazette No. TMC/5756/169055, issued by the Government of Bombay dated 31-01-1959, the ownership undisputedly was vested in the concerned respondents.
y] Since the issue of relationship between the petitioner and the respondents is an aspect to be proved based on the pleadings, the said issue cannot be raised now since it is not purely a question of law.
z] The name of the ancestors of the respondents were entered in the register termed as final register of protected tenants under section 38 of the Act. Page 27 of the Record and Proceedings is the extract of the said register.
aa] The petitioners if were aggrieved by the tenancy claim of the respondents, they could have resorted to appropriate remedies to extinguish the tenancy of the respondents.
ab] The Revenue record is maintained for the purposes of tenancy rights under Section 148 (b) of the Maharashtra Land Revenue Code, 1966 (MLRC). Record of rights, therefore, favours the respondents.
ac] Under section 149 of the MLRC, the name of the respondents ancestors came to be recorded.
ad] Section 157 of the MLRC provides for presumption and correctness of entries.
ae] Section 114 of the Evidence Act provides for a presumptive existence of certain facts if they are visible from the statutory records.
af] Under Section 115 of the Evidence Act, the petitioners are now estopped from raising any issue as regards the status of the respondents.
ag] The final register of tenancy rights under rule 23 (i) of the Hyderabad Tenancy and Agricultural Lands (Rules), 1950, is maintained in form XV. The said register contains the names of the ancestors of the petitioners. Therefore, in these circumstances, the case of the petitioners squarely falls under section 98 of the Hyderabad Tenancy Act.
29. The learned Advocate for the respondents relied upon the following reported judgments of the Honble Supreme Court, and this Court in the cases of:-
a] Uttam Namdeo Mahale Vs. Vithal Deo, reported at 1997 (6) SCC 73.
b] Rangnath Vishnu Mulluck and another Vs. Vithoba Rama Rahane and others, reported at AIR 1999 Supreme Court, 534.
c] Jagdishchandra Girjashanker Vs. Mohanbhai Hathibhai (Dead) through L.Rs., reported at (2002) 10 Supreme Court cases 540.
d] Mesaji s/o Laxman Ubare Vs. Ramchandra (Dr.) s/o Laxminarayan Thoshniwal and others, reported at [2011 (4) Mh.L.J.] 668.
e] Apparao Manaji Vs. Sadhu s/o Sambhaji and others, reported at 1972 Rev. R., 217.
f] Bharatlal s/o Hemraj Vs. Kondiba s/o Govinda Jadhav and Ors., reported at 2001 (2) ALL MR 167.
g] Sau Saraswatibai Trimbak Gaikwad Vs. Damodhar D. Motiwale, reported at 2002 (4) SCC 481.
h] M/s. Nicks (India) Tools Vs. Ram Sarat and another, reported at AIR 2004, Supreme Court, 4348.
i] Prakash s/o Raosaheb Pawade and others Vs. Deorao s/o Hari Pawade and others, reported at [2011 (6) Mh.L.J.] 198.
j] U.P. Gram panchayat Adhikari Sangh and Ors. Vs. Daya Ram Saroj and Ors., reported at 2007 (2) SCC 138.
k] Limbaji Shankar Munde (deceased through L.Rs.) Vs. Bhaurao Baliram Munde (deceased through L.Rs.) and others, reported at [2010 (3) Mh. L.J.] 138.
l] Vithoba Ram Rahane and another Vs. Bhalchandra Sadashiv Joshi since deceased by heir and others, reported at [1993, (1) Mh.L.J. 419].
m] Malhari s/o Amruta Surnar deceased through L.Rs. Haribai Malhari Surnar and others Vs. Rangnath Amruta Kachave died through L.Rs. Rajaram s/o Rangnath Kahave and others, reported at 2010 (5) Mh.L.J., 895.
30. In reply submission, the petitioner has contended that none of the cases relied upon by the Respondents are of any assistance and their case is an after thought.
31. I have considered the submissions of the respective sides and gone through the petition paper book with their assistance and the reliance placed on reported judgments.
32. As such, the issues as to whether the application of the respondents is hit by limitation, manner in which the petitioners acquired possession of the said land, whether the petitioners are in lawful possession and whether the issue of relationship between the petitioners and the respondents can be raised after a passage of about three decades, arise for the consideration of this Court.
33. So far as the issue of limitation is concerned, the petitioners have relied upon the reported judgments in the cases of Ramchandra Balwantrao Dubal Vs. Dhondiram Tatoba Kadam (supra), Santosh Kumar Shivgonda Patil and Ors. Vs. Balasaheb Tukaram Shevale and Ors. (supra), and Radhu Gokul Gawli died through L.Rs. and Ors. Vs. Mohan Kishan Gawali died through L.Rs. (supra).
34. In the case of Ramchandra Balwantrao Dubal (supra), the case pertained to a right of a tenant who is entitled to the possession of any land, to make an application within two years from the date on which the right to obtain possession was deemed to have been accrued to him. The Court held that since the tenant did not take steps within two years to obtain the possession of the suit land, the remedy was barred by limitation, the remedy was lost and the right as a tenant was also extinguished. The said situation is not before this Court and the said case Ramchandra Balwantrao Dubal (supra), is not applicable to this case since the facts are distinguishable.
35. In the case of Santosh Kumar Shivgonda Patil and Ors. (supra), the Honble Apex Court was invited to decide the issue of limitation under Section 257 of the Maharashtra Land Revenue Code, 1966 (M.L.R.C.). Question was of resumption and recording of Inam lands. It was, therefore, held that where no time limit for exercising revisional power is prescribed, it does not mean that it can be exercised at any time, rather the same should be exercised within reasonable time. Therefore, the Apex Court concluded that three years would mean reasonable time for preferring the revision. Since the facts of the said case are distinguishable from the facts of this case, the ratio laid down in the said judgment would be of no assistance to the petitioners.
36. In the case of Radhu Gokul Gawli died through L.Rs. and ors. (supra), this Court dealing with Section 98 of the Act of 1950, concluded that if no limitation is provided in a Statute, power should be exercised within a reasonable period depending on the facts of the case. It was held that the provisions of Section 98 under the Hyderabad Tenancy and Agricultural Lands Act, 1950, is akin/similar to Section 84 of Bombay Tenancy and Agricultural Lands Act, 1948. The petitioners have, therefore, stressed that the judgment delivered by the learned Single Judge is squarely applicable to this case.
37. The respondents have placed reliance upon the judgments in the cases of Rangnath Vishnu Mulluck and another Vs. Vithoba Rama Rahane and others (supra), Mesaji s/o Laxman Ubare Vs. Ramchandra (Dr.) s/o Laxminarayan Thoshniwal and others (supra), and Malhari s/o Amruta Surnar deceased through Lrs. Haribai Malhari Surnar and others Vs. Rangnath Amruta Kachave died through L.Rs. Rajaram s/o Rangnath Kachave and others (supra). It is noteworthy that the judgment of Radhu Gokul Gawli (supra), has been considered in the case of Mesaji s/o Laxman Ubare (supra), and Malhari s/o Amruta Surnar (supra).
38. It was observed in para No. 21 of Mesaji Laxman case (supra), that œthis Court has noticed that in Radhu Gokul Gawli died through L.Rs. and Ors. Vs. Mohan Kishan Gawali died through L.Rs (supra), learned Single Judge has not laid down proposition that in every case application under Section 98 of 1950 Act will not be maintainable after lapse of eighteen to nineteen years. It is also noticed that the applicability of relevant provisions or its availability needed to be decided looking to the facts available at hand. Court has then noticed that remedy is required to be availed within reasonable period but then absence of any limitation in Section 98 has been noted. It is found that Statute prescribes no limitation to avail remedy against person in wrongful possession unauthorisedly.
39. In para No. 22 of the Mesaji s/o Laxman Ubares judgment (supra), this Court has held as under:-
œIn scheme of various sections noted above by me, whenever Legislature thought it fit to prescribe period of limitation, the said period has been specifically mentioned. In section 98 only Collector has been enabled to summarily evict a person in unauthorised occupation or wrongful possession. It does not contemplate filing of any application by any party to initiate proceedings under section 98. Thus, it only casts obligation on the Collector to evict such unauthorised or wrongful occupant. The fact of such wrongful or unauthorised occupation may come to knowledge of Collector belatedly through different sources and in various situations. It is therefore obvious that Legislature has only conferred the powers upon the authority to act in furtherance of provisions and for the purposes of 1950 Act to see that its aims and objects are achieved and preserved. No period of limitation therefore has been deliberately prescribed as such fact of unauthorised occupation or wrongful possession may also be deliberately suppressed by the parties from the Collector by adopting various means and measures. When the legislature has vested title in protected tenant on tillers day against the wishes of landholder, it is obvious that its design to advance the said cause, to protect or preserve that title from unscrupulous influences whenever it comes across such instances cannot be allowed to be defeated by such technical pleas. I find the absence or nonprescription of any period of limitation in section 98 is deliberate and in tune with that object.?
40. As such, I am in respectful agreement with the above observations from the judgment of this Court in the case of Mesaji Laxman Ubare (supra). In my view when Section 98 does not prescribe any limitation and looking to the scheme of the Act of 1950, the intent and object of the legislature is quite clear. When an agriculturist has been wrongfully dispossessed and a person is in unauthorised occupation or wrongful possession of the said land, law has been empowered to summarily evict such a person who is in wrongful possession. I find that the legislature does not intend to fetter the scope and ambit of proceedings under Section 98 with any limitation. The nonprescription of any limitation in Section 98 is, therefore, to be construed to mean a specific object which the legislature intends to achieve. In these circumstances, I respectfully disagree with the view expressed in the case of Radhu Gokul Gawli died through L.Rs. and ors. (supra) to the extent of reasonable time.
41. Similarly, this Court in the case of Limbaji Shankar Munde (deceased through L.Rs.) considered whether there was any limitation provided in tendering an application under Section 84 of the Bombay Tenancy Act, 1948. Reliance was placed on the Division Bench judgment of this Court in the case of Ghanshyamprasad Natwarlal Bhatt Vs. Gendalsingh Vakhatsing and others in Special Civil Application No. 764/1955. The observations of the Division Bench are as follows:-
œYou cannot apply limitation by analogy. Limitation either bars a remedy or extinguishes a right of a party and it is unthinkable that any Court would bar a remedy or extinguish a right when the Legislature has not done so by importing the principles of some other statute and drawing analogy from some other provision of law. If there is no limitation provided by the legislature then the only thing that the Tribunal has to do is to permit the application to be made irrespective of passage of time.?
Section 84 of the Act of 1948 is akin to Section 98 of the Act of 1950.
42. In view of the above observations of the Division Bench of this Court in Ghanshyamprasad Natwarlal Bhatt (supra), Limbaji Shankar Munde (supra) and Mesaji s/o Laxman Ubare, I find it appropriate to follow the view taken in the aforesaid three judgments and, therefore, conclude that Section 98 of the Act of 1950, cannot be fettered with limitation. As such, I conclude that the application preferred by the applicants under Section 98 of the Act of 1950 was maintainable and has been correctly so held by the Deputy Collector, Land Reforms and the Maharashtra Revenue Tribunal, Aurangabad.
43. So far as the issue as to how did the petitioners come into possession of the land is concerned, there is no explanation forthcoming from the petitioners. The petitioners are non committal on the manner in which they obtained possession of the suit land and as regards the justification of being in possession. Land revenue receipts have been produced in the record and proceedings of the matter. Nevertheless, the 7/12 extract that was placed on record clearly evidences that the name of Venkat Rama Bandgar (now deceased) was recorded as a tenant. Several 7/12 extracts from 1961 till 1973-74 stand in the name of Venkat and from the year 1975-76 onwards, they stand in the name of the deceased Laxman Shankar.
44. In this backdrop, it is clear that the petitioners cannot explain, much less justify being in possession of the suit land. I am, therefore, in agreement with the view taken by both the lower authorities that the petitioners have unlawfully been in the possession of the suit land. Nevertheless, Section 98 of the Act of 1950 which is akin to Section 84 of the Bombay Act of 1950, vests no legal right in the petitioners to remain in possession of the suit land.
45. So far as the issues of relationship raised before this Court for the first time is concerned, the petitioners have no where taken this stand in their written statement filed before the first authority as well as in their Appeal before M.R.T. Relationship has to be pleaded and proved. Much ado has been made by the petitioners before this Court as regards issue of relationship and invoking of Section 5-A of the Act of 1950.
46. It is seen from the original record that the names of the great grandfather and grandfather of the respondents were entered in Pahani Patrak and Khasara Pahani Patrak. The respondents were in possession of the land for three decades prior to 1974. Page Nos. 27, 33, 35, 37, 39 indicate crystallization of their tenancy rights. By the introduction of Section 38-E, the respondents who were protected tenants became full owners of the land from the notified date. Page 27 of the Record and proceedings indicates that the names of the ancestors of the respondents were entered in the register termed as final register of protected tenants under Section 38 of the Act. The entry is found in the final register of tenancy rights maintained under 23(i) of the Rules of 1950 in form XV.
47. The Honble Apex Court in the case of Rangnath Vishnu Mulluck and another (supra), concluded that when the tenant had not surrendered his tenancy rights in respect of those lands and the land-lord had not obtained possession thereof in a lawful manner, application made by the tenant under Section 84 was rightly held proper since the land-lord was in unauthorised possession. In Apparao Manajis case (supra), this Court held that application for restoration of possession is maintainable since the tenant is forcibly ousted and the presumption is that the tenant remains in possession until dispossessed in accordance with the process of law.
48. In the case of Bharatlal s/o Hemraj (Supra), this Court concluded that the land-lords have ample opportunities to dispute the declaration of protected tenancy under Section 38-E. Ownership certificate under Section 38-E is a formal certificate of declaration of protected tenant in respect of property held by him. Appeal against a declaration under section 38-E is not maintainable. The said certificate confers ownership of the land in favour of the protected tenant.
49. In the case of Prakash s/o Raosaheb Pawade and others (supra), it was held that on 25-05-1957 when the notification in relation to Section 38-E was issued, the said date was construed to be the notified date. Lands held by protected tenants stood transferred to and vested in protected tenant from the date of the notification. The protected tenant was, therefore, deemed to have become full owner of such land.
50. In the case of Malhari s/o Amruta Surnar (supra), this Court has held that explanation added to Section 38-E by Maharashtra Act, 45 of 1961, does not obliterate and wipe out the tenancy rights of a protected tenant in any manner.
51. In the light of the above, and in view of the fact that the respondents and their ancestors have been in possession of the said land since about three decades prior to their dispossession in 1974 and in view of the petitioners having not even whispered about the relationship between the two so as to prevent a claim of tenancy, I am unable to accept the plea of the petitioners that the respondents could not have made a claim of tenancy against the petitioners who were related to them. The rights of the respondents have been crystallised decades ago and the petitioners have acquiesced their right to object to the same. The doctrine Acceptance sub-silentio is applicable to the petitioners.
52. The petitioners have handed over the possession of the said land to the respondents on 20-02-2001, when the Taba Pawati was prepared in the presence of witnesses and panchanama was drawn. The proceedings for possession filed by the respondents were, therefore, fructified. The petitioners do not dispute this position. In light of the said fact, this Court refused interim relief to the petitioners by its order dated 20-04-2001.
53. I, therefore, do not find any perversity in the judgment of the Deputy Collector, Land Reforms dated 02-01-1996 and the Judgment of the Maharashtra Revenue Tribunal delivered on 11-01-2001. There has to be a finality to the litigation, which I find is going on for practically two generations between the two sides. The process of law ought to lead to finality in the adjudication of the rights of the parties. In view of my observations set out herein above, I do not find any merit in the challenge posed by the petitioners. The Writ Petition is devoid of merits and is, therefore, dismissed. Rule is discharged. No order as to costs.