Judgment:
ORDER
S.B. Mhase, J.
1. The petition under Article 227 of the Constitution of India is directed against the judgment of the Maharashtra Revenue Tribunal inAppeal No. 5/A/84- Parbhani, decided on 17-12-1986.
2. The brief facts which require consideration are as follows. The petitioner (original plaintiff) and respondent No. 2 (original defendant) are real brothers. Respondent No. 1 is a purchaser from the respondent No. 2 of Survey No. 82, to the extent of 6 Acres and 15 Gunthas, which is 1/2 of the total area of the said survey number. The said land is of the share of the respondent No. 2-original defendant No. 2, namely the brother of the petitioner/ plaintiff. The respondent No. 1/original defendant No. 1 has purchased it from the respondent No. 2/original defendant No. 2 on 22-9-1953. After the said purchase, the petitioner/plaintiff has filed a Civil Suit No. 36/1/1955, which was subsequently re-numbered as 36/1958. The plaintiff filed the said suit to claim a right of pre-emption being the co-owner of the Survey No. 82 i.e. Jabte Shikmidaran (means law applicable to the share-holders and in that capacity one of the rights claimed is the pre-emption). In the said suit, the issue was framed by the Civil Court 'Whether the area of the land held by the plaintiff after the alienation or transfer of the suit land (i.e. half share of Survey No. 82/1, situated at Sakhara and area 6 Acres and 15 Gunthas assessed at Rs. 16.4) would exceed three times the family holding after excluding the area of the land held by the plaintiff, which is in the possession of the protected tenant in respect of which the plaintiff relinquishes the right of resumption for his personal cultivation under section 44 of the Tenancy Act.' The said issue was referred to the revenue authorities in view of the provisions of section 99-A of the Hyderabad Tenancy andAgricultural Lands Act, 1950. It is submitted at the bar that the issue referred to above has been framed because of the provisions of section 47 of the Hyderabad Tenancy and Agricultural Lands Act. The said provision has undergone change by the Amending Act 45 of 1965. The change is to be noted from the issue framed and the amended provisions. As per issues the holding of the purchaser after the alienation or a transfer should not exceed three times the family holding and while calculating three times the family holding, the area in the possession of the protected tenants in respect of which the transferee has relinquished rights of presumption of the said land for personal cultivation should be excluded. That means the holding of the person shall not exceed the three times the family holding after deducting the lands in the possession of the protected tenants and after having given up the right of resumption. In short, a sort of limit has been put on the right of a purchaser i.e. after the purchase the holding of the purchaser shall not exceed the limit shown in section 47 of the Hyderabad Tenancy and Agricultural Lands Act. In 1965 this section was amended and instead of the family holding the provisions were linked up with the provisions of the Ceiling Act and it is stated that the holding shall not exceed 2/3rd of the ceiling area declared in the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. It is further interesting to note that the words 2/3rds have also undergone a change after the amendment of 1975, Maharashtra Agricultural Lands (Ceiling on Holdings} Act, 1975 and presently the provision says that the purchasers holding shall not exceed more than the ceiling area. On the basis of the factual acreage prior to 1965 family holding was a criteria and three times the family holding was the limit. As disclosed to this Court by the Lawyers, the family holding was 24 Acres dry crop land and, therefore, 72 Acres of the dry crop land is the limit upto which the purchaser can purchase. In the Maharashtra Agricultural Lands (Ceiling on Holding) Act, 1961, the ceiling provided is 108 Acres dry crop land and, therefore, 2/3rd of the said area comes to 75 Acres and, therefore, from 1965 to 1975 the limit was 2/3rds of the ceiling area. In the Amending Act of 1975, whereby the ceiling area was further lowered down and brought to 54 Acres of dry crop land and, therefore, section 47 was amended and it said that the purchaser can purchase upto the ceiling area i.e. upto 54 Acres. I have analysed these amended provisions for the purpose that the common theme in section 47 and in all the amendments is that the purchaser's holding shall not exceed the particular limit provided under the Act. A sort of limitation on holding has been provided on the right of the purchaser and, therefore, an issue, which is required to be considered as stated above, was linked up with the family holding specifically and that has to be marked.
3. Initially the matter was decided by the Deputy Collector (Land Reforms) by judgment dated 20-12-1983, who came to the conclusion that the holding of the present petitioner/plaintiff is 3 Acres and 8 Gunthas and, therefore, does not exceed as per the limit shown in section 47. The said order was challenged by the respondent before the Maharashtra Revenue Tribunal and it was held by the Revenue Tribunal that the holding of the petitioner exceeds three times of the family holding and answered the issue against the present petitioner. Therefore, the present writ petition.
4. Mr. Vaishnav, learned Counsel appearing for the petitioner submitted that it is necessary to consider whether the amended or un-amended provisions of section 47 are to be applied. According to the learned Counsel, the amended provision should be looked into, instead of the old provisions and the question raised is the computation of a holding with relation to the date of the decree and not to the date of the suit. According to the learned Counsel that the plaintiff/petitioner will be exercising his right of pre-emption on the date of the decree and, therefore, the holding has to be considered on the date of the decree.
5. At the out-set, it requires to be stated that the Reference Court is expected to answer the issue referred and, therefore, issue as has been referred, has to be considered by the Reference Court. Rest of the questions are required to be decided by the Civil Court on the basis of the answer given by the tenancy authorities to the reference and, therefore, it is necessary to consider the issue as framed by the Court and as has been observed earlier, the issue states specifically as to whether the holding of the plaintiff after the alienation or a transfer of Survey No. 82/2, admeasuring 6 Acres and 15 Gunthas after the deduction of the lands in possession of the protected tenants and relinquishment of the rights of the plaintiff to claim those lands, whether the holding of the plaintiff exceeds three times the family holding and, therefore, on plain reading of the issue itself, it is abundantly clear that the issue requires to be answered in 'the light of the old provisions, because the calculation which is expected in that issue is to be based on a family holding and the words 'family holding' do not appear in the amended section of 1965 and 1975. They only appear prior to 1965 in section 47 of the Hyderabad Tenancy and Agricultural Lands Act. Therefore, the attempt made by the learned Counsel to submit that the amended provisions will have to be applied is of no use and is not a valid one also. The second ground is in relation to what date holding is to be calculated i.e. on the date of the suit and/or the date of the decree. Even though this is not a directly connected question, but as it has been argued and this Court was tried to persuade on the issue, it is being answered. In all the civil suits the decree is an adjudication of the rights of the parties by Court of competent jurisdiction as defined in section 2 of the Code of Civil Procedure. Adjudication of the rights of the parties is always based and related to the cause of action and the cause of action being a bundle of acts to be adjudicated by the Court relevant to a particular date, because that is the date with reference to which the limitation, etc. is alleged to be calculated by the Court. Therefore, the rights of the parties which are under adjudication in civil suits, they are relevant to a date of cause of action. What is further pertinent to be noted in the present matter is that the right which has been claimed by the plaintiff to be exercised is a right of a pre-emption i.e. right to purchase the property in a preference to the other purchasers being the co-sharer or co-holder of the said survey number and, therefore, the time at which the plaintiff is supposed to exercise the said right is the date on which the defendant No. 2, his brother decided to sell away his share from the Survey No. 82 and the respondent No. 1 was about to purchase or purchased the said land. At that time the petitioner has to come forward and state that he has a right to purchase the said land and should offer the price for the said share. This is being analysed only for the purposes that, whether the plaintiff is entitled to purchase the said land on the basis of the pre-emption and if at all he is entitled to purchase on the basis of pre-emption, whether his holding exceeds as per the provisions of section 47 on that day is a question to be considered, because if it is found that the defendant also showed a willingness to sell this land to the plaintiff and actually transaction is completed, still if on that day it is found that the plaintiff's holding is more than three times as provided under section 47, the sale becomes invalid in view of the provisions of section 47. Not only that but even if the defendant No. 2 is not ready to sell the property to the plaintiff, however, the plaintiff's right by way of an entitlement to the purchase has to be considered in the light of section 47 and if it is found that the plaintiff's holding exceeds three times of the family holding, even though the right of pre-emption is recognised, it cannot be enforced because of the section 47 of the Act. This will clarify that in this matter the calculation of a holding of the plaintiff is always required to be done on the date of sale when the time to exercise pre-emptive right arose in favour of the plaintiff and not on the day on which decree is passed, because the decree is mere adjudication of the said right and if found enforceable, the further enforceable decree will be passed. However, the right does not arise as a result of the decree. It is recognition by the decree of the right which was under dispute since the day of the institution of the suit or from the day of the cause of action as stated in the suit. Therefore, the attempt made by the learned Counsel to persuade this Court and to the Maharashtra Revenue Tribunal also, that the calculations as referred to in the issue are required to be done on the date of the decree and, therefore, both the authorities should have calculated on the date of the hearing is misconceived and is hereby rejected. The analysis, therefore, comes that both the authorities should have calculated the holding on the date of the suit and the suit is of the year 1955 and the sale transaction is dated 22nd September, 1953. Having answered the point raised by the learned Counsel, the last question which remains is, what is the holding of the present plaintiff/ petitioner. It is pertinent to note that the Collector has carried out the calculation of holding of the plaintiff/petitioner. It is clear that the total holding of the present petitioner was 176 Acres and 26 Gunthas and after adding 3 Acres and 8 Gunthas, it comes to 179 Acres and 34 Gunthas. This total holding is not disputed. Only claim is that whatever the transfers have been effected by the present plaintiff/petitioner, they shall be excluded and accordingly the Collector has found that by way of a transfer 176 Acres and 26 Gunthas land has been transferred by the present plaintiff/petitioner and, therefore, his holding will come to 3 Acres and 8 Gunthas. This deduction, which is approved by the Collector is wrong, because as per the issue, the transfers which were permissible they were the transfers in favour of the protected tenants and that too after the relinquishment of the right by the plaintiff over the said property. On perusal of the transfers, it will be evident that they are not the transfers in favour of the protected tenants relinquishing the rights. I find that on 10-10-1964 the partition appears to have been effected in respect of the Survey No. 72/118, admeasuring 31 Acres and 29 Gunthas and the total lands have been given to the other sharers. So is the case in respect of the Survey No. 73/119, admeasuring 36 Acres and 15 Gunthas. On 16-2-1966 Survey No. 70/116 admeasuring 31 Acres and 13 Gunthas has been sold, so the Survey No. 71/117 admeasuring 28 Acres and 31 Gunthas has been sold on 20-5-1970. The land Survey No. 60/115 admeasuring 15 Acres and 7 Gunthas has been sold on 29-1-1967 and landSurvey No. 58/95 admeasuring 33 Acres and 11 Gunthas has been sold on 30-6-1966. Thus, the four lands have been disposed of by way of sate and two lands have been disposed of by way of partition and all these partitions and sales have been effected much later than the filing of the suit, however, while pendency of the suit, because as a result of the framing of the issue, the plaintiff has become aware that if his holding exceeds three times the family holding, he will not be entitled to purchase the land on the basis of the right to pre-empt and, therefore, in order to protect that right all these transfers have been effected by the plaintiff. However, it is well settled that the transfers which are effected during the pendency of the suit will not be relevant for the consideration, because the holding is to be calculated on the date of the suit or on the date of transfer as observed earlier. These transfers, as earlier observed, are not in consonance with the requirements of the issue allowing the deductions and, therefore, the Collector erroneously allowed the said deductions and has decided that the holding is 3 Acres and 8 Gunthas. I find that the Maharashtra Revenue Tribunal has rightly considered those aspects even though not in detail as I have considered, but has observed that on perusal of the lower Court judgment it becomes clear that the holding of the respondent Rangrao on the date of the institution of the suit is more than three family holdings and thus has considered the calculations made by the Collector. I find that there is no error committed by the Maharashtra Revenue Tribunal in calculating and deciding the matter. On the contrary, the matter which was wrongly decided by the Collector has been rectified and rightly decided by the Maharashtra Revenue Tribunal and, therefore, I do not find substance in this petition.
6. From the facts which have been stated above, there is nothing wrong in prosecuting remedy provided under the law, but in order to mature the right which is under consideration by the Court or may be to say, is sub-judice, the parties are supposed to maintain status quo in respect of the matter under adjudication. In the present matter, when it is found by the present plaintiff/petitioner that his holding probably exceeds three times the family holding as provided under the law, he has tried to dispose of the property since 1964 upto 1971 and claimed benefit of those disposals before the courts. Even though there may not be a bar for sale or disposal of the property under the law, however, the said transactions being made a foundation for the purposes of the relief, shows the fraudulent approach of the present plaintiff/petitioner. This requires to be deprecated and this can be done only by imposing an appropriate cost on the plaintiff/petitioner. At this time, Mr. Vaishnav raised and stated that my dispute was with my brother and he is absent throughout the proceeding. 1 have no grievance as against the respondent-purchaser and, therefore, the cost should not be imposed by this Court. This argument suffers from fallacy, because the absence on the part of his brother shows that he has taken the money and did not bother to protect the purchaser, which is a duty under the sale deeds to make the title of the purchaser clear. However, probably he must have failed to do it in order to favour or collude with the brother, relieving the present plaintiff. Secondly, ultimate effect of the said decree is on the purchaser because he will have to lose the property and not the real brother, because he has already parted with the property and, therefore, when the brother has to partwith the property either with the defendant/purchaser or with the plaintiff pre-emptor, in any eventuality, he is not going to get the property and such a claim pending years together since 1955 keep the title to the property under the clog, which ultimately results into non-improvement of the property and effects the yearly yield from the said property. Not only that if the purchaser desires to sell away the property, its market value considerably affects, because of the pending litigation and inspite of parting of the money by way of a market price to the brother of the present petitioner. All these factors taken together, only persuade this Court to impose the cost. This Court, therefore, quantifies the cost of this petition to Rs- 5,000/-, which will be considered while passing the decree. The petition is without any merit. It is hereby dismissed. Rule is discharged.
7. Petition dismissed.