1. These two allied matters can be disposed of by this common judgment. The facts giving rise to these petitions in brief are: S. No. 90, admeasuring 22 acres 27 gunthas, situate at village Undirgaon belonged to the joint family consisting of Sawalaram, the grand-father, his son Narayan, and Narayan's son Dagadu. At the material time, respondent No. 1, Uttamchand, was admittedly in possession of the suit field. Civil Suit No. 15 of 1957 was instituted by Dagadu in the year 1957 for partition of the joint family properties, and to this suit, Sawalaram and Narayan were joined as parties. By consent of the parties, a decree was made in the said partition suit, and the suit S. No. 90 fell to the share of Dagadu. Uttamchand, thereafter, filed a civil suit No. 101 of 1958, for a declaration that the decree made in the partition suit was not binding upon him, and prayed that an injunction be issued against Dagadu that he should not interfere with his possession. According to Uttamchand, in the year 1954, the suit field was leased by Sawalaram jointly to Narayan and himself (Uttamchand). In the year 1956, Narayan ceased to cultivate the suit field, and since then he is the exclusive tenant of the suit land. The stand taken by Uttamchand was opposed by Dagadu, who pleaded that Uttamchand had not acquired any tenancy rights. Now, a third suit was filed by Narayan, being Civil Suit No. 121 of 1957, in which Narayan claimed that the suit land was in his cultivation, that he had taken Uttamchand as a partner in cultivation, and that Uttamchand had not acquired any tenancy rights in the suit filed. He further claimed that the partnership be dissolved and accounts thereof be taken. Uttamchand opposed the claim of Narayan, and raised the same pleas as he had raised in the Civil Suit No. 101 of 1958, filed by him. In the suit filed by Uttamchand, the Civil Court raised the following issue:
Does the plaintiff prove that he is the tenant of the suit land?
And in the suit filed by Narayan, the Civil Court, raised the following issue:
Whether the plaintiff (Narayan) and the defendant (Uttamchand) are joint tenants of the suit land?
The aforesaid two issues arising out of these two suits were sent by the Civil Court to the Mamlatdar for decision under Section 85A read with Section 70(1)(b) of the Bombay Tenancy Act. Both these references were consolidated by the Mamlatdar. The Mamlatdar found that Uttamchand was in exclusive possession of suit land at the material time. Neither Narayan nor Sawalaram entered the witness box in support of their case that the suit land was in possession of Narayan and Narayan had taken Uttamchand in partnership. The Mamlatdar further found that Sawalaram had filed an application under Section 81 of the Tenancy Act, purporting to terminate the tenancy of Uttamchand. He found that Uttamchand had been paying certain village panchayat taxes and also paying the land revenue. He further found that Uttamchand had leased out the other agricultural lauds belonging to him and was, therefore, an agriculturist within the meaning of the Act, and therefore the lease in his favour was not invalid by reason of Section 63 of the Act. On these conclusions, the Mamlatdar declared Uttamchand to be the tenant of the suit land. Against this decision of the Mamlatdar, both Dagadu as well as Narayan preferred appeals to the Collector. Both these appeals were heard together by the Assistant Collector and disposed of by a common judgment. The Assistant Collector held that in the circumstances of the case, the Mamlatdar on his own should have examined Narayan and Sawalaram as witnesses. He further observed that if it is proved that the joint lease was given in favour of Narayan and Uttamchand, then that would not be a valid lease conferring any tenancy rights on Uttamchand. He further held that the mere fact that an application had been made by Sawalaram under Section 31 of the Act against Uttamchand did not lead to the inference, that Uttamchand was a tenant, in view of the fact that an application under Section 31 had to be made before a certain date, and therefore such applications under Section 31 were made without prejudice to the other rights of the landlords. As regards the dispute raised, i.e. whether Uttamchand was an agriculturist or not, the Mamlatdar should re-consider the matter. For these reasons, the Assistant Collector took the view that it was necessary that the case, should be re-heard by the Mamlatdar and, decided afresh. He, therefore, made an order, setting aside the order of the Mamlatdar, and remanded the case for retrial afresh. He further directed that the Mamlatdar should take such further evidence as was necessary, giving an opportunity to the parties, and then dispose of the reference on merits in accordance with law. Against this order of remand by the Assistant Collector, all the three parties, namely, Narayan, Dagadu and Uttamchand, went in revision to the Revenue Tribunal. Uttamchand in his revision application prayed that the remand order be set aside and the order of the Mamlatdar he restored; while Narayan and Dagadu in their applications prayed that the order of remand be set aside and it be declared that Uttamchand was not the tenant of the suit land. All these revisions were heard together by the Tribunal. The Tribunal took the view that Narayan and Sawalaram were parties; both were represented by counsel before the Mamlatdar; Narayan had filed a purshis that he was not desirous of leading any evidence; Narayan and Sawalaram have chosen not to enter witness box; the remand order passed by the Assistant Collector that the Mamlatdar should call to witness box Narayan and Sawalaram, would amount to giving them another opportunity of filling in the gaps and lacunae in the evidence tendered in the case in support of their contentions. The Tribunal has, therefore, held that the order of remand is not justifiable in. the interests of justice. The Tribunal then proceeded to consider the ease on merits, and allowed the revision application of Uttamchand and restored the order of the Mamlatdar, declaring him as a tenant. This order of the Tribunal is being dial longed by Dagadu and Narayan in these two separate petitions, viz. Special Civil Applications Nos. 60 of 1962 and 61 of 1962, respectively.
2. The first question raised by Mr. Adik, appearing for the petitioner, is that the issues on questions of fact arising in this case had not been decided by the Assistant Collector at all. The Assistant Collector had only remanded the case to the Mamlatdar for a fresh trial. The Tribunal, therefore, even taking the view that the remand order was not justified, ought to have remanded the case to the Assistant Collector for disposal of the appeals in accordance with law. The Tribunal had acted without jurisdiction in recording findings on the issues on questions of fact which had not been decided by the Assistant Collector in appeal. Mr. Vaidya, appearing for respondent No. 1, on the other hand, contended that Rule 29 framed by the State Government in exercise of its powers under Sub-section (2) of Section 76 confers power on the Tribunal to decide the issues on questions of fact which had been left undecided by the Collector. This undoubtedly is the true position. Mr. Adik had, at the last hearing, raised a contention before us that the said Rule 29 was ultra vires of the powers of the State Government, inasmuch as it contravened the provisions of Section 76 of the Act. He, therefore, requested that notice be issued to the Government Pleader as regards the vires of the rule. The case has now again come before us, after notice having been issued to the Government Pleader.
3. The first question, therefore, that arises is whether Rule 29 is ultra vires of the powers of the State Government as contended by Mr. Adik. It would be convenient to reproduce the relevant provisions before we proceed to deal with the contentions of Mr. Adik. Section 76 provides:
76. (1) Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1939, an application for revision may be made to the Maharashtra Revenue Tribunal constituted under the said Act against any order of the Collector on the following grounds only:
(a) that the order of the Collector was contrary to law;
(b) that the Collector failed to determine some material issue of law; or
(c) that there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice.
(2) In deciding applications under this section the Maharashtra Revenue Tribunal shall follow the procedure which may be prescribed by rules made under this Act after consultation with the Maharashtra Revenue Tribunal.
Section 78 relates to the orders that may be passed in appeal or in revision. Sub-section (1) of Section 78 is in following terms:
78. (1) The Collector in appeal and the Maharashtra Revenue Tribunal in appeal under Section 75 and in revision under Section 76 may confirm, modify or rescind the order in appeal or revision or its execution or may pass such other order as may seem legal and just in accordance with the provisions of this Act.
Rule 29 has been framed by the State Government in exercise of its powers under Sub-section (2) of Section 76 of the Act. It provides:
In any application, the Tribunal may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the application, which has not been determined by the authority against whose order the said application has been made, or which has been wrongly determined by such authority by reason of any such illegality, omission or defect as is referred to in Sub-section (1) of Section 76 of the Act.
Now, the rule relates to the exercise of the powers by the Tribunal in the matter of deciding issues of fact, if the evidence on record is sufficient to do so. In the first instance, it provides that the Tribunal may decide the issues of fact which have not been determined by the appellate authority, and secondly, it provides that the Tribunal may decide the questions of fact which have been wrongly determined by the appellate authority by reason of any illegality, omission or defect, falling within Sub-section (1) of Section 76 of the Act. It has to be considered whether these provisions are ultra vires of the provisions of the Act.
4. It is the contention of Mr. Adik that the jurisdiction conferred on the Tribunal by Section 76 of the Act to interfere in revision is limited only to correct the illegality and/or irregularity as is pointed out in Sub-section (1) of Section 76 of the Act. The rule, on the other hand, confers a power to decide the questions of fact in certain circumstances as provided in the rule. The power conferred on the Tribunal to decide questions of facts in Rule 29 thus goes beyond the powers conferred on the Tribunal by Section 76 and is, therefore, ultra vires o the provisions of Sub-section (7) of Section 76 of the Act. We find it difficult to accept this contention of Mr. Adik, inasmuch as we are unable to agree with him that Section 76 relates to the powers of the Tribunal which, it could exercise in exercise of its revisional jurisdiction. On the other hand, in our opinion, on the language of Sub-section (1) of Section 76, it enumerates the grounds the existence of which confers jurisdiction on the Tribunal to interfere with the decision of the appellate authority in exercise of its revisional jurisdiction. The grounds are stated in Clauses (a), (b) and (c) of Sub-section (1) of Section 76. If any one or more circumstances exist in the case then alone the Tribunal would have jurisdiction to exercise its revisional powers. If none of these circumstances are present, the Tribunal would not have jurisdiction to exercise its revisional powers. In other words, Section 76 provides the grounds on which a revision could lie to the Tribunal invoking its powers in exercise of its revisional jurisdiction. Section 76 does not relate to the powers which the Tribunal, could exercise if any of the grounds mentioned in Sub-section (1) of Section 76 do not exist. On the other hand, the powers of the Tribunal in exercise of its revisional jurisdiction are stated in Section 78. These powers, as the language of Sub-section (1) of Section 78 would indicate, are very wide. There is no limitation on the said powers imposed by Sub-section (1) of Section 78, prohibiting the Tribunal from deciding issues of fact. On the other hand, Sub-section (1) says that the Tribunal may pass such other order as may seem legal or just in accordance with the provisions of the Act. The powers are of widest amplitude including the powers to decide questions of fact which have not been decided in appeal or the decision of which has been vitiated by reason of the grounds mentioned in Clauses (a), (b) and (c) of Sub-section (1) of Section 76. Rule 29 which relates to the exercise of the powers cannot, therefore, be considered as in excess of the powers conferred on the Tribunal by the Legislature in Section 78 of the Act. It may be stated that the provisions of Sub-section (1) of Section 76 are practically identical with the provisions of Section 100, Civil Procedure Code, which enumerates the grounds on which a Second Appeal would lie to the High Court, and Rule 29 is identical, except minor changes relating to the number of sections of the; Act, with the provisions of Section 103, Civil Procedure Code. Section 103, Civil Procedure Code confers power on the High. Court in dealing with a Second Appeal to determine any issue of fact left' undetermined by the appellate Court if the evidence on the record is sufficient. It also empowers the High Court to determine the issues of fact which have been wrongly determined by the appellate Court by reason of any illegality, omission, error or defect as is referred to in Sub-section (1) of Section 100, Civil Procedure Code. These provisions have been made with a view to avoid unnecessary orders of remand involving considerable waste of time and moneys of the litigants. Rule 29 thus is in conformity with the well established rule of procedure contained in Section 103, Civil Procedure Code.
5. We have already stated that Section 76 of the Act, in our opinion, does not relate to the powers of the Tribunal which it could exercise in revision. But, on the other hand, Section 78 is the section that, inter alia, relates to the revisional powers of the Tribunal. But even assuming that Section 76 has any concern with the revisional powers of the Tribunal, even then, in our opinion, Rule 29 is not in excess of those powers. That rule enables the Tribunal to determine any issue of fact necessary for the disposal of the application which has not been determined by the appellate authority. Now, when the appellate authority decided an appeal without determining the necessary issue of fact, there cannot be any doubt that the order of the appellate authority is contrary to law, and thus falls within Clause (a) of Sub-section (1) of Section 76 of the Act. The rule also enables the Tribunal to determine the issue of fact which in its opinion has been wrongly determined by the appellate authority, by reason of any illegality, omission or defect as is referred to in Sub-section (1) of Section 76 of the Act. It would thus be seen that the power conferred on the Tribunal to determine issues of fact which in its opinion are wrongly decided by the appellate authority is not unqualified. The Tribunal is not free to decide every issue of fact which in its opinion has been wrongly decided by the appellate authority. It can re-determine that issue of fact only when the decision of the appellate authority is vitiated by any illegality, omission or defect referred to in Sub-section (1) of Section 76 of the Act. This power also thus falls within the scope and ambit of Sub-section (1) of Section 76 of the Act. In our judgment, therefore, Rule 29 is not ultra vires of the provisions of Section 76 or any other provision of the Act.
6. It has next to be considered whether the Tribunal was justified in determining the issues of fact arising in this case. In our opinion, the Tribunal was not justified to do so inasmuch as we do not find any one of the grounds mentioned in Sub-section (1) of Section 76 established, which gives rise to the exercise of revisional powers by the Tribunal. Now the Tribunal has held that in its opinion the order of remand passed by the appellate authority was contrary to law. The reason given by the Tribunal for so holding is that in its opinion, both Narayan and Sawalaram had an opportunity to enter the witness box. They have not voluntarily done so. The appellate authority, therefore, in directing that they should be examined, was giving them another opportunity of improving their case, and that, in the opinion of the Tribunal, was contrary to law. We find it difficult to accept this line of reasoning. It is indeed true that normally a Court leaves it to the choice of the party to enter the witness box or not, and in certain cases draws an adverse inference against the party on account of its failure to enter the witness box. Hut that does not mean that in a case where the Court considers it necessary, the Court would have no power in asking the parties to enter the witness box. Here, having regard to the rival claims of the parties, it could reasonably be said that examination of Narayan in relation to the controversy was a matter of considerable importance. Now, the case of Narayan is that he was cultivating the land personally and he had taken Uttamchand only as his partner in cultivation. On the other hand, the ease of Uttamchand had been that Sawalaram had leased the land jointly to Narayan and Uttamchand in the year 1954. From 1954 to 1956 Narayan and he together cultivated the field, and in the year 1956, Narayan ceased to cultivate the field, and, therefore, be had become the sole owner. It would thus be seen that it is a common ground, whatever may be its origin, that Narayan and Uttamchand had been jointly cultivating the land for some time. In these circumstances, the evidence of Narayan is of considerable importance, and goes to the root of the matter in ascertaining the origin of Uttamchand's induction on the land, which in its turn, would affect the decision of the main issue, namely, as to whether Uttamchand and Narayan are joint tenants or whether Uttamchand is only a partner of Narayan in cultivation or the sole tenant. The appellate authority, therefore, in. our opinion, was not acting contrary to law in directing that Narayan and Sawalaram should be examined as witnesses in the case. Had this been the only error in the judgment of the Tribunal, we would not have interfered with its order, because, both the parties had urged before the Tribunal that the order of remand was contrary to law, and had by their own volition invoked the exercise of its jurisdiction by the Tribunal. But then we find that there is a lacuna in, the judgment of the Tribunal. It would be recalled that one of the contentions which had been raised on behalf of Narayan and Dagadu was that Uttamchand was not an agriculturist, and, therefore, the lease in his favour, if any, was invalid inasmuch as it contravened the provisions of Sections 63 and 64 of the Act. Whether Uttamchand was an agriculturist or not at the time the lease was granted to him is a question of fact. The Tribunal has not recorded any finding on this issue because, in its opinion, Uttamchand would be a tenant by virtue of the provisions oil Section 4 of the Act inasmuch as Uttamchand was lawfully cultivating the land. It is difficult to accept this reasoning. If the induction of Uttamchand on the laud was invalid by reason of the provisions of Sections 63 and 64 of the Act, it is difficult to hold that his cultivation was lawful. The determination of this issue of fact is vital to the decision of the issues which had been referred to the revenue authorities by the Civil Court. Having regard to all the circumstances of the case, in our opinion, the best course to follow was the one which had been followed by the appellate authority, namely, to remand the ease to the Mamlatdar for retrial and a fresh decision after calling Narayan and Sawalaram to the witness box, provided they are physically fit to enter the witness box. As the judgment of the Tribunal indicates, Sawalaram might not be in a physically fit condition to enter the witness box. That, however, is a matter for the Mamlatdar to consider.
7. For the reasons stated above, both the applications are allowed. The rule in both the applications is made absolute. The order of the Tribunal is quashed and the case is remanded to the Additional Mamlatdar, Shrirampur, for a fresh decision as aforesaid without in any manner being prejudiced by whatever observations made by the other authorities. Costs as between the petitioner and respondent No. 1 would be costs in the cause. The petitioner shall pay the costs of the Assistant Government Pleader. One set of counsel's fee.