UMRAOMIYA AKBARMIYA MALEK Vs. BHULABHAI MATHURBHAI PATEL

JUDGEMENT

(1.) This is a writ petition under Article 227 of the Constitution and the only question that arises for consideration is the interpretation of clause (d) of sec. 31A of the Bombay Tenancy and Agricultural Lands Act No. LXVII of 1948 as it stands after its amendment by the Gujarat Act No. XVI of 1960. I shall for the sake of convenience refer to the main Act No. LXVII of 1948 in this judgment as the Act. The petitioner claimed to be the landlord of survey Nos. 922 and 928 admeasuring about 4 acres 20 Gunthas and 7 acres and 4 Gunthas respectively of village Vanod Taluka Thasra. He applied to the Mamlatdar under sec. 29 read with sec. 31 of the Act for possession from his tenant-respondent No. 1 in this petition. The Mamlatdar decided all the contentions raised by the tenant against him but dismissed the application of the landlord of the ground that he did not fulfil the conditions laid down in sec. 31A clause (d) of the Act. An appeal was filed against the finding of the Mamlatdar but that was also dismissed by the Prant Officer. A revision application was filed before the Gujarat Revenue Tribunal by the landlord but that was also dismissed. The petitioner based his claim of being the landlord of said lands on a gift made by one Usubmia Mohmedmia who was his maternal grand-father. It was an admitted fact that the name of Usubmia Mohmedmia was in the record of rights during the period mentioned in clause (d) of sec. 31A that is to say during the period from 1st day of January 1952 upto 15th June 1955. Before the Tribunal relying upon the decision of Waman Ganesh Joshi v. Ganu Guno Khapre 61 Bom. L. R. 1267 it was urged on behalf of the petitioner that the expression landlord himself used in sec. 31A(d) of the Act included a predecessor-in-title and as the name of his predecessor-in-title the grandfather was in the revenue record he was entitled to terminate the tenancy. But the Tribunal pointed out that the said view was not accepted by the Gujarat High Court in the case of Bhanushanker Ambalal Joshi v. Laxman Kale & others 1 G. L. R. 169. It was also contended before the Tribunal on behalf of the petitioner that Usubmia was his maternal grandfather and in an ancestor and though the petitioner was not able to show that the and stood in his own name in the record of rights in the relevant period it was sufficient compliance with the conditions laid down in sec. 31A(d) if it was shown that during that period the lands stood in the name of his said ancestor. The Tribunal however rejected this plea on the ground that the applicants claim to the property was based on a gift from Usubmia his maternal grandfather; therefore when the question of title by way of a gift arose no consideration about his claim though the ancestor arose and the applicant should be held to base his title on the ground that there was a gift in his favour and under the circumstances the tact of Usubmia being his ancestor cannot help him and dismissed the revision application. On behalf of the petitioner however it is submitted that after the decision in 1 Guj. L. R. 169 was given clause (d) has been materially amended and therefore. the ratio of the decision in 1 Guj L.R. 169 cannot apply. It is contended that the amended clause does not prohibit the termination of tenancy by a person who bases his claim to be the landlord on a transfer from his predecessor-in-title if such predcessor is his ancestor and such ancestors name appears on the revenue record on the 1st day of January 1952 and thereafter during the period between the said date and 15th June 1955. Before I take up fir consideration this contention on merit it will be expedient to refer to the two decisions mentioned by the Tribunal and the observations made therein as presumably the amendment has been made because of the observations made and the conclusion reached therein.

(2.) Clause (d) of sec. 31A of the said Act as it stood before its amendment by the Gujarat Act No. XVI of 1960 read as follows:-

(3.) It may be noted that the appointed day is defined in the Act to mean 15 day of June 1955. This clause (d) creates one of the restrictions on the right of a landlord to terminate the tenancy for cultivating the land personally under sec. 31. This clause (d) as it stood then came in for consideration and interpretation as stated above by the division Bench of the Bombay High Court in Waman Ganesh Joshi v. Ganu Guna Khapre 61 Bom. L. R. 1267 and by the Full Bench of the Gujarat High Court in Bhanushanker Ambalal Joshi v. Laxman Kala & others 1 Guj. L. R. 169.