DHANUBEN WD O HIRABHAI DHULABHAI Vs. GOPALBHAI PRABHUBHAI

JUDGEMENT

(1.) This is a petition filed by Dhahubai widow of Hirabhai Dhulabhai and other heirs and legal representatives of said Hirabhai Dhulabhai who are the children of Dhanuben and deceased Hirabhai. The dispute concerns itself with agricultural lands situated at a village near Surat. Deceased Hirabhai had mortgaged the land with one Nagindas Govandas and the land was being cultivated by one tenant Gopal Parbhu inducted by said mortgagee Nagindas. In the case no. 2629 of 1947 initiated under the provisions of the Bombay Agricultural Debtors Relief Act an award had come to be passed scaling down the debt of deceased Hirabhai. The award was passed on 12-4-50. On or before 15-5-60 the Mamlatdar concerned had initiated the case No. 32 of 1960 suo motu under sec. 32-G of the Bombay Tenancy Act hereinafter referred to as `the Act for brevitys sake. The mortgagee was shown as landlord and said Gopal Parbhu was shown as the tenant in those proceedings and the Mamlatdar declared Gopal Parbhu as having statutorily purchased the land under sec. 32 of the Act. Said Gopal Parbhu is the respondent in this petition. Deceased Hirabhai having come to know of such an ex-parte prejudicial order preferred the appeal no. 193 of 1960 which was allowed on 26-10-60 by the Prant Officer. In the meantime deceased Hirabhai as the landlord of the land had applied for exemption certificate under sec. 88 of the Act. The said application was made by him on 26-8-59 and those proceedings had come to be registered as 88/C case no. 12 of 1959. The Mamlatdar on 22-8-60 had granted the certificate to deceased Hirabhai but in that certificate the land S. No. 81/2 which is the subject matter of this litigation was excluded. Deceased Hirabhai therefore had preferred the appeal no. 22/60 and the appellate authority had remanded the 88C proceedings to the A. L. T. & Mamlatdar by its order dated 21 with a direction to decide the question of the disputed land S. No. 81/2 situated at village Takarma in Olpad taluka. On fresh enquiry the Mamlatdar by his order dated 30-8-61 granted the exemption certificate under sec. 88C of the Act for all lands including the disputed S. No 81/2. Actually an exemption certificate produced at p. 42 of the petition was issued by the Mamlatdar on 11-9-61. The tenancy appeal no. 109 of 1962 was preferred by the respondent and Parbhu Nathu that is the father of the respondent but the appellate authority confirmed the certificate except in respect of the disputed Survey No. 81/2. Deceased Hirabhai therefore filed a revision application no. 194/62 before the Gujarat Revenue Tribunal on 5-4-62. During the pendency of that petition the respondent-tenant had filed an application under sec. 88D of the Act to the Government for revocation of the certificate. On 2-8-63 Gujarat Revenue Tribunal allowed the deceased Hirabhais revision application and directed the lower authority to consider the income of deceased Hirabhai as on 1-4-57 after giving both sides opportunity to lead evidence. The competent authority again took the matter on hand and by an order dated 7-11-63 granted the certificate in respect of all the lands including the disputed land. Soon thereafter deceased Hirabhai (gave the notice to the tenant under sec. 32 T (i) of the Act terminating his tenancy in respect of two disputed land which was with the respondent as the excluded tenant on the ground that he bona fide required the land for cultivating it personally. The said notice was given on 30-12-63 and on 4-2-64 deceased Hirabhai filed an application under sec. 32-T (1) of the Act read with sec. 29 of the Act for getting possession of the disputed land. The said application was registered as the case No. 3 of 1964. On 31-7-64 the Mamlatdar granted the application and passed the order for delivery of possession. The respondent preferred the tenancy appeal no. 69/64 and in the appeal the appellate authority confirmed the order substantially on merits but directed that instead of the whole S. No. 81/2 only half of that land should be delivered to deceased Hirabhai. Against this order two revision applications had come to be filed 293 by deceased Hirabhai and 313/66 by the respondent. It the meantime by their order dated 9-1-67 the Government rejected the respondents application under sec. 88-D which was filed by the respondent on 6-1-63 already referred to above. The Revenue Tribunal allowed the tenants revision application no. 313/66 and dismissed the revision application no. 293/66 filed by deceased Hirabhai. Against that judgment of the Revenue Tribunal the special civil application no. 552 of 1967 had come to be filed in this High Court by deceased Hirabhai which had come to be allowed by this court on 11-8-70. The High Court remanded the proceedings to the Revenue Tribunal. In the meantime the respondent-tenant had filed second application to the Government on 25-6-71 by resort to sec. 88D of the Act with a prayer to revoke sec. 88 C certificate.

(2.) After remand of the two revision applications as per the orders of this High Court the Revenue Tribunal re-numbered the respondents revision application as 129/71 and the deceased Hirabhais revision application as 130/71. The tenants revision application came to be rejected whereas deceased Hirabhais revision application came to be allowed. This means that the Revenue Tribunal ordered delivery of the entire disputed survey number to deceased Hirabhai as was initially done by the Mamlatdar. Thus the Mamlatdars order came to be restored by the Tribunal as per its judgment dated 30-8-71.

(3.) Then the respondent Gopal Parbhu the tenant filed a Review Application no. 28/71 requesting the Tribunal that as his application under sec. 88D was pending for revocation of the certificate the possession could not be delivered. The Tribunal by passing the order dated 17-12-71 modified its order to the effect that possession not to be handed over till S. 88D application was rejected. That order was not challenged by deceased Hirabhai. He had then started knocking the doors of the Government seized of the proceedings under sec. 88D of the Act that the said 88 application should be expeditiously dealt with because he was suffering from cancer and was on his death bed and wanted to have the fruits of his litigation before he departed from the world. His requests made to the Govt. on 2-5-72 24 7 and 2-8-76 however fell on deaf ears and he then died on 16-9-76. Thereafter the Government passed on 21 the order the operative part of which is reproduced as follow: