Bombay High Court
Yashwant Bhagirat Patil And Ors vs Ram Babu Patil And Ors on 27 July, 2026
CNR No : HCBM010477822024
WP-14311-2024 .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 14312 OF 2024
WITH
WRIT PETITION NO. 14311 OF 2024
1) Yashwant Bhagirat Patil ]
Age: 67 years, Occ: Agriculturist ]
2) Shri Jaitu Bhagirat Patil ]
Age: 63 years, Occ: Agriculturist ]
3) Shri Parshuram Bhagirat Patil ]
Age 63 years, Occ: Agriculturist ]
4) Shri Umesh Bhagirat Patil ]
Age 37 years, Occ: Agriculturist ]
5) Smt. Gitabai Rohidas Patil ]
Age 60 years, Occ: Agriculturist ]
6) Smt. Shitubai Hanumant Mhaske @ Ashabai ]
Hanumant Mhaske ]
Age 58 years, Occ: Agriculturist ]
7) Smt. Sandhya Sadanand Patil ]
Age 45 years, Occ: Agriculturist ]
8) Shri Ashok Bhagwan Patil ]
Age 55 years, Occ: Agriculturist ]
9) Ravi Bhagwan Patil ]
Age Adult, Occ: Agriculturist, ]
Nos. 1 to 9 through their Constituted ]
Attorney ]
Dilip Yashwant Patil, ]
Nos. 1 to 9 All residing at Village: Surai, ]
...Petitioners
Taluka Bhiwandi, District Thane. ]
Versus
1) Shri Ram Babu Patil, ]
Age 50 years, Occ: Business, ]
]
2) Shri Laxman Babu Patil ]
Age 45 years, Occ: Business, ]
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3) Smt. Chandrabhaga Babu Patil, ]
Age 75 years, Occ: Business, ]
Nos. 1 to 3 all residing at ]
Village Vehale, Taluka: Bhiwandi, ]
District Thane-421 311 ]
4) Smt. Narmada Ratilal Patil ]
Age 58 years, Occ: Household, ]
R/o. Village: Sarang, Tal: Bhiwandi, ]
District Thane ]
5) Smt. Indira Mohan Mhatre, ]
Age 53 years, Occ: Business, ]
R/o. Village: Kalwar, Tal: Bhiwandi, ]
District Thane ]
6) Smt. Nita Vikas Raje, ]
Age 52 years, Occ: Business, ]
R/o. Village: Balkum, Tal: Bhiwandi, ]
District Thane ]
7) Smt. Sonali Rajan Patil, ]
Age 51 years, Occ: Business, ]
R/o/ Village: Kalwar, Tal: Bhiwandi, ]
District Thane ]
8) Smt. Sunita Chandrakant Pawar, ]
R/at Mulund (East), Mumbai ]
9) Smt. Kusum Bhagwan Patil, ]
Age 64 years, Occ: Agriculturist, ]
10) Shri Rohidas Bhagwan Patil, ]
Age 42 years, Occ: Agriculturist, ]
11) Roshan Bhagwan Patil, ]
Age Adult, Occu. Agriculturist, ]
12) Smt. Sharda Ashok Patil, ]
Age 45 years, Occ: Agriculturist, ]
13) Smt. Kamla Bhagwan Patil, ]
Age 38 years, Occ: Agriculturist, ]
Nos. 9 to 13 all residing at Village: Surai, ]
Taluka: Bhiwandi, ]
District Thane ]
14) Rubi Parvej Bhiwandiwala ]
Age Adult, Occ: Household, ]
15) Farhad Parvej Bhiwandiwala ]
Age Adult, Occ: Business, ]
16) Firdos Manekasha Bhiwandiwala, ]
Age Adult, Occ: Household, ]
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17) Shaherbano Firozshan, ]
Age Adult, Occ: Household, ]
Nos. 14 to 17 all residing at ]
Roshan Baugh, Tal: Bhiwandi, ]
District Thane ]
18) The Tahsildar & A.L.T. Bhiwandi, District ]
Thane. ]
19) The Sub-Divisional Officer, Sub-Divisional ]
Office, Bhiwandi, District Thane. ] ...Respondents
WITH
WRIT PETITION NO. 17864 OF 2024
WITH
WRIT PETITION NO. 17866 OF 2024
1) Smt. Kusum Bhagwan Patil, ]
Age: 64 years, Occ: Agriculturist ]
2) Shri Rohidas Bhagwan Patil, ]
Age 42 years, Occ: Agriculturist, ]
3) Roshan Bhagwan Patil, ]
Age 37 years, Occ: Agriculturist ]
4) Smt. Sharda Ashok Shastri ]
Age 45 years, Occ: Agriculturist, ]
5) Smt. Kamla Bhagwan Patil, ]
Age 38 years, Occ: Agriculturist, ]
Nos. 1 to 5 all R/O Village: Surai, ]
Taluka: Bhiwandi, District Thane ] ...Petitioners
Versus
1) Babu Pandu Patil ]
Since Deceased Through L Rs ]
1/1) Ram Babu Patil, ]
Age 50 years, Occ: Business ]
1/2) Shri Laxman Babu Patil ]
Age 45 years, Occ: Business, ]
1/3) Smt. Chandrabhaga Babu Patil, ]
Age 75 years, Occ: Business, ]
Nos. 1/1 to 1/3 all R/O ]
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Village Vehale, Taluka: Bhiwandi, ]
District Thane- ]
1/4) Smt. Narmada Ratilal Patil ]
Age 58 years, Occ: Household, ]
R/o. Village: Sarang, Tal: Bhiwandi, ]
District Thane ]
1/5) Smt. Indira Mohan Mhatre, ]
Age 53 years, Occ: Business, ]
R/o. Village: Kalwar, Tal: Bhiwandi, ]
District Thane ]
1/6) Smt. Nita Vikas Raje, ]
Age 52 years, Occ: Business, ]
R/o. Village: Balkum, Tal: Bhiwandi, ]
District Thane ]
1/7) Smt. Sonali Rajan Patil, ]
Age 51 years, Occ: Business, ]
R/o/ Village: Kalwar, Tal: Bhiwandi, ]
District Thane ]
1/8) Smt. Sunita Chandrakant Pawar, ]
R/at Mulund (East), Mumbai ]
2) Rubi Parvej Bhiwandiwala ]
Age Adult, Occ: Household, ]
3) Farhad Parvej Bhiwandiwala ]
Age Adult, Occ: Business, ]
4) Firdos Manekasha Bhiwandiwala, ]
Age Adult, Occ: Household, ]
5) Shaherbano Firozshan, ]
Age Adult, Occ: Household, ]
Nos. 2to 5 all R/O Roshan Baugh, ]
Tal: Bhiwandi, District Thane ]
6) Yashwant Bhagirat Patil ]
Age: 67 years, Occ: Agriculturist ]
7) Jaitu Bhagirat Patil ]
Age: 63 years, Occ: Agriculturist ]
8) Parshuram Bhagirat Patil ]
Age 63 years, Occ: Agriculturist ]
9) Shri Umesh Bhagirat Patil ]
Age 37 years, Occ: Agriculturist ]
10) Smt. Gitabai Rohidas Patil ]
Age 60 years, Occ: Agriculturist ]
11 ) Smt. Shitubai Hanumant Mhaske @ Ashabai ]
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Hanumant Mhaske ]
Age 58 years, Occ: Agriculturist ]
12) Smt. Sandhya Sadanand Patil ]
Age 45 years, Occ: Agriculturist ]
13) Shri Ashok Bhagwan Patil ]
Age 55 years, Occ: Agriculturist ]
14) Ravi Bhagwan Patil ]
Age Adult, Occ: Agriculturist, ]
Nos.6 to 14 through their C. Attorney ]
Dilip Yashwant Patil, ]
Nos.6 to 14 All R/O Village: Surai, ]
Taluka Bhiwandi, District Thane. ]
...Respondents
Sr Adv Atul Damale i/b Mr. Raju Suryawanshi a/w Suraj N Naik, for
Petitioner in WP/14311/2024 & WP/14312/2024.
Mr S C Mangle, Adv for Petitioner in WP/17864/2024 and
WP/17866/2024.
Sr Adv G S Godbole a/w Sumit Kothari i/b N S Bobade, for Respondent Nos.
1 to 8.
Mr Kedar Dighe, Addl GP a/w Ms V R Raje, AGP in WP/14311/2024.
Mr P V Nelson Rajan, AGP in WP/14312/2024.
Ms Savina Crasto, AGP in WP/17864/2024.
Ms S D Chipade, AGP in WP/17866/2024.
CORAM : SHARMILA U. DESHMUKH
RESERVED ON : JUNE 17th,2026
PRONOUNCED ON : JULY 27,2026
--------------
JUDGMENT:
1. Rule. With consent, Rule made returnable forthwith and taken up
for final hearing.
2. This group of Petitions challenge the common judgment and
order dated 3rd September, 2024 passed by the Hon’ble President of the
Maharashtra Revenue Tribunal ( for short “Tribunal”), Mumbai, in
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Review Application No. 01/2024 and Review Application No. 02/2024
allowing the review applications resulting in setting aside the common
judgment and order dated 5 th December, 2023. The consequence of
allowing the review applications is setting aside of declaration of
Petitioner’s pre-decessor’s as protected tenant and allowing Section
32G proceedings in favour of Respondent Nos 1 to 8.
3. The land bearing Survey No. 40, Hissa No. 4 (Old Survey No. 16,
Hissa No. 4), situated at village Surai, District Thane, admeasuring about
48R, Pot Kharaba of 0-02-0 H.R.P, is the subject matter of the present
Petition and tenancy proceedings. In respect of the said land,
proceedings were initiated under the Maharashtra Tenancy and
Agricultural Lands Act, 1948 (for short “Tenancy Act“) by the pre-
decessor of Petitioner and Respondent Nos 9 to 13, the landlord i.e.
Respondent Nos 14 to 17 and pre-decessor of Respondent Nos 1 to 8.
4. For better understanding, the proceedings initiated by the
parties are set out under separate heads in the Petition and accordingly
herein also:
TENANCY PROCEEDINGS FILED BY ANYA GOVIND PATIL- PRE-DECESSOR
IN TITLE OF PETITIONERS AND RESPONDENT NOS 9 TO 13:
5. Anya Govind Patil was tenant in respect of the subject land and his
name was recorded in the revenue records of the suit land and other
lands vide Mutation Entry No. 1193, which was certified on 17 th April,
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1962. Anya Patil, during his lifetime, filed Section 32G proceedings for
the fixation of the purchase price, and the Tahsildar and ALT, Bhiwandi,
vide judgment and order dated 30th November, 1965 passed in Tenancy
Case No. 32-G/Kra.L-5527, fixed the purchase price of the suit land and
other lands in favour of Anya Patil. The effect of the judgment and
order dated 30th November, 1965 was given in the revenue records vide
Mutation Entry No. 1338, certified in the year 1965 in favour of Anya
Patil. The purchase price was paid and accordingly, Section 32-M
certificate was issued in favour of Anya Patil, however, the effect of the
Section 32-M certificate remained to be given in the revenue records of
the suit and other lands. There was no challenge to the order dated 30 th
November, 1965 by Respondent Nos. 14 to 17 landlords.
TENANCY PROCEEDINGS FILED BY RESPONDENT NOS 14 TO 17 –
LANDLORDS:
6. On 5th August, 2010, the Respondent Nos. 14 to 17 landlords, filed
proceedings under Section 70(b) of the Tenancy Act registered as Case
No. 35 of 2010 before the Tahsildar and ALT seeking negative
declaration and deletion of the name of the deceased, Anya Patil, as
tenant from the revenue records of the subject land.
7. Anya Patil had expired on 21 st August, 1977 and without
impleading the Petitioners and the Respondent Nos 9 to 13, who were
his legal heirs, vide order dated 5 th February, 2014, the Tahsildar and
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ALT allowed the application under Section 70(b).
8. After acquiring knowledge of the order dated 5 th February, 2014,
on 13th March, 2014, the Petitioners and Respondent Nos. 9 to 13 filed
Tenancy Appeal No. 114 of 2014 before the Sub-Divisional Officer (SDO)
under Section 74 of the Tenancy Act. The Appeal was allowed by the
SDO vide order dated 11th November, 2016, setting aside the order of
the Tahsildar and ALT dated 5 th February, 2014 and direction was given
to the revenue authorities to give effect to Mutation Entry No. 1338 in
the revenue records in accordance with the Section 32-G order dated
30th November, 1965.
9. The order dated 11th November, 2016 was not challenged by
Respondent Nos. 14 to 17 landlords and thus attained finality. In
Tenancy Appeal No. 114 of 2014, one Babu Pandu Patil, was Opponent
No. 6, who also did not challenge the judgment and order dated 11 th
November, 2016.
PROCEEDINGS UNDER SECTION 32 G OF TENANCY ACT BY THE
PETITIONERS AND RESPONDENT NOS. 9 TO 13:
10. Being unaware that Section 32-G proceedings had already been
concluded in favour of their predecessor in title, the Petitioners and
Respondent Nos. 9 to 13 inadvertently filed fresh Section 32-G
proceedings before the Tahsildar and ALT, Bhiwandi, registered as Case
No. 48 of 2010. Upon becoming aware of the order dated 30 th
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November, 1965 in favour of Anya Govind Patil, they withdrew the said
proceedings on 21st February, 2012.
TENANCY PROCEEDINGS BY BABU PANDU PATIL-PRE-DECESSOR IN TITLE
OF RESPONDENT NOS. 1 TO 8:
11. On 5th October, 2010, the father of Respondent Nos. 1 to 8 i.e.
Babu Pandu Patil, filed an application under Section 70(b) of the
Tenancy Act numbered as Case No Surai-52/2010 against Respondent
Nos. 14 to 17 landlords and Anya Govind Patil for a declaration that
Babu Pandu Patil is a protected tenant and for a negative declaration
that Anya Govind Patil was not a tenant in respect of the suit land and
was not in possession of the suit land. The Petitioners and Respondent
Nos. 9 to 13 were impleaded as legal heirs of Anya Patil.
12. The application of Babu Patil came to be rejected by the Tahsildar
and ALT on 8th August, 2011, as against which Babu Patil filed Tenancy
Appeal No. 203 of 2011 before the SDO, Bhiwandi, under Section 74 of
the Tenancy Act.
13. Babu Pandu Patil also filed Tenancy Appeal No. 9 of 2012 under
Section 74 before the SDO, challenging the order dated 30 th November,
1965 fixing the purchase price in favour of the deceased Anya Govind
Patil only in respect of the suit land, claiming to be a tenant and that the
Section 32-M certificate is wrongly issued in favour of Anya Govind Patil.
14. In Tenancy Appeal No. 9 of 2012, Babu Patil filed delay
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condonation application for condoning delay of 46 years, 1 month and
16 days. Without deciding the delay condonation application, the SDO
vide judgment and order dated 8 th July, 2013 dismissed Tenancy Appeal
No 9 of 2012 on merits. By separate order dated 8 th July, 2013, the
learned SDO dismissed Tenancy Appeal No. 203 of 2013, confirming the
judgment and order dated 8th August, 2011 passed by the Tahsildar and
ALT in Tenancy Appeal No 203 of 2011 rejecting Babu Pandu Patil’s claim
for tenancy.
15. Being aggrieved by the dismissal of the Tenancy Appeals, Tenancy
Revisions came to be filed by Babu Patil before the Tribunal, which was
numbered as Revision Application Nos. REV/TNC/535/THN/2013 and
REV/TNC/536/THN/2013.
16. Vide judgment and order dated 18 th May, 2015, Tribunal partly
allowed Revision Application No. 535 of 2013 arising out of order in
Tenancy Appeal No 9 of 2012 on the ground that without deciding the
delay condonation application, the Tenancy Appeal was decided on
merits, and remanded the matter to the SDO to decide the application
for condonation of delay on its own merit.
17. The second Tenancy Revision No. 536 of 2013 filed by Babu Pandu
Patil against dismissal of the tenancy application under Section 70(b) of
the Tenancy Act claiming his tenancy, was permitted to be withdrawn by
order dated 18th May, 2015.
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18. The Tenancy Appeal No. 9 of 2012, which was remanded to the
SDO, was renumbered as Tenancy Appeal (Remand) No. 37 of 2015, and
was allowed by the SDO vide order dated 8 th February, 2017 resulting in
setting aside the order dated 30 th November, 1965 under Section 32G of
the Tenancy Act in respect of the subject land and was maintained in
respect of other lands.
19. Babu Patil filed tenancy proceedings under Section 32G of
Tenancy Act for fixation of purchase price, which was numbered as Case
No. 32-G/Mauje Surai/Re-Enquiry/02/2017, and was allowed by the
Tahsildar and ALT on 3rd May, 2017.
20. Tenancy Appeal No. 168 of 2017 was filed by the Petitioners and
Respondent Nos. 9 to 13 against the order dated 3 rd May, 2017, which
was dismissed by the SDO by judgment and order dated 12 th February,
2021, as against which Tenancy Revision Application No. 328 of 2022
was filed before the Tribunal.
PROCEEDINGS BEFORE TRIBUNAL:
21. The Petitioners along with Respondent Nos. 9 to 13 filed Tenancy
Revision Application No. 373 of 2018 before the Tribunal against the
order of SDO dated 8th February, 2017 setting aside the order dated 30 th
November, 1965 and Revision Application No 328 of 2022 against the
order of SDO dated 12th February, 2021 challenging the fixation of
purchase price in favour of Babu Patil.
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22. The Tribunal heard both revisions together and by common
judgment and order dated 5th December, 2023 allowed both revisions
and set aside the order dated 8th February, 2017 passed by the SDO, by
which the order dated 30th November, 1965 under the 32G proceedings
was set aside, and restored the order dated 30 th November, 1965 passed
by the learned Tahsildar and ALT. The Tribunal also set aside the
judgment and order dated 12 th February, 2021 passed by the SDO
dismissing the Petitioners and Respondent Nos. 9 to 13’s Tenancy
Appeal against the fixation of purchase price in favour of Babu Patil. The
consequence of order of 5 th December, 2023 of Tribunal was that Anya
Patil declaration of tenancy was sustained.
23. Subsequently, Respondent Nos. 1 to 8 filed Review Application
Nos. 1 of 2024 and 2 of 2024, which came to be allowed by the
impugned common judgment and order dated 3 rd September, 2024,
which resulted in setting aside Anya Patil’s declaration of tenancy and
fixation of purchase price in favour of Babu Patil. Hence, the present
petition.
SUBMISSIONS:
24. Mr. Damle, learned Senior Advocate for the Petitioners has taken
this Court through the various orders passed by the tenancy authorities
leading to the passing of the impugned judgment and order. He submits
that the impugned judgment is an exercise of appellate powers as there
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is re-hearing on the same arguments and fresh findings are rendered.
He submits that Tribunal failed to notice that the review applications
were filed through different Advocates, who thereafter canvassed
submissions, which were already considered by the Tribunal in the order
of 5th December, 2023.
25. He submits that the order dated 5 th December, 2023 of the
Tribunal recognizes the previous history and the fixation of purchase
price in the year 1965 in favour of Anya Patil, and upholds the
arguments of the Petitioners on the application of the principles of res
judicata. He submits that the Petitioner’s pre-decessor’s tenancy was
accepted by the order dated 30th November, 1965 and the landlord’s
application seeking negative declaration came to be rejected, which was
not challenged and had attained finality. He submits that Babu Pandu
Patil withdrew Tenancy Revision Application No. 536 of 2013, which
arose out of the dismissal of his declaration of tenancy and therefore
there could be no fresh challenge to Anya Patil’s tenancy.
26. He submits that the review application proceeds on the basis that
there is an error apparent on the face of the record and ground (f) of
the review raised issues which were claimed to have been argued at the
time of hearing of the revision applications. He submits that in such a
case review could not have been filed through a different Advocate. He
submits that the withdrawal of Revision Application No. 536 of 2013 is
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brushed aside holding that the rights of the review applicants were
alive.
27. He would further point out the findings in the impugned
judgment dated 3rd September, 2024, in which the earlier arguments
were re-agitated and decided. He submits that the absence of challenge
to the order of remand is immaterial as by remand, the SDO was only
directed to decide the delay condonation application. He would further
point out the finding in the impugned order about the Tribunal being
aware of the rights of Respondent Nos 1 to 8, though Revision
Application No 536 of 2013 was withdrawn and would submit that
withdrawal of the revision application would amount to waiving of
tenancy rights by Babu Patil and therefore the principle of res-judicata
applies. He submits that there was no error apparent on face of record
and by the impugned judgment, the Tribunal has reversed the entire
findings as if exercising appellate jurisdiction. In support he relies upon
the following decisions :
(i) M/s. Northern India Caterers (India) Ltd. vs Lt. Governor
Of Delhi1
(ii) S. Madhusudhan Reddy vs V. Narayana Reddy And
Others2
28. Per contra, Mr. Godbole, learned counsel for Respondent Nos. 1 to
1 (1980) 2 SCC 167
2 (2022) 17 SCC 255
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8, would submit that the earlier finding of res judicata was an error on
the face of the record. He would submit that in the application filed by
Anya Govind Patil under Section 32G of the Tenancy Act, Babu Patil was
not joined in the proceedings. He submits that subsequently Babu Patil
had filed proceedings for declaration of tenancy and for a declaration
that Anya Patil was not a tenant. He would further submit that the
Tribunal in Revision Application No. 535 of 2013, allowed the application
and remanded the matter to SDO to decide the issue of condonation of
delay insofar as the challenge to the order dated 30 th November, 1965 is
concerned, which order of remand was not challenged by the
Petitioners.
29. He submits that insofar as Tenancy Appeal No. 203 of 2011 is
concerned, the same arose out of the order of Tahsildar rejecting the
application by Babu Patil seeking declaration of tenancy on the ground
that Babu Patil has not been able to prove his possession and cultivation
and that the deceased Anya Patil’s name had been entered in the
revenue records as tenant and it is not demonstrated that Mutation
Entry No. 1193 is illegal and for almost 50 years no steps have been
taken.
30. He submits that against the order of the Tahsildar dated 8 th
August, 2011, Tenancy Appeal No. 203 of 2011 was filed. He submits
that till the proceedings under Section 32G of the Tenancy Act in favour
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of Anya Govind Patil is not dislodged, Babu Patil’s application under
Section 70(b) could not have been considered independently.
31. He would further submit that as Revision Application No. 535 of
2013, which was a challenge to the 32G proceedings in favour of Anya
Patil was remanded for fresh consideration, Babu Patil withdrew his
Revision Application No. 536 of 2013 against the dismissal of Babu
Patil’s rejection of declaration of tenancy. He submits that the rejection
of Babu Patil’s tenancy was premised on the order dated 30 th November,
1965 and, upon remand, the SDO condoned the delay. He submits that
the withdrawal of revision application cannot constitute res judicata. He
points out that the order dated 5 th December, 2023 accepts the
applicability of principle of res judicata, which was an error corrected in
the review proceedings. He submits that the Tribunal by order dated 5 th
December, 2023, held that the withdrawal of Revision Application No.
536 of 2013 and the order of the SDO, Bhiwandi, dated 11 th November,
2016 is fatal, which error has been corrected in review.
32. He submits that the order dated 11th November, 2016 was passed
by the SDO in an Appeal filed by the Petitioners, as the Tahsildar had
directed the name of Anya Govind Patil to be deleted from the other
lands except Survey No. 40, Hissa No. 4. He submits that the edifice of
the order dated 11th January, 2016 is the order dated 30 th November,
1965 and, in the absence of any frontal challenge to the order of 1965,
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the order dated 11th November, 2016 cannot operate as res judicata.
33. Rival contentions now fall for determination:
34. The challenge in the present case is to the order passed in review
at the instance of the Respondent Nos 1 to 8, and the issue to be
considered is whether the review jurisdiction has been rightly exercised
by the Tribunal.
35. The entire litigation between the parties, for the ease of
reference, is set out in a chart which is reproduced herein below.
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36. The chart reproduced above would indicate that Babu Pandu
Patil’s application under Section 70(b) of the Tenancy Act seeking
declaration of his tenancy came to be rejected, as against which revision
application came to be withdrawn. Similarly, the landlord’s application
under Section 70(b) for negative declaration and deletion of Anya Patil’s
name from the records was rejected, consequent to the order of SDO
passed on 11th November 2016, which had attained finality.
37. Revision Application Nos. 373 of 2018 was filed by the Petitioners
herein against the order of SDO dated 8th February, 2017 setting aside
the order of 30th November, 1965 and remanding the matter to the
Tahsildhar for fresh inquiry. Revision Application No 328 of 2022 were
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filed by the Petitioners, against the order of SDO dismissing the
Petitioner’s tenancy appeal against the fixation of purchase price in
favour of Respondent Nos 1 to 8 as heirs of Babu Patil.
38. The Tribunal vide the order of 5 th December, 2023 allowed the
revision applications on facts as well as on the ground of res-judicata.
The findings of the Tribunal to uphold the tenancy of Anya Patil can be
summarised as under:
(I) M.E. No 1193 of 17th April, 1962 records Anya Patil’s name
as tenant on basis of kabulayat with possession show prior to
the year 1949.
(II) In 7/12 extracts the crop cultivation columns the entries
of years 1952 to 1959 in favour of Babu Pail have been
interpolated as the entries are not consecutively reflected.
(III) Orders of revenue authorities showing cultivation of
Babu Pail is subsequent to the tiller’s day.
(IV) Effect of M.E. No 1338 fixing purchase price in favour of
Anya Patil is not reflected in the 7/12 extract of suit land.
(V) Babu Patil’s application under Section 70(b) of Tenancy
Act rejected as against which Revision Application No 536 of
2013 withdrawn and the Landlords’ application challenging
Anya Patil’s tenancy status rejected on 11 th November, 2016,
which has attained finality and therefore principles of res
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39. The grounds for review by the Respondent Nos 1 to 8 broadly are
that (a) evidence was not considered in proper perspective as the
evidence shows that Anya Patil was not tenant on tillers day, (b) as Babu
Patil was not impleaded in Section 32 G proceedings by Anya Patil in
which order of 1965 was passed, remand was directed (c) Tribunal has
not dealt with the arguments raised that the rights of review applicants
was kept alive and res-judicata does not apply (d) Revision Application
No 373 of 2018 had become infructuous as there was no stay to remand
order and consequently Section 32 M certificate was issued in favour of
Respondent Nos 1 to 8.
40. The Tribunal allowed the review applications holding that the
earlier order of 5th December, 2023 allowed the revision applications
mainly on ground of res-judicata. The Tribunal accepted that the
Respondent Nos 1 to 8’s argument on res-judicata was not dealt with by
the Tribunal and proceeded to consider the said argument holding that
the remand order in Revision Application No 535 of 2013 was not
challenged by the Petitioners herein and they participated in the fresh
hearing and therefore the Court was aware of about rights of the
Respondent Nos 1 to 8 despite the withdrawal of Revision Application
No 536 of 2013. The Tribunal held that the arguments of the
Respondent Nos 1 to 8, which were advanced were not considered
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earlier, and the claim of Respondent Nos 1 to 8 is not hit by principles of
res judicata. The Tribunal further held that as the remand proceedings
were decided afresh by the Tahsildhar during the challenge to the order
of remand by SDO dated 8 th February, 2017, the Revision Application No
373 of 2018 was rendered infructuous and finding on res-judicata was
unsustainable in law. The Tribunal reversed the earlier finding on M.E.
No 1193 of 17th April, 1962 by holding that no kabulayat was produced
on record. In view of the subsequent order of Tahsildar deciding Section
32G proceedings on merits in favour of Respondent Nos 1 to 8 the
Tribunal allowed the review applications.
41. With this background, it would be apposite to first refer to the
statutory provisions of Order XLVII Rule 1 of CPC governing review
jurisdiction and reads as under:
“1. Application for review of judgment.–(1) Any person considering
himself aggrieved–
(a) by a decree or order from which an appeal is allowed, but from which
no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence
which, after the exercise of due diligence was not within his knowledge or
could not be produced by him at the time when the decree was passed or
order made, or on account of some mistake or error apparent on the face
of the record or for any other sufficient reason, desires to obtain a review
of the decree passed or order made against him, may apply for a review of
judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a
review of judgment notwithstanding the pendency of an appeal by some
other party except where the ground of such appeal is common to the
applicant and the appellant, or when, being respondent, he can present to
the Appellate Court the case on which he applied for the review.
[Explanation.–The fact that the decision on a question of law on which
the judgment of the Court is based has been reversed or modified by the
subsequent decision of a superior Court in any other case, shall not be a
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ground for the review of such judgment.]
42. The contours of review jurisdiction came to be defined in S.
Madhusudhan Reddy vs V. Narayana Reddy And Others (supra), where
the Hon’ble Apex Court after noting the statutory provisions and
judicial pronouncements, has summarized the principles for exercising
review jurisdiction as under :
“26. After discussing a series of decisions on review jurisdiction in
Kamlesh Verma v. Mayawati, this Court observed that review proceedings
have to be strictly confined to the scope and ambit of Order 47 Rule 1
CPC. As long as the point sought to be raised in the review application has
already been dealt with f and answered, the parties are not entitled to
challenge the impugned judgment only because an alternative view is
possible. The principles for exercising review jurisdiction were succinctly
summarised in the captioned case as below: (SCC pp. 333-34, para 20)“20. Thus, in view of the above, the following grounds of review are
maintainable as stipulated by the statute:
20.1. When the review will be maintainable
(i) Discovery of new and important matter or evidence which, after the
exercise of due diligence, was not within knowledge of the petitioner or
could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words “any other sufficient reason” have been interpreted in Chhajju
Ram v. Neki, and approved by this Court in Moran Mar Basselios
Catholicos v. Mar Poulose Athanasius to mean ‘a reason sufficient on
grounds at least analogous to those specified in the rule. The same
principles have been reiterated in Union of India v. Sandur Manganese &
Iron Ores Ltd.
20.2. When the review will not be maintainable-
(i) A repetition of old and overruled argument is not enough to reopen
concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of
the case.
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(iv) Review is not maintainable unless the material error, manifest on the
face of the order, undermines its soundness or results in miscarriage of
justice.
(v) A review is by no means an appeal in disguise whereby an erroneous
decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground
for review.
(vii) The error apparent on the face of the record should not be an error
which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of
the appellate court, it cannot be permitted to be advanced in the review
petition.
(ix) Review is not maintainable when the same relief sought at the time of
arguing the main matter had been negatived.”
43. Bearing in mind, the enunciation of law by the Hon’ble Apex
Court, if the review proceedings are examined, the grounds of review
application are in nature of grounds of Appeal. In the review
applications, the errors apparent on the face of record were that the
evidence on record has not been rightly considered by Tribunal insofar
as Babu Pandu Patil’s tenancy on tillers date and the Tribunal has not
considered that Anya Govind Patil was not a tenant of the suit land on
the tillers day. The main ground for review was set out in Ground (F) as
under:
“(F) It was argued and debated at the time of hearing of Revision
Application that this Hon’ble Tribunal on earlier occasion while deciding
the Revision Applications No 535 of 2013 and 536 of 2013 had noted a
common Roznama in both matters from which it indicates that the
Hon’ble Tribunal was aware while allowing the Review Applicants to
withdraw their Revision Application No 536 of 2013, the Rights of the
Review Applicants and therefore, the second Revision Application No 535
of 2013 was remanded to the S.D.O. Consequently, the rights of the
Review Applicants were kept alive. Under these circumstances, the
principle of Res-judicata was no applicable to peculiar facts and
circumstances. This point was argued, however, it is respectfullyArya Chavan 23/28
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Court.”
44. The arguments of the review applicants as noted in the impugned
judgment concentrated on the aspect of non consideration of the
arguments canvassed during the original hearing. It was disputed by the
Petitioners that any such contention was argued or debated. In view of
the main ground of review being non-consideration of arguments
canvassed, the review application should have been filed by the same
Advocate. In the initial hearing of the revision applications, the
argument about applicability of principles of res judicata was canvassed
in view of the rejection of the Section 70(b) tenancy application of Babu
Patil and withdrawal of the revision application no. 536 of 2013, and, as
the landlords application was rejected on 11 th July, 2016 challenging the
tenancy status of Anya Patil. The response arguments of the
Respondent Nos 1 to 8 was that the Petitioner’s pre-decessor had
mislead the revenue authorities and had obtained the order of the year
1965. It was also argued that the Petitioners themselves had filed
Section 32 G proceedings in the year 2010 stating on oath that the suit
land was not sold earlier to Anya Patil. The submission was also
canvassed that in the landlord’s application, the Respondent Nos 1 to 8
in their reply had categorically stated that they have filed separate
Section 32G proceedings. These submissions were canvassed to deal
with the Petitioner’s arguments on the aspect of finality to the order of
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declaration of Anya Patil’s tenancy and consequently to oppose further
challenge as being barred by res judicata.
45. The Counsel for the parties had advanced their respective
submissions on the issue of res judicata, which was dealt with by the
Tribunal as under:
“The arguments advanced by the Ld. Advocate appearing for the
Applicants on the issue of “res-judicata” also deserves acceptance. In this
regard, it is pertinent to note that the application filed by the respondent
no 1 being Case No 52 of 2010 before the Ld. Tahasildar Bhiwandi,
seeking declaration of tenancy rights was dismissed by the Ld. Tahasildar
Bhiwandi vide his Order dated 08.08.2011. In this application, the
Applicants were made party respondents. The respondent no. 1 assailed
the order dated 08.08.2011 by filing Tenancy Appeal No. 203 of 2011
before the Ld. SDO Bhiwandi which was dismissed by the Ld. SDO
Bhiwandi vide his Order dated 08.07.2013, thereby upholding the Order
dated 08.08.2011 passed by the Ld. Tahasildar Bhiwandi in Case No. 52 of
2010. The Revision No. 536 of 2013 filed by the contesting respondent
nos. 1/1 to 1/8 before this Tribunal as against the Order dated 08.07.2013
in Tenancy Appeal No. 203 of 2011 was allowed to be withdrawn as per
the pursis filed by the contesting respondent, by the Order dated
18.05.2015.
Also, the challenge to the status of agricultural tenancy of the Applicants
and for that matter their predecessor was put forth by the original
landlords by filing the Case No. 35 of 2010 before the Ld. Tahasildar
Bhiwandi seeking negative declaration against the Applicants. The Ld.
Tahasildar Bhiwandi vide his Order dated 30.01.2014 allowed that
application. However, the Applicants challenged the said order by filing
Tenancy Appeal No. 114 of 2014 before the Ld. SDO Bhiwandi which came
to be fully allowed by the Ld. SDO Bhiwandi vide his Order dated
11.11.2016.
Absence of any further successful challenge at the hands of either the
original landlords or the respondent no.1 to the issue of tenancy status of
the Applicants or their predecessor will certainly attract the rigors of the
principle of “res-judicata”. Now, It is not open to question the legality of
“tenancy status” as well as the right of “statutory purchase” u/s 32G of
the Tenancy Act of the Applicants or for that matter their predecessor.”
46. After considering the arguments, the Tribunal has taken a view
that that the principles of res judicata will be attracted. In identical
facts, by the order under review, the Tribunal has substituted its view on
applicability of res judicata by considering the arguments that the rights
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of the review applicants was kept alive to be raised in remand
proceedings. It is not disputed that during the original hearing of the
revision applications, the record of the orders passed upon remand was
available with the Tribunal. In review, the Tribunal has taken a different
view of the outcome of the remand proceedings to hold that
applicability of principles of res judicata is incorrect. By substituting its
own view on identical facts, the Tribunal has exercised appellate
powers, which is impermissible in review jurisdiction. The earlier finding
of res judicata can at the highest be termed as erroneous findings
incapable of being corrected in review jurisdiction. The Tribunal has also
reversed its finding on Mutation Entry No 1193 dated 17 th April, 1962 in
review. The review order does not satisfy the requirements of Order 47
Rule 1 of CPC as it has been granted by a process of detailed reasoning
by re-opening the already agitated issues. The review jurisdiction is not
meant for correcting erroneous decisions and rendering fresh findings.
Error contemplated under the rule must be such which is apparent on
the face of the record and not an error which has to be fished out and
searched. It must be an error of inadvertence. The power of review can
be exercised for correction of a mistake but not to substitute a view.
The mere possibility of two views on the subject is not a ground for
review. (See Kamlesh Verma vs Mayawati & Ors 2013 All SCR 3411).
47. The grounds of the review application would, in fact, indicate that
the same are in the nature of grounds of Appeal. The grounds of review
seeks re-appreciation of evidence to hold that Babu Pandu Patil was the
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tenant of tillers day and not Anya Govind Patil. The arguments on the
documents were advanced in the original hearing which resulted in the
order of 5th December, 2023, and a review cannot be an Appeal in
disguise.
48. A reading of the review order would indicate that the Tribunal by
exercising appellate powers has conducted in depth re-inquiry of the
revision applications. Such inquiry is not necessitated in case of error
apparent on face of record. Though Mr. Godbole had advanced lengthy
arguments in order to demonstrate that the principles of res judicata
would not be applicable by reason of withdrawal of Revision Application
No. 536 of 2013 and the dismissal of the landlord’s application, which
attained finality by order dated 11 th November, 2016, by stating that the
entire edifice of these orders was the order dated 30 th November, 1965,
which subsequently came to be set aside, the arguments would
constitute an argument assailing the order dated 5 th December, 2023
and would not constitute a defence to the review orders passed on 3 rd
September, 2024.
49. The Hon’ble Apex Court has held that the error apparent on the
face of record should not be an error which has to be fished out and
searched, which is exactly what has been done in the present case.
There has been a detailed examination and scrutiny of the factual
position as well as the earlier orders passed, and by a process of
reasoning, the Tribunal has come to a conclusion that the principles of
res judicata would not apply. Not only the findings on the applicability of
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the principles of res judicata are reversed, in review the Tribunal has
reconsidered the orders passed by the SDO and re-appreciated the
position of kabulayat not being produced on record. It has further re-
examined the order of the Tahsildar and ALT, Bhiwandi and the SDO,
which amounts to a rehearing in exercise of review jurisdiction, which is
impermissible.
50. The impugned orders passed in review amounts to correction of
the earlier decision dated 5th December, 2023, which even if erroneous,
could not have been corrected in exercise of review jurisdiction.
51. In light of the above discussion, the impugned orders passed in
review applications are clearly unsustainable and are hereby quashed
and set aside.
52. Resultantly, the Petitions succeed. Rule is made absolute. The
impugned order dated 3rd September, 2024 hereby stands quashed and
set aside.
(SHARMILA U. DESHMUKH, J.)
53. At this stage, request is made for stay of the order for a period of
four weeks from today. The request is opposed by learned counsel for
Petitioner. The present order is stayed for a period of four weeks from
today. The interim arrangement to continue for a period of four weeks
from today.
(SHARMILA U. DESHMUKH, J.)
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