1. Rule. Rule made returnable forthwith. Heard finally by the consent of the parties.

2. By way of present petition the petitioners assail order dated 13/09/2019 passed by learned President, Maharashtra Revenue Tribunal, Mumbai in Tenancy Revision No.63/B/2012, whereby the revision filed by the petitioner was dismissed and the order dated 27/09/2012 passed by Sub Divisional Officer, Pachora in Tenancy Case No.130/2005 was confirmed.

3. Learned counsel for petitioners Mr. Paresh Patil submits that the land Gut No.1/B/2 and land Gut No.1/B, Old Survey No.40 situated at Tarwade (Bk), Taluka Chalisgaon, District Jalgaon was originally owned by Krishnarao Shivram Pawar. The said land was given for cultivation on tenancy basis of Rs.100/- to Dhondu Supdu Teli, who was protected tenant of the suit land. Mutation Entry No.781 was recorded to that effect in the record of rights. Grandfather of petitioner Nos.1-A to 1-D was cultivating the said land as a protected tenant and after his death his sons Damu Dhondu Teli and Namdeo Dhondu Teli, father of petitioner Nos.1-A to 1-D, were recorded as legal heirs of Dhondu Teli in the suit land and they cultivated the land as protected tenant. As the suit land is Class-6B Patil Inam land and to that effect Mutation Entry No.1743 was taken, there was prohibition to transfer the said land. Despite the prohibition, after death of husband of petitioner No.1 and father of petitioner Nos.1-A to 1-D, by taking advantage of the fact that the present petitioners were minors original owner Krishnarao Shivram Pawar sold the said land in favour of father of respondent No.1 without obtaining prior permission of the competent authority. While recording Mutation Entry No.1959 pursuant to the said transaction, the revenue authorities have clearly mentioned that ‘permission was not taken prior to the sale transaction and the sale transaction is against the law’. Therefore, the petitioners filed Tenancy Case No.130/2005 under the provisions Section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 for recovery of possession of the suit property.

4. After hearing both the parties the Sub Divisional Officer, Pachora has dismissed the Tenancy Case No.130/2005 observing that the name of Namdeo Dhondu Teli was recorded as a protected tenant in the year 1952-1953. The suit land is Inam land of Class-6B. Mutation Entry No.1753 shows that the said Inam Land is returned to the owner and Mutation Entry No.1835 is recorded to that effect on 02/03/1965. It is further stated that, in the year 1968-1969 the entry in other rights column shows that name Namdeo Dhondu Teli and his legal heirs was removed for not having right in the suit land. The Sub Divisional Officer, without considering the fact that the said land was recorded as Class-6B Inam land, rejected the application filed by petitioners. Being aggrieved and dissatisfied with the same, petitioners filed Revision before the Maharashtra Revenue Tribunal, Mumbai. The Tribunal allowed the said Revision vide it’s order dated 13/08/2018. Being aggrieved by the same respondent No.1 filed Writ Petition No.32/2019, wherein this Court vide order 24/07/2019 directed the Tribunal fresh hearing of the matter. After remand the Tribunal decided the matter and dismissed the Revision filed by petitioners and confirmed the order dated 27/09/2012 passed by the Sub Divisional Officer, Pachora.

5. Learned counsel for petitioners submits that, the forefather of petitioners was already a protected tenant and without obtaining prior permission from the concerned authorities, sale deed was executed by the original owner in favour of father of respondent No.1. Petitioners were dispossessed from the suit land and respondents are unauthorisedly occupying the land on which tenancy was already created. Therefore, the application under Section 84 was filed, but the Tribunal has not considered the same. He submits that there is no time limit prescribed for filing the application under Section 84, therefore, the application filed by petitioners even after 36 years is maintainable. The Tribunal has not considered the same. Therefore, the impugned orders passed by the Maharashtra Revenue Tribunal, Mumbai and the Sub Divisional Officer, Pachora are liable to be quashed and set aside. In support of his contentions, learned counsel for petitioners has relied upon the order passed by this Court in Writ Petition No.5561/2022 [Ashokrao Ganpati Ghatge and Others Vs. Shri. Madhavrao Ramchandra Ghatge] as well as the order passed by this Court in Nivrutti Daji Narake and Another Vs. Janabai w/o Piraji Narake and Another, reported in 2005(1) Mh.L.J. 288, wherein it is held that,

                   “4. Viewed in this perspective, the Tenancy Authority ought to have relegated the parties to take recourse to appropriate remedy as may be permissible, but the mischief cannot be remedied by invoking the summary eviction action under Section 84 of the Act. If any other appropriate proceedings are taken out by the respondents, the same will have to be decided on its own merits, in accordance with law.”

6. Per contra, learned counsel for respondent No.1 Mr. Vijay P. Latange submits that as there is no record to show that father of petitioner Nos.1-A to 1-D and husband of petitioner No.1 was declared as a protected tenant. Pursuant to the revenue entries the land was purchased by respondent No.1. As per the contention of petitioners, they were already dispossessed and therefore, application filed under Section 84, that too after a period of 36 years, was not maintainable. He submits that as per the lease deed dated 16/05/1991, land Survey No.40 (New Gut Nos.1/B/1 and 1/B/2) was given on lease to one Damu Dhondu Teli and on that basis his name was recorded. Subsequently, in the year 1954-1955 in the cultivation column, along with the original leaseholder name of Namdeo Dhondu Teli was entered. Therefore, Namdeo Dhondu Teli was not a leaseholder. Lease was neither executed in favour of Dhondu Teli nor in favour of Namdeo Dhondu Teli. The original leaseholder Damu Dhondu Choudhari was alive till 10/02/2021, still he was not added as a party to the proceedings.

7. He submits that name of Dhondu was recorded as a tenant in the land Survey No.40 vide M.E. No.781 on 12/09/1947, which was deleted as per the order of Collector vide M.E. No.948 on 27/12/1949 and on 24/07/1956 it was again reinstated as per the orders of Mamaledar vide M.E. No.1388 holding that the Tenancy Act is applicable to the Patil Inam lands. The land Survey No.40 along with other lands was mutated in the name of Krushnarao Pawar as owner of the land, on 10/02/1956 vide M.E. Nos.1380 and 1389. As per the provisions of Maharashtra Revenue Patil (Abolition of Office) Act, 1962 all Patil Inam lands were abolished, therefore, the land Survey No.40 was also abolished vide M.E. No.1753 on 27/02/1964. The said land was regranted to the original owner and accordingly occupancy rights were allotted vie M.E. No.1835 on 21/05/1965, by depositing occupancy price of Rs.128.28/-. During inquiry under Section 32(G) of the Maharashtra Tenancy and Agricultural Lands Act, 1948 rights of tenants i.e. Namdeo Dhondu and his heirs were terminated and proceedings were dropped as tenants failed to purchase the land, thereby regranting the said land to Krushnarao Pawar, by depositing Nazarana amount of Rs.213.80/- on 25/03/1964. Accordingly the land was regranted to owner vide M.E. No.1946 on 14/06/1967. The said land was purchased by father of respondent No.1 for sale consideration of Rs.2000, on 01/04/1969 and accordingly M.E. No.1959 was recorded to that effect which shows that there is no tenant in the said land and no fragment is created.

8. Learned counsel for respondent No.1 further submits that the Sub Divisional Officer has rightly rejected the application filed by petitioners and the same was confirmed by the Maharashtra Revenue Tribunal. In support of his contention he has relied on the law laid down by the Apex Court in Mohammad Kavi Mohammad Amin Vs. Fatmabai Ibrahim, reported in AIR Online 1996 SC 209, wherein it is held that,

                   “2. Although Mr. Bhasme, learned counsel appearing for the appellant took a stand that under Section 63 of the Act aforesaid, there should not be any discrimination amongst the agriculturists with reference to the State to which such agriculturist belongs. But according to him even without going into that question the impugned order can be set aside on the ground that suo motu power has not been exercised within a reasonable time. Section 84-C of the Act does not prescribe any time for initiation of the proceeding. But in view of the settled position by several judgments of this Court that wherever a power is vested in a statutory authority without prescribing any time-limit, such power should be exercised within a reasonable time. In the present case the transfer took place as early as in the year 1972 and suo motu enquiry was started by the Mamlatdar in September 1973. If sale deeds are declared to be invalid the appellant is likely to suffer irreparable injury, because he has made investments after the aforesaid purchase. In this connection, on behalf of the appellant reliance was placed on a judgment of Justice S.B. Majmudar (as he then was in the High Court of Gujarat) in State of Gujarat v. Jethmal Bhagwandas Shah [Spe. WA No. 2770 of 1979] disposed of on 1-3-1990, where in connection with Section 84-C itself it was said that the power under the aforesaid section should be exercised within a reasonable time. This Court in connection with other statutory provisions, in the case of State of Gujarat v. Patil Raghav Natha and in the case of Ram Chand v. Union of India [1994 (1) SCC 44] has impressed that where no time-limit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. We are satisfied that in the facts and circumstances of the present case, the suo motu power under Section 84-C of the Act was not exercised by the Mamlatdar within a reasonable time.”

9. He has further relied upon the law laid down by this Court in Smt. Radhabai Balkrishna Deshpande Vs. Babu Dhondu Shewale, reported in (2000) 2 MAHLR 697, wherein it is held that,

                   “11. Having gone through the record and considered the rival contentions, I would prefer to first deal with the contention regarding the validity of the proceedings under Section 32-G and 32-P of the Act. The law requires, and, in fact, casts duty on the tenancy authority to initiate proceedings for determination of the purchase price of the land to be paid by the tenant after the tiller's day. However, the right of a tenant of a disabled landlord to purchase is postponed on account of section 32-F of the Tenancy Act till the disability is removed. In other words, what is postponed is the tenant's right to purchase the land as a deemed purchaser due to the disability of the landowner, just as in the given case the landlady was a widow on the tiller's day, i.e., 1-4-1957. So long as the tiller's day is not matured, the tenant does not become a deemed purchaser of the land and his liability to pay the purchase price to be fixed by the authorities within the stipulated time would not arise, in which case, he continues to be the tenant in the suit land. There is no provision in the Tenancy Act which prohibits a tenant from relinquishing or surrendering the suit land. No doubt, procedure for surrender is provided for in section 15 of the Tenancy Act. In other words, the Act permits a tenant to determine his tenancy by opting to surrender the land.

                   12. In the present case, the tenant not only appeared before the tenancy authorities in section 32-G proceedings and made a voluntary statement that he was not interested in purchasing the suit land, but also voluntarily handed over physical possession of the suit land in the proceedings taken out under section 32-P of the Tenancy Act. In substance, the tenant surrendered his tenancy rights in respect of the suit lands and also handed over possession thereof to the petitioner No. 1-landlady. After the possession was acquired, the petitioner-landlady entered into a transaction to sell the suit land in favour of petitioner No. 2. All this was done in the presence and with the full knowledge of the respondent-tenant and at no point of time did the respondent-tenant take any exception to the said transaction. On the other hand, he alongwith his brother acted as a witness during the execution and registration of the said document. Furthermore, the tenant purchased portion of land from the petitioner No. 2 by a registered sale deed. If all these facts are taken into account, it is absolutely unbelievable that the tenant had not voluntarily surrendered the land and to have relinquished all the rights that of a tenant therein. In the circumstances, it is too late in the day for the respondent to now challenge the decision rendered in the proceedings under section 32-G and section 32-P of the Tenancy Act, especially when they have not only acquiesced of the said proceedings by not challenging the same but acted upon it by purchasing a part of the suit land admeasuring 1 Acre and 20 Rs. in January 1964 from petitioner No.2. Moreover, the challenge regarding the validity of proceedings under sections 32-G and 32-P is sought to be raised by the tenants by way of assailing the impugned decision of the Tribunal dated 22-4-1983 in the writ petition filed on 8-2-1990. There is absolutely no explanation to justify such a belated action. Accordingly, I accept the stand taken by learned Counsel for the petitioners that the writ petition preferred by the respondent-tenant deserves to be dismissed, not only on the ground of laches but because the respondents are estopped from challenging the correctness and validity of section 32-G and 32-P of the Tenancy Act by way of present writ petition.”

10. Considering the arguments advanced by both the parties and after going through the record, there is no dispute that the petitioners were dispossessed from the suit land. Registered sale deed was executed in the year 1969 and from then they were not in possession of the suit land. The suit land is Inam land of Class-6B and it was regranted to it’s original owner as per the provisions of Maharashtra Revenue Patels (Abolition of Offices) Act, 1962. Therefore, is no merit in the contention of petitioners that they were dispossessed from the suit land. Petitioners were not in possession of the suit land at the time of inquiry regarding rights of tenants under Section 32(G) of the Maharashtra Tenancy and Agricultural Lands Act, 1948. As per the record, predecessor of original owner handed over possession to respondent No.1. Petitioner was neither in possession of tenanted land nor was he forcibly evicted from the same. In fact, petitioner failed to exercise his right to purchase the said land and therefore, the Tribunal dropped proceedings under Section 32(G). Hence, the land was surrendered to the original owner and M.E. No.1946 was recorded to that effect. The inquiry was concluded in the year 1964 and pursuant to that Nazarana was also deposited on 25/03/1964. Namdeo died in the year 1967 and he was alive at the time of inquiry under Section 32(G). Hence, the tenant – landlord relation was terminated in the lifetime of tenant only and his legal heirs i.e. petitioners have filed the application under Section 84 after a period of 36 years.

11. Contention of petitioners as far as sale deed executed in favour of father of respondent No.1 being illegal is concerned, the same was executed after regrant of the suit land to original owner. M.E. No.1959 was sanctioned to that effect on 28/05/1971. Hence, there is no perversity in the orders passed by the Sub Divisional Officer, Pachora as well as Maharashtra Revenue Tribunal. As consolidation scheme was in effect at village Tarwade the formality of taking prior permission was not complied and therefore the entry to that effect ‘illegal transaction’ was recorded in other rights column. Respondent No.1 has purchased the whole Gut number and no fragment was created, therefore, there is no violation of provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. Even otherwise, the irregularity is curable as per the Government Resolution dated 17/07/2008, as held by the Sub Divisional Officer, Pachora.

12. Petitioners have filed application under Section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 for the first time in the year 2005. In my view, the said application itself was not maintainable, as the petitioners were not in possession of the suit property during the life time of original protected tenant. Even after attending the age of maturity the legal heirs of original tenant had not filed any proceedings for recovery of possession. Therefore, the Sub Divisional Officer and the Maharashtra Revenue Tribunal have considered the matter in accordance with law. I do not find any reason to interfere with the order dated 13/09/2019, passed by the Maharashtra Revenue Tribunal, Aurangabad in Tenancy Revision No.63/B/2012. Hence, I proceed to pass the following order:-

ORDER

(I) Writ Petition is dismissed. No order as to costs.

(II) Rule is discharged.