Case Note & Summary
The dispute concerned agricultural lands in Sangli district that were originally Deosthan Inam lands. The tenant claimed right to purchase under the Bombay Tenancy and Agricultural Lands Act, 1948. In 1964, the Agricultural Land Tribunal had dropped proceedings under Section 32G, holding the lands were Deosthan Inam and hence the purchase provisions did not apply. The lands were later re-granted to the landlord in 1973, leading the tenant to initiate fresh proceedings in 1981. The Additional Tahasildar allowed the application and fixed a purchase price, noting that the landlord had not obtained a certificate under Section 88B or moved for possession. On appeal by the landlord, the Sub-Divisional Officer set aside the order, holding that the 1981 proceedings were barred by res judicata and that the lands were public trust property, thereby exempting them from Sections 32 to 32R. The Maharashtra Revenue Tribunal confirmed this view on revision. In the writ petition under Article 227, the tenant contended that res judicata did not bar the subsequent proceedings because the re-grant constituted a new cause of action, and that the evidence did not establish the property as a public trust meeting the conditions of Section 88B. The High Court agreed that the res judicata finding was erroneous, but upheld the conclusion that the land was indeed public trust property. It referred to documentary evidence, including orders passed by the Assistant Charity Commissioner and the District Judge under the Bombay Public Trust Act, which had finally determined the trust character of the property. Applying the limited scope of jurisdiction under Article 227 as laid down in Surya Dev Rai v. Ram Chander Rai, the Court declined to re-appreciate evidence and dismissed the petition. The tenant’s claim to purchase right therefore failed on the ground of exemption under Section 88B, and the proceedings were finally dismissed with no order as to costs.
Headnote
A) Civil Procedure - Res Judicata - Change in Cause of Action - Code of Civil Procedure, 1908 - Bombay Tenancy and Agricultural Lands Act, 1948, Section 32G - After initial proceedings under Section 32G were dropped in 1964 because lands were Deosthan Inam lands, a re-grant in 1973 created a fresh cause of action; thus, the subsequent proceedings initiated in 1981 were not barred by res judicata. The lower courts erred in holding otherwise. Held that re-grant revived the tenant's right to seek purchase (Paras 5-6).
B) Tenancy Law - Exemption of Trust Property - Sections 88B, 32-32R, Bombay Tenancy and Agricultural Lands Act, 1948 - Documentary evidence, including orders of the Assistant Charity Commissioner and District Judge under the Bombay Public Trust Act, established that the suit land was public trust property. Consequently, the tenant could not exercise purchase rights because the property fell under the exemption in Section 88B, and the purchase provisions in Sections 32 to 32R were inapplicable. Held that the tenant's claim failed on this ground (Paras 8-9).
C) Constitutional Law - Writ Jurisdiction - Supervisory Power - Article 227, Constitution of India - In a petition under Article 227, the High Court does not act as an appellate court and cannot re-appreciate evidence to substitute its own findings. Interference is warranted only if there is an error of law apparent on the face of the record or the order is perverse. The concurrent findings of the lower authorities that the land was trust property were based on evidence and did not suffer from any such error. Held that no case for interference was made out (Paras 9-10).
Issue of Consideration
Whether the tenant could exercise right of purchase under Section 32G of Bombay Tenancy and Agricultural Lands Act, 1948, after re-grant of Deosthan lands that were held to be public trust property.
Final Decision
Writ petition dismissed. No interference with MRT order. Rule discharged. No costs.
Law Points
- res judicata not applicable when cause of action changes due to re-grant of land
- exemption of public trust property from statutory purchase provisions under Section 88B Bombay Tenancy and Agricultural Lands Act
- 1948
- limited scope of High Court's supervisory jurisdiction under Article 227 over findings of fact
- certiorari does not extend to re-appreciation of evidence
Case Details
2011 LawText (BOM) (01) 44
Writ Petition No. 485 of 1988
A.S. Khandeparkar i/b Shahank Borade for Petitioner, Kishore S. Patil for Respondent
Murgendra Dhanappa Sawale & Ors. (Legal Heirs of Dhanappa Balappa Sawale)
Shri Gurulingeshwar Devasthan, Dafalapur, through Power of Attorney Annappa Dhondappa Mahajan
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Nature of Litigation
Writ petition under Article 227 of Constitution of India challenging order of Maharashtra Revenue Tribunal in tenancy matter.
Remedy Sought
Petitioners (tenants) sought to set aside MRT order and enable purchase of suit lands under Section 32G of Bombay Tenancy and Agricultural Lands Act.
Filing Reason
MRT dismissed revision confirming that proceedings under Section 32G were barred by res judicata and that suit lands being public trust property were exempt from purchase provisions.
Previous Decisions
Agricultural Land Tribunal initially dropped proceedings in 1964; later proceedings in 1981 after re-grant allowed; Sub-Divisional Officer set aside allowing purchase on grounds of res judicata and trust property; MRT confirmed.
Issues
Whether the second proceedings under Section 32G were barred by res judicata after re-grant of land?
Whether the suit lands were public trust property exempt under Section 88B of BT & AL Act?
Scope of High Court's jurisdiction under Article 227 to interfere with findings of fact.
Submissions/Arguments
Petitioners: Res judicata not applicable because re-grant revived the right to purchase; property not proved to be trust property as conditions of Section 88B not complied; documentary evidence insufficient.
Respondent: Lower courts correctly found property to be public trust based on evidence; hence exemption applies and no purchase rights.
Ratio Decidendi
High Court under Article 227 cannot re-appreciate evidence; concurrent findings of fact by lower authorities on trust character of property based on evidence are not open to re-evaluation unless perverse. When property is held to be public trust under Section 88B BT & AL Act, provisions of Sections 32 to 32R do not apply, barring tenant's right to purchase. Res judicata does not bar fresh proceedings if cause of action changes due to re-grant, but the ultimate finding on trust property stands and defeats the tenant's claim.
Judgment Excerpts
Both the Courts below clearly erred in holding that proceedings which were re-initiated in 1981 after the re-grant of the lands were barred by principle of resjudicata since it is an admitted position that, initially, lands were Deosthan lands and by order passed in 1965 the State Government had stated that upon the amount being paid, the landlord could continue as a licensee. In 1973, order of re-grant was made in favour of the landlord.
It is also clear from the record that the suit property is held to be trust property and in this respect useful reference can be made to the proceedings before the Assistant Charity Commissioner, Kolhapur... the character of the suit property was already finally decided and therefore, u/s 88B of the Tenancy Act certain provisions would not be applicable to the property in question and such a trust... would not come under the purview of sec. 32 to 32R of the Tenancy Act.
In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject-matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court.
Procedural History
1964: Agricultural Land Tribunal dropped proceedings under Section 32G as lands were Deosthan Inam lands. 1973: Lands re-granted to landlord. 1981: Fresh proceedings under Section 32G initiated; Additional Tahasildar & ALT allowed purchase. Appeal by landlord allowed by Sub-Divisional Officer holding barred by res judicata and lands trust property. Tenant filed revision; Maharashtra Revenue Tribunal dismissed on 26/03/1987. Tenant filed present writ petition challenging MRT order.
Acts & Sections
- Bombay Tenancy and Agricultural Lands Act, 1948: 32, 32G, 32R, 88B
- Bombay Public Trust Act: 22(A), 72
- Constitution of India: Article 227
