Judgment:
P.R. Borkar, J.
1. This is a writ petition filed by original defendant No. 5 in suit bearing R.C.S. No. 3 of 1971 pending in the Court of Civil Judge, Junior Division, Pathardi, who claimed to be tenant of lands Survey No. 143, 144/1 and 144/2 of village Pathardi. Since tenancy was claimed by the present petitioner, the matter was referred to the Tenancy Authority and this petition is challenging dismissal of revision application by the Maharashtra Revenue Tribunal, Pune by its order dated 19.03.1990 in Case No. MRT/AH/II/11/86(TNC.B.69/86).
2. The original suit was for partition and separate possession. After reference of tenancy issue, the Tahsildar, Pathardi in Court reference No. 8 of 1975 by his order dated 30.04.1976 held that present petitioner was not tenant. Said finding was further confirmed by the Assistant Collector, Rahuri, Division Ahmednagar in Tenancy Appeal No. 13 of 1976.
3. Mrs. M.A. Kulkarni, Advocate for the petitioner vehemently argued that the Maharashtra Revenue Tribunal has dismissed the revision petition mainly because no steps were taken by the present petitioner for bringing LRs of deceased respondent No. 3 Faidima Begum Akbar who died on 15.15.1986. Application was given for bringing heirs on record but it was without giving names of heirs or producing the death extract. Sufficient time was given. Ultimately, the application was rejected. Then advocate for the petitioner filed no instruction pursis but that was not allowed and ultimately the Tribunal has come to a conclusion that there cannot be different findings regarding tenancy, one against heirs of respondent No. 3 against whom revision petition had abated and one against rest of the respondents. Mrs. M.A. Kulkarni, therefore, prayed that the matter may be remanded back to the Maharashtra Revenue Tribunal for deciding revision petition against respondent Nos. 1,2, 4 and 5.
4. Shri M.N. Nawandar, Advocate for respondent No. 5 pointed out the final order passed by the Maharashtra Revenue Tribunal, which is as follows:
This revision application is dismissed for non-prosecution and also on ground of merits. No order as to costs.
He drew my attention to para 6 in which it is said that there was concurrent finding of facts by the two courts and entire case was based on some documents and oral evidence and the revision was not tenable against the same. So, it is argued that even on merits finding of the Tahsildar and the Assistant Collector need not be interfered with by this Court. He argued that as per Section 4(1)(a) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'B.T.& A.L. Act'). The petitioner could not have claimed tenancy as against his own brothers and other relatives. He drew my attention to order passed by the Assistant Collector in which it is stated that in 1957 Yasin - father of the petitioner and respondent Nos. 1 and 2 were owners and after death of Yasin in 1959 respondent Nos. 3 and 5 became owners.
5. It is also pointed out by the Tahsildar in his order that since the petitioner and respondent Nos. 1 and 2 were brothers and respondent Nos. 3 & 4 were their sisters, they are members of same family as descendants of Yasin and there could not have been tenancy between the petitioner and the respondents.
6. Mrs. M.A. Kulkarni pointed out that the parties are Mohomedans and there is no concept of joint family. The Tahsildar so also the Assistant Collector were in error in applying notions of joint family to the parties.
7. Section 4 (1) (a) of the B.T.& A.L. Act is as follows:
4.(1) A person lawfully cultivating any land belonging to another persons shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not-
(a) a member of the owner's family, or
(b) ...
(c) ...
(d) ...
Section 2(7) (a) defines 'Joint Family'.
'joint family' means an undivided Hindu family, and in the case of other persons a group or unit the members of which are by custom joint in estate or residence.
8. So, though the petitioner and the respondents are not Hindu, their case may come under second part of Clause 7 (a) of Section 2 of the B.T.& A.L. Act. The petitioner and the respondent Nos. 1 to 4 were L.R.s or heirs of deceased Yasin. Therefore, for the purpose of Section 4 (1) (a), they can be considered as members of family.
9. The words used in Clause (a) of Section 4(1) are not joint family but owners' family. So far as case of Gnyandeo S/o. Duraji Pirange v. Pandurang Jyoti Pirange AIR 1994 BOM 264 is concerned, though the land-lord and tenant were members of same family, as can be seen from facts of said case, a document was executed between parties giving land to the petitioner on crop share basis. Expenses of cultivation specified in the documents were to be undertaken by petitioner-defendant at his expenses and agricultural produce was to be shared equally between parties. The document also specified that there would be no objection to take steps regarding entry of name of petitioner in relevant record of rights as a tenant. The document was attested and was duly proved and in the circumstances of those peculiar facts it was held that the petitioner can be held to be tenant of the land on basis of document.
10. In the present case, the Tahsildar has considered oral so also documentary evidence. There was no documentary evidence regarding tenancy. Merely payment of land revenue or delivery of levy by one of the co-owners cannot be considered as evidence of tenancy. One Dilawar was examined as witness to prove oral agreement of 'Batai' i.e. cultivation on crop share basis. However, the Tahsildar so also the Assistant Collector did not find his evidence reliable. In this case parties are co-owners.
11. Ordinarilly, this Court in Writ Petition would not have entered into all these aspects, but it will have to be considered that the suit was filed in 1971 and since then the parties have been litigating before the Tenancy Authorities and ultimately have come to this Court. So, it is necessary that the tenancy aspect of the matter should end. After decision of this Court, again original suit will begin and may continue for long time.
12. So, in the facts and circumstances of the case, though the Maharashtra Revenue Tribunal has mainly decided the revision petition on the ground of non-prosecution and for not taking steps for bringing LRs of respondent No. 3 on record, on merits this Writ Petition deserves to be dismissed. In the result, the writ petition is dismissed. Parties to bear their own costs.