CHANDBI MARDA MAJAR KHA MOMIN AND OTHERSversusNIMBA ARJUN MALI MAHAJAN

2026:BHC-AUG:43890

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                          WRIT PETITION NO. 5525 OF 2016

                 1.      Chandbi Marda Majar Kha Momin
                         Died Through LR’s
                 1-A     Shaikh Muzaffar Shaikh Majhar,
                 Age : 58 years, Occu.: Agri.,
                 R/o : 1436 Mnagrul Naka, VTC Raver,
                 Tq. Raver District Jalgaon.

                 1-B Shaikh Mukhtar Shaikh Mazhar Momin
                 Age : 48 years, Occu.: Agri.,
                 R/o : Manyar Wada Tq. Yawal Dist. Jalgaon.

                 1-C SaberaBi Shaikh Karim
                 Age : 60 years, Occu.: Agri.,
                 R/o : Manyar Wada Faizpur (Rural) Tq. Yawal Dist. Jalgaon.

                 1-D Naseem Bi w/o. Jamil Ahmed,
                 Age : 32 years, Occu.: Household,
                 R/o : Ward No.2, Nehru Nagar, Shikarpura,
                 Burhanpur, Tq. and Dist. Burhanpura (Madhya Pradesh).

                 1-E Shabanabi Mazhar Shaikh
                 Age : 50 years, Occu.: Household,
                 R/o : 8421, Sanagat Mandir, Faizpur Tq. and Dist. Jalgaon.

                 2.       Sugrabi Marda Rasul Momin,
                          Deceased Through L.R’s.
                 2-a)     Shaikh Rajjak Shaikh Rasul Momin,
                          Age : Major, Occ: Agriculture,

                 2-b)     Shaikh Salim Shaikh Rasul Momin
                          Age : Major, Occ: Agriculture,
                          Died Through LR’s
                 2-b-1)   Haseena bi Shaikh Salim Momin
                          Age : 58 years, Occu.: Agri.,
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              R/o : Masjid Ali Mohallah, Dharangaon,
               Tq. Dharangaon, Dist. Jalgaon.

     2-b-2)     Shaikh Zuber Abdul Salim
              Age : 28 years, Occu.: Agri.,
              R/o : Masjid Ali Mohallah, Dharangaon,
               Tq. Dharangaon, Dist. Jalgaon.

     2-c)      Sufiyabi d/o Shaikh Rasul Momin,
               Age : Major, Occ: Household,

     2-d)      Saberabi Marda Abdul Karim Momin,
               Age : Major, Occ: Agriculture,

     2-e)    Nasarinbi Karim Momin,
             Age : Major, Occ: Household,
     Respondent Nos. 2a to 2e
     R/o Near Mashidali, Masjid, Dharangaon,
     Tq. Dharangaon, Dist. Jalgaon.                     Petitioners
                        Versus
     Nimba Arjun Mali (Mahajan),
     Age : 58 years, Occu. Agriculture,
     R/o Nagduli, Tq. Erandoli,
     Dist. Jalgaon                                      Respondent

        __________________________________
     Advocate for Petitioners : Mr. S. S. Kazi a/w Mr. F.F. Shirpurkar
                                and Mr. Syed Quadri

       Advocate for Respondent No.1 : Mr. Girish S. Rane
        __________________________________

                                      CORAM : ROHIT W. JOSHI, J.
                               RESERVED ON : 12th AUGUST, 2026
                            PRONOUNCED ON : 28th SEPTEMBER, 2026

JUDGMENT :
1.          The present petition is filed to challenge the judgment
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and   order    dated    04.08.2014    passed     by    the     learned
Designated      Member,      Maharashtra    Revenue           Tribunal,
Aurangabad, in Revision Case No. 39/B/2011/JGN. By the said
judgment, the learned Tribunal has quashed and set aside the
judgment and order dated 31.05.2011 passed by the Sub-
Divisional Officer, Amalner, in Tenancy Appeal No. 5/2011, and
confirmed     the   order   dated   12.09.2008    passed       by       the
Tahsildar, Erandol, District Jalgaon, in Tenancy Case No.
22/2001. By the order dated 12.09.2008, the Tahsildar has
fixed the purchase price of the suit property at Rs.1,862/- in
exercise of powers under Sections 32(G) of the Maharashtra
Tenancy and Agricultural Lands Act (for short, “MTAL Act”).
The suit property comprises of agricultural land admeasuring
2.71 HR, bearing Gut No. 506 (Survey No. 133), situated at
Village Nagduli, Tahsil Erandol, District Jalgaon.


2.      The present Respondent had filed Case No. 22/2001
inter alia seeking fixation of purchase price of the suit
property under Section 32(G) of the MTAL Act. The Tahsildar,
Erandol, dismissed the said application for want of prosecution
vide order dated 07.08.2003.



3.      Being aggrieved by the order dated 07.08.2003
dismissing his application under Section 32(G) in default, the
Respondent preferred an appeal before the Sub-Divisional
Officer, which came to be registered as Tenancy Appeal No.
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6/2003. The said appeal was allowed vide order dated
01.07.2004, whereby the Sub-Divisional Officer quashed and
set aside the order and remitted the matter back to the
Tahsildar for passing appropriate orders under Section 32(G)
of the MTAL Act.


4.      The present Petitioners had also filed an application,
registered   as    Case   No.       21/2002,   for   deletion      of       the
respondent's name as ordinary tenant from the revenue
records. That application was also dismissed on merits by a
separate order dated 07.08.2003. The Petitioners however did
not challenge the said order dated 07.08.2003 whereby their
application for deletion of name of Respondent as ordinary
tenant was rejected by the Tahsildar.


5.      After the matter was remanded by the Sub-Divisional
Officer, the Tahsildar allowed the application filed by the
Respondent fixing purchase price at Rs.1862/- The Petitioners
challenged the said order by filing Tenancy Appeal No.5/2011
before the Sub-Divisional Officer. The Sub-Divisional Officer
allowed the appeal by order dated 31.05.2011. The Sub-
Divisional Officer recorded that the suit property belongs to a
public trust registered under the Maharashtra Public Trusts
Act, 1950, namely “Peer Saheb, Manager Budhan Jamal
Momin.” It is held that, since the property belongs to a
registered public trust, requisite permission under Section 36
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of the Maharashtra Public Trusts Act would be necessary for
alienation of the suit property. Apart from this, it is held that
the suit property is Devsthan Inam Class-III land and,
therefore, the Respondent could not seek fixation of purchase
price in view of Section 88B of the MTAL Act. The Sub-
Divisional Officer held that Sections 32 to 32R of the MTAL Act
are not applicable to the suit property. Apart from this, the
Sub-Divisional Officer also held that the Respondent had failed
to establish how he acquired the status of a tenant, since he
did not offer any clarification as to the manner in which the
land was legally cultivated by him prior to the tiller’s day. It is
observed that there is no reference to any agreement or
payment of rent by the Respondent or his predecessor to the
Petitioners. In the light of these reasons, the Sub-Divisional
Officer allowed the appeal preferred by the Petitioners and
quashed and set aside the order passed by the Tahsildar.


6.      Being aggrieved by the aforesaid order passed by the
Sub-Divisional Officer, the Respondent preferred Revision
before the Maharashtra Revenue Tribunal. The said revision
came to be allowed by the learned Maharashtra Revenue
Tribunal. The learned Maharashtra Revenue Tribunal has
recorded that application seeking exemption from applicability
of the provisions of the MTAL Act filed by the Petitioners was
rejected earlier vide order dated 09.03.1968. The learned
Maharashtra    Revenue    Tribunal   held that    the trust was
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registered under the Maharashtra Public Trusts Act, 1950,
after the tiller’s day, and therefore the trust could not claim
exemption from the applicability of the provisions of the MTAL
Act. In view of the aforesaid reasons the learned Maharashtra
Revenue Tribunal quashed and set aside the appellate order
passed by the Sub-Divisional Officer and confirmed the order
passed by the Tahsildar fixing purchase price for the suit
property.


7.       It will be pertinent to state that, in the operative
order,   the     learned   Maharashtra    Revenue         Tribunal         has
erroneously confirmed the order dated 07.08.2003 instead of
the order dated 12.09.2008 passed by the Tahsildar. Vide
order dated 07.08.2003, the application for fixation of
purchase price was dismissed in default. That order was set
aside by the Sub-Divisional Officer in an earlier appeal. The
said order was not questioned by the Petitioners, and the
matter was consequently remanded before the Tenancy
Tahsildar   by    the   Sub-Divisional   Officer,     whereupon            the
application came to be allowed by order dated 12.09.2008.
The appellate order quashed by the Maharashtra Revenue
Tribunal is the order whereby the Tahsildar’s order dated
12.09.2008 was set aside. Thus, it is evident that the
Maharashtra Revenue Tribunal has, in effect, confirmed the
order dated 12.09.2008 passed by the Tahsildar in Tenancy
Case No. 22/2001, and not the earlier order dated 07.08.2003
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whereby    the   application       was   dismissed   for    want       of
prosecution.


8.      Mr. Kazi the learned Advocate for the petitioners
vehemently argues that the land in question is allotted to the
trust as Class-III Devsthan. The learned Advocate contends
that in view of Section 88CA, such lands are exempted from
the applicability of the provisions of the Tenancy Act. He also
states that provisions regarding purchase of land under MTAL
Act will not be applicable in the case at hand in view of
Section 88B of the said Act since the land is owned by a
registered public trust for religious purpose. The learned
Advocate further argues that, although the Respondent claims
to be a tenant, particulars with respect to the tenancy are
neither pleaded nor proved. The learned Advocate vehemently
contends that no documentary evidence is produced on record
regarding any tenancy agreement. Likewise, he submits that
there is no evidence of payment of rent. He further states that
even the quantum of the alleged rent has not been mentioned
by the Respondent. The learned Advocate argues that unless
all the terms and conditions of the tenancy are properly
established, a person cannot claim to be a tenant of
agricultural land merely on the basis of possession. He places
reliance on judgment of the Hon’ble Supreme Court in
Hanmanta Daulappa Nimbal (since deceased) by LRs. v.
Babasaheb Dajisaheb Londhe, (1995) 6 SCC 58 and decision
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of this Court in the case of Ramdas Gopal Patel Vs. State of
Maharashtra and Others, 2023 (3) MhLJ 705. The learned
Advocate would further argue that the land in question is
dedicated for a religious purpose as per Muslim Law and as
such it is a Waqf property. Mr. Kazi learned Advocate has
placed reliance judgment of this Court in the Arjun Bhimaji
Lakre (deceased) through LRs. and Anr. vs. Hindustani Momin
Banarasi Jaatiche Panch Mandali and Anr. reported in 2014 (3)
MhLJ 870 to contend that the proceedings ought to have been
instituted   before   the   Waqf   Tribunal   and   also    for       the
proposition that tenancy of agricultural lands belonging to a
Waqf is not heritable. The contention of the learned Advocate
is that, in the absence of the Waqf Board as a necessary party
to the proceedings, the same could not have been allowed.
Mr. Kazi further contends that, the suit property was governed
by the erstwhile Waqf Act, 1954, which contained pari materia
provisions with Wakf Act, 1995. The learned Advocate further
contends that Petitioner No. 2 had expired on 17.07.2002
while the proceedings were pending before the Tahsildar, and
as such, the order passed by the Tahsildar is a nullity, having
been passed against a dead person. The learned Advocate
also submits that the order passed by the Tahsildar is liable to
be quashed and set aside on the ground that, although
Petitioner No. 2 had expired long before the decision of the
said application, order passed by the Tahsildar mentioning
that   statement of Petitioner No. 2 was recorded in the
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proceedings before him.


9.       Per contra Mr. Girish Rane the learned Advocate for
the Respondent supports the order passed by the learned
Maharashtra Revenue Tribunal. The contention of the learned
Advocate is that applicability of MTAL Act, cannot be disputed
since in the earlier round of litigation, the Sub-Divisional
Officer has passed the order of remand relegating the
proceeding to the Tahsildar for fixation of purchase price and
this remand order was not challenged by the Petitioners. He
contends that the remand was not for determining the status
of the Respondent as a tenant or whether the Respondent was
entitled to purchase the suit property under the provisions of
the Tenancy Act but for a limited purpose of fixation of
purchase price. The learned Advocate also contends that the
application filed by the Petitioners seeking exemption from
applicability of provisions of the MTAL Act was rejected earlier
vide order dated 09.03.1968. He contends that, since the
trust   was   registered     after    tiller’s   day     and     since        the
respondent's predecessor held the suit property as a tenant
on the tiller’s day, he had become owner thereof on the tiller’s
day itself. The learned Advocate therefore submits that
subsequent    registration    of     the   trust   cannot       divest        the
predecessor of the Respondent of his ownership over the suit
property. He argues that in view of Section 4 of the MTAL Act
proof of agreement of tenancy, terms and conditions thereof
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and/or payment of rent is not necessary and that even proof
of lawful cultivation is sufficient to hold that the person
cultivating land owned by another person is a tenant unless
the case falls under any exception provided under Section 4.
The learned Advocate also contends that the provisions of
MTAL Act are applicable to Inam Class-III lands. Mr. Rane
contends that the provisions of Waqf Act, 1954 were not made
applicable to Jalgaon District and prior to commencement of
the Waqf Act 1995 the respondent's predecessor had become
owner of the suit property by virtue of the provision of MTAL
Act.


10.     Mr. Rane has placed reliance     on judgment of the
Hon’ble Supreme Court in the case of Janaradhan Dagdu
Khomane and Anr. Vs. Eknath Bhiku Yadav and Ors. 2019 (10)
SCC 395 to contend that when a trust is registered as a public
trust after the tiller’s day, the ownership rights vested in a
tenant as on the tiller’s day cannot be divested by subsequent
registration of the trust. Reliance is also placed on judgments
of this Court in the cases of Laxminarayan Temple Kothure
through his Trustees Vs. Laxman Mahadu Chandore deceased
by his Legal Representatives and Others, AIR 1970 BOM 23,
Chhatrapati Devasthan Trust Vs. Parisa Appa Bhoksa and
Others, AIR 1979 Bom 218 and Shri Nivruttinath Yatra Khajur
Donation Trust, Dist. Nashik Vs. Sub-Divisional Officer, Dist.
Dahanu and Ors. reported in 2005 (1) ALL MR 341. In the
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judgments of this Court referred to above, it is held that, and
therefore   when   landlord-Trust   is   registered   under          the
Maharashtra Public Trusts Act after the tiller’s day, a tenant
acquires ownership rights over the agricultural lands hold by
such on the tiller’s day, and therefore the landlord-Trust is not
entitled to obtain a certificate of exemption under Section 88B
of the MTAL Act.


11.     I have heard the rival submissions as aforesaid. I
have also perused the impugned orders with the able
assistance of the leaned Advocates. The learned Advocates
have also taken me through the relevant documents on the
record while making elaborate submissions.


12.     It is pertinent to note that the application filed by the
Petitioners for deletion of the Respondent’s name from the
cultivating column was rejected by the Tahsildar, and the
Petitioners did not choose to challenge the said order further.
Likewise, in the earlier round of litigation, the Sub-Divisional
Officer had remanded the proceedings for determination of
purchase price, and the Petitioner did not challenge the said
remand order. Likewise application filed by the Trust for
exemption from applicable of MTAL Act was also rejected on
09.03.1968 itself. In view of the above, contention raised by
the Petitioner that the Respondent cannot claim tenancy
rights over the suit property and is consequently not entitled
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to a purchase certificate is liable to be rejected. However the
contentions raised are also dealt with on merits.


13.     At the outset, it will be appropriate to deal with the
preliminary objection of Mr. Kazi that the order passed by the
Tahsildar is against a dead person. The said objection is
recorded only to be rejected. Perusal of the order passed by
the Tahsildar will demonstrate that the name of Petitioner
No.2 is typed in the title clause of the order and below that
the name of Petitioner No.2(a) is mentioned as her legal
representative. It will also be relevant to state that after the
name of Petitioner No.2(a), the words “and Other four” are
also   mentioned.    The    name    of   deceased       Petitioner
No.2/Sugrabi is typed. However, upon realizing that she had
expired and was represented by her legal representatives, her
name is put in brackets and below that name of Petitioner
No.2(a) and the words “four others” are written by hand.
Record of the present petition also indicates that deceased
Petitioner No.2 is survived by five legal representatives viz.
Petitioner Nos. 2(a) to 2(e). Thus the legal representatives of
deceased Petitioner No.2 were brought on record in the
proceedings before the Tahsildar. It must also be stated that
in point no.4 of the arguments advanced by the Petitioners in
Appeal before the Sub-Divisional Officer a contention is raised
that although the Petitioner No.2 had expired and her legal
representatives were also brought on record, the order
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records that statement of deceased Petitioner No.2 was
recorded by the Tahsildar. This contention raised in Appeal
also indicates that legal representatives of deceased Petitioner
No.2 were brought on record before the Tahsildar. The
contention of Mr. Kazi that order passed by the Tahsildar is
against a dead person is thus contrary to the record and
cannot be accepted.


14.     It must also be stated that in the order passed by the
Tahsildar it is mentioned that statements of Petitioner Nos. 1
and 2 were recorded in the office of the Tahsildar on
13.07.2005. Mr. Kazi contends that although Petitioner No.2
had expired on 17.07.2002, the order indicates that her
statement is recorded by the Tahsildar on 13.07.2005. He
therefore contends that the order is obtained from the
Tahsildar by practicing fraud. The said contention although
attractive at the first blush, cannot be accepted on a deeper
scrutiny. At the outset, it must be stated that the petitioners
have not filed copy of the alleged statement of petitioner no.2
on record. The order passed by the Tahsildar recites that the
statement of Petitioner Nos. 1 and 2 was recorded in the
office of the Tahsildar on 13.05.2005. The order records that
notice dated 05.07.2005 was issued to both sides to remain
present at the suit property for recording statements. It is
stated that the Respondent was present at the agricultural
land, however the Petitioner Nos. 1 and 2 appeared in the
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office of the Tahsildar where their statements are recorded.
The Petitioners do not dispute statement of Petitioner No.1
was recorded. They do not state that Petitioner No.1 had been
to the office of Tahsildar alone. It appears that just as initially
mistake was committed in typing the name of the petitioner
no.2 in the title clause of the order passed by the Tahsildar in
the body also same mistake was committed.


15.       The petitioners, as mentioned above, have also not
produced copy of the alleged statement of deceased petitioner
No.2 on record. Most importantly neither the Tahsildar not the
learned    MRT   who   have   decided    the   case    against         the
petitioners have based their orders on the statements made
by the petitioners. The order of SDO passed in favour of the
Petitioners is also not based on statements recorded by the
parties. All the three authorities have decided the matter on
the basis of documents on record and legal provisions. The
adjudication of the lis revolves around entitlement of a tenant
to purchase agricultural land held by him as a tenant in the
light of relevant statutory provisions. Likewise the Sub-
Divisional Officer who has passed order in favour of the
petitioners has also not recorded finding that statement of a
dead person was recorded by the Tahsildar.

16.       It will now be appropriate to refer to the rival
contentions with respect to merits of the matter. The first
contention of Mr. Kazi is that the provisions of the MTAL Act
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are not applicable to the suit property, since it is Inam Class-
III land. The learned Advocate draws attention to the
alienation register of the suit property, wherein the class of
alienation is recorded as “Class-III Devasthan.” Attention is
also drawn to the 7/12 extract of the suit property to
demonstrate       that   the   suit   property     was    recorded         as
Devasthan.


17.       These documents do indicate that the suit property is
Inam Class-III land. The Inam, according to the case of the
petitioners and the documents placed on record, is for
rendering service to the Deosthan. Inam is not granted for
any service to or for benefit of the Government. Section 88CA
of MTAL Act reads as under :
      88CA. Sections 32 to 32R not to apply to certain service
      lands. - Nothing in sections 32 to 32R (both inclusive), [33A,
      33B and 33C] shall apply to land held as inam or watan for
      service useful to Government but not assigned as
      remuneration to the person actually performing such service
      for the time being under section 23 of the 3[Bombay
      Hereditary Offices Act, 1874 (Bom. III of 1874)], or any other
      law for the time being in force.]


.         Perusal of Section 88CA of MTAL Act will indicate that
provisions of Section 32 to 32R are not applicable to lands
when the same is held for service to the Government.
Exemption under Section 88CA is not available to land granted
as Inam for service to Deosthan. Therefore Section 32 to 32R
will be applicable to Inam lands for service to a religious place
                           16                901.WP-5525-2016.odt




of workshop. The legal position in this regard is clarified by
the judgment of this Court in Kachru Lakhu Aher Vs. Masjid
Mandad    Deosthan   and   Others,   1990   MhLJ     440.     It    is
categorically held in the said case that Inam Class-III lands
are governed by the provisions of the MTAL Act, except in
cases where the Inam is for the benefit of the Government. It
is categorically held that provisions of MTAL Act are applicable
to Inam lands when the Inam is for service to a Deosthan. In
the said case also the land was granted in favour of a Masjid
as Deosthan Inam Class-III land.     It is held that unless the
grant is as Inam for benefit of the Government, exemption
from applicability from the provisions of MTAL Act cannot be
claimed. In view of this categorical pronouncement in Kachru
Lakhu Aher (supra), the contention that the provisions of the
Tenancy Act are not applicable to the suit property in view of
section 88CA of MTAL Act is liable to be rejected.


18.      The second contention of the petitioner is that
possession by itself cannot give rise to presumption that the
respondent's predecessor was a tenant. Finding by the Sub-
Divisional Officer that tenancy is not proved since agreement
of tenancy, terms thereof and payment of rent is not
established is justified by the learned Advocate for the
petitioners. In support of his contention that mere possession
of agricultural land cannot lead to inference of tenancy, the
petitioners have placed strong reliance on judgment of this
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Court in the case of Ramdas Gopal Patel (supra) and another
judgment of Hon’ble Supreme Court in the case Hanmanta
Daulappa Nimbal (supra).


19.     Perusal of order passed by the Tahsildar in favour of
the respondent will reveal that a finding is recorded that
petitioners predecessor was in cultivating possession of the
suit land since the year 1947. This finding is not disturbed by
the Sub-Divisional Officer while allowing the appeal.           The
Sub-Divisional Officer has held that the case of tenancy is not
proved since there is no evidence regarding terms and
conditions of tenancy or even evidence with respect to
payment of rent. It must be stated that the finding that the
predecessor of the respondent was in cultivating possession
since the year 1947 is also recorded in the order dated
07/08/2003 passed by the Tahsildar rejecting application filed
by the petitioners for deletion of name of the respondent's
predecessor as tenant. This order is not assailed further by
the petitioners and as such the finding regarding the
respondent's predecessor being in occupation of the suit
property since the year 1947 has assumed finality and cannot
be questioned.


20.     In this regard it will be appropriate to refer Section 4
of the MTAL Act which provides that a person in lawful
cultivating possession of agricultural land belonging to another
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shall be deemed to be a tenant unless he is a family member
of land owner, or servant on wages payable in cash or kind,
but not in crop share, or a hired labour or a mortgagee in
possession.     It is not the case of petitioners that the
respondent's predecessor falls under any of the excepted
categories    provided   under   Section   4.       Therefore,           the
respondent's predecessor must be held to be a deemed tenant
as per Section 4 even if, agreement of tenancy, terms of
letting for payment of rent is not proved. The contention of
the learned Advocate for the petitioners that tenancy is not
proved since terms of tenancy and payment of rent is not
established is therefore liable to be rejected.


21.     In this regard it will be appropriate to refer to the
case of Kishan Ramchandra Kumbhar and Others vs. Dr.
Kashinath Bandu Teli and others, 2004 (1) Mh.L.J. 285, where
the petitioners claimed that they were in possession of the
suit property, which was an agricultural land, prior to the
tiller’s day, and asserted that they had become deemed
purchasers of the suit property and were entitled to purchase
the same. The Respondent opposed the contention of the
petitioners of being deemed tenants on the ground that the
predecessor of the petitioners was appointed as a watchman
on payment of Rs.100 per month, and that he had worked as
a watchman for around twenty years without ever being
treated as a tenant. It was in this context that the definition
                                   19                        901.WP-5525-2016.odt




of the term “tenant” under Section 2(18) of the MTAL Act and
Section 4 of the Act fell for consideration before this Court.
This Court has held that a person lawfully cultivating land
belonging to another is deemed to be a tenant and if he is
cultivating the land as on the tiller’s day i.e. 01.04.1957 he
would thereby become the deemed purchaser of the land.
Relevant observations in paragraphs 11 and 12 of the
judgment are reproduced herein below for ready reference:
      From the above ruling, it is seen that a person, who is lawfully
      cultivating the land belonging to anther person and not falling under
      the excepted category, shall deemed to be a tenant of that land. And if
      he was so cultivating on the tiller's day i.e. 1st April, 1957, he would
      become deemed purchaser of such land. This is the mandate of the
      scheme of the provisions of the Act. Merely because there is no Lease
      or Kabulayat Rent Receipt is not produced, that alone cannot be the
      basis to discard the claim of such a person, for there is legal
      presumption by virtue of Section 4 that he is deemed tenant. The
      reasoning of the Tribunal is against the provision of Section 4 of the
      Tenancy Act, which does not require an entry in the tenancy column
      or a rent note or a rent receipt to support the claim of a tenant to
      statutory tenancy that section. All that is required to be examined to
      decide the claim under Section 4 of the Act is of lawful cultivation by
      a person other than the excepted category. It is not open to the
      Authorities to read into that section old fashioned notion of the law
      of landlord and tenant which required the entries in the tenancy
      column, rent note or rent receipt to support the case of tenancy. The
      Legislature knowing all these old requirement has adopted a
      definition of 'statutory tenancy' irrespective of such
      things……………….Having regard to the above enunciation and the
      established facts from the record of the present case, as has been
      found by the authorities below, the Petitioners will necessarily have
      to be held as tenants at least with regard to the land brought under
      cultivation to the extent of about 5 acres out of 18 acres of such land.
      And, therefore, the Petitioners are entitled to be declared as deemed
      purchasers of that portion of land, provided they do not exceed the
      prescribed holding. The appropriate Authority will have to examine
      that aspect and also determine the purchase price for such land to be
                                      20                        901.WP-5525-2016.odt




         paid by the Petitioners.


22.        In Kishan Kumbhar (supra), this Court placed reliance
on the judgment of the Hon’ble Supreme Court in Dahya Lala
and Others v. Rasul Mahomed Abdul Rahim and Others (AIR
1964 SC 1320). In that case before the Hon’ble Supreme
Court, the contention of the landowner that tenancy could be
created only with the consent and authority of the owner of
the property on the basis of a contract came to be rejected, in
view of the definition of the term “tenant” under Section
2(18) of the MTAL Act. The Hon’ble Supreme Court held that
Section 2(18) devised a special definition of “tenant” which
includes all persons who, though not contractual tenants,
lawfully cultivate land belonging to another person. Relevant
observations in the judgment of the Hon’ble Supreme Court
are reproduced below for ready reference:
      The Act of 1948, it is undisputed, seeks to encompass its beneficent
      provisions not only tenants who held land for purpose of cultivation
      under contracts from the owners but persons who are deemed to be
      tenants also. The point in controversy is whether a person claiming the
      status of a deemed tenant must have been cultivating land with the
      consent or under the authority of the owner. Counsel for the appellants
      submits that tenancy postulates a relation based on contract between
      the owner of land, and the person in occupation of the land, and there
      can be no tenancy without the consent of authority of the owner to the
      occupation of that land. But the Act has by Section 2(18) devised a special
      definition of tenant and included therein persons who are not
      contractual tenants. It would therefore be difficult to assume in
      construing Section 4 that the person who claims the status of a deemed
      tenant must be cultivating land with the consent or authority of the
      owner. The relevant condition imposed by the statute is only that the
      person claiming the status of a deemed tenant must be cultivating land
      "lawfully": It is not the condition that he must cultivate land with the
                                     21                        901.WP-5525-2016.odt




      consent of or under authority derived directly from the owner. To
      import such a condition is to rewrite the section, and destroy its
      practical utility. A person who derives his rights to cultivate land from
      the owners would normally be a contractual tenant and he will obviously
      not be a "deemed tenant". Persons such as licencees from the owner may
      certain be regarded as falling within the class of persons lawfully
      cultivating land belonging to others, but it cannot be assumed
      therefrom that they are the only persons who are covered by the section.
      The Act affords protection to all persons who hold agricultural lands as
      contractual tenants and subject to the exceptions specified all persons
      lawfully cultivating lands belonging to others, and it would be unduly
      restricting the intention of the Legislature to limit the benefit of its
      provisions to persons who derive their authority from the owner, either
      under a contract of tenancy, or otherwise. In our view, all persons other
      than those mentioned in Clauses (a), (b) and (c) of Section 4 who lawfully
      cultivate land belonging to other persons whether or not their authority
      is derived directly from the owner of the land must be deemed tenants
      of the lands."


23.        It will also be profitable to refer to the judgment of
the Hon’ble Supreme Court in the case of Jagan Alias
Jagannath Umaji v. Gokuldas Hiralal Tewari , AIR 1989 SC
2489 which is also followed in the aforesaid of Kishan
Kumbhar (supra). In the said case, the property belonged to a
temple. A Pujari was appointed for worshiping the deity and
for the management of the temple and the Dharamshalas.
The Pujari was allowed to cultivate the agricultural land of the
temple and appropriate crop against payment for services
rendered by him. In this backdrop section 4 of the MTAL Act
fell for consideration before the Hon’ble Supreme Court. The
Hon’ble Supreme Court held that cultivation by the Pujari was
lawful cultivation since he was permitted by the landlord to
cultivate the land, although in lieu of payment of wages for
                           22                 901.WP-5525-2016.odt




services. The Supreme Court observed that the record
indicated right to cultivate the land of temple was vested with
the Pujari. In this backdrop of facts, it is held that the Pujari
had assumed the status of a deemed tenant. A person who
renders service for a share in the crop is not deemed to be a
tenant under Section 4 of the MTAL Act. Since the pujari in
the case before the Hon’ble Supreme Court was entitled to
appropriate entire crop and not merely a share in the crop in
lieu of wages as a consequence of which his case squarely fell
under section 4 and the exception accordingly he was held to
be a tenant.


24.      Similar view is taken by this Court in the case of Babu
Hari Patil Vs. Rama Ananda Jadhav, 2005 (1) Mh.L.J. 1063.
In this case, it was clearly laid down that, for claiming the
status of a deemed tenant, a person is only required to show
lawful cultivation of land belonging to another. It is further
held that, if the tenant was in possession prior to the tiller’s
day, this would also confer ownership upon him by way of
statutory fiction.


25.      In view of the aforesaid legal position, in the facts of
the present case, it must be held that the respondent has
successfully proved his case of being a deemed tenant. Even if
the Respondent had no contract of tenancy or proof of
payment of rent, since his predecessor was lawfully cultivating
                                    23                         901.WP-5525-2016.odt




the land prior to the tiller’s day, he assumed ownership over
the suit property by statutory fiction.


26.        It    is    duly   established        that    the     predecessor          of
respondent is in cultivating possession of the suit property
since the year 1947 and as such deemed to be tenant in view
of Section 4 of the MTAL Act. Section 32 of the Act provides
that, every tenant shall be deemed to have purchased the
tenanted land held by him as tenant from his landlord on the
tiller’s day i.e. 01/04/1957. In view of the statutory mandate
of Section 32 the respondent’s predecessor is deemed to have
purchased the suit property on 01/04/1957.


27.        The Trust came to be registered under Maharashtra
Public Trust Act, 1950 (MPT Act) on 17/03/1967.                                    The
question        that   arises     for    consideration       is,    as    to     effect
subsequent registration of the Trust in view of Section 88B of
the MTAL Act. Relevant portion of Section 88B of MTAL is
reproduced as below :

      ‘88-B. Exemption from certain provisions to land of local authorities,
      universities and trusts.—

      (1) Nothing in the foregoing provisions except sections 3, 4-B, 8, 9, 9-
      A, 9-B, 9-C, 10, 10-A, 11, 13 and 27 and the provisions of Chapters VI
      and VIII in so far as the provisions of the said Chapters are applicable
      to any of the matters referred to in the sections mentioned above, shall
      apply—

      (a)……..
                                       24                         901.WP-5525-2016.odt



      (b) to lands which are the property of a trust for an educational purpose, a
      hospital, Panjarapole, Gaushala or an institution for public religious worship:

      Provided that—

      (i) such trust is or is deemed to be registered under the Bombay Public
      Trusts Act, 1950 (Bom. XXIX of 1950), and

      (ii) the entire income of such lands is appropriated for the purposes of such
      trust;

      (c)……………………

      (d)……………………

      (2) For the purposes of this section, a certificate granted by the Collector
      after holding an inquiry, that the conditions in the proviso to sub-section (1)
      are satisfied by any trust shall be conclusive evidence in that behalf.



28.         Section 88B of the MTAL Act provides that the
provisions of the said Act shall not be applicable to a property
of a registered trust which is an institution of public religious
worship. In order to claim exemption under Section 88B, a
trust must be a registered public trust and the entire income
of the trust must be utilized for benefit of the trust. Both
these conditions must be satisfied.


29.         Legal position that subsequent registration of a trust
cannot divest ownership vested in a tenant on the tiller’s day
is well-settled.        In the case of Janaradhan Dagdu Khomane
(supra) the landlord Trust was in existence prior to the tiller’s
day i.e. 01/04/1957. The landlord Trust was registered after
the tiller’s day. The property of Trust was in cultivation of a
tenant. The Trust obtained order of exemption under Section
                           25                901.WP-5525-2016.odt




88-B of the MTAL Act after 01/04/1957. The issue which fell
for consideration before the Hon’ble Supreme Court was as to
whether the tenant could be divested of ownership vested in
him in view of subsequent registration of the landlord Trust
under Maharashtra Public Trust, 1950 (hereinafter referred to
as MPT Act). The Hon’ble Supreme Court has held that the
effect of registration will be prospective and as such the
tenant cannot be divested of right of ownership statutorily
vested on the tiller’s day in view of subsequent registration of
the landlord Trust under the MPT Act.


30.     Likewise in the case of Laxminarayan Temple Kothure,
the tenant of Trust had become owner of the agricultural land
owned by the trust on 01/04/1957. The Trust was registered
under MPT Act, 1950 on 28/03/1958 i.e. after vesting of
ownership on tiller’s day.      This Court has held that the
landlord Trust will not be entitled to claim exemption from
applicability of provisions of MTAL Act in view of subsequent
registration under MPT Act.


31.     Similar view that subsequent registration of landlord
Trust under MPT Act cannot divest statutory ownership of a
tenant acquired on tiller’s day      is taken in the case of
Chhatrapati   Devasthan    Trust   where   the   application        for
registration of landlord Trust under MPT Act was filed on
18/01/1956 and the Trust was registered on 31/05/1959 and
                           26                 901.WP-5525-2016.odt




the tenant who was cultivating the land had acquired
ownership on 01/04/1957.


32.      In the case of Shri Nivruttinath Yatra Khajur Donation
Trust   (supra), it is held that qua lands over which tenant
statutorily acquired ownership on the tiller’s day, landlord
Trust is not entitled to claim exemption upon registration
under MPT Act after the tiller’s day since the ownership is
already transferred in favour of the tenant prior to registration
of the landlord Trust.


33.      In view of the aforesaid legal position, it cannot be
said that the registration of the trust in the year 1967 will
have the effect of divesting the ownership of the predecessor
of the Respondent over the suit property on the tiller’s day,
i.e., 01.04.1957.


34.      As regards the judgment of the Hon’ble Supreme
Court in Hanmanta Daulappa Nimbal (supra) relied by the
Petitioners, in that case the claim of tenancy was made from
the year 1968-69, which was after the tiller’s day. It was
found that the land in question had been mortgaged, and the
mortgagee was placed in possession of the suit land and was
cultivating the same since 1964-65, i.e., prior to the creation
of the alleged lease in 1968-69. The case of the Respondent
before the Hon’ble Supreme Court was one of oral tenancy in
                          27                 901.WP-5525-2016.odt




1968-69. In that case, the landlord had instituted a suit for
injunction against the Appellant/Tenant, and an order of ad-
interim injunction was passed in favour of the landlord on
21.01.1969. The Appellant/Tenant claimed oral tenancy for
the first time by issuing a notice dated 22.01.1969. However,
contrary to the case set up by the Respondent, the learned
Maharashtra Revenue Tribunal decided the revision treating it
as a case of deemed tenancy under Section 4 of the Tenancy
Act. The Hon’ble Supreme Court observed that the plea of oral
tenancy was raised for the first time after order of ad-interim
injunction was passed in favour of landlord. In these peculiar
set of facts the Hon’ble Supreme Court has held that in order
to establish lawful possession over agricultural land, it is
necessary for the tenant to establish that there was an
agreement with the landlord, that he was inducted as a tenant
pursuant to such agreement, and that he was making
payment of premium or rent, as agreed. These observations
must be appreciated in the backdrop of the facts of that case.
Therefore, the ratio of the said judgment cannot be applied to
the present case.


35.     So far as case of Ramdas Gopal Patel (supra) is
concerned, in the said case the petitioners claimed to be in
possession of the suit property on tiller’s day that is on
01.04.1957. The tenancy tahsildar Sub-Divisional Officer and
learned Maharashtra Revenue Tribunal had rejected the
                           28                 901.WP-5525-2016.odt




application appeal and revision respectively preferred by the
petitioners. The said orders were subjected to challenge in the
writ petition. Dealing with the contention of the Petitioner that
his predecessors were in possession of the suit land prior to
tiller’s day, the authorities recorded positive findings that
there was no record prior to the year 1986 to indicate that
petitioners’ predecessors were in possession of the property.
Categorical findings came to be recorded that the petitioner
had failed to prove his possession prior to 01.04.1957. The
High Court confirmed the findings in the petition. The case is
clearly distinguishable on facts, since in the said case the
petitioner had failed to prove possession of his predecessor-
in-title prior to the year 1986. There was no evidence on
record to even remotely indicate possession of the petitioners
predecessors on or before the tiller’s day.


36.     It will also be pertinent to state that Ramdas Gopal
Patel (supra) confirms the ratio of the aforesaid decisions in
Ramdas Gopal Patel (supra) and Babu Hari Patil.


37.     The contention of Mr. Kazi, learned Advocate for the
petitioners, is that since the suit property belongs to a wakf,
the deceased father of the respondent cannot claim to be a
deemed purchaser of the suit property under Section 32. It is
further contended that since the property is a wakf property,
the respondent cannot inherit the same in view of the same
                              29                 901.WP-5525-2016.odt




under Section 4 of the MTAL Act. The inter-play between the
provisions of the Wakf Act and the corresponding provisions of
the Maharashtra Tenancy and Agricultural Lands (Vidarbha
Region) Act, 1958, is elaborately considered by this Court in
Sunil s/o Vasudeo Nirgude and Others Vs. Hasan Khan s/o
Maheboob Khan and Others, reported in 2023 (6) Bom.C.R.
311. This Court has dealt with Section 56 of the Wakf Act,
1995 along with the provisions of the MTAL (VR) Act to arrive
at a conclusion that the said provisions are not in conflict and
that protection of the provisions of the Tenancy Act can be
granted to a tenant against properties of a Wakf. Relevant
observations in paragraph No.45 of the Judgment are quoted
hereinbelow:

      45. Thus, both the Acts i.e. Section 56 of the Wakf Act,
      1995 and Sections 6, 7, 9 and 46 of the 1958 Act are
      not in conflict. The Act of 1958 can grant protection to
      a lawful tenant of a wakf property who was cultivating
      the land on the date when the 1958 Act came in force
      and can also grant ownership certificate to the tenant.
      Thus, Section 56 of the Wakf Act does not have
      overriding effect on the provisions of Vidarbha Region
      Tenancy Act, 1958.


38.       While arriving at the said conclusion, this Court has
considered the Judgment of the Hon’ble Supreme Court in
Sabir Ali Khan Vs. Syed Mohd. Ahmad Ali Khan and others,
(2024) 13 SCC 683, wherein the Hon’ble Supreme Court has
held that it is open for a person to stake claim of ownership
over Wakf property by way of adverse possession.
                              30                    901.WP-5525-2016.odt




39.      It must also be stated that a tenant in lawful
cultivation of agricultural land, prior to the tillers day, acquires
ownership over the said land by statutory force of Section 32
of the MTAL Act on the tillers day. Tillers day under the MTAL
Act is 01/04/1957. The provisions of the Wakf Act, 1995 have
come into force with effect from 01/01/1996. It must also be
stated that the erstwhile provisions of the Wakf Act, 1954
were   applicable    only    to    that   portion   in   the   State       of
Maharashtra which was earlier a part of erstwhile Hyderabad
State. The suit property is situated in Jalgaon District which
was not a part of erstwhile Hyderabad State. The provisions of
the Wakf Act, 1954 were therefore not applicable to the suit
property.   The     father   of    the    respondent     had    acquired
ownership over the suit property prior to commencement of
the Wakf Act, 1995. The respondent has inherited the suit
property from his father who was not a tenant on the date of
his demise but owner of the suit property by virtue of Section
32.


40.      In view of the aforesaid, it must be held that the
contention of Mr. Kazi that the father of the respondent could
not claim to have acquired ownership over the suit property
as per Section 32 of the MTAL Act cannot be accepted.


41.      As regards Judgment of the Hon’ble Supreme Court in
                               31                 901.WP-5525-2016.odt




the case of Sayyed Ali and others Vs. Andhra Pradesh Wakf
Board, reported in 1998 (2) SCC 642, the said Judgment
holds that grant of a Patta in favour of Mokhasadar for a wakf
under Inams Act does not alter the character of the property
as wakf property. The settled legal principle, once wakf always
a wakf, is reiterated in the said decision. However, the said
Judgment does not lay down that a tenant in lawful cultivation
of an agricultural land is not entitled to protection of the
provisions of the Tenancy Act. It must also be stated that this
Court has considered this Judgment in the case of Sayyed Ali
(Supra) in the case of Sunil Vasudeo Nirgude (Supra).


42.     As regards Judgment of this Court in the case of
Arjun s/o Bhimaji Lakare (supra), in the said case the
respondent   had   filed   a    suit   seeking   possession      of      an
agricultural land. The property belonged to Masjid and was a
wakf as such. A contention was raised by the petitioners –
original defendants that they were tenants of the suit property
which was an agricultural land and therefore the Wakf Tribunal
did not have jurisdiction to decide the suit. The suit property
was let to the father of the defendants for a period of five
years vide a registered lease deed. The tenure of lease was
from 20/12/1944 to 19/12/1949. This Court has held in the
said Judgment that there was no material on record to
indicate that the tenancy had continued after the said period
of five years which expired on 19/12/1949. Reliance was
                                32                901.WP-5525-2016.odt




placed on Section 88B of the MTAL Act to hold that provisions
of Section 40 which provide for right of inheritance of tenancy
rights over agricultural lands, is not applicable to agricultural
land belonging to a registered public trust and therefore the
case of defendants that they were tenants over the suit
property was not accepted. Perusal of the Judgment will
indicate    that   the   wakf   was   also   registered    under         the
Maharashtra Public Trust Act as a public trust. However, date
of registration of the trust is not mentioned in the Judgment.
The Maharashtra Public Trust Act, 1950 came into force in the
year 1950. Tiller’s       day under the MTAL Act,             1948        is
01/04/1957. It is not clear from the judgment as to whether
the Trust was registered as a public trust prior to or after the
tiller’s day. As held above, exemption from applicability of
MTAL Act can be claimed by a trust only upon satisfaction of
two conditions, namely, the trust being a registered public
trust and the proceeds of the trust are utilized for purposes of
the trust. In the present case the trust was registered on
17/03/1967 i.e. after the tillers day i.e. 01/04/1957. The
respondent acquired ownership over the suit property on the
tillers day. In view of the above, the ratio in the case of Arjun
Bhimaji Lakare will not be applicable to the facts of the
present case.


43.        The Sub-Divisional Officer had allowed the appeal
preferred by the petitioners also on the ground that the
                            33                 901.WP-5525-2016.odt




property belonged to a Public Trust and the same could not be
transferred in the absence of permission for transfer as
contemplated under Section 36 of the MPT Act.             The Sub-
Divisional Officer has erred in holding so. The said provision
is applicable only in cases of voluntary transfer. The provision
is not applicable to case of statutory transfer.


44.     It is argued that the jurisdiction to entertain the
application was vested with the Wakf Tribunal and that the
order passed by the Tenancy Tahsildar is without jurisdiction.
The application was filed by the respondent for fixation of
purchase price under Section 32G of the MTAL Act.                 The
respondent claims ownership over the suit property as per
Section 32 of MTAL Act. Section 32 states that every tenant
shall be deemed to have purchased from the landlord, land
held by him as a tenant free from all encumbrances on the
tiller’s day i.e. on 01.04.1957.    The said right is statutorily
conferred by MTAL Act.      The provisions for enforcement of
said rights are also provided under the MTAL Act. Thus, this
is a case of right being conferred and remedy being provided
uno flatu. Therefore, the jurisdiction of the Tenancy Tahsildar
to determine purchase price under Section 32G will be
exclusive jurisdiction which will not be available with any
other authority including the Wakf Tribunal. It will also be
pertinent to note that the Wakf Act came into force on
01.01.1996 and the respondent was deemed to be owner of
                            34                  901.WP-5525-2016.odt




the suit land on 01.04.1957 itself. The proceeding filed by the
respondent which is subject matter of present petition was for
limited purpose of determining the purchase price. Although,
Section 85 of the Wakf Act bars jurisdiction of Civil Court,
Revenue Court or any other authority in respect of any
dispute, question or other matter relating to wakf property,
there is no provision under the Wakf Act enabling the Wakf
Tribunal to determine the purchase price of agricultural lands
deemed to be purchased by the tenants in view of the
statutory mandate of Section 32 of MTAL Act.               Although,
Section 83 of the Wakf Act is very widely worded and confers
jurisdiction upon a Wakf Tribunal to determine any dispute,
question of other matter relating to Wakf property including
issue pertaining to eviction of tenant or determination of
rights and obligations of a lessor of lessee, under the said
provision, the Wakf Tribunal cannot exercise jurisdiction to fix
purchase price under Section 32G of the MTAL Act.                  The
Judgment in the case of Sunil Vasudeo Nirgude (Supra) also
holds that questions pertaining to tenancy under provisions of
relevant Tenancy Act can be adjudicated only by authorities
under the said Act and not by Wakf Tribunal. Relevant portion
in   paragraph    No.51    of    the   Judgment    is   reproduced
hereinbelow:

     ‘51. The tenancy protected under the 1958 Act can only
     be inquired and adjudicated upon by the authorities
     constituted under the Act of 1958. Civil Courts
     jurisdiction is barred in deciding the issue of tenancy
                             35                  901.WP-5525-2016.odt




      under the 1958 Act. The Wakf Tribunal can only decide
      issues relating to Wakf and cannot decide the issue of
      tenancy under the 1958 Act.’



45.        This judgment in Sunil Nirgude is also followed by this
Court in the case of Sayyad Moinuddin s/o Sayyed Saifoddin
Vs. Pratapsingh s/o Nursing Kakarwal and Another (Civil
Revision     Application   No.3   of   2021   with   Civil    Revision
Application No.4 of 2021, decided at Aurangabad Bench on
14/02/2024). The said Judgment also holds that the Wakf
Tribunal does not have jurisdiction to decide issues of tenancy
which are only to be adjudicated upon by authorities under
the Tenancy Acts.


46.        The learned Advocate for the petitioner also contends
that since the application for fixing purchase price is filed after
commencement of Wakf Act, 1995, the Wakf Board was a
necessary party. The said contention cannot be accepted and
is liable to be rejected since objection in this regard was not
raised before the first authority i.e. the Tahsildar. It must also
be stated that the petitioners have stated that the suit
property is the only agricultural land held by them and were
opposing the claim of respondent on the said ground which is
for enforcement of their personal right. It must be reiterated
that the proceeding in the present matter has arisen out of an
application for fixation of purchase price under Section 32.
Application for deletion of name of the respondent as tenant
                              36             901.WP-5525-2016.odt




filed by the petitioners was already rejected by the competent
authority vide order dated 07/08/2003 and the said order is
not challenged further. Likewise, the claim for exemption from
applicability of Tenancy Act on the ground that the landlord is
a religious public trust was also rejected vide order dated
09/03/1968. It is therefore not permissible for the petitioner
to raise ground with respect to non-joinder of Wakf Board as a
necessary party.


47.        In the light of reasons recorded above, no case for
interference is made out. Writ petition is therefore dismissed
with no orders as to costs.



                                       ROHIT W. JOSHI
                                          JUDGE




NaJeeb..