PANDURANG KONDIBA KOLI (SINCE DECD) THROUGH LRS. NAMDEO P. KOLIversusSHRI. NARAYAN BANDU SHENDGE

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                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION

                                         WRIT PETITION NO. 1238 OF 1998
                      Shri. Narayan Bandu Shendge, Age: Adult,
                      (Since deceased through legal Heirs and
                      Representatives).
NAVNATH
SITARAM               Shri. Nitin Mahadeo Palkhe,
WAGHMARE              Age: about 35 Yrs.                             ...Petitioner
Digitally signed by   R/A. Khadakpura, Shendgewada, Indapur, Dist.   (Orig.     Tenant.
NAVNATH
SITARAM               Pune.
WAGHMARE                                                             Applicant.)
Date: 2026.08.24
14:43:49 +0530                    Versus
                      Shri. Pandurang Kondiba Koli, Age: Adult,
                      Since deceased through L/h
                      Namdeo Pandurang Koli
                                                                     ...Respondent
                      residing at Shaha, Mahadeo Nagar, Taluka
                                                                     (Orig. Landlord
                      Indapur, District Pune.                        Opponent)
                                                        WITH
                                         CIVIL APPLICATION NO. 2105 OF 2014

                      Pandurang Kondiba Koli (since Decd.) Through           ...Applicant.
                      his heirs & Legal representatives.                     (Orig.
                      Shri. Namdeo Pandurang Koli,                           Respondent          in
                      Age: about 58 Years,                                   W.P.)
                      Occupation: Driver & Agriculturist,
                      R/at. Mahadeo Nagar, (Shaha).
                      Post Hingangaon, Tal. Indapur, District: Pune.
                      IN THE MATTER BETWEEN
                      Shri Narayan Bandu Shendge,
                      Age: Adult, R/at Khadakpura, Near Maruti
                      Temple, Indapur Taluka Indapur, District: Pune.
                      (died on 27.07.2013 during pendency of the             ...     Petitioner
                      Writ Petition)                                         ( Orig. Tenant)
                                  Versus
                      Shri. Pandurang Kondiba Koli
                      Since deceased through his Heirs & Legal
                      representatives.



                      Navnath Waghmare                                                           1
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Shri. Namdeo Pandurang Koli,
Age: about 58 Years,
Occupation: Driver & Agriculturist,
R/at. Mahadeo Nagar, (Shaha).
Post Hingangaon, Tal Indapur, District: Pune.      ...Respondent
                                 WITH
                 CIVIL APPLICATION NO. 1995 OF 2019
                            (early hearing)
Pandurang Kondiba Koli (since Decd.) Through       ...Applicant/
Lrs. Namdeo P. Koli                                Petitioner
IN THE MATTER BETWEEN
Narayan Bandu Shendge,
Since deceased through his L.Rs. Nitin Mahadeo
Palkhe                                             ... Petitioner
            Versus
Pandurang Kondiba Koli
Since deceased through his Heirs & Legal
representatives.
Namdeo Pandurang Koli.                             ...Respondent
                                  ****
Mr. Vaibhav R. Gaikwad for the Petitioner-(through VC).
Mr. Dilip Bodake a/w Mr. Shreeniwas Magar & Mr. Rushikesh Salunkhe
for the Respondent.
                          CORAM : M.M. SATHAYE, J.
                            DATE : 19th AUGUST, 2026
JUDGMENT :

1.         The Petition is filed invoking Articles 226 and 227 of the
Constitution of India, challenging order dated 19.09.1997 passed by
designated Member, Maharashtra Revenue Tribunal, Pune (‘the
Tribunal’ for short) in MRT.P.VII.12/1996 (Review)(C-7)-1996, by which
review filed by the Respondent- landlord was allowed, setting aside
order dated 07.02.1996 passed by the Tribunal in MRT.P.VII.5/1994
and confirming the order of Sub-Divisional Officer (‘SDO’ for short)




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Baramati dated 10.06.1994 in Tenancy Appeal No. 14 of 1994 and
order of Agricultural Land Tribunal (Additional Tahsildar, Indapur)
Baramati (‘ALT’ for short) dated 16.03.1994 in Tenancy Case No. 32-G-
Shaha-39-1993, Indapur Tenancy Case.

2.         Agricultural land bearing   Survey No. 8/2, admeasuring 2
Hectors 93 Ares situated at Village Shaha, Taluka Indapur, District Pune,
is the subject matter property (hereinafter referred to as 'the said land'
for short).

                                  BACKGROUND
3.         The Petitioner is claiming to be legal representative of the
tenant (Narayan Bandu Shendge) and Respondents are legal heirs of
original landlord. The tenant filed application under Section 32G of the
Bombay Tenancy and Agricultural Lands Act, 1948 (‘the said Act’ for
short). ALT, Indapur, by order dated 30.11.1960 closed said proceeding
on the ground that landlord has obtained certificate under Section 88C
of the said Act. The tenant again filed application under Section 32G of
the said Act in September, 1993. This application was rejected by ALT,
Indapur, by order dated 16.03.1994. The tenant filed Tenancy Appeal
No. 14 of 1994. The said appeal was rejected by SDO Baramati by order
dated 10.06.1994. The tenant filed Revision No. MRT.P.VII.5/1994
before the Tribunal under Section 76 of the said Act. By order dated
07.02.1996 the Tribunal allowed the revision and set aside the orders
passed by the concerned SDO and remanded the matter back to
Additional Tahsildar & ALT Baramati for fresh inquiry. The landlord
filed Writ Petition No. 3209 of 1996, challenging the order of remand.
This Court (Coram : S.H. Kapadia, J) by order dated 11.07.1996
dismissed the petition, however, observing that if the landlord is able to
produce application under Section 33B or if the Tribunal is in a position



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to review the application, the Tribunal may consider as to whether
review can be ordered or not. This liberty was given to file review
within three weeks. The landlord filed review on 31.07.1996. The
Tribunal allowed review application by order dated 19.09.1997 setting
aside the earlier order passed by the Tribunal dated 07.02.1996.

4.         In such circumstances, the tenant filed present petition. The
petition was admitted on 15.06.1998 and impugned order passed in
review was stayed.

5.         On 08.01.2014, Civil Application No. 3116 of 2013 was
allowed permitting the present Petitioner- Shri. Nitin Mahadeo Palkhe
to be brought on record.

6.         The added Petitioner- Shri. Palkhe filed Civil Application No.
1331 of 2014 for bringing legal heirs of Respondent on record and by
order dated 17.06.2014, the said application was allowed, bringing
legal heirs of deceased Respondent on record.

7.         The Respondent           filed above Civil Application No. 2105 of
2014, praying that petition be dismissed as abated and alternatively to
determine          heirs/   legal     representatives      of      deceased      sole
Petitioner/tenant and for declaration that present Petitioner Shri. Palkhe
is not entitled to claim tenancy through tenant late Narayan Bandu
Shendge.

                                        SUBMISSIONS

8.         Learned counsel Mr. Gaikwad for the Petitioner, submitted as
under:

8.1.   That the first order of the Tribunal clearly recorded that after
obtaining certificate under Section 88C of the said Act, the landlord has


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not taken action for terminating tenancy and obtaining possession and
therefore, the case was remanded to ALT for fresh inquiry and this order
is confirmed by this Court in Writ Petition No. 3209 of 1996.

8.2.   That by taking advantage of the liberty granted by this Court, the
Respondent landlord has filed review and the Tribunal has allowed it
solely on the basis of letter issued by Tahsildar on 31.10.1996. That the
said letter is issued in 1996 about existence of application for possession
under Section 33B in the year 1960.

8.3.   That the review application is not filed in time.

8.4.   That the first order of Tribunal remanding the matter is a non-
prejudicial order and it should not have been set aside.

9.         On the other hand, Mr. Bodake, learned counsel for the
Respondent- landlord submitted as under:

9.1.   That the petition is liable to be dismissed as abated because sole
Petitioner -tenant has expired during pendency of the petition leaving
behind 8 daughters, whose details were provided to the tenant,
however, those legal heirs are not brought on record despite intimation
letter given in July, 2014. That the present Petitioner Shri. Palkhe has
been brought on record as legal representative on the basis of a alleged
Will dated 02.08.2002, which amounts to transfer/assignment of
tenancy rights, which assignment is prohibited under Section 43 of the
said Act. That the Will is without permission of the Collector. He relied
on judgment of Vinodchandra Sakarlal Kapadia Vs. State of Gujarat &
Ors, 2021 (1) ALLMR 716 (SC) in support of his submission. That
therefore, present Petitioner has no locus standi to continue the petition
as representative of sole Petitioner tenant. Under Section 40 of the said
Act, only legal heirs continue as tenant, but none of the 8 daughters of


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tenant are coming forward as heirs. Therefore, the present Petitioner
Shri. Palkhe claiming to be legatee under Will, cannot continue as
tenant.

9.2.   That the said objection is raised by Civil Application No. 2105 of
2014 praying for dismissal of petition as abated or deciding about locus
standi of the Petitioner Shri. Palkhe.

9.3.   That since the appeal challenging certificate under Section 88C of
the said Act is dismissed and since exemption certificate has attained
finality, the same is binding upon the tenant. That therefore, the
provisions of Section 32 to 32-R will not apply to the said land and
therefore, ALT had rightly declined to determine purchase price, which
is confirmed by the concerned SDO. That the Tribunal in review has
rightly accepted the landlord's contention and therefore no interference
is required in the concurrent findings.

9.4.   That the landlord has followed due process by filing application
(Tenancy Case No. 128 of 1962) under Section 33B of the said Act
seeking possession however since there were encumbrances of the co-
operative society about loan, the concerned ALT was pleased to passed
order dated 29.07.1963 putting the application in abeyance till
encumbrances are removed. That intimation letter about such order and
Mutation Entry No. 574 is also on record, which is required to be
considered. That thereafter, encumbrances were removed and Mutation
Entry No. 1091 dated 22.05.1988 is effected. However, in the
meantime, proceedings were misplaced and not finally decided by the
concerned ALT. Therefore, certificate was issued to that effect by
concerned Tahsildar, which has been rightly considered by the Tribunal
in review.



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9.5.   That therefore the landlord had followed procedure under
Section 33B of the said Act. That the tenant has filed proceeding after
lapse of about 34 years and it is not maintainable and hit by principles
of res judicata. That documents on record corroborates the case of the
landlord that proceeding under Section 32G was initiated.

9.6.   That the statement of tenant’s predecessor is recorded in Tenancy
Application No.39/1993, where he has admitted that earlier 32G
proceeding were dismissed and it was recorded under Mutation Entry
No. 618.

10.        Mr. Gaikwad, in rejoinder submitted that the bar under
Section 43 will not apply because the matter is remanded for fresh
inquiry. He submitted that the aspect of whether proceeding under
Sections 33B and 33C were initiated can also be considered in the fresh
inquiry and whether present Petitioner Shri. Palkhe is legal heir or not
can also be considered after remand.

                             REASONS AND CONCLUSION

11.        I have considered the rival submissions and perused the
record.

12.        First of all, it is important to note that the impugned order is
passed by the Tribunal pursuant to liberty granted by this Court under
order dated 11.07.1996. Though this Court held that the earlier order of
the Tribunal dated 07.02.1996 remanding the case does not require
interference,      certain   liberty   was   reserved      in    following       words
(verbatim) :

            "I do not find any inflimity in the impugned order of the
            Maharashtra Revenue Tribunal but in the interest of justice if
            the Petitioner is able to produce the copy of the application


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            under Section 33-B or if the Maharashtra Revenue Tribunal
            is in a position on the Petitioner's application for Review to
            call for Record and proceedings then the Maharashtra
            Revenue Tribunal may consider as to whether Review could
            be ordered or not. The petitioner seeks liberty to move in
            Review. Liberty is given only if Review petition is moved
            within three weeks. Maharashtra Revenue Tribunal may also
            call for any evidence in respect of that application only."
                                                  (emphasis supplied)

13.         Since, this Court granted liberty and permitted the Tribunal to
consider whether review could be ordered, no fault can be found with
the exercise of jurisdiction by the Tribunal while passing the impugned
order. Hence, there is no jurisdictional error.
14.        Now let us consider the impugned order.
 14.1.               Bare perusal thereof shows that the Tribunal has
 considered two aspects. First, the Tribunal has considered a letter
 /certificate issued by Tahsildar dated 31.10.1996 where it is stated that
 the landlord had applied for possession on 30.11.1960 in respect of
 said land however due to long lapse of time, the documents are
 destroyed. Based on this letter, the Tribunal concluded that the
 landlord had filed application for possession under Section 33B of the
 said Act and therefore case was pending in respect of possession in the
 year 1960. This has been found sufficient by the Tribunal to review the
 order.

 14.2.         Second aspect considered by the Tribunal is that the
 certificate granted in favour of the Respondent landlord under Section
 88C was not shown to have been challenged or set aside. The Tribunal
 has held that since the certificate under Section 88C is obtained,
 provisions of Section 32 to 32-R of the said Act are not applicable.



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14.3.     For these two reasons and on finding that the documents are
certified to be destroyed by long lapse of time, the Tribunal has allowed the
review, thereby confirming the orders of SDO and ALT dated 16.03.1994 and
10.06.1994, respectively. In the aforesaid circumstances, it cannot be said
that the Tribunal did not have any reason to review the order as contended
by the learned counsel for the Petitioner.
14.4.     Since this Court had granted three weeks time to file review, the
argument about review not being filed in time (from the date of earlier order
of the Tribunal) has no merit. In any case, the Tribunal in second last
paragraph of the impugned order has noted that the review application is
filed in time from the date of High Court order.
15.           This petition has peculiar facts and circumstances, which has
necessitated a decision on Civil Application No. 2105 of 2014 moved by the
landlord.

16.           Learned counsel Respondent has relied upon the judgment of the
learned Single Judge of this Court in Sahadeo Namdeo Mahadik (Since
Deceased) Through Legal Representatives- Vs. Parvatibai Mahadeo Mahadik
and Ors. 2025 BHC (AS) 56053 , where similar application under Order 22
Rule 5 was made in a tenancy dispute very similar to the present case, where
learned Single Judge of this Court has considered the application on merits
and ruled on the aspect of legal heir. Considering the said judgment and the
fact that Respondent landlord has called upon this Court to consider the locus
of the present Petitioner Mr. Palkhe, Civil Application No. 2105 of 2014
needs to be considered on merits.

17.             This is a peculiar case where sole Petitioner – tenant of an
agricultural land (Narayan Bandu Shendge) has expired during the pendency
of the petition on 27.07.2013. After his death the advocate for the
Respondent landlord by letter dated 22.07.2014 has informed the
Registry that the sole Petitioner has left behind 8 daughters as his legal
heirs   and those legal heirs are not brought on record. It was also
pointed out that present petitioner Shri. Palkhe (who is not legal heir) is


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brought on record. Therefore, information under Order 22 Rule 10A of
Civil Procedure Code, 1908 was given to the Registry with its copy
marked to advocate for the Petitioner. The copy of the said letter
showing acknowledgment from registry as well as advocate for the
petitioner, is on record.
18.        In this application, Respondent landlord has supplied and
stated on oath names of all the 8 daughters of original tenant. This
application was permitted to be amended and prayers are added
callings upon this court to hold and declare that the person at whose
instance present petition has been prosecuted (Mr. Nitin Mahadeo
Palkhe), he is not entitled to claim tenancy through original tenant in
the teeth of Section 40 of the said Act and alleged Will on the basis of
which he is claiming right is in contravention of provisions of Section 43
of the said Act. A specific stand is taken that present Petitioner Mr.
Palkhe has no locus standi to prosecute this petition.

19.        It is not disputed that after the death of original Petitioner
tenant, Civil Application No. 3116/2013 was filed by present Petitioner
Shri. Palkhe to bring himself on record as legal representative on the
basis of a registered Will. Record shows that by a one line order of
Registrar (Judicial-I) dated 08.01.2014, in the absence of both parties,
the application was allowed.

20.        In Civil Application No. 2105 of 2014, learned counsel for the
Respondent landlord has relied upon Section 40 to contend that Shri.
Palkhe cannot continue as tenant on the death of original tenant
because he cannot be legal heir when the daughters (being class-I heirs)
are existing. It is also contented that the word ‘assignment’ in Section
43 of the said Act dealing with restriction of transfers of land purchased
or sold under the said Act has been interpreted to include Will by a


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Three Judges bench of Hon'ble Supreme Court in Vinodchandra
Sakarlal Kapadia (supra) and therefore assignment/transfer in favour of
Shri. Palkhe under Will, which is admittedly without permission of the
Collector, is illegal and prohibited, thereby hitting Mr. Palkhe’s locus
directly.

21.         In view of such specific objection raised by the Respondent
landlord to the locus of present Petitioner Shri. Palkhe, it is imperative
for this Court to consider the same on merits. No reply is filed to Civil
Application No. 2105 of 2014. The Petitioner has not brought on record
any clear evidence about Shri. Palkhe being grandson of tenant (son of
one of the daughters) as orally submitted through his counsel. Be that
as it may. The statement on oath by the landlord giving details of 8
daughters of the original tenant is not denied and therefore it can be
safely concluded that not one, but 8 Class-I heirs of original tenant are
available. Such Class-I heirs exclude other heirs including grandson
(assuming him to be so) in view of Section 8 and 9 of Hindu Succession
Act, 1956 which provides devolution firstly upon the heirs being the
relatives specified in Class- I of the Schedule; and excluding other heirs.
Considering the position of the Petitioner either way, as a grandson of
the original tenant (assuming him to be so as argued orally) or as a
legatee under Will, his competence to continue as tenant is clearly hit
by Section 40 and 43 of the said Act.

22.         The Hon'ble Supreme Court in three Judges’ Bench in
Vinodchandra Sakarlal Kapadia (supra), after considering a specific
question as to whether the expression ‘assignment’ in Section 43 of the
said Act includes testamentary disposition, has held as under:

            “23. If a tenant or any other person from the priority list is
            conferred ownership in respect of the agricultural land or


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            when a landlord is allowed to retain the land which was
            surrendered by his tenant, each one of them is obliged to
            cultivate the land personally. In case any of them is unwilling,
            the land must be given to those who principally depend upon
            agricultural operations for their sustenance. If a person is a
            beneficiary of such statutory purchase and wishes to transfer
            his holding the law obliges that he must take prior sanction
            from the Collector. While granting such sanction, the
            authorities may essentially check whether the transferee is
            an agriculturist or an agricultural labour who otherwise fulfils
            the requirements and would carry out the obligation of
            cultivating the land personally; and that his holding would not
            go beyond the ceiling limit. Since the ownership itself was
            conferred as a result of the legislative scheme as discussed
            hereinabove, these conditions are inherent in the very
            conferral of ownership and, therefore, specifically
            incorporated in Section 43 with direct reference to the
            provisions named therein.

            24. A transfer inter vivos would normally be for consideration
            where the transferor may get value for the land but the
            legislation requires previous sanction of the concerned
            authority so that the transferee can step into the shoes of the
            transferor, and carry out all the obligations as a part of
            legislative scheme must be discharged. Thus, the screening
            whether a transferee is eligible or not, can be undertaken
            even before the actual transfer is effected. As against this, if
            a testamentary disposition which does not have the element
            of consideration is to be permitted, and if it is assumed that
            Sections 43 and 63 of the Act do not get attracted, the land
            can be bequeathed to a total stranger and a non-agriculturist
            who may not cultivate the land himself; which in turn may
            then lead to engagement of somebody as a tenant on the
            land. The legislative intent to do away with absentee
            landlordism and to protect the cultivating tenants, and to
            establish direct relationship between the cultivator and the
            land would then be rendered otiose. The construction put on
            the expression "assignment" appearing in Section 43,
            therefore, has to be consistent with the legislative scheme. In
            the context of the entire scheme, the term "assignment" used
            in Section 43 of the Act must include testamentary
            disposition as well. By adopting such construction, in keeping
            with the law laid down by this Court, the statute would


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            succeed in attaining the object sought to be achieved. On the
            other hand, if it is held that the testamentary disposition
            would not get covered by the provisions of Section 43, a
            gullible person can be made to execute a testament in favour
            of a person who may not fulfil the requirements and be
            eligible to be a transferee in accordance with law. This may
            not only render the natural heirs of the tenant without any
            support or sustenance, but may also have serious impact on
            agricultural operations."

                                                 (emphasis supplied)

23.         Therefore, it is clearly held by the Hon'ble Supreme Court
that a gullible person can be made to execute a testament in favour of a
person who may not fulfil the requirement and may not be eligible to be
transferee in accordance with law. It will not be out of place to reiterate
that fulfilling requirement includes requirement under Section 40 also.
In that view of the matter, present Petitioner Shri. Palkhe does not fit
into description of ‘heir’ who can continue tenancy on the death of
original tenant. Therefore, in my considered view, in the peculiar facts
and circumstances of this case, since the transfer/assignment in favour
of present Petitioner (Shri. Palkhe) is hit by both sections 40 and 43 of
the said act, he has no locus to press and continue this petition.
Therefore, the impugned order cannot be challenged at the instance of
such party. Since the petition is being proceeded with only at the
instance of Shri. Palkhe, who cannot be said to be tenant claiming
through original tenant in the teeth of Section 40 and 43 of the said
Act, I am afraid the impugned order cannot be challenged at his
instance.

24.         In the aforesaid facts and circumstances, and for reasons
recorded above Civil Application No. 2105 of 2014 is allowed holding
that Petitioner (Mr. Nitin Mahadeo Palkhe) is not entitled to proceed
with this petition after original tenant Narayan Bandu Shendge. Other


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prayers in civil application to determine the heirs of deceased Narayan
Bandu Shendge cannot be considered, as nobody else has come forward
and for lack of necessary material. So far as remaining prayer about
abatement is concerned, suffice it to observe that the impugned order
can not be challenged by present Petitioner Shri. Palkhe.

25.        In the net result, writ petition is disposed of, confirming the
impugned order, in above terms. Rule is discharged. Pending Civil
Applications are also disposed of in above terms. No order as to costs.

26.        At this stage, learned counsel for the Petitioner seeks
continuation of interim relief. Learned counsel for the Respondent has
opposed the request. Considering long pendency of the matter with
interim protection, the operation of this order is stayed for a period of
6 weeks from today.

27.        All concerned to act on duly authenticated or digitally signed
copy of this order.

                                                (M.M. SATHAYE, J.)




Navnath Waghmare                                                          14