Sandeep V. Marne, J.

[1] By this petition, Petitioner challenges judgment and order dated 29 September 2021 passed by the Maharashtra Revenue Tribunal Mumbai (MRT) allowing Revision Application No. 346 of 2019 filed by the Respondents and reversing the decisions of Sub-Divisional Officer Kudal dated 23 July 2019 in Tenancy Appeal No. 26 of 2018 as well as the order of Election Naib Tehsildar dated 07 December 2017 in Tenancy Case No. 44 of 2014.

[2] Briefly stated, facts of the case are that Petitioner claims to be a tenant in respect of property bearing Survey No.130 (436), Hissa No. 5A, Admeasuring 0H. 30 R plus pot kharaba land admeasuring 0H. 10 R situated at Village Nhive, Taluka Malvan, District Sindhudurg. Petitioner claims that Respondent Nos.1 and 2 are the landlords in respect of the suit lands and that her tenancy rights in the suit land is derived from her father Krushna Parab. She claims uninterrupted cultivation of the suit property for last 24 years wherein she has been cultivating paddy rice crop in 10 gunthas and also has her farmhouse in the suit land. That the farmhouse is registered in the assessment register of the Gram Panchayat, wherein she resides with her family. That she cultivates cashew nuts and mangoes in the remaining portions of the suit land. That Petitioner was paying rent (khand) of Rs. 50/- in respect of the land in question but did not insist on issuance of receipts owing to the good relations with the landlords. That the tenancy has been existing for the last 50 years, out of which Petitioner has been cultivating land for the last 24 years. Petitioner claims that after obtaining 7/12 extract of the land on 06 May 2004, it was revealed that her name was not recorded as a tenant and therefore she filed application under sections 70(b) and 4(2) of the Maharashtra Tenancy and Agricultural Lands Act 1948 (Tenancy Act) before the Election Naib Tehsildar Taluka Malvan, District Sindhudurg which was registered as Tenancy Case No. 44 of 2014.

[3] The Tehsildar initiated an enquiry in the Tenancy Application filed by Petitioner and evidence was led by both the parties before the Tehsildar. In addition to her own evidence, Petitioner also adduced evidence of the adjoining land owners Mr. Digambar Baban Parab, Mr. Arjun Vasudev Parab and of Police Patil of the village. After considering the evidence and submissions canvassed by the rival parties, the Tehsildar passed order dated 07 December 2017 allowing the Tenancy Application and declaring that Petitioner is a tenant in respect of land in question after 01 April 1957.

[4] Respondents challenged the decision of the Tehsildar by filing Tenancy Appeal No. 26 of 2018 under provisions of Section 74 of the Tenancy Act before the Sub-Divisional Officer (Revenue), Kudal, who rejected the Tenancy Appeal by its order dated 23 July 2019. Respondents thereafter filed Tenancy Revision Application No. 346 of 2019 under the provisions of Section 76 of the Tenancy Act before MRT. By judgment and order dated 29 September 2021 MRT has proceeded to allow Revision filed by the Respondents and has set aside the orders passed by the Tehsildar on 7 December 2017 and Sub-Divisional Officer on 23 July 2019. Petitioner has challenged MRT's judgment and order dated 29 September 2021 in present petition.

[5] Mr. Khandeparkar, the learned senior advocate appearing on behalf of the Petitioner invited my attention to Section 4(2) of the Tenancy Act. He would submit that a special provision has been made in respect of districts Ratnagiri and Sindhudurga where a person cultivating a land for an uninterrupted period of 12 years or more is deemed to be a tenant. He would submit that the Petitioner has accordingly proved, by producing the circumstantial evidence, that she has been uninterruptedly cultivating land personally and she has also produced evidence of Police Patil and cultivators of adjoining land to demonstrate uninterrupted cultivation of the land for more than 12 years. He would submit that Petitioner thus satisfied all the conditions in Sub-Section 2 of Section 4 of the Tenancy Act for declaration of her tenancy. He would submit that the Tehsildar has passed a detailed judgment after taking into consideration evidence on record. He would take me through the evidence of the two adjoining landowners and particularly through the evidence of Sheetal Uday Parab, Police Patil. He would submit that once the evidence of two adjoining landowners and Police Patil was adduced in support to claim uninterrupted cultivation for more than 12 years, declaration of tenancy of Petitioner was imminent. That the Tehsildar took into consideration this evidence and further held that the Respondent did not adduce any evidence of neighbouring land owners. The Sub-Divisional Officer examined correctness of the Tehsildar's decision and recorded his own findings. That the orders of the Tehsildar and Sub-Divisional Officer are erroneously set aside by MRT by relying upon a stray statement made in the cross-examination of the Petitioner. That the Tribunal has failed to take into consideration the entire evidence of Petitioner in proper context. That Petitioner's evidence is required to be considered with the evidence of other persons and mere stray admission in the crossexamination cannot be overemphasized for setting aside decision of the Tehsildar and Sub-Divisional Officer. He would further submit that the Tribunal did not have jurisdiction to reappreciate the evidence while exercising power of revision. In support of his contention, he would rely upon judgment of this Court in Gulabrao Sahebrao Shinde Vs. Sayaji Shankar Shinde, 2004 1 MhLJ 873.

[6] Per Contra Mr. Walawalkar, the learner counsel appearing for Respondents would oppose the petition and support the order passed by MRT. He would invite my attention to the Explanation-II to Sub-Section 2 of Section 4 of the Tenancy Act in support of his contention that in addition to the evidence of adjoining land owners and of Police Patil, it was mandatory for Petitioner to produce circumstantial evidence in the form of extract of voters list, ration card, electricity bill, house assessment receipt or receipt of sale of agricultural produce or some documents of permission of felling of trees or excavation of minor minerals or any other permission granted in respect of land. That in present case, except the evidence of adjoining landowners and Police Patil, Petitioner did not produce any circumstantial evidence, which is a mandatory condition of Sub-Section 2 of Section 4 of Tenancy Act. Mr. Walwalkar took me through the cross-examination of Petitioner, in which she clearly stated that she was seeking possession of the suit property from Sadanand Bagave and Chandrakant Bagave. That such an admission would clearly indicate that Petitioner is not in possession of the suit property.

[7] Mr. Walawalkar would then take me through the previous litigations instituted by Petitioner and her father. He would submit that Petitioner's father Pradeep Walawalkar filed Regular Civil Suit No. 8 of 2005 for possession of the suit land. That the said suit was dismissed for default by order dated 31 March 2012. That Petitioner's father thereafter instituted fresh suit bearing Regular Civil Suit No.80 of 2012 and made false statement therein that earlier Regular Civil Suit No.8 of 2005 was withdrawn. That the subsequent Regular Civil Suit No.80 of 2012 was withdrawn by Petitioner's father. That she suppressed filing of the said two suits for possession while filing application before the Tehsildar under sections 70(b) and 4(2) of the Tenancy Act. She would submit that factor of filing two Suits to seek possession of the suit land from Respondents coupled with admission given by the Petitioner in her cross examination would leave no iota of doubt that Respondents are in possession of the suit property. That therefore entire claim of uninterrupted cultivation of the suit property for more than 12 years was proved to be factually incorrect.

[8] Mr. Walawalkar would then take me through the evidence of Police Patil to demonstrate that she did not have any personal knowledge about cultivation of the suit land and admitted in her cross examination that the statement in her affidavits were based on hearsay evidence. That Petitioner had obtained permission for construction of farmhouse in respect of land bearing Survey No.130, Hissa No. '5B' whereas the suit property bears Hissa No. '5A'. This position was clarified by Grampanchayat by adopting resolution dated 31 July 2008 recognizing possession of land bearing Hissa No. 5A by the Respondents. Lastly, Mr. Walwalkar would contend since there is specific admission by Petitioner that she is demanding possession of suit property from Respondents, it was unnecessary for Respondents to adduce any evidence about possession of the suit land. In support of his contention, Mr. Walawalkar would rely upon judgment in Mr. H. K. Taneja & Ors. Vs. Mr. Bipin Ganatra, 2013 1 AllMR 613.

[9] Rival contentions of the parties now fall for my consideration.

[10] Petitioner filed Tenancy Case No. 44 of 2014 for a declaration of her tenancy rights under section 4(2) of the Tenancy Act. Sub-Section 2 of Section 4 has been inserted by Maharashtra Act X of 2001 for making a special provision in respect of land in Ratnagiri and Sindhudurg districts. Under Section 4(2), once it is demonstrated that a person cultivates the land for an interrupted period of not less than 12 years, he is deemed to be a tenant for the purpose of Section 4. Manner in which such cultivation is to be proved is provided for in Section 4(2) of the Tenancy Act. It would therefore be necessary to reproduce provisions of Sub-Section 2 of Section 4 of the Tenancy Act, which reads thus:

4.

(1)...

(2) Notwithstanding anything contained in sub-section (1), where any land in the Ratnagiri and Sindhudurg Districts is being cultivated by a person (other than the person, who according to the Records of Rights, has right to cultivate, for not less than 12 years, such person shall be deemed to be a tenant for the purposes of this section if there is circumstantial evidence that he has been uninterruptedly cultivating the land personally, and the Sarpanch, Police Patil or the Chairman of Vividh Karyakari Sahakari Society and the cultivator of the adjoining land state on affidavit that, the said land is in the possession of , and is being cultivated by, such person, uninterruptedly for not less than 12 years.

Explanation I - For the purpose of this sub-section, the expression "land" includes the "warkas land".

Explanation II - For the purpose of this sub-section, the expression "circumstantial evidence" includes extract of voters list, ration card, electricity bill or house assessment receipt from the same village or any receipt in respect of sale of agricultural produce or any document regarding permission of felling of trees or excavation of minor mineral or any such permission granted with respect of such land.

[11] The words used in sub-section (2) of Section 4 is 'and' at two places. The first 'and' separates the requirement of 'circumstantial evidence' and 'affidavits'. The second 'and' creates classification between the requirement of filing 'affidavits', requiring affidavits of (i) sarpanch, police patil or chairman of society and affidavit of cultivator of adjoining land. Thus, it is mandatory that both the sets of evidence 'circumstantial' and 'affidavits' are necessary, and within the category of 'affidavits', its is mandatory to file affidavit of any one of the specified office bearers in the village and of cultivators of adjoining land. Thus, for the purpose of claiming deemed tenancy under Section 4(2) of the Tenancy Act, it was mandatory for Petitioner to produce 'circumstantial evidence' also to prove her claim that she was uninterruptedly cultivating land personally for after 12 years. In addition to production of such circumstantial evidence, she was required to produce evidence of Sarpanch. Police Patil or Chairman of Vividh Karyakari Sahakari Society and the cultivator of adjourning lands showing that she has been cultivating land for not less than 12 years. Thus three mandatory requirements are required to be satisfied for seeking declaration of deemed tenancy under Section 4(2):

(i) production of circumstantial evidence in the form of extract of voters' list/ration card/electricity bill/house assessment receipt/ agricultural produce sale receipt/ permission for tree felling /excavation permission and

(ii) affidavit of Sarpanch, Police Patil or Chairman of Society and

(iii) affidavit of cultivators of adjoining land.

[12] Sub-Section 2 of Section 4 used the word 'and' in respect of the three requirements which would mean that failure to satisfy one of the three requirements would entail rejection of declaration of deemed Tenancy. Explanation-II to Section 4(2) provides an inclusive list of documents, which can be treated as circumstantial evidence.

[13] In the present case Petitioner has produced evidence of Sheetal Uday Parab, who was functioning at the relevant time as Police Patil of village Kandalgaon. She has also produced affidavits of two adjacent land owners, Digambar Baban Parab and Arun Vasudev Parab. Thus she has satisfied requirement of both the sets of 'affidavits'. However, she did not produce the mandatory 'circumstantial evidence'. In my view, production of circumstantial evidence is a mandatory condition and if the applicant failed to produce circumstantial evidence, mere production of evidence of Police Patil and adjoining landowners would not meet the requirement for declaration of deemed tenant under Section 4(2). Petitioner has not produced on record any of the documents included in the list of 'circumstantial evidence', under Explanation-II.

[14] If Petitioner was indeed cultivating the land uninterruptedly for more than 12 years, she could have produced some receipts in respect of agricultural produce, electricity bill, excavation permission or any other permission granted in respect of the land. However, no such document was produced on record before the Tehsildar by Petitioner. Petitioner claims that she has constructed Gram Panchayat House No. 953 in the land after obtaining permission from Grampanchayat. However, Respondents have demonstrated that the said House No. 953 is constructed on land bearing survey No. 130 (436) Hissa No. '5B', which is not the suit property. Respondents have also demonstrated that they have constructed their own house on the suit land bearing survey No. 130 (436) Hissa No. '5A' by producing permission of Grampanchayat dated 31 July 2008. Thus far from Petitioner producing circumstantial evidence mandated under Section 4(2), Respondents actually produced evidence that their house is located in the land in question.

[15] Thus, there is no circumstantial evidence on record to indicate Petitioner's cultivation or possession of suit land bearing Survey No. 130 (436) Hissa No. 5A. On the contrary circumstantial evidence in the form of permission granted by Grampanchayat vide resolution dated 31 July 2008 indicates the occupation of the suit land by Respondents. I am therefore of the view that the Petitioner failed to produce any circumstantial evidence showing cultivation or possession of the suit land for a period of 12 years. Since one of the mandatory conditions production of circumstantial evidence is not met with, the Tehsildar could not have proceeded to make a declaration of deemed tenancy of Petitioner under Section 4 (2) of the Tenancy Act.

[16] Now I turn to the oral evidence on record, adduced by Petitioner and her witnesses. The MRT has heavily relied upon admission given by Petitioner in her cross examination. In her cross-examination Petitioner has stated as under-

[17] Petitioner thus gave admission, in no uncertain terms, that she does not possess the suit land and that she wants the possession of the suit land to be handed over to her from Respondents. Though, Mr. Khandeparkar attempted to brush aside this admission as inconsequential, this admission is required to be considered in the light of actions of Petitioner's father in filing the two Suits. The exact prayers sought in Regular Civil Suit No. 8 of 2005, which was dismissed for default, are unknown. However, Petitioner has admitted in her crossexamination that she has filled suit claiming possession of suit property. Relevant portion in this regard in her cross examination reads thus-

Though not absolutely clear, it appears from Petitioner's admission that Regular Civil Suit No. 8 of 2005 might have been filed seeking possession of suit land. Later Petitioner's father instituted Regular Civil Suit No. 80 of 2012 claiming adverse possession. In that Suit, he did not raise any claim for tenancy rights under section 4(2) but merely claimed adverse possession.

[18] Therefore it is difficult to brush aside the admissions given by Petitioner during her cross examination as 'stray' or 'inconsequential'. Coming to the evidence adduced by Sheetal Uday Parab, Police Patil, it is seen that she has admitted in her cross-examination that the statements made by her in her affidavit of evidence are based on hearsay information. The relevant portion of her cross examination is as under:

In the light of above admissions, the evidence of Police Patil does not inspire confidence.

[19] True it is that in its revisionary jurisdiction, MRT cannot and in exercise of writ jurisdiction, this Court would not reappreciate evidence on record. There can also not be any dispute to the proposition that in exercise of revisionary jurisdiction, the Tribunal cannot discuss the evidence and arrive at a different conclusion than the one recorded in concurrent findings of lower authorities. In this regard reliance of Mr. Khandeparkar on judgment of this court in Gulabrao Sahebrao Shinde (supra) in apposite. This Court held in paragraph 4 as under4. Before I proceed to consider the rival submissions, it will be appropriate to advert to the settled legal position as to the scope of interference by the Revisional Authority in exercise of powers under section 76 of the Act. The Apex Court in the case of Maruti Bala Raut vs. Dashrath Babu Wathare and others, 1974 MhLJ 972 (1974)2 SCC 615, while considering this question has expounded that the Tribunal is not competent to discuss the evidence on record and come to its own conclusion. In the present case, to my mind, this is the precise mistake committed by the Tribunal. The Tribunal, so as to overturn concurrent decisions of two authorities below on the question of fact as to whether the petitioner was in lawful cultivation of the suit land as tenant, has first proceeded to examine the purport of the disputed document. It has found that on proper construction of the terms therein, it appears that the arrangement. was one of partner in cultivation and not a lease. Assuming that the Tribunal was justified in interpreting the terms of the document being question of law, such a case was not even suggested by the respondent at any stage of the proceedings The Tribunal has therefore travelled beyond the pleadings of the parties. ........ To my mind, none of the above reasons can be justification for overturning the concurrent finding of fact recorded by the two authorities below. On the other hand, the two authorities below have adverted to the relevant materials on record and after analysing the same, reached at that conclusion. It was not a case one of manifest error committed by the two authorities below or that the finding reached by them was perverse as such. The Tribunal has clearly exceeded its jurisdiction, as has been observed in the case of Maruti Bala Raut (supra).

[20] However, if any manifest error in the concurrent findings of Tehsildar and SDO is demonstrated or their findings suffer from the vice of perversity, it would be too farfetched to suggest that the MRT would not correct that manifest error or set aside a perverse finding on account of concurrency in findings of the two authorities or limitations on its revisionary jurisdiction. For otherwise, the very purpose behind investing the MRT with revisionary jurisdiction would be defeated.

[21] In the present case, the Tribunal has not entered into the realm of re-appreciation of the evidence. What is done by it is to take into consideration the most vital admission given by Petitioner about possession of the land with Respondents, which was altogether ignored by the Tehsildar and Sub-Divisional Officer. Once there is specific admission of Petitioner that she does not possess the suit land, taking such admission into consideration would not amount to reappreciation of evidence. In my view, if the Tehsildar and Sub-Divisional Officer were to take into consideration that admission, it was virtually impossible for them to hold Petitioner to be deemed tenant under Section 4(2) of the Tenancy Act.

[22] On the contrary, the judgment in H. K. Taneja (supra) relied upon by Mr. Walawalkar appears to be more relevant to the case in hand. In that case, this Court has relied upon provisions of Section 58 of the Indian Evidence Act 1872 and has held that facts which are admitted need not to be proved. This Court held in paragraph Nos. 20 to 23 as under -

20. Order 12 Rule 6 is a salutary provision. It is made not to get suits in which admissions of the claim of the Plaintiff are made in whatever manner enmeshed in legal and judicial delays by having the Plaintiffs to prove a case which is admitted. The rule is very wide. It includes admissions in the pleadings as also otherwise. It includes oral as well as written admissions. It includes admissions made at any stage of the suit and in any application of any party. It requires a judgment on admission to be passed by the Court on its own motion or on the application of any party having regard to such admissions. It allows judgment for the part or full of the claim of the Plaintiffs and requires the Court to pass the judgment without waiting for the determination of any other question between the parties and it also requires a decree to be passed in accordance with law.

21. This is in consonance with the rule of evidence that admitted facts, as also documents, in a given suit need not be proved under Section 58 of the Indian Evidence Act, 1972.

Section 58 runs thus:

"Section 58. Facts admitted need not be proved. - No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."

22. Hence the facts which are admitted in the suit itself must also result in termination of the proceedings either fully or partly upon such admissions.

[23] In the present case, there is a specific admission by Petitioner that she does not possess the suit land. Additionally, she failed to produce circumstantial evidence of cultivation/ possession, which is a mandatory requirement under Sub-Section 2 of Section 4. Oral evidence of Police Patil does not inspire confidence on account of her admission that the affidavit of evidence filed by her was on basis of hearsay information. In these circumstances I am of the view that the findings recorded by Tehsildar and Sub-Divisional Officer to the effect that Petitioner has been cultivating land for more than 12 years are totally perverse and cannot be sustained. The MRT has rightly set aside the orders passed by the Tehsildar and Sub-Divisional Officer.

[24] I therefore find order passed by the Tribunal to be unexceptionable. Writ Petition, being devoid of merit, is dismissed without any order as to costs