NATHABHAI BABABHAI PATEL Vs. NAYI SHANKERLAL JETHALAL

JUDGEMENT

(1.) The decision-rendered by Gujarat Revenue Tribunal at Ahmedabad (the Tribunal for convenience) on 28th June 1985 in Revision Application No.TEN. B.A.661 of 1983 is under challenge in this petition under Articles 226 and 227 of the Constitution of India. Thereby the Tribunal accepted the revisional application preferred by respondent No.1 herein against the order passed by the Mamlatdar and Agricultural Lands Tribunal at Vijapur (the First Authority for convenience) on 23rd June 1980 in Tenancy Case No. Jantral/Revi/141 of 1980 as affirmed in appeal by the order passed by the Deputy Collector at Mehsana (the Appellate Authority for convenience ) on 27th June 1982 in Tenancy Appeal No.147 of 1981 By his impugned order the First Authority had come to the conclusion that respondent No.1 herein was not the tenant of one piece of land bearing survey No.768 admeasuring 2 acres 22 gunthas situated in village Jantral taluka Vijapur district Mehsana(the disputed land for convenience).

(2.) The facts giving rise to this petition move in a narrow compass. The original owner of the disputed land was the father of the present petitioner. He appears to have mortgaged it with possession to one Jivrajbhai Hathibhai. It appears that the mortgagee in possession inducted respondent No.1 herein as a tenant of the disputed land sometime prior to 1955. It appears that the landlord moved the court for redemption of the mortgagee and for recovery of its possession. It appears that it was found at that stage that respondent No.1 was in possession of the disputed land as its tenant. It appears that the proceeding for redemption of the mortgagee ended in a compromise between the mortgagor and the mortgagee and the Court passed the necessary decree on 2nd August 1956 directing handing over of possession of the disputed land to the mortgagor. It appears that respondent No. 1 was made a party to the proceeding but his signature was not obtained in the compromise pursis. It may be mentioned at this stage that though the Court passing the decree had noted the presence of respondent No.1 on the disputed land prior to 1959 as indcated by the mortgagee in-possession for reasons best known to it it did not choose to make a reference in terms of the relevant provisions contained in Section 85 of the Bombay Tenancy and Agricultural Lands Act 1948 (the Act for brief) for deciding the question whether or not respondent No.1 was a tenant of the disputed land. The fact however remains that the court passed the necessary decree on the basis of the compromise pursis directing handing over of possession of the disputed land to the landlord. It appears that pursuant to the aforesaid decree passed on 2nd August 1956 possession of the disputed land was taken from respondent No.1 sometime in 1958 or thereafter. Respondent No.1 thereafter moved the First Authority for fixation of the purchase price of the disputed land under Section 324 of the Act. That proceeding was decided aganist respondent No.1 He appears to have made another application sometime in 1978 to the First Authority for fixation of the purchase price of the disputed land under Section 32-G of the Act. The proceeding came to be registered as Tenancy case No. Jantral/78. By his order passed on 23rd March 1978 in the aforesaid proceeding the First Authority ordered to drop the proceeding on the ground that the landlord was in possession of the disputed land. It may be noted at this stage that the original landlord had by that time breathed his last leaving behind him the present petitioner as his heir and legal representative. The present petitioner was a party to the proceeding culminating into the aforesaid order passed by the First Authority on 23rd March 1978. Its copy is at Annexures-A and B to this petition. That aggrieved respondent No.1 herein. He carried the matter in appeal before the Appellate Authority. The Appellate Authority set aside the order passed on 16th March 1964 as well as the order at Annexure-A and B to this petition and remanded the matter to the First Authority for his fresh decision according to law. Thereupon the proceeding came to be registered as Tenancy case No. (Jantral) Revi/141 of 1980. By his order passed on 23rd June 1980 in the aforesaid proceeding the First Authority came to the conclusion that the right of respondent No.1 herein did not survive as the landlord had obtained possession pursuant to the aforesaid decree passed by the competent Court. Its copy is at Annexure-C to this petition. That aggrieved respondent No.1 herein. He carried the matter in appeal before the Appellate Authority by means of his Appeal No. 147 of 1981. By his order passed on 27 June 1982 in the aforesaid appeal the Appellate Authority dismissed it. That again aggrieved respondent No. 1 herein. He thereupon invoked the revisional jurisdiction of the Tribunal by means of his Revision Application No.TEN.B.A.661 of 1983. A copy of the memo of revision is at Annexure-D to this petition. By its decision rendered on 28th June 1985 in the aforeaid revisional application the Tribunal accepted it and set aside the order at Annexure-C to this petition as affirmed in appeal by the appellate order passed on 27th June 1982 in Appeal No. 147 of 1981. A copy of the aforesaid decision of the Tribunal is at Annexure-E to this petition. It may be noted that the Tribunal declared respondent No.1 herein to be the tenant of the disputed land in possession as on 1st April 1957 and had therefore become its deemed purchaser by virtue of Section 32 of the Act and directed the First Authority to fix its purchase price under Section 32-G thereof. That aggrieved the present petitioner. He has therefore moved this Court by means of this petition under Articles 226 and 227 of the Constitution of India for questioning the correctness of the impugned decision of the Tribunal at Annexure-E to this petition.

(3.) Though this petition is purported to have been filed under Articles 226 and 227 of the Constitution of India it has to be treated as under Article 227 only in view of the Division Bench ruling of this Court in the case of J.H. Gandhi vs. Deputy Collector Ahmedabad reported 1990 (2) Gujarat Law Herald at page 609.