BASAWWA Vs. NINGAPPA GOPALAPPA UPPIN

JUDGEMENT

(1.) One Mallappa was the owner of certain lands which he gifted under a deed dt 25-9-1958 to one Ghoshappa, and Revappa (Petitioner No.11). The donor died soon-after the execution of the gift deed. Respondent No.1 Ningappa Golappa Uppin claiming to be an heir of the aforesaid Mallappa brought C.S. No. 49 of 1959 in the Court of the Civil Judge, Jr. Dn., Bijapur for declaration that the gift deed executed by Mallappa was void, being in contravention of S. 63 of the Bombay Tenancy and Agricultural Lands Act 1948, hereinafter called the Act, and for possession and other Incidental reliefs. The donees were the defendants in the said suit. On the contentions raised by the parties, one of the issues raised was, whether the donees were agriculturists on the date of the gift deed in question. That issue was referred under S.85-A cf the Act to the Tahsildar, Sindgi for determination. The Tahsildar held that the donees were not agriculturists. Against this decision, the said donees preferred an appeal to the Asst. Commissioner who reversed the decision of the Tahsildar. Respondent-1 preferred a revision petition against the decision of the Assistant Commissioner before the Mysore Revenue Appellate Tribunal. Bangalore, in Revn.No.128 of 1966 (BT. & AL.). The Tribunal allowed the revision petition, set aside the decision of the Assistant Commissioner and restored the decision of the Tahsildar on the ground that an appeal did not lie under S.74(1) (a) of the Act from the decision of the Tahsildar. In coming to that conclusion, the Tribunal relied on the decision of this Court in Krishnabai v. Hanmanth, (1966)1 Mys.L.J. 329. Ghoshappa aforesaid who was the 1st respondent before the Tribunal having died, his legal representatives who are petitioners Nos.1 to 10 and petitioner No.11 who was respondent-2 before the Tribunal have preferred the above writ petition.

(2.) Sri K.A.Swamy, learned Counsel for the petitioner urged that the Tribunal was in error in applying the ratio of the decision in Krishnabai v. Hanmant to the facts of the present case. In Krishnabai's case, there was no reference made by the Civil Court for determination by the Tahsildar. What was done in that case was that the Civil Court had directed one of the parties to seek an adjudication on the question of the status of the donees from the Mamlathdar. Pursuant to that direction, they made an application for that purpose and were able to secure an adjudication from the concerned Mamlathdar that they were agriculturists.

(3.) From that decision an appeal was taken to the Asst. Commissioner who dismissed it on the ground that the appeal was not competent. Therefore, it is dear that in the said case there was no reference by the Civil Court for determination of the question referred under S.85-A of the Act. The Act was amended by Bombay Act 13 of 1956 by which Ss.70 and 74 were amended and a new section by way of S.85-A was introduced. Section 85-A reads thus: