BHAGWANJI HIMATSINHJI Vs. GUJARAT REVENUE TRIBUNAL

JUDGEMENT

(1.) The petitioner challenges in this petition the order of the Revenue Tribunal dated August 18 1966 by which the Revenue Tribunal has set aside the order of the 2 lower authorities and had dismissed the application of the tenant for restoration Of possession of land in question. Originally this petitioner had applied for restoration of 2 lands Survey No. 176 and Survey No. 179. Survey No. 176 was found to be a grass land. The present controversy relates only to Survey No. 179. On the earlier occasion this application of the tenant dated October 11 1960 was finally remanded by the Revenue Tribunal by its order dated October 9 1962 giving the parties opportunity to lead further evidence. The remand order also clarified that the issue relating to limitation should also be decided after further evidence was led on this issue. After the remand both the lower authorities held that petitioner to be a tenant and ordered restoration. The Revenue Tribunal has however reversed this order on three counts (1) that the concerned tenant would become deemed purchaser on 1st April 1957 and he would have no right to apply for restoration under sec. 29 (2) that the application dated October 11 1960 was clearly time-barred under sec. 29 (3) that even on facts the petitioner was not a tenant of the land in question. Mr. C. K. Patel attacks this order of Revenue Tribunal by pointing out three material points.

(2.) As regards the first question the finding of the Revenue Tribunal is wholly inconsistent. On the one hand the Revenue Tribunal holds that the petitioner was not in possession and cultivation of this land in question after the statement was given on December 31 1956 and still it holds the application of this tenant as incompetent on the ground that he had become a deemed purchaser on April 1 1957 Under sec. 32(1) a tenant who is cultivating the land on the tillers day can only become the deemed purchaser. Therefore as regards the aforesaid finding there is a clear fallacy in this reasoning. Even on the second question of limitation the Revenue Tribunal has not gone into the most material question as to whether after the so-called statement of December 31 1956 possession had actually been with the tenant till be was finally dispossessed as alleged by him in 1959 October. Both the lower authorities had given concurrent finding that the tenant was finally dispossessed only in about October 1959. If the alleged trespass of the landlord had come to an end a fresh cause of action would accrue to the tenant only when he was finally dispossessed in October 1959. If this material aspect had been considered by the Revenue Tribunal the application of the concerned tenant for restoration of possession within 2 years from the date of fresh cause of action when a fresh trespass was committed would be clearly within time. Finally as regards merits also the Revenue Tribunal has on mere conjectures and without going into the evidence discussed by the two lower authorities reversed the pure finding of fact that the petitioner was a tenant. Even the Revenue Tribunal has proceeded on the footing as stated in para 6 of the order that the petitioner was a tenant of this land since 1951. The Revenue Tribunal however gave great importance to the alleged statement of the tenant before the Talati on December 31 1956 In the said statement he had stated that he was cultivating Survey No. 179 belonging to respondent No. 2 but he had not cultivated it that year and he was giving that statement so that his name may be removed and the name of Khatedar may be entered in the record. The Prant Officer rightly held that such a statement would not amount to any surrender of tenancy by the tenant. This view of the Prant Officer was obviously right in view of settled legal position as now laid down by the Supreme Court in Vallabhdas v. Bai Jivi A.I.R. 1969 S.C. 1190 (1193). Their Lordships held that there were two conditions precedent which must be satisfied for a valid surrender under sec. 15 of the Act. The alleged surrender must be in writing and it must be verified by the Mamlatdar to find out whether it was voluntary. If these two conditions are not satisfied then even if the tenant has voluntarily surrendered possession and the landlord has accepted the same. tenancy still continues and it does not stand terminated in such a case. The tenant is entitled to retain possession and further even to apply for restoration of possession under sec. 29(1). The landlord who had accepted such an illegal surrender would not be entitled to retain possession if there is no valid surrender as required by sec. 15 of the Act which only can terminate the tenancy. Therefore the settled legal position is that by a surrender which is not valid the tenancy never gets terminated and the tenant continues to be entitled to retain possession or if he is dispossessed to be entitled to have restoration of possession by applying under sec. 29(1). In the present case even Mr. Patel did not for a moment contend that there was a valid surrender under sec. 15 by such a mutation statement before the Talati. The statement clearly mentions that the petitioner had not cultivated the field for that year. There is no question of surrendering tenancy as the two mandatory conditions were never fulfilled. There was no order of Mamlatdar passed allowing the landlord to retain possession after a valid surrender by the tenant. The Revenue Tribunal had proceeded on the footing that the tenancy of petitioner started in 1951 but that tenancy had never been terminated by the 60 called statement of the tenant dated December 31 1956 before the Talati. Therefore at no stage there is an iota of evidence produced which would help the respondent No. 2 to make out any case that the petitioner was not a tenant or that he ceased to be a tenant on the relevant date when he applied for restoration of possession. He was paying land assessment. The lower authorities had even found that after the alleged statement the mutation was not done for Survey No. 179 in favour of landlord. Even for other Survey No. 176 the mutation was done only in 1958-59. The landlord never entered the witness box to deny the case of this tenant that possession was taken away from him only in October 1959. Therefore this voluminous evidence was rightly relied upon by two lower authorities and the conclusion that the petitioner was a tenant had been arrived at in light of the settled legal position after drawing proper inferences from the evidence on the record including the revenue record entries in favour of petitioner. This finding is reversed by the Revenue Tribunal on mere conjectures and it came to the conclusion that the petitioner was not a tenant at all. Even the evidence that he was cultivating the land was sought to be discarded on the ground that he was a brother-in-law and he might be helping in cultivation. The petitioner was a tenant giving crop share but receipt may not have been given as the parties were close relations. Therefore the finding of this material question by the Revenue Tribunal is completely perverse and arbitrary. Even as regards the question of limitation the Revenue Tribunal did not take into consideration the relevant provision of sec. 32(1)(A)(a) which provides as under:-

(3.) Under sec. 32(1) on the tillers day i.e. April 1 1957 the tenant who was personally cultivating the land would become a deemed purchaser subject to the other provisions mentioned therein. If the tenant is dis-possessed and evicted from the land by the landlord before April 1 1957 the tillers day sec. 32(1)(A)(a) provides that as soon as possession was ordered to be restored to him under sec. 29(1) by the final order of the Mamlatdar allowing his application he would be deemed to have purchased the land. This sec. 32(1)(A) therefore safeguards the right of a tenant who was dispossessed on the relevant day i e. 1st April 1957 by the land-lord. If the tenant was dispossessed prior to that date he must first get the order for restoration of possession. In such a case he would be a deemed purchaser only under sec. 32(1)(A)(a) on passing of the order for restoration of possession. While applying sec. 32(1)(A) a material question would often arise as regards limitation period for this application under sec. 29(1). If the landlord has dispossessed the tenant before April 1 1957 and the tenant is entitled to restoration of possession under sec. 29(1) the cause of section would accrue when the tenant would be entitled to apply for restoration. If the landlord had committed the trespass before April 1 1957 but had discontinued the trespass thereafter the tenant being in possession or cultivation of the land he would be entitled to become a deemed purchaser in view of the provision of sec. 32(1)(A). He would be required to apply for restoration of possession only if the landlords trespass continued and had not ended. Therefore in those cases where a landlords trespass is committed prior to April 1 1957 but it comes to an end by the tenant again getting back his possession the cause of action for application for restoration would again arise when the landlord commits a fresh trespass. The tenant must then ask for restoration within two years from the date of fresh trespass because it is only when he gets an order of restoration of the land that he can become a deemed purchaser. When the tenancy legislation was going to be enacted making the tenant a deemed purchaser the Legislature was conscious of this situation which would arise if the unscrupulous landlords evicted their tenants prior to the tillers day 1-4-1957. That is why this safeguard was created in sec. 32A (1)(a). While interpreting such a benevolent provision. one must always keep in mind that the question of restoration would arise if the tenant is not in possession otherwise he need not apply for restoration. Therefore in all such cases whenever the question of applicability of sec. 32(1)(A) arises the Tenancy authorities must always go into the question whether the landlords trespass had continued all the time. In the present case the Revenue Tribunal did not apply its mind to this material question while the Prant Officer had gone into the relevant question. It should be kept in mind that on the earlier occasion when the Revenue Tribunal had remanded this matter on 1st October 1962 it had given fresh opportunity to the parties to lead evidence on the question of limitation. In spite of this opportunity being given to the landlord respondent No. 2 never entered the witness box after the remand order. In his original evidence he had not stated a word in this connection. The lower authorities had considered the most important aspect in this case that the landlord was changing his ground from time to time. His original case was that the petitioner was never a tenant even though this tenants name continued in the record right from 1951 to 1958 and he paid assessment. Later on he tried to prove the statement of the tenant dated December 31 1956 to show that the tenant had given up cultivation. When this new case was sought to be made out the landlord should have come into the witness box to meet the categorical case of tenant that he continued in possession till 1959 October. The landlord never stepped in the witness box. There was not an iota of evidence on record to show that the tenant was not in possession till October 1959 when he was finally dispossessed. Even in the cross-examination the only question put to him was that after the date of the aforesaid statement the possession was not of the tenant but of the land-lord-respondent No. 2. The petitioner in terms denied this case put to him. Therefore the landlords case in the cross-examination is specific that he took possession of this land only from the date of the statement in 1956. Even for supporting this case except this suggestion in cross-examination there is no other evidence of the landlord. Therefore the tenants word on oath has remained unchallenged that he was in possession upto 1959 October. If the tenant was in possession upto 1959 even though he might have been dispossessed prior to April 1 1957 he would be entitled to become a deemed purchaser under sec. 32(1)(A) only when his application for restoration was allowed. Therefore his restoration application could not be thrown out on the ground he had become a deemed purchaser on 1-4-1957. The reasoning is fallacious as earlier pointed out. Therefore all the grounds set out in the order of the Revenue Tribunal are completely perverse. The two lower authorities conclusion was completely justified. The petitioners tenancy was never terminated by any valid surrender and his application for restoration was therefore clearly competent as he would be deemed purchaser only after this application was allowed and the possession was ordered to be restored to him under sec. 32(1)(A). There was no bar of limitation also as he was finally dispossessed only In October 1959 while the present application was made for restoration on October 11 1960 On merits I have already held that the Tribunal had wrongly interfered with the concurrent finding of fact that the petitioner was a tenant at the relevant time as his tenancy had never been terminated by the landlord. In the result this petition must be allowed by quashing the order of Revenue Tribunal and by restoration of the order of the lower authorities of restoration of possession of disputed Survey No. 179 to the petitioner. Rule accordingly made absolute with costs.