GANAYYA Vs. RADHABAI

JUDGEMENT

(1.) This is an appeal against the order dated 17/1/1985 passed by the High court of Bombay, Nagpur bench, in Writ Petition No. 2315 of 1980 dismissing the petition of the appellants filed under Article 227 of the Constitution of India challenging the order dated 24/4/1980 passed by the Maharashtra Revenue tribunal, Bombay affirming the orders passed by the Sub-Divisional Officer and Additional Tehsildar conferring the rights of statutory ownership on Nagayya the real uncle of the appellants on the view that he was lawful in cultivating possession of the property as a tenant on 1/4/1961 and 1/4/1963.

(2.) The deceased Nagayya Jangam, the predecessor-in-interest of the respondent Radhabai and others was the real brother of late Kashinathayya, the father of the appellants who made an application on 5/1/1973 under Section 48 read with S. 46 and 49-A of the Bombay Tenancy and Agricultural Lands Act, 1958 for conferral of ownership rights in respect of Field Survey No. 82/2 admeasuring 10 acres and 25 gunthas situated in Village Rithad in Akola District against the appellants herein and his married sister Kausalayabai Malkarjun Jangam. The statutory ownership right was conferred on Magayya by the Additional Tehsildar by his order dated 7/11/19744 on a view that he was in lawful possession of the property as a tenant on 1/4/1961 and 1/4/1963. This order was confirmed in appeal by the Sub Divisional Officer by his order dated 29/10/1975 and also in revision by the Maharashtra Revenue tribunal by an order dated 24/4/1980. The contentionbefore the High court raised by the appellants was that the grant of lease by de facto guardian namely, Balayya was not valid as it was hit by the statutory provisions contained in Section 11 of the Hindu Minority and Guardianship Act, 1956.

(3.) The case set up by the appellants was that their father was blind from birth who died on 16/2/1957 leaving behind him the appellants who were minors. The appellants' uncle Nagayya was cultivating the land in question as Manager even during the lifetime of their father as he was blind and the appellants were minors. One Balayya, husband of appellants' mother's sister, leased out the lands in dispute to the said Nagayya, the real uncle of the appellants. On the basis of that lease made by the de facto guardian of the appellants, Nagayya, the uncle of the appellants, made the application for conferral of ownership rights of the land in dispute and for determination of purchase price of the said land under Section 48 read with S. 46 and 49-A of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The Additional Tehsildar allowed that application which was upheld by the Sub-Divisional Officer in appeal and the Revenue tribunal in revision. The High court also dismissed the appellants' application filed under Article 227 of the Constitution on the view aforesaid. The High court took the view that the provisions of Section 11 of the Hindu Minority and Guardianship Act, 1956 were not attracted to the facts of the present case and, therefore, dismissed the petition.