VALAND MAFATBHAI KASHIBHAI Vs. VALAND VITHALBHAI MOTIBHAI

JUDGEMENT

(1.) The present petition is directed against the decision dated January 11, 1985 rendered by the Gujarat Revenue Tribunal in Revision Application No.960/82 allowing the revision application of the respondent herein and thereby quashing the remand order dated January 25,1982 of the Deputy Collector, Petlad in Tenancy Appeal No.136/81.

(2.) The relevant facts are in narrow compass and not in dispute. The agricultural land bearing Survey No.130 admeasuring OA-26 Gunthas of Block No.l71/P situated in village Vatav Taluka Petlad, District Kheda, was occupied and cultivated by the petitioners. The respondent had filed a civil suit, being Civil Suit No.365/75 in the court of the Civil Judge (J.D.) at Petlad for possession of the said land. The petitioners raised a plea of tenancy in respect of the said land. The trial Court, therefore, made a reference under section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short "the said Act") to the Mamlatdar to decide for issue regarding tenancy. In the inquiry under sec.70(b) of the said Act, the Mamlatdar, by his order dt August 16,1979, held that the petitioners were not the tenants of the land. The petitioners, therefore, preferred appeal before the Deputy Collector, who, by his judgment and order dated February 25, 1980, allowed the appeal and remanded the matter to the Mamlatdar. On remand, the Mamlatdar again came to the conclusion by his order dated August 7,1981 that the petitioners were not the tenants. The petitioners, therefore, preferred an appeal before the Deputy Collector, who by his order dated January 25, 1982 again remanded the matter to the Mamlatdar.

(3.) The respondent being aggrieved by the said decision of remand, preferred the aforesaid revision application No. TEN.B.A.960/82. The Tribunal, invoking section 4(1) of the said Act, held that the petitioners being cousin brothers of the respondent Vithalbhai Motibhai, were members of the family and thus the petitioners cannot be deemed to be tenants'of the land in question. The Tribunal, therefore, quashed the remand order of the appellate authority. The Tribunal based its entire judgment on basis of the ratio laid down in case of Smt. Amthibhai Wdlo Jesangbhai Nathubhai vs. Patel Shankerbhai Purshottamdas, reported in 24(1) G.L.R. 170. This Court, in that case, interpreting section 4 of the said Act, held that the respondent being uncle- in-law of the petitioner-landlady was not a tenant in view of the provisions of section 4(1) of the said Act It was further held that the respondent was related by marriage and therefore he must be held to be a member of the family and therefore beyond the purview of the benefit of deemed tenancy prescribed under section 4 of the said Act. The petitioners have challenged the validity and legality of the said order passed by the Tribunal in its revisional jurisdiction.