DESAIBHAI SHANABHAI PATEL Vs. BHULABHAI PRABHUDAS PATEL

JUDGEMENT

(1.) . The order passed by the Mamlatdar and Agricultural Lands Tribunal at Thasara ('the First Authority' for convenience) on 17/04/1982 in Tenancy Case No. 28 of 1980 as affirmed in appeal by the order passed by the Deputy Collector at Anand ('the Appellate Authority' for convenience) on 30/10/1982 in Tenancy Appeal No. 108 of 1982 as further affirmed in revision by the decision rendered by the Gujarat Revenue Tribunal at Ahmedabad ('the Tribunal' for convenience) on 4/07/1985 in Revision Application No. TEN. B. A. 2012 of 1982 is under challenge in this petition under Art. 227 of the Constitution of India. By his impugned order the First Authority declared respondent No. 1 herein to be the tenant of one parcel of land bearing Block No. 37 (Survey No. 43) admeasuring 1 acre 29 gunthas situated in village Mithana Muvada, Taluka Thasara, District Kheda ('the disputed land' for convenience) prior to 1/04/1957.

(2.) . This litigation has a somewhat chequered history. Petitioner No. 1 claims to be the owner of the disputed land. One Rambhai Raghubhai filed one suit, bearing Civil Suit No. 198 of 1953, in the Court of the Civil Judge (J.D.) at Dakor against petitioner No. 1 ('the landlord' for convenience) for recovery of his dues. A decree came to be passed therein. In execution thereof the disputed land came to be attached and put for sale in auction, Respondent No. 3 herein purchased it in its auction for Rs. 2,200/~. He in his turn transferred it to respondent No. 2 herein. The necessary sale certificate was thereupon issued in the name of the father of respondent No. 2 herein. Thereafter, respondent No. 2 in the company of one more person filed one Civil suit, bearing Civil Suit No. 115 of 1957, in the Court of the Civil Judge (J.D.) at Dakor for possession of the disputed land from petitioner No. 1 herein. A decree for possession came to be passed therein. It was affirmed in appeal and in further appeal by this Court. In execution thereof its possession was taken from the petitioners on or around 20/09/1967. Thereafter, the petitioners herein made one application on 16/12/1967 to the Collector of Kheda for restoration of possession of the disputed land inter alia contending that the aforesaid decree passed by the Civil Court in Civil Suit No. 115 of 1957 was a nullity because the disputed land was a fragment and its sale in favour of respondent No. 2 herein was in contravention of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 ('the Fragmentation Act' for brief).

(3.) . It appears to have been assigned to the concerned Deputy Collector. It appears to have been registered as Case No. OCN/Vasi/2057. By his order passed on 26/09/1971 in the aforesaid proceeding, the Deputy Collector accepted the application and held that the sale of the disputed land made in execution of the decree passed by the Civil Court in Civil Suit No. 198 of 1953 in favour of respondent No. 3 and in turn in favour of respondent No. 2 herein was in contravention of Sec. 14 of the Fragmentation Act and was, therefore, null and void and ordered removal of the father of respondent No. 2 herein from the disputed land and restoration of its possession to petitioner No. 2 herein. That aggrieved respondents Nos. 2 and 3 herein. They carried the matter in appeal before the Special Secretary (Revenue Department) at Ahmedabad by means of their Appeal No. SS.RD.Com. 187 of 1971. That appeal was accepted and the aforesaid order passed by the Deputy Collector was quashed and set aside. That aggrieved the present petitioners. They moved this Court by means of Special Civil Application No. 682 of 1972. By its decision rendered on 22/06/1977 in Special Civil Application No. 682 of 1972, this Court upset the aforesaid order passed by the Special Secretary (Revenue Department) at Ahmedabad and restored the aforesaid order passed by the Deputy Collector. That aggrieved respondents Nos. 2 and 3 herein. They questioned the correctness of the order passed by this Court the Apex Court, but by its order passed on 7/08/1978 the Supreme Court rejected their Special Leave Petition and affirmed the decision rendered by this Court on 22/06/1977 in Special Civil Application No. 682 of 1972. Its copy is at Annexure 'F' to this petition. It appears that at that stage respondent No. 1 entered the arena. He appears to have instituted one suit, bearing Civil Suit No. 91 of 1978, in the Court of the Civil Judge at Dakor for permanent injunction restraining the present petitioner? from taking possession of the disputed land on the ground that he was the tenant thereof prior to 1/04/1957. The present petitioners were impleaded as defendants Nos. 2 and 3 therein. They filed their written statement-cum reply to the injunction application and resisted the suit and the injunction application on various grounds. They inter alia contended that respondent No. 1 herein was not the tenant of the disputed land. A copy of their written statement is at Annexure 'D' to this petition. It appears that in the meantime respondent No. 1 herein made an application on 16/08/1978 to the First Authority under Sec. 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 ('the Tenancy Act' for brief) for fixation of the price of the disputed land on the ground that he was cultivating it as its tenant on the Tillers' day, that is, on 1/04/1957. That application was accepted by the First Authority and the price of the disputed land was fixed at Rs. 2,200/-. It may be mentioned at this stage that the present petitioners were not made parties to the aforesaid proceeding instituted by respondent No. 1 herein under Sec. 32G of the Tenancy Act against respondents Nos. 2 and 3 herein. It appears that the present petitioners came to know of the order passed by the First Authority in the proceeding under Sec. 32G of the Tenancy Act. They, therefore, carried the matter in appeal before the Appellate Authority. By his order passed on 29/11/1979, the Appellate Authority accepted the appeal and set aside the order passed by the First Authority in the proceeding under Sec. 32G of the Tenancy Act. That aggrieved respondent No. 1 herein. He carried the matter in revision before the Tribunal by means of his Revision Application No. TEN.B.A. 181 of 1979. By its decision rendered in the aforesaid revisional application, the Tribunal remanded the matter to the Appellate Authority for his fresh decision according to law. By his order passed on 2 9/12/1979 the Appellate Authority again came to the conclusion that respondent No. 1 herein was not entitled to purchase the disputed land under Sec. 32G of the Tenancy Act. That by means of Revision Application No. TEN.B.A. 263 of 1980. By its decision rendered the aforesaid revisional application, the Tribunal rejected it by holding that the proceeding under Sec. 32G of the Tenancy Act was not maintainable and respondent No. 1 herein was advised to make an application under Sec. 70(b) thereof to establish his tenancy rights with respect to the disputed land. Thereupon respondent No. 1 herein made one application on 21/07/1980 under Sec. 70(b) of the Tenancy Act for a declaration that he was the tenant of the disputed land prior to 1/04/1957. It came to be registered as Tenancy Case No. 28 of 1980. By his order passed on 17/04/1982 in Tenancy Case No. 28 of 1980, the First Authority held respondent No. 1 herein to be the tenant of the disputed land. Its copy is at Annexure 'C' to this petition. That aggrieved the present petitioners. They thereupon carried the matter in appeal before the Appellate Authority by means of their Tenancy Appeal No. 108 of 1982. By his order passed on 30/10/1982 in the aforesaid appeal, the Appellate Authority dismissed it. Its copy is at Annexure 'B' to this petition. The aggrieved petitioners thereupon invoked the revisional jurisdiction of the Tribunal by means of Revision Application No. TEN. B.A. 2012 of 1982. By its decision rendered on 4/07/1985 in the aforesaid revisional application, the Tribunal rejected it. Its copy is at Annexure 'A' to this petition. The aggrieved petitioners have thereupon knocked the doors of this Court by means of this petition under Art. 227 of the Constitution of India for questioning the correctness of the impugned order at Annexure 'C' to this petition as affirmed in appeal by the Appellate Order at Annexure 'B' to this petition as further affirmed in revision by the impugned decision at Annexure 'A' to this petition.