Oral Judgment:
1 This writ petition takes an exception to the judgment and order dated 15th October, 1991 passed by the learned Member, Maharashtra Revenue Tribunal, Aurangabad in File bearing No. 75/B910.
2 Background facts of the case for filing this writ petition are as follows:
It is the case of the Petitioner that one Vithal s/o Rangrao Lomte was the original landlord bearing Survey No.100/C and 104/C i.e. Gat No.285 admeasuring 9 Hectares, 71 Ares situated at village Hasegaon (Shiradhon), Taluka Kallam, District Osmanabad. Said Vithalrao has one daughter by name Kondabai, who died prior to the death of said Vithal Lomte. Said Vithal Lomte died on 11th December, 1966. The Petitioner is the grand son of said Vithalrao and son of Kondabai i.e. daughter of Vithalrao. The case of the Petitioner is that the deceased Vithalrao executed registered will-deed on 2nd December, 1966 in favour of the Petitioner – Subhash. The Revenue Authority has mutated the name of the Petitioner in revenue record by mutation entry No.27 in the year 1979. It is the case of the Petitioner that, he is the only legal representative of the deceased Vithalrao.
3 The Petitioner filed an application under Section 44(3) read with Section 32 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 on 13th August, 1972 for personal cultivation before the Tahsildar, Kallam, contending therein that, after the death of said Vithalrao, he is the only successor became owner of the suit land and also the will-deed is executed in his favour by the said Vithalrao on 8th December, 1966. Therefore, he requires the disputed land for personal cultivation. Therefore, he issued notices to the tenant and filed an application mentioning the details in respect of income of the family etc.
4 The Respondent – tenant filed his written statement on 27th November, 1978 stating therein that he has no knowledge that deceased Vithalrao has executed a will-deed in favour of Subhash i.e. Petitioner herein. It is further stated that the Petitioner was not the owner of the disputed land when the disputed land was given to the Respondent for cultivation as tenant and the Petitioner was not entitled to claim possession of the disputed land under Section 44(3)(a) of the said Act.
5 The Naib Tahsildar, Kallam, after hearing the parties, was pleased to dismiss the said application by his judgment and order dated 14th January, 1988. Being aggrieved, the Petitioner herein filed an appeal before the Deputy Collector, Land Reforms, Osmanabad. The Deputy Collector, Land Reforms, Osmanabad set aside the judgment and order of the Additional Tahsildar. Being aggrieved, the Respondent – tenant filed a petition before the Maharashtra Revenue Tribunal, Aurangabad. The Maharashtra Revenue Tribunal, Aurangabad by judgment and order dated 15th October, 1991 set aside the judgment and order dated 24th April, 1991 passed by the Deputy Collector, Land Reforms, Osmanabad. Hence, this writ petition.
6 The learned counsel for the Petitioner submits that, the Petitioner herein, who is landlord of the suit property did file the application after he became major. According to the learned counsel for the Petitioner, the application filed by the Petitioner was perfectly maintainable under the provisions of Section 44 of the said Act. In his submission, the Petitioner was born on 23rd August, 1953 and he became major on 23rd August, 1971 and therefore, the application filed by the Petitioner under Section 44(3) read with Section 32 of the said Act on 13th August, 1972 was maintainable. However, the Maharashtra Revenue Tribunal has wrongly rejected the said application. Therefore, relying upon the grounds taken in the writ petition and the annexures thereto, the learned counsel for the Petitioner would submit that this writ petition deserves to be allowed.
7 Though, the Respondent is served, none appears for the Respondent. With the able assistance of the learned counsel for the Petitioner, I have carefully perused the judgment and order passed by the Courts below and I am of the considered opinion that the findings recorded by the Maharashtra Revenue Tribunal in paragraph No.10 needs no interference. At the outset, it is relevant to reproduce hereinbelow the provisions of Sub-Section (2) of Section 44 of the said Act, which reads thus:
“44.
(2) The notice required to be given under sub-section (1) shall be in writing, shall state the purpose for which the landholder requires the land and shall, save as otherwise provided in sub-section (3), be served on the tenant on or before the 31st day of December 1958. A copy of such notice shall, at the same time, be sent to the Tahsildar. An application for possession under Section 32 shall be made to the Tahsildar, on or before 31st day of March 1959.”
8 Upon careful perusal of the said provisions, it is abundantly clear that, the person filing an application under the said provisions, should be the owner prior to the appointed date, which is mentioned in Sub-Section (2) of Section 44 of the said Act. The provisions of Sub-Section (2) of Section 44 of the said Act provides for, notice required to be given in writing, shall state the purpose for which the landholder requires the land and shall, save as otherwise provided in sub-section (3), be served on the tenant on or before the 31st day of December 1958. A copy of such notice shall, at the same time, be sent to the Tahsildar. An application for possession under Section 32 shall be made to the Tahsildar, on or before 31st day of March 1959.
The contention of the learned counsel for the Petitioner is that, the Petitioner herein was minor before the said date since born on 23rd August, 1953 and has become major on 23rd August, 1971 and therefore, the application was maintainable, cannot be accepted. Perusal of Sub-Section (2) of Section 44 of the said Act, would make it clear that such notice can be given only by the owner / landholder. It is an admitted position that, before 31st December, 1858 the Petitioner herein was not the owner of the suit land. The will-deed is executed by the original landholder in favour of the Petitioner in the year 1966, and mutation entry in revenue record showing the Petitioner as owner is taken in the year 1979. Therefore, in my considered opinion, the view taken by the Maharashtra Revenue Tribunal is inconsonance with the provisions of Section 44 of the said Act. The Maharashtra Revenue Tribunal in paragraph No.10 has elaborately discussed the provisions and also factual position in the matter and reach to the correct conclusion. Therefore, the writ petition deserves not consideration. Accordingly, the writ petition stands dismissed. Rule stands discharged.