1. The petitioner, by the present writ petition, challenges the judgment and order dated 28.07.2011 passed by respondent No.2 – Member, Maharashtra Revenue Tribunal, Nagpur, in Tenancy Revision No. TEN/B43/2008, affirming the order dated 16.06.2008 passed by the Sub-Divisional Officer, Yavatmal, in Revenue Appeal No. 4/59(13)/2005-2006, as well as the order dated 26.12.2005 passed by the Tahsildar, Kalamb, in R.C. No. 6/59(13)/1999-2000.

2. The facts, in brief, are that the petitioner's father, Nandkishor, was inducted into possession of agricultural land bearing old Survey No. 62/1, corresponding to new Gat No. 193/2, admeasuring 0.83 Hectare (hereinafter referred to as "the suit land"), which originally belonged to Tulsiram Gopal Chondore, who died in the year 1960. Pursuant to a partition effected on 27.01.1961, the suit land fell to the share of his widow, Wacchalabai, who thereafter became its owner.

3. According to the petitioner, Nandkishor had taken the suit land on lease from the deceased Tulsiram during the agricultural year 1951-52 under the provisions of the Berar Regulation of Agricultural Leases Act, 1951, and consequently acquired the status of a protected lessee under the said enactment. It is further the petitioner's case that Nandkishor continued in possession even after the coming into force of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as "the Tenancy Act, 1958"), as reflected in the crop statements for the years 1960-61 and 1961-62.

4. It is further contended that Nandkishor initiated proceedings before the Additional Tahsildar, Yavatmal, under Sections 46 and 59-A of the Tenancy Act, 1958, seeking conferment of ownership rights. However, upon inquiry, the proceedings were dropped by order dated 31.01.1974 on the ground that the landholder was a widow, thereby postponing the statutory purchase. Nandkishor continued to cultivate the suit land until his death on 02.03.1990, whereafter the petitioner, being his son, continued in cultivation thereof.

5. In the year 1999, the petitioner filed an application before the Tahsildar seeking fixation of the purchase price and conferment of ownership rights in respect of the suit land. By order dated 16.10.2000, the Tahsildar fixed the purchase price. However, in appeal, the Sub-Divisional Officer set aside the said order and remanded the matter for a fresh inquiry. Upon remand, the Tahsildar, by order dated 26.12.2005, dismissed the petitioner's application. The appeal preferred by the petitioner before the Sub-Divisional Officer also came to be dismissed by order dated 16.06.2008, holding that the petitioner had failed to establish that he was cultivating the suit land in the capacity of a tenant.

6. Aggrieved thereby, the petitioner preferred a revision before the Maharashtra Revenue Tribunal. The Tribunal, by the impugned order dated 28.07.2011, dismissed the revision, observing that neither the pleadings nor the evidence disclosed any material establishing that the petitioner or his father had cultivated the suit land as tenants. The Tribunal further observed that although the petitioner's name appeared in the cultivation column of the revenue record (7/12 extract), such entry merely reflected actual cultivation and did not establish the legal status of a tenant. It was further held that the documents produced by the petitioner were insufficient to substantiate his claim of tenancy. Consequently, the Tribunal declined to interfere with the concurrent findings recorded by the authorities below.

7. Being aggrieved by the aforesaid concurrent orders, the petitioner has approached this Court under Article 226 of the Constitution of India.

8. Learned counsel appearing for the petitioner submitted that the petitioner had sought conferment of ownership under the provisions of the Tenancy Act, 1958. He fairly conceded that the authorities had referred to Section 50 of the Act; however, according to him, the provision had been wrongly applied. It was contended that Section 50 would apply only where possession had been delivered after the year 1963, whereas in the present case the petitioner's father had been inducted into possession prior to 1956. Consequently, the provisions of Section 50 were wholly inapplicable.

9. It was further submitted that the principal ground on which the authorities rejected the petitioner's claim, namely the absence of pleadings and evidence demonstrating cultivation as a tenant, is legally unsustainable. According to the learned counsel, the authorities also erred in holding that entries in the revenue record merely establish cultivation and not tenancy. Inviting attention to Section 2(32) of the Tenancy Act, 1958, defining the expression "tenant", and Section 6(1) thereof relating to deemed tenancy, it was argued that the petitioner squarely falls within the ambit of a deemed tenant. In support thereof, reliance was placed upon the Copy of Record of Rights and Crop statement for the years 1960-1961 and 1961-62, produced before the authorities.

10. It was submitted that for claiming the status of a deemed tenant under Section 6(1), the petitioner was only required to establish lawful possession of the suit land, which, according to him, stood sufficiently proved by the documentary evidence. It was further argued that once lawful possession is established, the burden shifts upon the landowner to demonstrate that such possession was not in the capacity of a tenant.

11. Learned counsel further submitted that the only defence raised by respondent No.1 was that the petitioner and his father were cultivating the suit land merely as servants under the supervision of the landowner. According to him, such a defence is wholly unsupported by any evidence. Respondent No.1 failed to establish any employer-servant relationship or supervisory control over the cultivation. Consequently, it was contended that the findings recorded by respondent Nos.2 to 4 that the petitioner had failed to establish his status as a tenant are contrary to law and liable to be set aside.

12. In support of the aforesaid submissions, reliance was placed upon the decisions in Jagan alias Jagannath Umaji v. Gokuldas Hiralal Tewari and Others, 1987 Mh.L.J. 1114, and Jagannath Vithu Jadhav (since deceased) through LRs v. State of Maharashtra , 2013 (2) Mh.L.J. 285.

13. Per contra, learned counsel appearing for respondent No.1 supported the concurrent findings recorded by the revenue authorities. He submitted that the petitioner has failed to specify whether his claim is founded upon Sections 6, 41 or 50 of the Tenancy Act, 1958. It was contended that the petitioner has not discharged the primary burden of establishing that either he or his father was cultivating the suit land in the capacity of a tenant, which is a sine qua non for seeking conferment of ownership.

14. Learned counsel invited the attention of this Court to paragraphs 5 and 6 of the order passed by the Maharashtra Revenue Tribunal, wherein the Tribunal has categorically recorded that neither the pleadings nor the evidence disclose that the petitioner's father, or after his demise the petitioner himself, cultivated the suit land as a tenant. It was submitted that for seeking conferment of ownership and fixation of purchase price under the Tenancy Act, the applicant must specifically plead and establish the existence of a tenancy. In the absence of such foundational pleadings and evidence, the claim was rightly rejected.

15. It was further submitted that mere appearance of the petitioner's name in the cultivation column of the 7/12 extract does not establish the creation or existence of a tenancy. Such entries merely indicate actual cultivation and are not proof of the legal character of possession. The Tribunal has rightly observed that the documentary evidence relied upon by the petitioner does not support his claim of tenancy. It was, therefore, contended that the concurrent findings are based upon proper appreciation of evidence and cannot be said to suffer from perversity or any jurisdictional error warranting interference under Article 226 of the Constitution.

16. Reliance was placed upon the decision in Jaichand Housilal Gujarathi v. Ananda Tanji Patil and Others , 1972 SCC OnLine Bom 14 , wherein it has been held that, in the absence of a specific plea invoking Section 6(1) of the Tenancy Act, no adjudication under the said provision is warranted. It was, therefore, submitted that Section 6(1) cannot be invoked in the absence of necessary pleadings and supporting evidence.

17. In rejoinder, learned counsel for the petitioner contended that the applicability of Section 6(1) raises a pure question of law and can, therefore, be urged at any stage of the proceedings. However, having regard to the observations contained in the judgment of Jaichand Housilal Gujarathi (supra), relied upon by respondent No.1, the said contention of the petitioner cannot be accepted.

18. Learned Assistant Government Pleader appearing for respondent Nos.2 to 4 supported the impugned orders and submitted that all the authorities have concurrently appreciated the pleadings, documentary evidence and rival submissions before arriving at a finding that the petitioner failed to establish the essential requirement of tenancy. It was, therefore, submitted that no case for interference under the writ jurisdiction of this Court is made out.

19. Having heard the learned counsel appearing for the respective parties and having perused the pleadings, documentary material and the impugned orders, the principal question that arises for consideration is whether the petitioner has established that he or his predecessor-in-interest was cultivating the suit land in the capacity of a tenant so as to claim the benefit of the provisions of the Tenancy Act, 1958.

20. The foundation of the petitioner's claim is that his father was inducted into possession of the suit land sometime in the year 1951-52 and that both his father and thereafter the petitioner have continuously cultivated the suit land since then. According to the petitioner, such continuous cultivation coupled with the revenue entries is sufficient to confer upon him either the status of a protected lessee or, in the alternative, that of a deemed tenant under Section 6 of the Act of 1958. This submission cannot be accepted.

21. It is a settled principle of tenancy jurisprudence that the burden of establishing the existence of a jural relationship of landlord and tenant lies squarely upon the person asserting such relationship. Before claiming any statutory benefit under the Tenancy Act, the claimant must establish the foundational facts giving rise to such tenancy. Mere long possession or cultivation, by itself, does not establish tenancy unless it is shown that such possession originated in a lawful tenancy recognised by law.

22. In the present case, although the petitioner asserts that his father was inducted as a lessee under the Berar Regulation of Agricultural Leases Act, 1951, no documentary evidence has been produced to substantiate such induction. Except for the entries showing cultivation, there is no lease deed, rent receipt, tenancy register, mutation entry, order recognising protected leasehold rights or any contemporaneous document evidencing payment of rent or recognition of the petitioner's father as a tenant. Significantly, the petitioner has also failed to produce any material to establish that the alleged tenancy continued after the enforcement of the Tenancy Act, 1958.

23. Equally significant is the deficiency in the pleadings. The petition does not disclose the date or manner in which the tenancy commenced, the person who inducted the petitioner's father as tenant, the agreed terms of tenancy, the rent payable, or the circumstances under which possession of the suit land was delivered. In the absence of these foundational pleadings, the evidence sought to be adduced cannot improve the petitioner's case. It is a settled principle that pleadings constitute the foundation of every claim and no amount of evidence can substitute the absence of material pleadings.

24. The concurrent findings recorded by the Tahsildar, the Sub- Divisional Officer and the Maharashtra Revenue Tribunal clearly demonstrate that the petitioner failed to establish the basic ingredient of his claim, namely that the cultivation was in the capacity of a tenant. The Tribunal has specifically observed that although the petitioner's name appears in the cultivation column of the 7/12 extracts, the revenue entries nowhere describe his status as that of a tenant. The Tribunal further recorded that neither the pleadings nor the oral evidence disclose in what capacity either the petitioner's father or the petitioner himself cultivated the suit land. Such findings are borne out from the record.

25. The submission of the learned counsel for the petitioner that he is entitled to be treated as a deemed tenant under Section 6 of the Act also does not merit acceptance. For the sake of brevity, Section 6 of the Tenancy Act, 1958 is reproduced as hereunder:

                    “6. Persons deemed to be tenants.— (1) A person lawfully cultivating any land belonging to another person 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.

                    (2) For the purposes of this Act, a person shall be recognised to be a protected lessee if such person was immediately, before the commencement of this Act, deemed to be a protected lessee under section 3 of the Berar Regulation of Agricultural Leases Act, 1951.

                    (3) For the purposes of this Act a person shall be recognised to be an occupancy tenant, if such person was immediately before the commencement of this Act deemed or declared to be an occupancy tenant under section 169 of the Code.

                    Explanation.–– A person to whom only the right to cut grass or to graze cattle or to grow singhara (Trapabipinosa) or to propagate or collect lac is granted in any land shall not be deemed to be a tenant for the purposes of this Act.”

Undoubtedly, Section 6 extends the protection of deemed tenancy to a person lawfully cultivating the land of another, provided he does not fall within the excluded categories enumerated therein. However, before invoking Section 6, the claimant must specifically plead and establish the factual foundation necessary for attracting the provision. Whether cultivation is lawful, whether it was otherwise than as a servant, hired labourer or mortgagee in possession, and whether the owner was not personally cultivating the land are all questions of fact requiring proper pleadings and evidence.

26. In Jaichand Housilal Gujarathi (supra), this Court has categorically held that Section 6 does not raise a pure question of law. Unless the necessary factual foundation is pleaded and evidence is led thereon, the Court cannot invoke the doctrine of deemed tenancy for the first time. The said judgment clearly lay down that a finding under Section 6 cannot be recorded dehors the pleadings. The relevant paragraph Nos. 7 and 8 of the said judgment read thus:

                    “7. Clearly the applicants before the Maharashtra Revenue Tribunal had not claimed by their plea that they were lawfully on land belonging to third person and that under Section 6 inquiry should be made. All along their case had been that they were contractual lessees. That case was only investigated and in fact and in law was capable of being investigated upon the plea of the parties. There being no pleą definitely taken as to the application of the provisions of Section 6(1) of the Tenancy Act. No finding was called for under that provision. Both the parties led the evidence in this case on the footing that the point in issue was the ‘contractual’ lease. The Courts of facts had every jurisdiction to scan the evidence and come to the conclusion that the contract as set up was not established. That being the position when the matter came before the Maharashtra Revenue Tribunal, it was not open to the Tribunal to allow the revision on the footing that Section 6(1) of the Tenancy Act was attracted or that the applicants before the Tribunal could be deemed to be the tenants. That finding would be clearly beyond pleadings and not within the scope of issues upon which the parties went to trial. That being the position, the present order passed by the Tribunal is required to be set aside.

                    8. Mr. Kalele argues that Section 6(1) of the Tenancy Act and application thereof is purely a question of law and could be raised at any time. If the provisions of the Tenancy Act are carefully seen, such a proposition cannot be sustained. All the facts which can make a particular provision applicable to a case must be pleaded and the parties must have full notice at the stage of the trial of such a plea. Section 6(11 of the Tenancy Act is not only an application of law which makes a particular person a deemed tenant. Certain basic facts call for enquiry and findings are to be reached on the basis of plea and evidence.”

27. Applying the aforesaid principle to the facts of the present case, it is evident that the petitioner's original case throughout was founded upon an alleged contractual tenancy inherited from his father. There are no specific pleadings setting out the ingredients necessary for claiming deemed tenancy under Section 6. In the absence of such foundational pleadings and evidence, the petitioner cannot be permitted to invoke Section 6 merely as a legal argument at the stage of writ proceedings.

28. The reliance placed upon the decision in Jagannath Vithu Jadhav (supra), is equally misplaced. In the said case, both the tenancy authorities had recorded categorical findings that the predecessor of the petitioner was in cultivation since 1959-60 and the revenue records continuously described him as a tenant from 1960 till 1983. The finding regarding lawful cultivation was thus founded upon long-standing and consistent revenue entries coupled with appreciation of evidence. It was in those peculiar facts that the Court held that the claimants were entitled to be treated as deemed tenants. The relevant paragraphs of the said judgment is reproduced hereunder:

                    “10. The question as to whether a person claiming status of deemed tenant must have been cultivating the land with the consent or under the authority of the owner fell for consideration before the Constitution Bench of the Apex Court in the case of Dahya Lal v. Rasul Mahomed Abdul Rahim (supra). The Constitution Bench of the Apex Court, in unequivocal terms, has observed as under:

                    6. The Act 1948, it is undisputed, seeks to encompass within its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from the land owners but persons who are deemed to the tenants also. The point in controversy is whether a person claiming the status of a deemed tenant must have been cultivating land with the consent or under the authority of the owner. Counsel for the appellants submits that tenancy postulates a relation based on contract between the owner of land, and the person in occupation of the land, and there can be no tenancy without the consent or authority of the owner to the occupation of that land. But the Act has by section 2(18) devised a special definition of tenant and included therein persons who are not contractual tenants. It would therefore be difficult to assume in construing section 4 that the person who claims the status of a deemed tenant must be cultivating land with the consent or authority of the owner. The relevant condition imposed by the statute is only that the person claiming the status of a deemed tenant must be cultivating land "lawfully" : it is not the condition that he must cultivate land with the consent of or under authority derived directly from the owner. To import such a condition it is to rewrite the section, and destroy its practical utility. A person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a "deemed tenant". Persons such as licencees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating land belonging to others, but is cannot be assumed therefrom that they are the only persons who are covered by the section. The Act affords protection to all persons who hold agricultural land as contractual tenants and subject to the exceptions specified all persons lawfully cultivating lands belonging to others, and it would be unduly restricting the intention of the Legislature to limit the benefit of its provisions to persons who derive their authority from the owner, either under a contract of tenancy, or otherwise. In our view, all persons other than those mentioned in cls. (a), (b) and (c) of s. 4 who lawfully cultivate land belonging to other persons whether or not their authority is derived directly from the owner of the land must be deemed tenants of the lands.

                    It can, thus, clearly be seen that the Apex Court in clear terms has held that all persons other than those mentioned in clauses (a), (b) and (c) of section 4, who lawfully cultivate land belonging to other other persons whether or not their authority is derived directly from the owner of the land, must be deemed tenants of the lands. Undisputedly, the present petitioners are neither from the owners family nor the servants nor the mortgagees in possession. As such, the cultivation by the petitioners would not fall in any of the exempted categories and in view of law laid down by the Apex Court they would be deemed to be a tenant in cultivation.

                    11. In that view of the matter, the judgment of Constitution Bench of the Apex which is relied upon by learned counsel for respondent No.2, in fact, supports the case of the petitioners than the case of the respondents.

                    12. Both the tenancy Court as well as SDO on the basis of evidence, which is placed on record by both petitioner as well as respondent No.2, have come to the positive finding that the petitioner is in cultivation of land from 1959-60. It is to be noted that 7/12 extract from 1959-60 onwards show the cultivation of said Vithu who is predecessor in title of the petitioners. The respondent No.2, for the first time, in the year 1983 i.e. almost after a period of 23 years has filed a suit contending therein that said Vithu, who was supposedly an intelligent person, in collusion with revenue authorities got revenue entries recorded showing him to be a tenant. If respondent No.2 was really cultivating the land, it is difficult to believe that he would sit silent from 1960 to 1983. In any case, both the authorities on the basis of material placed on record have held that the predecessor in title of the petitioners was in cultivation of land since 1959-60.”

29. The factual matrix of the present case is materially different. Here, no revenue record describing either the petitioner or his father as a tenant has been produced. The only material relied upon is the cultivation entry in the 7/12 extracts. It is now well settled that an entry showing cultivation by itself neither creates nor proves tenancy. Such entries merely indicate actual cultivation and not the legal character of possession. Therefore, the ratio in Jagannath Vithu Jadhav (supra) has no application to the facts of the present case.

30. Equally, the judgment in Jagan alias Jagannath Umaji (supra), does not advance the petitioner's case since the foundational requirement of establishing lawful cultivation in the capacity of a tenant , as recognised under the Act has not been proved.

31. Though the Tribunal has observed that the authorities below had erroneously referred to Section 50 of the Act, it has rightly held that such erroneous reasoning does not affect the ultimate conclusion. Even assuming that Section 50 was inapplicable, the petitioner could not have succeeded unless he first established his status as a tenant. Since the very foundation of tenancy has not been proved, the question of conferment of ownership or fixation of purchase price does not arise.

32. It is well settled that while exercising supervisory jurisdiction under Articles 226 and 227 of the Constitution, this Court does not act as a Court of appeal to reappreciate evidence merely because another view is possible. Unless the findings recorded by the subordinate Courts are shown to be perverse, based on no evidence or vitiated by patent illegality resulting in miscarriage of justice, interference is not warranted. It is warranted only where the findings are shown to be perverse, based upon no evidence, arrived at by ignoring material evidence, or suffer from manifest illegality or jurisdictional error. No jurisdictional error or perversity has been demonstrated in the present case, so as to warrant interference by this Court.

33. Accordingly, this Court is satisfied that the petitioner has failed to establish, either through pleadings or cogent evidence, that he or his predecessor cultivated the suit land in the capacity of a tenant within the meaning of the Tenancy Act, 1958. Consequently, no right to purchase the suit land or to seek fixation of purchase price could accrue in his favour. The complete absence of documentary evidence assumes considerable importance, particularly when the petitioner claims cultivation for nearly seven decades commencing from the year 1956.

34. The impugned orders passed by the Tahsildar, the Sub-Divisional Officer and the Maharashtra Revenue Tribunal are based upon proper appreciation of the evidence and correct application of the governing legal principles. No ground warranting interference under Articles 226 and 227 of the Constitution of India is made out.

35. The writ petition, being devoid of merit, is accordingly dismissed. Rule is discharged. There shall be no order as to costs.