AHER HARSUR DESA Vs. PINJAR JHINA GOLAN

JUDGEMENT

(1.) The petitioner in this case is a cultivator and he was cultivating land admeasuring 3 acres and 8 gunthas in Rampara village in Rajula Mahal of Amreli District. This land belonged to original opponents Nos. 1 and 2, who were the Barkhalidars in respect of this plot of land. The contention of the petitioner is that the Barkhalidars had leased the land in question to the petitioner and the transaction was effected by a document, dated June 28, 1951 and the transaction was referred to in the document as that of "Ogha-Chhut". Under the Barkhali Abolition Act, 1951, enacted by the then Saurashtra Government, provision was made not giving occupancy rights to tenants. The word "tenant" was defined to include all persons lawfully cultivating the land but excluded from its purview a person who was a mortgagee-with-possession. Under the provisions of the Barkhali Abolition Act, the petitioner applied for an occupancy certificate in the prescribed form. This application was decided in the first instance by the Mahalkari at Rajula. The Mahalkari interpreted this document to be a mortgage-deed and decided that the petitioner was not a tenant and dismissed the application for occupancy certificate. The petitioner went in appeal against the decision of the Mahalkari and the appeal was heard by the Deputy Collector, Rajula, and was dismissed by that officer. Against the decision of the Deputy Collector, the petitioner preferred a revision application to the Gujarat Revenue Tribunal and the Revenue Tribunal also dismissed this revision application. The petitioner thereafter has approached this Court under Article 227 of the Constitution contending that the decisions of the Mahalkari, the Deputy Collector and the Revenue Tribunal were erroneous.

(2.) The main contention of the petitioner is that the transactions which are styled and named as "Ogha-Chhut" in Kathiawar have been interpreted by the Courts in Kathiawar as a kind of lease and not a mortgage and the contention is that the document, dated June 28, 1961 was a document of "Ogha-Chhut" and according to law should have been held to be a transaction of lease.

(3.) Appendix D to this petition is an English translation of the original document which is in Gujarati. The endorsement made by the stamp-vendor at the time when the stamp-paper of Rs. 3/-was purchased by the Barkhalidars shows that the stamp-paper was sold to the Barkhalidars for the purpose of executing a deed of