BABARBHAI DAHYABHAI VANKAR Vs. PRABHAKAR PARSHOTAMBHAI PATEL

JUDGEMENT

(1.) The present Civil Revision Application has been preferred by the applicant-original Defendant for the prayer that the judgment and Order passed in Civil Appeal No. 48 of 1990 by the 3rd Extra Assistant Judge, Nadiad dated 24.01.1997 confirming the judgment and Order passed in Regular Civil Suit No. 197 of 1981 by the Civil Judge (JD), Borsad dated 31.12.1985 may be quashed and set aside on the grounds stated in the memo of Revision Application inter alia that the Courts below have failed to appreciate the contentions raised or advanced on behalf of the applicant that the case was required to be referred to the Tenancy Court. It is also contended that in view of the provisions of the Bombay Tenancy and Agricultural Act, 1948, issue raised could not have been decided by the Civil Court as the Civil Court has no jurisdiction. Therefore, it has been contended that both the Courts below have committed a grave error in deciding the Issue No. 5, which had no jurisdiction. It is also contended that the Courts below have also committed an error while deciding Exh. 19 as the Issue No. 5 was required to be referred to Mamlatdar and Krushi Panch. It is also contended that both the Courts below have failed to appreciate that the applicant has been residing in the suit premises for more than 40 years, therefore, the Civil Revision Application may be allowed.

(2.) Learned Counsel, Mr. Sailesh Parikh appearing for the applicant submitted that whether the decree passed by the Trial Court was inseparable or separable was required to be considered. He submitted that after the death of the Respondent, heirs became the co-owners of the suit premises, therefore, it cannot be said that the decree is inseparable. He referred to the papers as well as judgment of both the Courts below and submitted that the lower appellate court has not framed the point of determination and has only framed the issues, which are stated on Page No. 18, which are contrary to the provisions of law. In support of his submission, learned Counsel, Mr. Sailesh Parikh has referred to and relied upon the judgment of this Court in case of G. Amalorpavan and Ors. v. R.C. Diocese of Madurai and Ors, 2006 3 SCC 224.

(3.) Learned Counsel, Mr. Sailesh Parikh submitted that in fact, it was a tenancy under the Bombay Land Agricultural Tenancy Act and whether the Tenancy Act would apply or Rent Act would apply could be decided with reference to the provisions of the Tenancy Act, which both the Courts below have failed to consider. He further submitted that the applicant was agricultural labour and he was given the permission to cultivate the land and accordingly, he acquired right under the Bombay Agricultural Tenancy Act as labour for cultivating land. He, therefore, submitted that this aspect has not been considered by the Courts below resulting into miscarriage of justice. He pointedly referred to the observations made in the order passed in the proceedings and also order passed in Civil Suit, Exh. 64. He has also referred to Annexure-A to this Revision Application and pointedly referred to the entries made to support his submission with regard to the provisions of Tenancy Act. He also referred to the issues framed by the trial court in Civil Suit No. 197 of 1981 particularly, Issue No. 5 and submitted that Issue No. 5 suggests that whether as per Section 18 of the Agricultural Tenancy Act, such land could be purchased. He submitted that the Agricultural Tenancy Act is a special statute and it could have been decided as provided therein and Civil Court has no jurisdiction. He again referred Exh. 19 and submitted that the findings given by the Civil Court that it is not an agricultural land is erroneous as it was not for the Civil Court to decide as to whether it is an agricultural land or not. He submitted that Section 2(8) of the Tenancy Act as well as other provisions refer to this aspect and, therefore, the Civil Court had no jurisdiction. He, therefore, submitted that the judgment and order passed by the Appellate Court confirming the lower Appellate Court are erroneous and the present Revision Application may be allowed.