Bombay High Court

KUSUM BHAGWAN PATIL AND ORSversusBABU PANDU PATIL SINCE DECD. THR LRS AND ORS

Decided: 27 July 2026
Disposal: Allowed
Bench: SHARMILA U DESHMUKH

Holding

The Tribunal exceeded its review jurisdiction by exercising appellate powers and re‑appraising evidence, rendering its review order ultra vires; therefore the review order and the Tribunal’s impugned order are quashed.

Summary

The petitioners, a group of agriculturists, challenged a common order of the Maharashtra Revenue Tribunal dated 3 September 2024 which had set aside a 5 December 2023 order that upheld the tenancy of their predecessor Anya Patil and allowed the respondents’ review applications. The dispute centered on a 48‑acre agricultural plot in Surai, Thane, involving multiple tenancy proceedings under the Maharashtra Tenancy and Agricultural Lands Act, 1948, including Section 32G, Section 70(b) and Section 74 applications by both landlords and heirs. The Tribunal, in its review, reversed its earlier finding on res judicata and re‑appreciated evidence, effectively re‑hearing the matter. The High Court held that the Tribunal exceeded its review jurisdiction, exercised appellate powers, and failed to confine itself to errors apparent on the face of the record. Consequently, the review order and the impugned Tribunal order were quashed, and the petitioners’ writ petitions were allowed. The Court also stayed the order for four weeks pending further compliance.

Issues considered

Whether the Maharashtra Revenue Tribunal acted within its statutory review jurisdiction under Order XLVII Rule 1 of the CPC.
Whether the Tribunal erred in re‑appreciating evidence and substituting its view, thereby exercising appellate powers.
Whether the principle of res judicata applies to the tenancy claims and the Tribunal’s review order.
Whether the grounds raised in the review applications constitute a permissible ground of review (error apparent on the face of the record, new evidence, or other sufficient reason).

Legislation cited

Code of Civil Procedure, 1908 — s. Order XLVII Rule 1
Maharashtra Tenancy and Agricultural Lands Act, 1948 — s. 32G, 32-M, 70(b), 74

Subjects

tenancy
res judicata
review jurisdiction
Maharashtra Tenancy Act
Section 32G
appellate jurisdiction
CPC Order 47
agricultural land
protected tenant
error apparent on face of record

Judgment

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, ]

Arya Chavan 1/28
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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 ODcer, Sub-Divisional ]
ODce, 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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WP-14311-2024 .doc

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 ]

Arya Chavan 4/28
WP-14311-2024 .doc

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 Gnal 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 certiGed on 17 th April,

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1962. Anya Patil, during his lifetime, Gled Section 32G proceedings for

the Gxation 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, Gxed the purchase price of the suit land and

other lands in favour of Anya Patil. The eJect of the judgment and

order dated 30th November, 1965 was given in the revenue records vide

Mutation Entry No. 1338, certiGed in the year 1965 in favour of Anya

Patil. The purchase price was paid and accordingly, Section 32-M

certiGcate was issued in favour of Anya Patil, however, the eJect of the

Section 32-M certiGcate 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, Gled

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 Gled

Tenancy Appeal No. 114 of 2014 before the Sub-Divisional ODcer (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 eJect 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 Gnality. 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 Gled 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, Gled 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 Gled Tenancy

Appeal No. 203 of 2011 before the SDO, Bhiwandi, under Section 74 of

the Tenancy Act.

13. Babu Pandu Patil also Gled Tenancy Appeal No. 9 of 2012 under

Section 74 before the SDO, challenging the order dated 30 th November,

1965 Gxing 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 certiGcate is wrongly issued in favour of Anya Govind Patil.

14. In Tenancy Appeal No. 9 of 2012, Babu Patil Gled 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, conGrming 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 Gled 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 Gled 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 Gled tenancy proceedings under Section 32G of

Tenancy Act for Gxation 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 Gled 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 Gled before the Tribunal.

PROCEEDINGS BEFORE TRIBUNAL:

21. The Petitioners along with Respondent Nos. 9 to 13 Gled 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 Gxation 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 Gxation 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 Gled 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

Gxation 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 Gndings are rendered.

He submits that Tribunal failed to notice that the review applications

were Gled through diJerent 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 Gxation 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 Gnality. 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 Gled through a diJerent 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 Gndings 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 Gnding 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

Gndings 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 Gnding of res judicata was an error on

the face of the record. He would submit that in the application Gled 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 Gled 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 Gled. 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 Gled 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 ediGce 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 Gnality.

37. Revision Application Nos. 373 of 2018 was Gled 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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Gled by the Petitioners, against the order of SDO dismissing the

Petitioner’s tenancy appeal against the Gxation 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 Gndings 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 reLected.

(III) Orders of revenue authorities showing cultivation of

Babu Pail is subsequent to the tiller’s day.

(IV) EJect of M.E. No 1338 Gxing purchase price in favour of

Anya Patil is not reLected 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 Gnality and therefore principles of res

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judicata apply.

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 certiGcate 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 Gnding on res-judicata was

unsustainable in law. The Tribunal reversed the earlier Gnding 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 Grst 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 suDcient 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 modiGed 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 deGned 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 conGned 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 suDcient reason.

The words "any other suDcient 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 suDcient on
grounds at least analogous to those speciGed 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 Gshed 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 respectfully

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submitted that the same is not dealt with and decided by this Hon’ble
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 Gled 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 Gled

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 Gled separate

Section 32G proceedings. These submissions were canvassed to deal

with the Petitioner’s arguments on the aspect of Gnality 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 Gled 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 Gling 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 Gled 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 Gled 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 Gling 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 Gling
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 diJerent

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 Gnding

of res judicata can at the highest be termed as erroneous Gndings

incapable of being corrected in review jurisdiction. The Tribunal has also

reversed its Gnding 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 Gndings.

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 Gshed 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 Gnality by order dated 11 th November, 2016, by stating that the

entire ediGce 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 Gshed 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 Gndings 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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