MALIK VAGHJI BAWAJI Vs. PATEL HIRJI NATHU

JUDGEMENT

(1.) A question of some importance has been raised before us on this petition and the question relates to the connotation and the ambit of the expression tenant in the Saurashtra Barkhali Abolition Act 1959. That Act it may be mentioned was enacted principally to abolish barkhali tenure prevailing in certain parts of Saurashtra. It appears from the provisions of the Act that it brought about certain agrarian reforms and improvement in the land revenue administration. It is necessary to examine the scope of the Act in so far as it is helpful in understanding the principal question which arises for our determination.

(2.) But of this more hereafter. The petitioners are barkhalidars within the meaning of section 2(i) of the Barkhali Abolition Act of 1951 and one of their fields Hamirki admeasuring four acres was mortgaged with possession to one Lallu Bechar. Two other fields admeasuring 6 acres and 16 gunthas belonging to the barkhalidars were also mortgaged with possession. It is not necessary to set out the details pertaining to these mortgages. The opponent-tenants filed an application in Form 11 for obtaining occupancy certificate in respect of some of these lands on the ground that they wore cultivating the suit lands since long prior to the mortgage of the same. The Mamlatdar held that the opponents were cultivating the suit lands prior to the mortgages. He reached the conclusion that the opponents were covered by the definition of tenants in sion 2(iv) read with section 4 of the Barkhali Abolition Act. Section 4 it may be observed mentions persons who are to be deemed to tenants. The Mamlatdar also held that the estate off the barkhalidar was more than two economic holdings and they were not entitled to any gharkhed land. The barkhalidars appealed against the decision of the Mamlatdar which appeal was rejected. The matter was carried in revision to the Revenue Tribunal and the Revenue Tribunal also rejected their application and the barkhalidars have come to this Court on this petition. The Revenue Tribunal has pointed out in its judgment that it was admitted by the applicant Vaghji Bawaji that when the suit lands were mortgaged to Ambaram Karsan the opponents were cultivating the suit lands. The Tribunal has also pointed out that the opponents were on the land and were cultivating the same before the Barkhali Abolition Act came into force.

(3.) Mody who appears for opponents 1 and 2 has not supported that judgment of the reasons given by the Tribunal. He has rested his arguments before us on a brief contention and the contention is that in any event opponents 1 and 2 were persons who held the lands on lease from the mortgagees of the barkhalidars and the mortgagees must be regarded as persons claiming through the barkhalidars and therefore opponents 1 and 2 were tenants within the meaning of that expression as defined in section 2 of the Act. That being the position says Mr. Mody it is not even necessary for him to urge before us that the Tribunal was right in taking the view that the opponents 1 and 2 were deemed tenants within the meaning of the Act. Succinctly stated the argument is that a lessee of such lands from a mortgagee of a barkhalidar is within the ambit and scope of the Act.