1. By this petition, the petitioners challenge order dated 29th October, 2005 rendered by the Divisional Commissioner, Nasik in Tenancy Revision Application No. 32/2003 as well as order dated 30th January, 2003 rendered by the Sub Divisional Officer, Jalgaon in Tenancy Appeal No. 2/2003. The Divisional Commissioner confirmed the order of the Sub Divisional Officer whereby the Tenancy Appeal was allowed and the application of the respondent No. 1 for restoration of the half portion of the land in question was allowed.
2. The few facts giving rise to the tenancy litigation and the present petition may be stated in the following way : Original Survey No. 446/2 (now Gat No. 1475), admeasuring 00 Hectors 9.1/2 Ares, situated at village Asoda, Taluka and District Jalgaon, is the land in question. Originally, the said land was held by one Subba Girdhar Jagtap. He was the predecessor-in-title of the petitioners. He had leased out the said land to Sampat Ramu Narkhede, father of the respondent No.1, somewhere in the year 1938. Thus, father of the respondent No. 1 was the tenant in possession as on the Tiller's Day i.e. 1st April, 1957. In his lifetime, the landlord, namely, Subba Girdhar Jagtap had filed an application for possession of the land in question, on 1st April, 1956, on the ground that he required the same for personal cultivation. He had alleged that due to insufficient rental income, he wanted to cultivate the land in question. On his application, the tenancy case No. 101/1956-57 was initiated and the proceedings terminated in his favour since the Tahsildar - ALT (Agricultural Lands Tribunal) granted the application. Original tenant - Sampat preferred Tenancy Appeal No. 15/1957. That appeal was allowed by the Sub Divisional Officer by an order dated 31st May, 1957. The Sub Divisional Officer was pleased to set aside the order of the Tahsildar-cum-ALT. The Sub-Divisional Officer (S.D.O.) held that the possession of the tenant shall not be disturbed. The landlord was dissatisfied with such order of the appellate authority and, therefore, had preferred Revision Application No. 1392/1959 before the Maharashtra Revenue Tribunal (M.R.T.). The Revision Application of the landlord i.e. Subba Jagtap was dismissed by the M.R.T. on 7th January, 1960. There is no dispute about the fact that the judgement of the M.R.T. was never challenged by the original landlord i.e. Subba Jagtap during his lifetime.
3. The petitioners filed an application under section 43A read with section 29 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, "the BT&AL; Act") seeking restoration of the land in question. They asserted that they required the land for bonafide personal cultivation. They further asserted that the land was leased out for growing of fruits and the annual rent was fixed at Rs. 600/- p.a., which was grossly inadequate for their livelihood. They contended that they were entitled to recover possession of the said land in view of the provisions of Section 43-A read with section 29 of the BT&AL; Act in as much as the tenancy could not be created in respect of the fruit growing land. The Tahsildar - A.L.T. partly allowed the application of the petitioners on 30th August, 1976. It was directed that possession of half of the land in question, to the extent of 2 acres 11.5 gunthas, shall be restored to them. That order of the Tahsildar - ALT was challenged by way of appeal No. 7/1977 preferred by the respondent No. 1. The appeal was dismissed by the leave reserved Deputy Collector on 19th March, 1979. Thereafter, possession to the extent of half of the land in question was restored in favour of the petitioners. The respondent No. 1 thereafter filed application No. 1/2000 for possession of the land in question alongwith fixation of the purchase price under section 32G of the BT&AL; Act. That application was dismissed by the Tahsildar - ALT by order dated 13th November, 2001. The respondent No. 1 (tenant) preferred an appeal before the Sub Divisional Officer (S.D.O.), Jalgaon vide the appeal No. 2/2003. By order dated 31st January, 2003, the S.D.O. allowed that appeal and was pleased to set aside the order of the Tahsildar - ALT. The S.D.O. allowed the application filed by the respondent No. 1 and ordered that half of the land in question, of which the possession was restored to the petitioners, shall be handed over to the respondent No. 1. The S.D.O. further remanded the matter to the Tahsildar - ALT for fixation of the purchase price of the entire land in question under section 32G of the BT&AL; Act. Aggrieved by such judgement and order of the appellate authority i.e. the S.D.O., the petitioners preferred Revision Application No. 32/2003. By the impugned judgement and order, the Additional Divisional Commissioner, Nasik dismissed the Revision Application on 29th October, 2005 and thereby confirmed the appellate order. Hence, the petition.
4. Heard learned counsel for the parties and learned A.G.P.
5. Mr. Talhar would submit that the application filed by the respondent No. 1 was barred by limitation in as much as it was not filed within period of two (2) years from the date of dispossession, and as such, the impugned orders rendered by the S.D.O. and the Additional Divisional Commissioner are bad in law. He would submit that the S.D.O. could not have ordered eviction of the petitioners when the application of the respondent No. 1 could not come within ambit of Section 84 of the BT&AL; Act in as much as the petitioners' possession could not be regarded as unauthorized. He argued that when the petitioners were inducted in possession in pursuance to the valid orders of the revenue authority, the remedy of summary eviction under section 84 of the BT&AL; Act was unavailable to the respondent No.1. He would further submit that the petitioners could not be evicted under section 29 of the BT&AL; Act because the application was not submitted within two (2) years as provided under section 29 (1), nor it was founded on any legal ground as such. He, therefore, urged to allow the petition. Per contra, learned Senior Counsel Mr. Dixit would submit that when the father of the respondent No.1 was a protected tenant, the only question that had remained to be determined was of fixation of the price under section 32G.
He would submit that the subsequent proceedings for restoration and the possession in favour of the petitioners could not have been entertained and were void in the eye of law. He supports the impugned judgements and orders. The learned A.G.P. too supports the same.
6. At the outset, it may be stated that there are concurrent findings of the S.D.O., Jalgaon and the Divisional Commissioner, Nasik as regards right of the respondent No.1 (tenant) to determine the price of the land in question under section 32G of the BT&AL; Act. The earlier application of the original landlord (Tenancy Case No. 10/1956-57) was granted by the Tahsildar - ALT. However, the said order of the Tahsildar - ALT was reversed in the Tenancy Appeal No. 15/1957 by order dated 31st May, 1957 rendered by the Deputy Collector. The original landlord was prohibited from disturbing the possession of the tenant. The landlord's Revision Application No. 1392/1959 was dismissed by the M.R.T. on 7th June, 1960. The judgement and order of the M.R.T. was never challenged and, therefore, it was binding on the parties. Thus, the issue regarding status of the original tenant Sampat Ramu Narkhede as the protected tenant and the person in possession on the Tiller's Day was duly established. The only right left with the original landlord was to obtain the price which could be determined under Section 32G. In other words, the landlord had no further right to claim ownership or recovery of possession. The issue of protected tenancy was finally concluded in the earlier round of litigation.
7. The subsequent proceedings regarding recovery of possession to the extent of half of the land in question, in fact, could not have been entertained in the eye of law. The Tenancy Tribunals, however, committed patent error while allowing the application of the petitioners filed under section 43A read with section 29 of the BT&AL; Act. The landlord, in fact, could not have terminated tenancy by giving the notice dated 8th August, 1974. The proceedings initiated by the petitioners could not have legal sanctity. True, as per order dated 30th August, 1976, possession of the half of the land in question was delivered to the petitioners. However, the entire foundation of the proceedings initiated by the petitioners was illegal. The contention that the petitioners required the suit land for bonafide personal cultivation was no more acceptable in view of the result of earlier round of litigation. In fact, the subsequent orders rendered by the Tenancy Tribunals could not have adversely impacted the rights which had accrued in favour of the original tenant i.e. Sampat Ramu Narkhede. For, it was conclusively established that he had become eligible for the statutory purchase.
8. So far as the question of delay is concerned, it appears, no doubt, that the respondent No. 1 did not initiate the proceedings under section 29 and 84 as well as section 32G of the BT&AL; Act within period of two (2) years. Section 29 (1) reads as follows :
"29. (1) A tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act, may apply in writing for such possession to the Mamlatdar. The application shall be made in such form as may be prescribed and within a period of two years from the date on which the right to obtain possession of the land or dwelling house is deemed to have accrued to the tenant, agricultural labourer or artisan, as the case may be."
Perusal of Section 29 (1) of the BT&AL; Act shows that the application shall be made within period of two (2) years from the date on which the right to obtain possession of the land is "deemed" to have accrued to the tenant. The question of limitation was never raised by the petitioners in the pleadings of their reply to the Tenancy Application No. 2/2000, which was filed by the respondent No. 1 before the Tahsildar - ALT, Jalgaon. Nor it was raised in the appeal memo or before the Revisional Tribunal. This question is being raised for the first time during course of the oral submissions in this Court. The question of limitation is a mixed question of law and facts. It is worthwhile to note that sub-section (1) of section 29 gives right to the tenant to seek restoration of possession by submitted application within period of two (2) years from the date on which he is deemed to have acquired such a right. The accrual of right to recover possession would depend on the cause of action which the tenant alleges in his application. The cause of action is a bundle of facts. Moreover, when such a question of limitation was not raised during the proceedings of the Tenancy Case No. 2/2000, then it will have to be said that the petitioners gave up such an objection. The plea of limitation cannot be allowed to be raised for the first time in this Court and particularly, when it requires consideration of the fact pertaining to the date on which the tenant could have been deemed to have acquired the right to obtain restoration.
9. The legal position in the context is succinctly clear in view of "L.J. Kriplani since deceased by his Legal heirs vs. Mani Aditwar Patil and others" 2000 (3) ALL MR 281. This Court observed :
"Having considered the rival contentions I have no hesitation in accepting the submission on behalf of the respondents that merely because the respondents initiated proceedings in the year 1981 that would not enure to the benefit of the petitioner in any manner. The learned counsel for the respondents is right in contending that having regard to the principle enunciated in the judgement of the Apex Court in the case of Uttam Namdeo Mahale (supra), it is not open for the petitioners to contend to the contrary. On a bare reading of section 32G of the Act, it makes it clear that the duty to initiate the said proceedings is primarily cast on the authorities. Therefore, merely because the tenant initiates the proceedings belatedly it cannot rob him of the right which is crystalised in his favour on the tiller's day of having become a deemed purchaser of the lands. The provisions under section 32G are merely for determining the purchase price in respect of lands which have been deemed to have been purchased by the tenant on the tiller's day. I, therefore, reject the argument advanced on behalf of the petitioners that because of delay in initiating the proceedings by the tenants, as late as in the year 1981, they have disentitled them of any relief."
10. Mr. Talhar seeks to rely on certain observations in "Ragho Singh v. Mohan Singh and others" 2001 AIR SCW 2351. In the given case, the Apex Court held that when the application was not filed under section 5 of the Limitation Act, there was no jurisdiction in the Additional Collector to allow the appeal which was filed belatedly. He also seeks to rely on observations in "Shivajirao s/o Ekanathrao Kovale & others vs. Syed Mehmood s/o Syed Nizamoddin & others" 2007 (5) ALL MR 132 and "Mohan Pandurang Kashid & others vs. Smt. Anusayabai w/o Rajaram Mane & others" 2000 (2) Bom.C.R. 154. The authorities relied upon by Mr. Talhar are not applicable to the fact situation of the present case. It is true, no doubt, that challenge to the surrender of land in favour of the landlord on the ground that the surrender was not voluntary and not bonafide as per the procedure could not have been entertained after period of 18 years as held in "Mohan Pandurang Kashid & others" (supra). Herein, basically, the question is whether the rights of the original tenant Sampat Ramu Narkhede could be abrogated on account of subsequent tenancy litigation.
Once he was found in possession on the tiller's day, the only right of the landlord was to obtain the price which could be determined by the Tribunal. In "Shankar Savanta Bandagar vs. Sonabai Rau Kamalakar & others" 1980 Bom.C.R. 233, a Division Bench of this Court held that abolition of the inam could not have extinguished relationship of landlord and tenant. It is further held that the re-grant of tenancy right in favour of the land could not disentitle the tenant to purchase the tenanted land in question. The tenant's right to purchase the land under section 32G was not affected by the subsequent re- grant in favour of the landlord. It need not be reiterated that the issue of the right of the tenant was already concluded in the first round of litigation and, therefore, his such right to claim ownership of the land in question could not have been abrogated, curtailed or otherwise trampled in any manner.
11. In "Nivrutti Anna Kadam and others v. Namdeo Bala Sawant" 2003 (2) Mh.L.J. 232, a Single Bench of this Court held that when the landlord had failed to secure favourable relief in proceedings under section 29 (2) of the BT&AL; Act, for resumption of land for personal cultivation, the tenant in possession of the land is deemed to have purchased the land on such date of rejection of application filed by the landlord. Proviso to Section 32 (1) of the BT&AL; Act reads thus : "Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Maharashtra Revenue Tribunal under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as "the postponed date".
12. As stated earlier, the original landlord had filed proceedings for resumption of the land in question for personal cultivation vide Tenancy Case No. 101/1956-57 and such proceedings were finally decided against him when the M.R.T. dismissed his Revision Application No. 1392/1959. That judgement of the M.R.T. became final since it was never challenged any further. It is obvious, therefore, that on 7th January, 1960, the original tenant, namely, Sampat Ramu Narkhede became deemed purchaser of the land in question. It, therefore, follows that his status was transformed from that of a tenant as that of a deemed purchaser. In this view of the matter, he was entitled to seek the eviction of the petitioners under section 29 (1) and also fixation of the price under section 32G of the BT&AL; Act.
13. For the reasons stated hereinabove, I do not find any substance in the instant writ petition. Consequently, the petition is dismissed. No costs