V.R. Kingaonkar, J.
1. These writ petitions are being disposed of together in as-much-as common questions of law are involved therein. The petitioners are claiming tenancy rights in respect of various agricultural lands.
2. There is no dispute about the fact that deceased Annaji Vinayak Athawale was owner of the various suit lands. He died on 28th January, 1947. At the time of his death, plaintiff Pandurang was his only son and was minor. The agricultural lands and other properties of the minor - plaintiff Pandurang were taken over under management of the Court of Wards with effect from 22nd December, 1947. The management of the suit lands was subsequently transferred to the Collector, Jalgaon, from 1st June, 1954. The plaintiff - Pandurang attained majority and, therefore, the management was terminated from 24th October, 1964.
3. While the suit lands were under management of the Collector, Jalgaon, the latter filed tenancy applications No. 12/1960 to 17/1960 for declaration that the present petitioners were not tenants of the respective suit lands in as much as the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, 'BT&AL; Act') was not applicable due to exemption of the said lands under Section 88 from applicability of the relevant provisions. The applications were dismissed by the Tahsildar, Raver. Aggrieved thereby, the plaintiff - Pandurang preferred Tenancy Appeals No. 243 to 248 of 1961 through his guardian. All the said appeals were allowed and the Appellate Tenancy Tribunal held that the suit lands were exempted from operation of the BT&AL; Act. The Appellate Court further held that the question of recovery of possession may arise when the suit lands were released from management of the Court of Wards. The petitioners and others preferred revision applications bearing Nos. 972, 998, 999, 1000 and 1001 of 1961. The Maharashtra Revenue Tribunal (M.R.T.) held that Proviso added to Amending Act No. 15 of 1957 to Section 88 of the BT&AL; Act cannot be construed to mean that the rights accrued to the persons claiming the tenancies were affected. The M.R.T. also held that the applications filed by the landlord through the Collector were not maintainable. Thereafter, Special Civil Application No. 958 of 1965 was filed by the plaintiff - Pandurang, through his guardian - Collector, in this Court, challenging the judgement dated 17th January, 1964 rendered by the M.R.T. in those five revision applications. It was held that the lands in question were exempted from the operation of the provisions of the BT&AL; Act. This Court held that the findings of the Tenancy Tribunal were not binding on the parties. This Court, however, held that the M.R.T. was right in disposing of the applications filed by the Collector as the same were not maintainable.
4. The petitioners initiated proceedings under Section 32G of the BT&AL; Act for fixation of the price of the suit lands. The Tahsildar, Raver, by order dated 6th September, 1974, held that the suit lands were covered by Section 88 Sub-section (1) (c) of the BT&AL; Act and, therefore, tenancies could not be validly created. The appeals preferred by the petitioners were allowed by the Assistant Collector, Jalgaon and the matters were remanded for afresh inquiry. Against the remand orders, the plaintiff - Pandurang Athawale preferred revision applications No. 353, 354, 355, 356, 357, 358 and 359 of 1976. Except one (1) of the revision applications, bearing No. 357/1976, filed against one Kisanraoji Patil, all the other revision applications were dismissed on 29th July, 1977 by the M.R.T.
5. The plaintiff - Pandurang Athawale filed different suits against the petitioners and other persons who were claiming tenancy rights in respect of the suit lands. The suits were for recovery of possession. In the said suits (R.C.S. Nos. 125/1973, 224/1973, 130/1973 and 127/1973), following issues were framed by the learned Civil Judge (J.D.), Raver :
(i) Whether after releasing the property from management of Government, the defendants have revived their rights of tenancy on the suit lands ?
(ii) Do defendants prove that the suit lands were first leased out to their father by Plaintiff's father on 12-2-1946 ?
(iii) Do they prove that he was in possession of the suit lands as tenant ?
(iv) Do they further prove that he became deemed purchaser of the suit lands These were the common issues framed in all the civil suits. They were referred by the Civil Court to the Tenancy Tribunal for findings. The Tenancy Tribunal held that the petitioners were not the tenants of the respective suit lands and could not be deemed as purchasers thereof within the meaning of relevant provisions of the BT&AL; Act. The petitioners preferred appeals against the adverse findings to the Sub Divisional Officer bearing Tenancy Appeal Nos. 1 to 6 of 1982. By his order dated 10th January, 1986, the Sub Divisional Officer, Jalgaon dismissed all the appeals and confirmed the orders rendered by the Tenancy Tribunal, Raver. Feeling aggrieved, the petitioners and other persons preferred revision applications No. 31 to 36 of 1986 before the M.R.T. The M.R.T. dismissed all the revision applications.
6. Mr. Phatke, learned Counsel appearing for the petitioners, would submit that the M.R.T. and the authorities thereunder misconstrued the observations of this Court in Special Civil Application No. 958/1965, which caused error in the impugned decisions. He would submit that the petitioners and their predecessors were tenants of the respective suit lands since 1946-47 and, therefore, they ought to have been held as tenants in view of Section 4(A) and 4(B) of the BT&AL; Act in as much as their tenancy rights were never determined as provided under Section 14 of the BT&AL; Act. He would submit that the tenancy rights of the petitioners could not be abrogated without resorting to provisions of the BT&AL; Act. He would further submit that the proceedings under Section 32G of the BT&AL; Act were pending when the suits were filed and, therefore, the question of tenancy rights could not be determined. He contended that the M.R.T. failed to analyse the provisions of Section 88 (D) and wrongly concluded that it was applicable only in respect of the tenancies created by the parties and not in respect of the statutory tenancy. He would submit that the exemption under Section 88(C) of the BT&AL; Act cannot be made applicable retrospectively. He contended that after release of the property from the Government management, the rights of the tenants were revived and, therefore, the impugned judgements are unsustainable. As against this, learned senior counsel Mr. Dixit, appearing for the respondents, would support the impugned judgements.
7. Before I proceed to consider the rival submissions, it is worthwhile to note that admittedly, the original plaintiff - Pandurang Athawale had preferred Special C.A. No. 958/1965 challenging the order dated 17th January, 1964 rendered by the M.R.T. in the revision application Nos. TEN.A.972/1961, 998/1961, 999/1961, 1000/1961 and 1001/1961. A copy of the decision rendered by this Court (Exh-C in Writ Petition No. 3544/1989) reveals that the said revision applications were dismissed, holding that the original applications were not maintainable. At the same time, this Court observed :
We are not concerned with the provisions of Sub-section (2) in this case. On the allegations made in the various applications filed by the tenant in July, 1960, it was clear that the Collector was in the management of the minor's estate including the land in dispute under the order of the District Court passed under the Guardians and Wards Act. The lands were, therefore, completely exempted from the operation of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 Sections 1 to 87 which included Sections 70, 29 and 31.
8. At the threshold, let it be noted that all the three (3) Tenancy Tribunals rendered concurrent findings of fact that the tenancies were created during minority of the plaintiff - Pandurang Athawale and while the suit lands were under management of the Collector, Jalgaon, in pursuance to the order of the District Court passed under the Guardians and Wards Act. In view of the above concurrent findings, in the exercise of writ jurisdiction, it is difficult to say that the tenancies were created in 1946-47. Apart from this difficulty, there is nothing on record to show that for a period of continuous five (5) years, the tenancy rights were in existence before the commencement of the BT&AL; Act so as to confer status of 'protected tenant' on either of the petitioners. It need not be reiterated that on the tillers' day i.e. 1st April, 1957 specified under Section 32 of the BT&AL; Act, all the suit lands were under management of the Collector, Jalgaon. Therefore, deeming effect available under Section 32 (1) cannot be given in respect of the so called tenancies of the petitioners. They cannot be treated as statutory purchasers from the then minor landlord. The minor landlord was under disability at the relevant time. Obviously, only if after release of the suit lands in 1964 from custody of the Collector, the tenancies were created by mutual agreement, the petitioners could have claimed such rights.
9. Section 88 of the BT&AL; Act provides for exemption to Government lands and certain other lands from operation of the BT&AL; Act. The relevant portion thereof reads as follows :
88. Exemption to Government lands and certain other lands- (1) Save as otherwise provided in Sub-section (2), nothing in the foregoing provisions of this Act shall apply,-
(a) to lands belonging to or held on lease from, the Government;
(b) to any area which the State Government may, from time to time, by notification in the Official Gazette, specify as being reserved for non-agricultural or industrial development;
(c) to an estate or land taken under the management of the Court of Wards or of a Government Officer appointed in his official capacity as a guardian under the Guardians and Wards Act, 1890;
(d) to an estate or land taken under management by the State Government under Chapter IV or Section 65 except as provided in the said Chapter IV or Section 65, as the case may be, and in Sections 66, 80A, 82, 83, 84, 85, 86 and 87.
10. In the context of the writ petitions under consideration, Sub-clause (c) of Section 88 (1) is most relevant. The proper interpretation of Sub-clause (c) would make it amply clear that tenancy rights cannot be created in respect of any land taken under the management of the Court of Wards, or of a Government Officer appointed in his official capacity as a guardian under the Guardians and Wards Act, 1890. Obviously, when the suit lands were under the management of the Collector, the immunity from applicability of the provisions of the BT&AL; Act was available. The deceased father of the original plaintiff is not proved to have created the tenancy rights during his lifetime. He died in 1947. The petitioners attempted to obtain benefit of a stray entry in the revenue record for the year 1946-47 to show that they were cultivating the respective lands as tenants. The petitioners did not produce any other record in support of the tenancy agreement. There is no receipt about payment of the rental/crop share to the deceased landlord. The petitioners failed to prove the existence of contractual tenancy. This Court in 'Dwarkanath Vishram Ghurye v. Narayan Vasudeo Dhond' 1989 Mh.L.J. 689, held that tenancy cannot be simultaneously a contractual tenancy and also a deemed tenancy. A deemed tenancy postulates absence of a contractual tenancy at the time when the deemed tenancy is pleaded. The petitioners did not clarify origination of their tenancy rights.
11. Mr. Phatke would point out that while deciding Spl. C.A. No. 958/1965, this Court clearly observed that whatever other findings were recorded by the tenancy authorities were not binding on the parties, in as much as they were not the findings recorded under the provisions of the BT&AL; Act. There is no difficulty in accepting this argument. Clinching question is whether the exemption available under Sub-clause (c) of Section 88 (1) could be denied to the original plaintiff - Pandurang. The earlier decision may not operate as res judicata. Still, however, when this Court held that the provisions of the BT&AL; Act were not applicable at all and, therefore, the applications filed by the Collector were not maintainable, it goes without saying that the suit lands were exempted from operation of the BT&AL; Act.
12. What the M.R.T. noticed was that the issue pertaining to commencement of the leases in favour of the petitioners was conclusively decided by the Tenancy Tribunal, Raver and the Sub Divisional Officer (Appellate Tribunal) on reference made by the Civil Court. Both the authorities had rendered negative findings on the tenancy issues. Therefore, the M.R.T. placed reliance on observations of the Apex Court in 'Maruti Bala Raut v. Dashrath Babu Wathare and Ors.' : [1975]1SCR899 . The Apex Court observed :.It was not for the High Court to discuss the evidence and come to the conclusion as to whether the appellant was or was not the tenant on August 11, 1948. That was a matter for the Prant Officer, whose judgement has been upheld by the Tribunal. The High Court while exercising its powers under Article 227 was not entitled to discuss the evidence and come to its own conclusion on the evidence as to who was in possession of the land. That was a matter for the revenue authorities and only within the scope of Article 227 could the High Court interfere. What we have discussed earlier would show that the High Court has plainly overstepped the limits of its powers under Article 227. Its judgement in so far as this order is concerned cannot be supported.' It was on account of the limited scope of revisional jurisdiction that the M.R.T. did not reappreciate the evidence. The difficulty is more so while exercising the writ jurisdiction and, hence, I find no substance in the argument that the tenancies were created by father of the deceased plaintiff - Pandurang on 12-02-1946.
13. The Tenancy Tribunal, the Sub-Divisional Officer and the M.R.T. concurrently held that the petitioners failed to produce reliable evidence in support of the averment that they were inducted as tenants over the respective suit lands by the deceased father of the original plaintiff - Pandurang Athawale. It is rightly held that stray entries in the 7/12 extracts could be of no avail for such purpose. In 'Mussamia Imam Haider Bax v. Rabari Gobindbhai Ratanbhai and Ors.' 1969 Mh.L.J. 513, this Court observed :.Section 70 (b) of the Act imposes a duty on the Mamlatdar to decide whether a person is a tenant, but the Sub-section does not cast a duty upon him to decide whether a person was or was not a tenant in the past - whether recent or remote. The main question in the present case was the claim of the defendants that they had become statutory owners of the disputed lands because they were tenants either on the 'tiller's day' or on the date of the release of the management by the Court of Wards. In either case, the question for decision will be not whether the defendants were tenants on the date of the suit but the question would be whether they were or were not tenants in the past. The question whether the defendants were tenants on July 28, 1956 or on May 11, 1958 was not an independent question but it was put forward by the defendants as a reason for substantiating their plea of statutory ownership....
14. In 'Keshav Vithal Mhatre v. Arvind Ranchhod Parekh and Anr.' : AIR1974Bom94 , this Court observed :.Where the lease was granted during the management, the lease must come to an end with the termination of management. The tenant continues as a tenant only during the management of the estate. Thereafter if he remains on the land, he is cultivating it only as a trespasser. The agent of the State like the Manager had no power to grant lease or permit any cultivation by anybody in violation of the mandatory statutory duty of the State under Section 61 to restore the land to the holder 'on termination of management'. It must, therefore, be held that Section 88 (1) (d) cannot be invoked by the petitioner.
15. There is nothing on record to show that originally, the leases were created by father of the deceased plaintiff - Pandurang Athawale in the year 1946 and were revived by the Collector from time to time during period of management of the suit lands. One cannot be oblivious of the fact that the Collector himself had filed applications to the effect that the petitioners or predecessors of the petitioners were not tenants of the respective suit lands and such declaration was sought from the Tenancy Tribunal. Obviously, it does not stand to reason that the Collector had renewed the tenancies of the petitioners after the death of father of the deceased plaintiff - Pandurang Athawale. The material placed on record does not show that originally, the leases were created by the deceased father of the plaintiff - Pandurang Athawale for a period of five (5) years. The so called leases were not subsisting as on 23rd November, 1964 when the management of the respective suit lands came to an end. The constructive possession of the respective suit lands must be deemed to have been delivered to the deceased plaintiff - Pandurang Athawale, free of encumbrances and liabilities, including the tenancy claims set up by the petitioners or their predecessors.
16. This is not a case wherein the tenancy rights of the petitioners were in existence since 1946 and were continued. The original plaintiff - Pandurang was not required, therefore, to terminate the tenancies as contemplated under Section 24 or any other provision of the BT&AL; Act.
17. For the reasons aforestated and in view of the concurrent findings rendered by all the three (3) Tenancy Tribunals, I am of the opinion that the tenancy issues have been rightly answered by the M.R.T. The impugned judgements do not warrant interference. The original plaintiff - Pandurang Athawale and most of the original petitioners have demised during pendency of the writ petitions. Much time has elapsed due to the length of the litigation on this score. It is expected, therefore, that the Civil Court will expedite the final hearing of the suits on receipt of the findings on the relevant issues. In this view of the matter, all the writ petitions are dismissed. No costs.