UDESING BUDHABHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) SINCE both the petitions raise common question of facts and law, both are decided by this common judgment.

(2.) IT is the case of the original petitioner Shri Udesingh Budhabhai Parmar, who died pending the petitions, that he was cultivating land bearing block No.668 admeasuring 0 hectare, 07 are and 24 square meters, situated at village Devki Vansol, Taluka: Mahemdabad, Dist: Kheda and the lands bearing survey Nos.340 and 341 admeasuring 0 hectare, 68 are and 80 square meters and 0 hectare 20 aare and 23 square meters, situated at village Kachchai, Ta: Mahemdabad, Dist: Kheda. As per his claim, he had been cultivating the said lands for so many years. He had preferred Ganot Case Nos.128 of 1997 and 129 of 1997 before the Mamlatdar & Krushi Panch at Mahemdabad under Section 70-B of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act") to declare him the tenant of the above said lands. The Mamlatdar & Krushipanch, came to the conclusion that the lands in question were in possession of the petitioner since long and the revenue of the lands was also being paid by the petitioner. The Mamlatdar & Krushipanch therefore declared the petitioner to be the tenant of the lands in question under Section 70-B of the Act. The respondent Nos.2 and 3 challenged the above said order by preferring two different appeals being Appeal Nos.27 and 28 of 1998 before the Deputy Collector at Nadiad under Section 74 of the Act. The Deputy Collector, Nadiad allowed both the appeals filed by the respondent Nos.2 and 3 and quashed and set aside the two orders dated 13.5.1998 in respect of aforesaid two different lands. The Deputy Collector held that the Panchnama was not drawn in the presence of the respondents. The respondents were never informed about drawing of the Panchnama and the Panchnama could not be accepted as the evidence in support of the claim of the petitioner.

(3.) MR. P.M. Bhatt, learned advocate with Ms. Vasudatta Bhatt, learned advocate for the respondent Nos.2 and 3-landlords has submitted that there is no evidence produced before any of the authorities to establish that the petitioner was, at any point of time, cultivating the lands in question. There is also no evidence on record to establish that the petitioner was ever inducted as a tenant on the lands in question by the landlords. The petitioner has also not produced any evidence about giving of shares of the crop taken from the lands in question to the landlords. Mr. Bhatt further submitted that the Panchnama drawn by the Talati of the respective villages speaks volumes about the act and conduct on the part of the petitioner in collusion with the Talati to grab the lands of the landlords by putting forth the claim as a tenant of the lands in question. He submitted that there was no notice issued to the landlords before drawing of the Panchnama, nor was Panchnama drawn in presence of the landlords. He seriously urged that taking benefit of the absence of the respondents-landlords from the respective villages, the petitioner managed to get the Panchnama drawn and to get his alleged possession on the lands recorded for more than 20 years. He would submit that the purpose of Panchnama is to record the present situation and position of the land or any other property and not to record the evidence in connection with such land or property. As per his submissions, it was not the business of the Talati to state in the Panchnama that the petitioner has been in possession of the lands in question for more than 20 years nor was Talati authorized to record such fact in the Panchnama, that too in absence of the landlords. He submitted that it is not open to collect evidence in support of the petitioner's claim through Panchnama and, therefore, the Panchnama cannot be read as evidence to establish that the petitioner has been in possession and cultivating the lands for last more than 20 years. He further submitted that except the document of Panchnama, there is no other evidence on record to establish that the petitioner was in fact in possession of the lands at any point of time and at any point of time cultivating the lands in question. He also submitted that the so called Banakhat produced on record, cannot be relied on by the petitioner to establish his claim of tenancy on the lands in question. He has pointed out that the landlords have categorically denied the execution of such Banakhat and, therefore, the Banakhas as also the contents of such Banakhat cannot be relied by the petitioners in the present petitions. The Banakhat, being not part of the record before the lower authorities, no reliance can be placed on the Banakhat by the petitioner. He, therefore, submitted that the petitioner, having failed to establish his claim before the authorities by way of any evidence as regards his tenancy rights on the lands in question, the Tribunal and the Deputy Collector had rightly interfered with the order passed by the Mamlatdar, Krushipanch and no errors have been committed by the Tribunal as also by the Deputy Collector. He, thus, urged to dismiss both the petitions. Ms. V.S. Pathak, learned Asst. Government Pleader for the State in both the petitions has submitted that since the petitioner had not produced any legal evidence to establish his claim of tenancy, the Tribunal as also the Deputy Collector have not committed any error in setting aside the order passed by the Mamlatdar & Krushipanch. She, thus, supported the arguments canvassed by the learned advocate for the landlords.