SHRI. HIRAMAN GANPAT HAJAREversusSHRI. GANESH RAGHUNATH DIXIT THROUGH LRS. AND ANR.

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                      AGK
                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION

                                         WRIT PETITION NO.7760 OF 2017

                      Hiraman Ganpat Hajare                                   … Petitioner
ATUL
GANESH
KULKARNI                                     Vs.
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2026.08.11
11:25:00 +0530
                      Ganesh Raghunath Dixit,
                      through his legal heirs
                           1. Manoj Ganesh Dixit
                           2. Indrayani Ganesh Dixit (deleted)                … Respondents


                      Mr. Drupad Patil with Ms. Srushti Chalke for the
                      petitioner.
                      Mr. S.C. Naidu with Mr. Manoj Gujar, Mr. T.R. Yadav,
                      Ms. Divya Yajurvedi, and Mr. Pradeep Kumar i/by Mr.
                      Abhishek Ingale for the respondents.



                                           CORAM                      : AMIT BORKAR, J.

                                           RESERVED ON                : AUGUST 10, 2026.

                                           PRONOUNCED ON              : AUGUST 11, 2026

                      JUDGMENT:

                      1.      By this writ petition filed under Articles 226 and 227 of the
                      Constitution of India, the petitioner is challenging the order dated
                      22     September     2016    passed       in   Review    Application      No.
                      P/III/1/2016 and the order dated 21 December 2015 passed in
                      Revision No. TNC/REV/102/2004-P by the Member, Maharashtra
                      Revenue Tribunal, Pune Bench, Pune.



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2.      According to the petitioner, the facts and circumstances
which led to filing of the present writ petition are as follows. The
petitioner is in possession and cultivation of the suit land bearing
Survey No. 86/3, situated at Revenue Village Chinchali, Taluka
Haveli, District Pune. The said land originally belonged to
Manohar Keshav Dixit. The petitioner's father, Ganpat Gopal
Hajare, was in possession and cultivation of the suit land as a
tenant from a period before the Tiller's day, that is, 1 April 1957.
His name was recorded as a tenant in the 7/12 extract of the suit
land.

3.      On 1 April 1957, the suit land was situated within the limits
of Village Chinchali, Taluka Haveli, District Pune. Dehu Road
Cantonment was established on 6 October 1958. On the same
date, the suit land came to be included within the limits of the
Dehu Road Cantonment Board.

4.      The petitioner's father, Ganpat Gopal Hajare, executed a
registered Will dated 6 June 1956 by which he bequeathed the suit
land and other tenanted lands to the petitioner. The petitioner's
father died on 12 August 1958. After his death, the petitioner
continued to remain in possession and cultivation of the suit land
as a tenant. The petitioner's name was recorded as a tenant in the
7/12 extract of the suit land.

5.      In the year 2001, the petitioner submitted an application
dated 30 July 2001 before the Agricultural Land Tribunal and
Tahasildar, Haveli, Pune, seeking fixation of the purchase price of
the suit land under Section 32G of the Bombay Tenancy and




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Agricultural Land Act, 1948 (B.T. & A.L. Act). On the basis of this
application, the Agricultural Land Tribunal, Haveli, Pune initiated
an inquiry under Section 32G of the B.T. & A.L. Act in respect of
the suit land in Tenancy Case No. 32G/SR/31/2001. Notices were
issued to the opponent-landlord and the petitioner-tenant in the
said proceedings.

6.    According to petitioner in an earlier proceeding bearing
Tenancy Case No. N/ALT/1/58, the petitioner's brother, Shri
Shivram Ganu Hajare, was shown as a legal heir of their deceased
father, Ganpat Shivram Hajare. A notice dated 20 February 1963
was issued to the petitioner's brother in the said 32G proceeding
before the A.L.T., Haveli, Pune. According to the petitioner,
however, no notice of the said 32G proceeding was issued to him
in his capacity as tenant. The A.L.T., Haveli, Pune, by judgment
and order dated 25 March 1963, declared the purchase of the suit
land ineffective on the ground that the tenant had remained
absent.

7.    By order dated 25 March 1963, the A.L.T., Haveli, Pune,
declared the purchase of the suit land ineffective on the ground
that the tenant had remained absent, though according to the
order he had been duly served. The petitioner claims that he was
himself in possession and cultivation of the suit land as a tenant at
that time. He was, however, not made a party to the said
proceeding and no notice of the 32G inquiry was served upon him
by the A.L.T., Haveli, Pune. According to the petitioner, therefore,
the said order dated 25 March 1963 passed in the 32G proceeding
was without jurisdiction and was null and void.



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8.    Thereafter, by order dated 2 May 2002 passed in Case No.
32G/SR/31/2001, the A.L.T., Haveli, Pune, fixed the purchase
price of the suit land. The petitioner-tenant was directed to deposit
the said price in the Government Treasury within one year. The
A.L.T. directed that a 32-M Certificate be issued to the petitioner
after the purchase price was deposited. The petitioner deposited
the purchase price within the prescribed time. Accordingly, the
A.L.T. and Tahasildar, Haveli, Pune, issued a 32-M Certificate dated
17 May 2002 in favour of the petitioner in respect of the suit land.
Thereafter, the petitioner's name was recorded in the ownership
column of the 7/12 extract by Mutation Entry No. 776.

9.    The petitioner states that the respondent filed Tenancy
Appeal No. 18 of 2002 before the Sub-Divisional Officer, Haveli,
Pune, challenging the order dated 2 May 2002 passed by the
A.L.T., Haveli, Pune, in Tenancy Case No. 32G/SR/31/2001. The
Sub-Divisional Officer, Haveli, Pune, by judgment and order dated
6 March 2004, allowed Tenancy Appeal No. 18 of 2002.

10.   The petitioner filed Revision No. TNC/REV/102/2004/P
challenging the judgment and order dated 6 April 2004 passed in
Tenancy Appeal No. 18 of 2002 by the Sub-Divisional Officer,
Haveli, Pune. The petitioner filed an application seeking stay to the
operation and execution of the order dated 6 March 2004 passed
by the Sub-Divisional Officer, Haveli, Pune, in the said appeal.

11.   By judgment and order dated 21 December 2015, the
Member, Maharashtra Revenue Tribunal dismissed the Revision
No. TNC/REV/102/2004/P filed by the petitioner and vacated the




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stay/status quo which had been granted. The petitioner filed
Review Application No. P/III/1/2016 seeking review of the
judgment and order dated 21 December 2015 passed in Revision
No. TNC/REV/102/2004-P. The main ground raised by the
petitioner was that the original tenant, Ganpat Shivram Hajare,
who was the petitioner's father, had died on 12 August 1958.
According to the petitioner, after his father's death, he acquired the
tenancy rights in the suit land under the registered Will dated 6
June 1956 executed by his father. The petitioner further contended
that notice of the 32G inquiry conducted by the A.L.T., Haveli, in
1963 was never served upon him. Therefore, according to him, the
order dated 25 March 1963 passed in the earlier proceedings
under Section 32G was without jurisdiction and was null and void.
It was further contended that such an order could not operate as
res judicata in the subsequent Section 32G inquiry initiated in
2001 in Tenancy Case No. 32G/SR/31/2001.

12.   The Member, Maharashtra Revenue Tribunal, Pune, by letter
dated 14 July 2016 called upon the petitioner to comply with the
requirements in the said Review Application. The petitioner
accordingly completed the required compliance in the Review
Application.

13.   By   order   dated   22   September       2016,   the   Member,
Maharashtra     Revenue     Tribunal,   Pune,     dismissed     Review
Application No. P/III/1/2016 at the stage of admission. According
to the petitioner, this was done without giving him an opportunity
of hearing. The petitioner has, therefore, filed the present writ
petition challenging the said order.



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14.   Mr. Drupad Patil, learned Advocate appearing for the
petitioner, submits that the original tenant, namely, the petitioner's
father Ganpat Shivram Hajare, died on 12 August 1958. According
to him, after the death of the petitioner's father, the petitioner
acquired the tenancy rights in respect of the suit land under the
Will dated 6 June 1956. However, notice of the 32G proceeding in
Tenancy Case No. ALT/IV/1/58 was not served upon the petitioner.
He therefore submits that the entire 32G proceeding was without
jurisdiction and was null and void. He further submits that after
the death of the petitioner's father in 1958, the petitioner acquired
the tenancy rights in the suit land and continued in possession of
the land as a tenant. Therefore, the order dated 25 March 1963
passed by the A.L.T. in the 32G proceeding, without giving notice
to the petitioner as tenant, was without jurisdiction and was null
and void. According to him, such an order could not operate as res
judicata in the 32G inquiry conducted in 2001. On this basis, he
submits that there was an apparent mistake in the order dated 21
December 2015 passed by the Tribunal in Revision No.
TNC/REV/102/2004-P.

15.   In support of his submission, Mr. Patil relied upon the
judgment of this Court in the case of Pralhad Ganaba Kapare vs.
Sadaba Rambhau Bhosale, 1972 SCC OnLine Bom 48.

16.   Mr. Naidu, learned Advocate appearing for the respondents,
submits that the 32G proceedings in respect of the suit land were
first started suo motu by the A.L.T. in the year 1958. According to
him, the notice issued to the tenant Ganapat Gopal Hajare was
accepted by Mrs. Laxmibai Shivram Hazare. Despite service of the



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notice, the tenant remained absent. Mr. Naidu submits that when
the A.L.T. starts proceedings suo motu and an adult member of the
family accepts the notice, it is for that person to remain present
and, if the person to whom the notice was issued has died, to
inform the Court or Tahasildar about his death and to bring his
legal heirs on record. According to him, this was not done in the
present case. Therefore, the A.L.T. had no occasion to know
whether the person to whom the notice had been issued was alive
or dead. He submits that the order dated 25 March 1963 appears
to have been passed by the A.L.T. against the deceased person.
According to Mr. Naidu, however, in the facts of the present case it
cannot be said that the order was non-est or that it could not
operate as res judicata, particularly when the notice had been
accepted by a legal heir of the party.

17.   Mr. Naidu further submits that the order dated 25 March
1963 passed by the A.L.T. in Case No. A.L.T./1958 and Case No.
A.L.T./Chincholi/4/1963 has never been challenged before any
Court. He further submits that when the present revision applicant
filed a fresh application before the A.L.T. on 30 July 2001 for
fixation of the purchase price of the suit land under Section 32G of
the Tenancy Act, he did not disclose the earlier order dated 25
March 1963 passed by the A.L.T. on the same issue. He submits
that the effect of the earlier order had been reflected in the
revenue record by Mutation Entry No. 681 dated 26 September
1963. According to him, the A.L.T., while conducting the fresh
proceedings in Tenancy Case No. 31/2001, appears to have
overlooked this fact. He therefore submits that the order dated 25



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March 1963 operates as res judicata. According to him, the S.D.O.
was therefore correct in setting aside the fresh order dated 2 May
2002 passed by the A.L.T.

18.     In support of his submission, Mr. Naidu relied upon the
judgments of this Court in the cases of Zoroastrian Anjuman Funds
Trust & Others vs. Chimanaji Jayaram Mali (deceased) through his
heirs and others, 2009 SCC OnLine Bom 518 , and Rajkumar
Sampatraoji Kuthe vs. State of Maharashtra & Ors., 2012 (1)
Mh.L.J. 299.

REASONS AND ANALYSIS:

19.     The main question for consideration is whether the order
passed by the Agricultural Lands Tribunal in the earlier 32G
proceeding, by which the purchase of the suit land was held to be
ineffective because the tenant remained absent, can be used
against the petitioner. The petitioner contends that after his
father's death, the tenancy rights came to him. It is not in dispute
that his father had died before the said order was passed. The
petitioner contends that no notice was served upon him and that
he was not brought on record in that proceeding. Therefore, the
connected question is whether the earlier order can be treated as
res judicata and can stop the Agricultural Lands Tribunal from
looking into the later application made by the petitioner under
Section 32G of the Bombay Tenancy and Agricultural Lands Act,
1948.

20.     The basic facts are not in dispute. The suit land bearing
Survey No. 86/3 was originally owned by Manohar Keshav Dixit.



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The petitioner's father was in possession and was cultivating the
land as tenant from before 1 April 1957. His name was shown as
tenant in the 7/12 extract. The petitioner relies upon the
registered Will dated 6 June 1956 executed by his father.
According to the petitioner, by this Will the suit land and other
tenanted lands were given to him. The petitioner's father died on
12 August 1958. After his death, the petitioner continued in
possession and cultivation of the suit land as tenant and his name
came to be recorded in the revenue record as tenant.

21.     This fact is important because 1 April 1957 was the tillers'
day under the Bombay Tenancy and Agricultural Lands Act, 1948.
Therefore, the right under Section 32 has to be seen according to
the position which existed on that date. The land came within the
limits of Dehu Road Cantonment only on 6 October 1958.
Therefore, this later inclusion cannot decide whether a right had
come into existence in favour of the tenant on 1 April 1957.

22.     The question about later inclusion of land in municipal or
cantonment limits has been considered by this Court in Pralhad
Ganaba Kapare. In that case, the question was whether a statutory
right which had become vested in the tenant under Section 32
could be taken away because the land was included within the
limits of a Municipal Corporation. The Court followed the earlier
Division Bench decision in Pokhraj Trilokchand Jain v. Janardhan
Khandu and held that a right which had vested in the tenant
before the later inclusion of the land in the municipal area was not
lost.




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23.   The principle stated in the quoted portion of Pralhad Ganaba
Kapare is important. The Court observed:

      “     …The scope and effect of section 32 and the following
      sections were considered by the Supreme Court in Sri Ram
      Ram Narain v. State [(1958) 61 Bom. L.R. 811, S.C..] . At
      page 825 it was observed that the title to the land, which
      was vested originally in the landlord, passed to the tenant on
      the tillers' day, 1st April 1957, that there was a completed
      purchase or sale as between the landlord and the tenant and
      that the title acquired by the tenant is defeasible only in the
      event of the tenant failing to appear before the Tribunal or
      making a statement that he is not willing to purchase, or
      committing default in the payment of the price as
      determined by the Tribunal. The tenant gets a vested interest
      in the land defeasible only in either of these cases. In view of
      this decision of the Supreme Court, it must be held that the
      opponent-tenants had become the owners of the lands and
      had acquired title thereto on 1st April 1957. Section 32G of
      the Act gave them a right to pay only such purchase price as
      is specified in the Act and to get it determined in the manner
      laid down in the Act by the Tribunal. These rights had
      become vested in the tenants on 1st April 1957. They could
      not, therefore, be lost on subsequent inclusion of the lands
      within the limits of the Thana Municipal Borough and the
      relevant provisions of the Act ceasing to apply to them.”
24.   The same principle was again stated by the Court in
paragraph 8 of Pralhad Ganaba Kapare:

      “8. The ratio of that decision will apply with all force to
      the facts of the present case as in the present case the lands
      were excluded from the operation of the Act because they
      were included in the limits of the Poona Municipal
      Corporation; and under an earlier notification of 1956 all
      lands included within the limits of the Poona Municipal



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      Corporation were reserved for non-agricultural and
      industrial purposes within the meaning of s. 88(1)(b).
      Although the notification under s. 88(1)(b) was prior to the
      tillers' day the notification including the area which is the
      subject matter of these petitions was subsequent to the
      vesting of the title under s. 32 to the tenants. With respect
      therefore, I, being bound by the said decision of the Division
      Bench, must hold that the Deputy Collector in the instant
      case was right in holding, following the said decision, that
      the Agricultural Lands Tribunal had power to determine the
      purchase price in respect of the land.”
25.   This principle takes care of one part of the dispute. In the
present case, the land came within the limits of Dehu Road
Cantonment only on 6 October 1958. The tillers' day was 1 April
1957. Therefore, if the petitioner's father had acquired the
statutory right under Section 32 on 1 April 1957, the later
inclusion of the land within the cantonment limits could not take
away that right. The question is whether the right which had
arisen was made ineffective because of the earlier 32G proceeding
and the order passed in that proceeding.

26.   The respondents rely upon the earlier proceeding. Their case
is that the Agricultural Lands Tribunal had started the 32G
proceeding suo motu in 1958. According to Mr. Naidu, notice was
issued to Ganapat Gopal Hajare and the notice was accepted by
Mrs. Laxmibai Shivram Hazare. According to the respondents,
after an adult member of the family accepted the notice, it was her
duty to remain present and inform the Tribunal about the death of
the tenant and bring the legal heirs on record. It is further
submitted that the petitioner did not challenge the order dated 25




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March 1963 for many years. It is submitted that when the
petitioner filed the application for fixation of purchase price in
2001, he did not disclose the earlier order. On this basis, it is
submitted that the earlier order operates as res judicata.

27.   This submission, however, cannot be accepted in the manner
in which it has been made. There is a basic difficulty in treating
the order dated 25 March 1963 as an effective order against the
petitioner. The petitioner's father had died on 12 August 1958. The
order was passed in 1963. The petitioner contends that by then he
had succeeded to the tenancy rights of his father and was himself
in possession and cultivation of the suit land. His name was
recorded as tenant. If the petitioner was the person whose rights
were directly going to be affected by the proceeding, then he had
to be given an opportunity of being heard before an order was
made which would defeat the statutory purchase rights claimed in
respect of the land.

28.   The respondents contend that the notice had been accepted
by an adult member of the family. The decision in Rajkumar
Sampatraoji Kuthe, relied upon by Mr. Naidu, explains that service
upon an adult member of the family can be treated as valid
service. In that case, the Court directed the subordinate Courts to
follow Order V Rule 15 of the Code of Civil Procedure as enacted
by Parliament, which provides:

      “15. Where service may be on an adult member of
      defendant's family.— Where in any suit the defendant is
      absent from his residence at the time when the service of
      summons is sought to be effected on him at his residence



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      and there is no likelihood of his being found at the residence
      within a reasonable time and he has no agent empowered to
      accept service of the summons on his behalf, service may be
      made on any adult member of the family, whether male or
      female, who is residing with him.

      Explanation.— A servant is not a member of the family
      within the meaning of this rule.”

29.   But this decision does not take the case of the respondents to
the extent suggested by them. Service upon an adult member of
the family and bringing the legal heirs of a deceased tenant on
record are different matters. Merely because one family member
accepted the notice, it cannot mean that all other legal heirs
became parties to the proceeding. It cannot mean that the rights of
a legal heir who was not served can be decided without giving him
an opportunity to put forward his case.

30.   The present case is not merely about the manner in which
notice was served at the house when the petitioner's father was
alive. The petitioner's case is that his father had died in 1958 and
the petitioner had succeeded to the tenancy rights and was in
possession of the land. The order was passed in 1963. Therefore,
the Tribunal had to consider the person who was then claiming the
tenancy rights. After the original tenant had died, the proceeding
could not continue as if the deceased tenant was still before the
Tribunal without considering the person who had succeeded to his
rights.

31.   The Supreme Court decision in Gurnam Singh v. Gurbachan
Kaur, (2017) 13 SCC 414, though it arose in a civil proceeding,




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explains the basic principle regarding an order passed against a
dead person. The Supreme Court referred to Kiran Singh v.
Chaman Paswan AIR 1954 SC 340 and observed:

      “6. … It is a fundamental principle well established that a
      decree passed by a court without jurisdiction is a nullity, and
      that its invalidity could be set up whenever and wherever it
      is sought to be enforced or relied upon, even at the stage of
      execution and even in collateral proceedings. A defect of
      jurisdiction, whether it is pecuniary or territorial, or whether
      it is in respect of the subject-matter of the action, strikes at
      the very authority of the court to pass any decree, and such a
      defect cannot be cured even by consent of parties.”
32.   The Supreme Court considered an order passed in favour of
or against dead persons and held:

      “15. The question, therefore, is whether the impugned
      judgment/order is a nullity because it was passed by the
      High Court in favour of and against the dead persons? In our
      considered opinion, it is a nullity. The reasons are not far to
      seek.”
33.   The Supreme Court further observed:

      “21. It is a fundamental principle of law laid down by this
      Court in Kiran Singh case [Kiran Singh v. Chaman Paswan,
      AIR 1954 SC 340] that a decree passed by the court, if it is a
      nullity, its validity can be questioned in any proceeding
      including in execution proceedings or even in collateral
      proceedings whenever such decree is sought to be enforced
      by the decree-holder. The reason is that the defect of this
      nature affects the very authority of the court in passing such
      decree and goes to the root of the case. This principle, in our
      considered opinion, squarely applies to this case because it is
      a settled principle of law that the decree passed by a court
      for or against a dead person is a “nullity”…”


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34.   This principle cannot be applied in exactly the same way to
every case where a party dies during the proceeding. The nature of
the proceeding, when the person died and whether his legal
representatives were brought before the authority are matters
which have to be considered. But in the present case, the material
before the Court does not show that the petitioner was made a
party to the 32G proceeding after the death of his father. It does
not show that notice was served upon the petitioner or that his
claim as successor tenant was considered before the order dated
25 March 1963 was passed.

35.   There is another difficulty in the submission of the
respondents. They rely upon the fact that notice was accepted by a
family member and contend that it was then the duty of that
person to inform the Tribunal about the death of the tenant. Even
if such duty is assumed, failure of that person to inform the
Tribunal about the death cannot result in deciding the rights of
another heir who was not before the Tribunal. The Tribunal was
deciding tenancy rights concerning the land. In such a situation, an
heir cannot be treated as having lost his statutory rights without
being heard.

36.   There is some uncertainty in the material about the exact
person who accepted the notice and the capacity in which the
petitioner's brother was shown as legal heir. The respondents rely
upon notice dated 20 February 1963 issued to the petitioner's
brother, Shri Shivram Ganu Hajare. The petitioner contends that
he was not made a party and that no notice was served upon him.
This cannot be treated as merely a technical objection. The



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petitioner claims that he had succeeded to the tenancy and was
himself cultivating the land. Therefore, before the claimed
statutory right of the petitioner could be defeated, the authority
had to give him an opportunity of hearing.

37.   The respondents rely upon the fact that the order dated 25
March 1963 was not challenged for a long period. Delay is
certainly one circumstance which has to be considered. The
petitioner ought to have disclosed the earlier proceeding when he
filed the application dated 30 July 2001 under Section 32G. Such
non-disclosure cannot be approved. A person seeking a statutory
benefit should place before the authority the history of the land
and the earlier proceedings. The petitioner cannot be said to have
acted properly by not disclosing the earlier order.

38.   But failure to disclose an earlier order cannot make an order
which is ineffective into a valid order. If the earlier order was
passed without hearing the person whose rights were affected, the
mere fact that the order is found in the revenue record does not
make it valid against that person. The first question remains
whether the order could bind the petitioner.

39.   The respondents rely upon Mutation Entry No. 681 dated 26
September 1963 and submit that the effect of the order dated 25
March 1963 had been entered in the revenue record. This does not
change the position. A mutation entry records the effect of an
order. It does not give jurisdiction to the authority and cannot
make an otherwise defective order valid. If the order on which the
mutation entry is based cannot operate against the petitioner, the




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mutation entry cannot take away the tenancy rights claimed by
him.

40.    The argument of res judicata therefore cannot be accepted.
For an earlier decision to operate as res judicata against a party,
there must be an earlier decision by a competent authority on the
matter in issue between parties claiming under the same title, and
the person against whom it is sought to be used must have had an
opportunity to contest that matter. The petitioner was not a party
to the earlier proceeding in the necessary sense for deciding his
claimed tenancy rights. If the earlier order is found to be a nullity
as against the petitioner, res judicata cannot be used to give that
order a legal effect which it otherwise does not have.

41.    The decision in Pralhad Ganaba Kapare supports the
petitioner's case in another manner. The Court there held that a
right vested in the tenant under Section 32 could not be lost
merely because the land was later brought within municipal limits.
Here, the land came within Dehu Road Cantonment only on 6
October 1958. The tillers' day was 1 April 1957. Therefore, the
later change in the area cannot retrospectively take away a right
which had vested, unless that right was lawfully defeated under
the provisions of the Act.

42.    The position could have been different if the land was within
the excluded area before the tillers' day. But the material before
this Court shows that the land was in Village Chinchali on 1 April
1957 and came within Dehu Road Cantonment only on 6 October
1958. Therefore, the statutory position has to be considered as it




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stood on 1 April 1957.

43.   The respondents rely upon the orders passed by the Sub-
Divisional Officer and the Maharashtra Revenue Tribunal. Those
authorities mainly relied upon the earlier 32G order. Once the
foundation of that order is found defective so far as the petitioner
is concerned, the later orders cannot continue merely because they
are based upon that order. The Sub-Divisional Officer treated the
earlier order as a valid decision. The Maharashtra Revenue
Tribunal proceeded on the basis that the earlier order operated as
res judicata. However, the authorities did not consider the specific
case of the petitioner that his father had died before the 1963
order and that the petitioner was neither served nor brought on
record.

44.   The fact that the petitioner filed the application for fixation
of purchase price in 2001 does not mean that he accepted the
earlier order of 1963. His case is that the earlier order was never
binding upon him and that he was entitled to have his tenancy
rights considered in the later proceeding. The A.L.T. considered the
application and by order dated 2 May 2002 fixed the purchase
price. The petitioner deposited the amount within the period
granted to him and obtained the 32-M Certificate dated 17 May
2002. His name was then entered in the ownership column by
Mutation Entry No. 776.

45.   These later steps by themselves cannot cure an earlier defect.
But they have some relevance because they show that the
competent authority, after considering the petitioner's claim in the




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2001 proceeding, accepted his claim and completed the process
under Sections 32G and 32M. The 32-M Certificate was not issued
only because of the petitioner's own statement. It was issued after
the statutory proceeding and the order of the competent authority.

46.   Therefore, the submission of Mr. Naidu that the 2001
application should have been rejected because of the earlier 1963
order depends upon whether that earlier order was valid and
binding upon the petitioner. After considering the material, I am
unable to hold that the earlier order can operate against the
petitioner when it is not shown that he was served or brought on
record after the death of his father and when his claim as successor
tenant was not considered.

47.   The reliance placed by the respondents upon Rajkumar
Sampatraoji Kuthe does not change this conclusion. That case
deals with service upon an adult member of the family. It does not
contend that acceptance of notice by one family member makes
every other legal heir a party to the proceeding. It does not mean
that an authority can decide the independent rights of a person
who was not served or heard merely because some other family
member accepted the notice.

48.   Similarly, the principle in Gurnam Singh is not being used to
contend that every order passed after the death of a party is void.
It is being applied only to the extent that an adjudication which
directly affects the rights of a person without bringing that person
before the authority cannot ordinarily be used against him as a
binding decision. The Supreme Court's observation that a decree




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passed “for or against a dead person is a ‘nullity’” becomes relevant
where the proceeding is continued without bringing the persons
upon whom the rights have devolved before the Court.

49.   In the present case, the order dated 25 March 1963 was
passed after the death of the original tenant. The petitioner claims
to have succeeded to the tenancy rights and to have remained in
possession. There is no material showing that the petitioner was
made a party or that notice was served upon him before his
claimed tenancy rights were defeated. Therefore, the earlier order
cannot be treated as a valid adjudication against the petitioner.

50.   It is necessary to notice that in the pleadings there is
reference to an order dated 22 June 1961, whereas the main
challenge is to the order dated 25 March 1963. There is therefore
some difference in the dates appearing in the material. But this
difference does not change the main issue. The petitioner's
grievance is against the earlier 32G adjudication by which the
purchase was declared ineffective because the tenant was absent.
Whether the relevant order is described by one date or another, the
question remains whether the petitioner, whose rights were
claimed to have come to him after his father's death, was given
notice and opportunity of hearing. The material before the Court
does not establish such valid adjudication against him.

51.   The Maharashtra Revenue Tribunal, while dismissing the
revision, therefore did not consider the specific case of the
petitioner that he was not a party to the earlier 32G proceeding. It
did not sufficiently consider whether that earlier order could




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operate as res judicata against a person who claimed to have
succeeded to the tenancy and who was not shown to have been
served. The dismissal of the review application at the admission
stage becomes important in these circumstances. After the
petitioner pointed out that the original tenant had died and that
notice had not been served upon him in the earlier proceeding, the
Tribunal was required to consider whether there was an apparent
mistake in its earlier order.

52.      The respondents have relied upon the fact that the petitioner
did not challenge the 1963 order for many years. This certainly
raises an issue of delay. But delay cannot give jurisdiction to an
authority where jurisdiction was otherwise absent. It cannot make
a nullity binding upon a person who was not a party to the
proceeding. The Supreme Court in Kiran Singh, as quoted in
Gurnam Singh, has stated that the invalidity of a decree passed
without jurisdiction “could be set up whenever and wherever it is
sought to be enforced or relied upon”. Here, the respondents
themselves rely upon the 1963 order for defeating the later
statutory claim of the petitioner. Therefore, the petitioner can
challenge its binding effect.

53.      On considering the whole material, the following findings
arise.

         (i)    The petitioner's father was a tenant of the suit land
         from before 1 April 1957 and was in possession and
         cultivation of the land on the tillers' day;

         (ii)   The suit land was within the limits of Village Chinchali



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on 1 April 1957. It was included within Dehu Road
Cantonment only on 6 October 1958. Therefore, the later
inclusion could not retrospectively take away a right which
had vested on the tillers' day. The principle in Pralhad
Ganaba Kapare supports this finding;

(iii) The petitioner's father died on 12 August 1958, before
the order dated 25 March 1963 by which the purchase was
declared ineffective;

(iv) The material does not establish that the petitioner, who
claims to have succeeded to the tenancy rights and
continued in possession, was served with notice or brought
on record before the 1963 order was passed;

(v)   Even if notice was accepted by another adult member
of the family, that does not establish that the petitioner was
made a party or that his independent rights were decided;

(vi) The order dated 25 March 1963, insofar as it is sought
to be used against the petitioner without showing that he
was brought before the authority and heard, cannot operate
as a binding adjudication against him;

(vii) Therefore, the said order cannot operate as res judicata
against the petitioner's application under Section 32G filed in
2001;

(viii) The Agricultural Lands Tribunal was therefore entitled
to consider the petitioner's claim under Section 32G. Its
order dated 2 May 2002 fixing the purchase price and




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      directing issuance of the 32-M Certificate cannot be set aside
      only because of the earlier 1963 order;

      (ix) The failure of the petitioner to disclose the earlier
      order dated 25 March 1963 in his application dated 30 July
      2001 was not proper. This conduct can be considered while
      examining the credibility of the petitioner's case. But such
      non-disclosure cannot make an otherwise ineffective order
      valid against him;

      (x)   The subsequent issuance of the 32-M Certificate dated
      17 May 2002 and Mutation Entry No. 776 are consequences
      of the order passed by the competent authority in the 2001
      proceeding. They cannot be ignored only because the earlier
      order is found in the record when that earlier order cannot
      bind the petitioner.

54.   The final conclusion has to come from all these findings
taken together. The tenancy rights under the Act cannot be
defeated merely by relying upon an order which was passed after
the death of the original tenant and without showing that the
person who had succeeded to and claimed the tenancy had been
served and heard. The principle of res judicata cannot be applied
to an order which is not shown to be a adjudication against the
person against whom it is being used. The later inclusion of the
land within the cantonment limits cannot retrospectively destroy
the statutory rights which had arisen on 1 April 1957.

55.   Therefore, the order dated 21 December 2015 passed by the
Member, Maharashtra Revenue Tribunal, Pune, in Revision No.



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TNC/REV/102/2004-P cannot be sustained.

56.   In view of the foregoing discussion, and upon overall
assessment of the material record, the following order is passed:

      (i)    The Writ Petition is allowed;

      (ii)   The order dated 21 December 2015 passed by the
      Member, Maharashtra Revenue Tribunal, Pune Bench, Pune,
      in Revision No. TNC/REV/102/2004-P is quashed and set
      aside;

      (iii) The order dated 22 September 2016 passed by the
      Member, Maharashtra Revenue Tribunal, Pune, in Review
      Application No. P/III/1/2016 is also quashed and set aside;

      (iv) The judgment and order dated 6 March 2004 passed by
      the Sub-Divisional Officer, Haveli, Pune, in Tenancy Appeal
      No. 18 of 2002 is quashed and set aside;

      (v)    The order dated 2 May 2002 passed by the Agricultural
      Lands Tribunal and Tahasildar, Haveli, Pune, in Tenancy Case
      No. 32G/SR/31/2001 is restored;

      (vi) Consequently, the 32-M Certificate dated 17 May 2002
      issued in favour of the petitioner in respect of the suit land
      bearing Survey No. 86/3, situated at Revenue Village
      Chinchali, Taluka Haveli, District Pune, shall stand restored;

      (vii) All consequential entries and actions taken pursuant to
      the orders which are quashed and set aside shall stand
      governed by the restoration of the order dated 2 May 2002
      and the 32-M Certificate dated 17 May 2002;



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(viii) The parties shall bear their own costs.

(ix) Rule is made absolute in the above terms.


                                        (AMIT BORKAR, J.)




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