1) By this Petition, Petitioners have challenged the judgment and order dated 30 December 2019 passed by the learned Member (Judicial), Maharashtra Revenue Tribunal, Pune, (MRT) dismissing their Revision Application and confirming the order passed by the Sub Divisional Officer, Pune on 16 May 2016.

2) The Sub Divisional Officer (SDO) in turn had dismissed the Appeal preferred by Petitioners and confirmed the order of Tahasildar dated 5 January 2016 setting aside Mutation Entry No.2057. In short, the tenancy claim of the Petitioners in respect of concerned agricultural lands has been negatived concurrently by Tahasildar, SDO and MRT.

3) Briefly stated, facts of the case are that the lands bearing old Survey No.106/2017 (new Gat No.552), old Survey No.106/2013 (new Gat No.538), old Survey No.100 and 101(new Gat No.495), old Survey No.86/1/2,3,4,5 (new Gat No.452) and old Survey No.106/3 (new Gat No.554) at Village -Nimgaon-Mhalunge, Taluka-Shirur, District-Pune are subject matter of the Petition, which are hereinafter referred to as the ‘suit lands’. The suit lands were originally owned by Shankar Kisangir Gosavi, who passed away on 26 November 1931, leaving behind his wife-Parvatibai Shankar Gosavi (Parvatibai) and son-Dattu. Dattu passed away in the year 1934 and accordingly name of Parvatibai Gosavi was mutated in respect of the suit lands. Partvatibai had two brothers Kashinath and Gyanba. On 18 January 1945, Parvatibai adopted her brother-Gyanba and changed his name as Raghunathgir Shankargir Gosavi (Raghunath). Accordingly, Raghunath became heir of Paravatibai in his capacity as adopted son. Parvatibai’s brother-Kashinath Shivram Bharati (Kashinath) claimed tenancy rights in respect of lands on the strength of his cultivation as on tiller’s day of 1 April 1957. He filed application under Section 32G of the Maharashtra Tenancy and Agricultural Lands Act, 1948 (Tenancy Act) before the Tahasildar and Agricultural Lands Tribunal (ALT), which was registered as Tenancy Case No.98 of 1993. The ALT accepted the tenancy claim of Kashinath and proceeded to fix the purchase price in respect of suit lands vide order dated 30 July 2002. The ALT’s order dated 30 July 2002 was challenged by the heirs of Raghunath viz., Laxman, Kundlik and Anusaya before the SDO, Maval. The SDO proceeded to allow the Appeal partly and set aside ALT’s order dated 30 July 2002 and remanded the proceedings for fresh enquiry before ALT. In the meantime, Kashinath passed away and his heirs preferred Revision Application No. 95 of 2016 before MRT challenging the remand order of SDO dated 28 November 2005.

4) During pendency of the Revision before the MRT, the ALT proceeded to conduct fresh enquiry in pursuance of remand order made by the SDO. The ALT passed detailed order dated 4 January 2016 declining the tenancy claim of Kashinath and his heirs and set aside Mutation Entry No.2057 effected in respect of the suit lands on account of the first order of ALT dated 30 July 2002. The ALT however, directed that its order was subject to pending revision before the MRT.

5) The Petitioners (heirs of Kashinath) preferred Appeal No.52 of 2016 before the SDO, Maval challenging ALT’s order dated 4 January 2016. By order dated 16 May 2016, the SDO proceeded to dismiss the Appeal of the Petitioners. Petitioners preferred revision before the MRT challenging the order of the SDO. By judgment dated 30 December 2019, MRT proceeded to dismiss the Revision preferred by the Petitioners. Aggrieved by orders passed by the ALT, SDO and MRT, Petitioners have filed the present Petition.

6) Mr. Anturkar, the learned Senior Advocate appearing for the Petitioners has submitted that the ALT, SDO and MRT have grossly erred in rejecting the tenancy claim of Kashinath solely on the ground that he is brother of landlady- Parvatibai. He submits that brother of married Hindu lady does not fit into expression ‘member of owner’s family’ used in Section 4(1)(a) of the Tenancy Act. That the law recognises and permits a relative to cultivate the land as a tenant. That a brother is not always member of family of a married sister, who resides separately and has her own family. That in the present case, Parvatibai was married to Shankargir and had son Dattu and later adopted Gyanba (Raghunath). That therefore Parvatibai, her husband, son and adopted son formed a ‘family’ and it cannot be contended that her brother -Kashinath residing separately with his family would be a part of her family. It is only in a case involving widowed sister returning to her matrimonial family for residence can be treated as part of same family unit. However, sister residing separately with her own family members can allow brother to cultivate the land in capacity as tenant. He relies on judgment of Division Bench of Gujarat High Court in Bai Pirojabai w/o. Pestanji V/s. Gujarat Revenue Tribunal(Special C.A. No.15 of 1962, decided on 19 April1963.) in support of his contention that a brother under Section 4 of Tenancy Act can be a tenant.

7) Without prejudice to the contention that Kashinath was not member of owner’s family under Section 4(1)(a) of the Tenancy Act, Mr. Anturkar submits that Kashinath was otherwise a protected tenant under provisions of Section 4A of the Tenancy Act. He relies on findings recorded by the SDO in the order dated 28 November 2005 that name of Kashinath was mutated as ‘protected tenant’ in respect of land bearing Survey No.100 and 101 (Gat No.495). He would therefore submit that Kashinath was entitled to purchase at least the land bearing Gat No.495.

8) Mr. Anturkar further submits that provisions of Section 32F of the Tenancy Act do not apply to the present case since adopted son- Raghunath was major as on tiller’s day of 1 April 1957, whose age was 30 years. That therefore there was no necessity of giving notice of purchase either to Parvatibai or to her adopted son. That the ALT, SDO and MRT have grossly failed to appreciate the above position and have erroneously rejected the tenancy claim of the Petitioners.

9) Mr. Dani, the learned Senior Advocate appearing for the Respondents would oppose the Petition submitting that concurrent findings of fact have been recorded by ALT, SDO and MRT, which do not warrant any interference in exercise of jurisdiction under Article 227 of the Constitution of India. He submits that Kashinath was brother of Parvatibai and his claim of tenancy has rightly been negatived by the two authorities and by the Tribunal. He further submits that the Petitioners are arguing case before this Court contrary to the pleaded case before the ALT wherein the very ownership of Parvatibai was questioned by the Petitioners. That it was never pleaded case of the Petitioners that Kashinath was a statutory tenant even in respect of land bearing Gat No.495. Petitioners never pleaded that tenancy was created before 1945. That all 7/12 extracts indicate mutation of name of Kashinath after the year 1950. That therefore there is no question of Kashinath being a protected tenant under Section 4A of the Tenancy Act. That the case involves permissive cultivation of land by the sister through brother, who can never claim status as tenant under the Tenancy Act.

10) Mr. Dani further submits that MRT has recorded finding of fact that Parvatibai had retained land bearing Gat Nos.452 and 495 for her own livelihood and that therefore purchase notice to her under Section 32F was mandatory. Mr. Dani would accordingly pray for dismissal of the Petition.

11) Rival contentions raised on behalf of the parties now fall for my consideration.

12) The battle to claim rights in the lands is essentially between the two brothers- Kashinath and Raghunath and after their deaths, between their legal heirs. Though Kashinath and Raghunath are real brothers, Raghunath later became adopted son of Parvatibai and became entitled to inherit ownership in respect of the suit lands. Thus, the relationship between Kashinath and Raghunath has changed after Ragunath’s adoption and Kashinath has become the uncle of Raghunath.

13) As observed above, the lands were originally owned by Shankar, who was Parvatibai’s husband. Shankar and Parvatibai had son named Dattu. Shankar Passed away on 16 November 1931. Dattu passed away in 1934. This is how Parvatibai became the sole owner in respect of the suit lands. Her inheritance of the lands is from her husband’s family and nor from her father’s family. She had two brothers- Kashinath and Gyanba, who ordinarily had no right to inherit the lands of Parvatibai as class-I heirs. A slightly unusual event has occurred in the present case, where Parvatibai decided to adopt her own brother-Gyanba on 15 January 1945 and named her as Raghunath after adoption. Since Gyanba(Raghunath) was adopted by Parvatibai vide registered Deed of Adoption, he became entitled to succeed to the estate of Shankar and Parvatibai, which includes the suit lands. It appears that some of the lands were permitted by Parvatibai to be cultivated by the other brother Kashinath. Kashinath therefore claims tenancy and consequently ownership rights in the respect of the suit lands. This is how the two brothers Kashinath and Raghunath claim rights in respect of lands of their sister-Parvatibai. While Ragunath claims ownership through succession as Parvatibai’s adopted son, Kashinath claims rights as tenant.

14) However Kashinath did not contemporaneously claimed tenancy rights in the lands immediately after the year 1957. It appears that the the directions issued by Collector in the year 1993 became the trigger point for dispute between Kashinath and Raghunath. The Collector issued direction in the year 1993 for examining whether void entries of tenants continued to be reflected in the revenue records of lands in the village-Nimgaon-Mhalunge. The order of MRT records that if such verification was not directed, there would have been no dispute between the parties. It appears that Kashinath never filed any proceedings upto the year 1993 claiming tenancy rights in respect of land in question. He staked claim of tenancy for the first time in the year 1993.

15) In the Tenancy Case No.98 of 1993 initiated by Kashinath, his statement was recorded through his constituted attorney, who claimed that all the suit lands were in cultivation of Kashinath since the year 1947. The ALT accepted the case of Kashinath on the basis of entries in revenue records of Kashinath cultivating the lands (Mutation Entry Nos.1553 dated 26 October 1952, 1345 dated 5 January 1950, 1380 dated 5 January 1950). Accordingly, the ALT proceeded to fix the purchase price of the suit lands by order dated 30 July 2002. Mutation Entry No.2057 was certified on 21 October 2002 for giving effect to ALT’s order dated 30 July 2002 and name of Kashinath was mutated as owner in respect of the suit land in pursuance of 32M certificate issued after payment of the purchase price.

16) In the Appeal preferred by the heirs of Raghunath, the SDO remanded the proceedings for fresh enquiry on the ground that the Respondents (heirs of Raghunath) did not receive proper opportunity of hearing before the ALT. SDO’s order dated 28 November 2005 was challenged before the MRT by filing Revision No.95 of 2006 by heirs of Kashinath. However, it appears that there was no stay to the order of the SDO and accordingly, Tahasildar/ALT proceeded to conduct fresh enquiry into the tenancy claim of Kashinath by giving opportunity of hearing to the Respondents.

17) In the remanded proceedings, the ALT found that in respect of land bearing new Gat No.452 admeasuring 12 Hector 36 R + pot Kharaba 1.69 R, the owner was Dattu and after his death, Mutation Entry No.708 dated 26 October 1952 was effected mutating name of his mother Parvatibai as the owner. Thereafter further Mutation Entry No.2594 dated 21 August 1965 was certified in respect of land bearing Gat Nos.452 and 455 to the effect that name of Parvatibai was void and actual possession was with Raghunath Shankar Gosavi. Another Mutation Entry No.1758 dated 23 November 1956 indicated name of Kashinath as ordinary tenant from 1954-55. The ALT further found that though name of Kashinath was mutated in respect of lands bearing Gat No.452 and 455 as ordinary tenant, the owner was Parvatibai since she was a widow, Kashinath did not have right to purchase her land as provisions of Section 32F of the Tenancy Act applied to the said lands. SDO further held that in respect of land bearing Gat No.552, 538, 554 and 537, there was no entry of Kashinath as tenant but Mutation Entry No.1553 dated 29 September 1965 effected in consolidation in 1966-67 name of Kashinath surfaced as a tenant. However, there was no evidence of Kashinath of cultivation as tenant as on tiller’s day of 1 April 1957. This is how ALT, by Order dated 5 January 2016, proceeded to reject the tenancy claim of Kashinath in respect of all the suit lands bearing Gat Nos.452, 495, 552, 538, 554 and 537. Accordingly, the Mutation Entry No.2057 effected on the basis of previous order of the ALT was set aside.

18) The SDO has upheld the order of ALT by his order dated 16 May 2016. When the proceedings reached in Revision before the MRT, the Tribunal took note of relationship between the parties. It took note of the fact that while executing the Adoption Deed, Parvatibai retained land bearing Gat Nos. 452 and 495 for her own livelihood and gave away the balance lands (Gat Nos.552, 538,554 and 537) to her adopted son Raghunath (Gyanba). Since lands bearing Gat Nos.452 and 495 were retained by Parvatibai for herself, no right enured in Kashinath to claim tenancy in respect of widow’s land on account of application of provisions under Section 32F of the Tenancy Act.

19) As observed above, the ALT has recorded a finding of fact that in respect of balance land bearing Gat Nos.552, 538, 554 and 537, the name of Kashinath surfaced as a tenant only while effecting consolidation scheme in 1966-67 vide Mutation Entry No.1553 on 29 September 1965. There is no other record or Mutation Entry showing personal cultivation of Kashinath in respect of the said lands bearing Gat Nos.552, 538, 554 and 537 on the tiller’s day of 1 April 1957.

20) The MRT has considered an additional factor of impermissibility to claim tenancy right by Kashinath in respect of land bearing Gat Nos.452 and 495 or even in respect of remaining lands bearing Gat Nos.552, 538, 554 and 537 on account of relationship between Parvatibai and Kashinath as siblings. Under the provisions of Section 4 of the Tenancy Act, a person lawfully cultivating any land belonging to other person is deemed to be a tenant, if the land is not cultivated personally by the owner. Section 4, thus, creates a deeming fiction of tenancy in absence of existence of any document creating tenancy. However, the deeming fiction has an exception where cultivation by a family member does not result in deeming fiction of tenancy. If cultivation is by a member of owner’s family or by servant or mortgagee, such cultivation does not result into deeming fiction of tenancy. Relevant part of Section 4 of the Tenancy Act reads thus:

                   4. Persons to be deemed tenants.

                   (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) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, or

                   (c) a mortgagee in possession.

21) Mr. Anturkar has sought to contend that brother of a married sister staying separately would not fit into definition of expression ‘a member of owner’s family’ appearing in Section 4(1)(a) of the Tenancy Act. He has relied upon judgment of the Division Bench of Gujarat High Court in Bai Pirojabai (supra). In the case before the Gujarat High Court, Petitioner therein was a married sister of Respondent Nos.2 to 4 and always resided with her husband in Mumbai. In 1944, the land was purchased in her name but the land was cultivated on her behalf by her father till his death in 1948. Later, the cultivation was done by her brothers (Respondent Nos.2 to 4). She claimed that her brothers were not tenants but were occupying the land as vahivatdars and prayed for deletion of entry of their names as tenants. On the other hand, the case of her brothers was that purchase price for purchase of the land in favour of the Petitioner was out of income of brothers and father and they were the real owners. In the light of these peculiar facts the Division Bench of Gujarat High Court held that it was permissible for the brothers to raise alternate pleas of ownership and tenancy. The High Court further found that Mutation Entry No.127 was entered the name of Petitioner’s father as protected tenant. It was observed that after Petitioner purchased the land, she did not make any efforts for deletion of name of her father as the protected tenant. It is in the light of these peculiar facts, where father’s name was already reflected in the land as protected tenant that the Division Bench of Gujarat High Court upheld the position of brothers being treated as tenants under Section 4 of the Tenancy Act notwithstanding the fact that the land fell in the ownership of the sister. The judgment therefore cannot be read in support of an abstract proposition that in every case where brother cultivates land of sister, the brother can always claim tenancy. It would all depend on facts circumstances of each case.

22) In the present case, Parvatibai had lost her husband in the year 1931 and thereafter her son-Dattu, in quick succession in 1934. In such circumstances, permission by her for cultivation of land on her behalf by her brother Kashinath cannot be ruled out. The issue is whether there was any intention to create tenancy by the sister in favour of brother? The answer would be in the negative. A widow permitting her real brother to look after her lands, does not intend to create tenancy in faour of the brother. Section 4 of the Tenancy Act seeks to create a deeming fiction of tenancy in absence of any proof such as rent agreement, rent receipt, etc and presumes tenancy on the basis of mere cultivation. However the Legislature was careful in ensuring that the relatives, servants and mortgagees do not take undue advantage of the deeming fiction and has therefore excluded those three categories from being treated as deemed tenants. In a given case, it is possible that a sister inducts her real brother as a tenant to cultivate the land. However in such circumstance, the brother must produce proof of creation of tenancy in the form of tenancy agreement or rent receipts. A real brother cannot be permitted to take advantage of mere possession or cultivation for setting up a tenancy claim against his own sister. This is particularly true when the sister is a widow. If Parvatibai’s husband was alive, he would have possibly not let Kashinath to cultivate the land. This is a reason why Section 32F creates a special exception in case of a widow landlady. The exceptional provision ensures that no person takes advantage of the lady being widow and takes away lands from her. The Legislature also ensures that the widow gets to own and cultivate the land during her lifetime and unscrupulous persons do not take away lands from her taking benefit of her status as a widow. In the present case also, Parvatibai was a widow and had also lost her son Dattu. Therefore there is every possibility of her brother Kashinath helping her in cultivating the lands. The Legislature has intended that a family member who is permitted to cultivate the land is not conferred status of a deemed tenant. If the family member cultivates the land as a tenant, he/she must produce evidence of creation of tenancy and cannot rely on deeming fiction.

23) In the present case, Parvatibai took Gyanba (Raghunath) in adoption in 1945. She kept two lands for her own livelihood and gave rest of the lands to her adopted son. Therefore, there can be no intention of creation of tenancy in favour of her own brother. Therefore, reliance by Mr. Anturkar on judgment of Bai Pirojabai w/o. Pestanji (supra) is inapposite as the judgment is rendered in peculiar facts of that case where the father was already a protected tenant in respect of the land prior to its purchase and the lady always stayed at Mumbai while the bothers cultivated the land after the demise of the father. The case also did not involve case of a widow landlady.

24) I am also not impressed by the submissions canvassed on behalf of the Petitioners that the word ‘family’ under Section 4(1) (a) of the Tenancy Act cannot be understood in general context of family and that for the purpose of that provision, the term ‘family’ would only include husband, wife and their children. In the present case, there is nothing on record to indicate that the Parvatibai was residing at a far-off place as was the case in Bai Pirojabai w/o. Pestanji (supra) where she used to reside in Mumbai whereas the land was in the State of Gujarat. Also, Parvatibai was a widow, and it was but natural that she might have taken some assistance from her brother Kashinath. Therefore, in the facts of the present case, Parvatibai and Kashinath can be treated as a ‘family’ for the purpose of application of provisions of Section 4(1)(a) of the Tenancy Act. In the facts of the present case, Kashinath being a member of family of Parvatibai, he cannot be treated as a deemed tenant in respect of any of the lands under Section 4 of the Tenancy Act.

25) So far as contention raised by Mr. Anturkar that Kashinath was also a protected tenant in respect of the land bearing Gat No.495 is concerned, the same is without any substance. The contention is raised on the basis of Mutation Entry No.1553 dated 26 October 1952 showing reflection of name of Kashinath as the protected tenant of Parvatibai. SDO in the remand order noted existence of Mutation Entry No.1553 and had accordingly directed conduct of detailed enquiry in the matter. In the remanded proceedings, the ALT took note of said Mutation Entry No.1553 dated 26 October 1952. However, ALT took note of the fact that Parvatibai was a widow as on 1 April 1957 and therefore Kashinath did not have right to purchase even land bearing Gat No.495 on account of application of provisions of Section 32F of the Tenancy Act. Therefore, reliance on stray mutation entry No. 1553 by Petitioners does not enure to their benefits.

26) Thus the tenancy claim of Kashinath has rightly been declined by the ALT, SDO and MRT. In respect of lands bearing Gat Nos.552, 538, 554 and 537 there are no mutation entries showing Kashinath’s personal cultivation as on the Tiller’s Day of 1 April 1957. In respect of the lands bearing Gat Nos.452 and 495, they were retained by Parvatibai, who was a widow attracting the provisions of Section 32F of the Tenancy Act.

27) In my view, a detailed enquiry has been conducted by the ALT and SDO while declining tenancy claim of Kashinath. The findings recorded by the ALT and SDO have been confirmed in Revision by the MRT. No element of perversity can be traced in the findings recorded by ALT, SDO and MRT. This Court is otherwise satisfied that the ultimate conclusions reached are that Kashinath can never be tenant in respect of suit lands. The jurisdiction of this Court under Article 227 of the Constitution of India is both supervisory and corrective and is to be broadly exercised to ensure that the Courts and authorities stay within their jurisdictional limits. In exercise of such jurisdiction, it is not necessary that this Court must correct every error of law or fact. So long as this Court is satisfied that the ultimate conclusion reached by the authorities is correct, it is not necessary that the powers under Article 227 of the Constitution of India must necessarily be exercised just because Petitioner is in a position to demonstrate some stray error of law or fact in the impugned orders. Reference in this regard can be made to Garment Craft V/s. Prakash Chand Goel((2022) 4 SCC 181) in which it is held in paragraph 15 as under:

                   15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

28) Considering the overall conspectus of the case, I do not find any valid reason to interfere in the concurrent findings recorded by ALT, SDO and MRT. Writ Petition must fail. It is accordingly dismissed without any order as to costs.

29) After the judgment is pronounced, the learned counsel appearing for the Petitioner requests for continuation of stay granted by this Court vide order dated 11 February 2020. The request is opposed by Mr. Dani. Stay granted by this Court shall continue to operate for a period of eight weeks.