DHIRUBHAI CHHITLUBHAI Vs. KARSANBHAI CHHIMABHAI PATEL

JUDGEMENT

(1.) The petitioner herein has challenged the order dated 08/11/2001 passed by the learned Civil Judge (J.D.), Dharampur, below exh.33 in Regular Civil Suit No.43 of 1993, whereby the said application was allowed.

(2.) The brief facts of the case are as under; 2.1 The mother of the petitioner herein had married to the respondent, immediately after the death of father of the petitioner. The petitioner was tilling the land bearing Survey No.56/1, 61/2 and 65 of Village Motidhol Dungri, Taluka Dharampur and according to him, as on the Tillers' day, since the petitioner was the tenant, he became the "deemed purchaser" of the said land, as provided under Section 32 of the Bombay Tenancy & Agricultural Lands Act, 1948 (for short, "the Tenancy Act"). The petitioner also paid the purchase price as prescribed by the Agricultural Lands Tribunal, after holding inquiry as prescribed under Section 32-G of the Tenancy Act. Therefore, the entries in the Village Form were mutated and certified by the Revenue Authorities and the petitioner became the owner of the said land, as is clear from page 29 of the petition. 2.2 Thereafter, somewhere in the year 1993, the mother of the petitioner requested the petitioner to spare a small piece of land out of the said land to build a hut thereon for residential purpose. Accordingly, the petitioner permitted his mother as well as the respondent herein to reside in the said land for one year. It is the case of the petitioner that thereafter the mother of the petitioner and the respondent herein never vacated the said land as was promised by them. 2.3 Feeling aggrieved by the said action of his mother and the respondent herein, the petitioner instituted a suit being Regular Civil Suit No.43 of 1993 before the Civil Court, Dharampur, claiming possession of the land in question. On 21/09/1994, the mother of the petitioner expired and a serious dispute as regards the legal heirs of the deceased arose before the Civil Court. 2.4 On 21/01/1999, an application was moved by the respondent below exh.33, praying to stay the proceedings of the suit and to refer it to the Tenancy Court, as prescribed under Section 85-A of the Tenancy Act, by raising a dispute that the mother of the appellant was the "tenant" of the said land. The petitioner filed objections to the said application exh.33 by stating that the petitioner was the "deemed purchaser" of the said land and that he had also paid the purchase price of the land on 31/11/1964 and that entries were also mutated in the Village Form. 2.5 Written statement was filed by the defendants where specific contention was raised that the Civil Court had no jurisdiction to entertain the suit in question and that since the mother of the petitioner was a tenant of the said land, the competent authority to decide the dispute regarding tenancy under the law, was the Agricultural Lands Tribunal, Dharampur, and therefore, the said dispute may be transferred to the said Tribunal. 2.6 Issues were framed on 22/07/1994 where the question of jurisdiction was not raised at all, and therefore, it has to be presumed that the same was accepted by the defendants. However, after almost five years, application below exh.33 was preferred by the respondent herein as stated hereinabove. The learned trial Judge by order dated 08/11/2001 allowed the said application preferred by the respondent and directed that the dispute regarding tenancy be transferred to the Agricultural Lands Tribunal, Dharampur and also stayed the proceedings of the suit till the said dispute was decided by the said Tribunal. Hence, this petition.

(3.) Mr.Hriday Buch learned advocate for the petitioner has contended that as per the provisions of the said Act the petitioner became the "deemed purchaser" of the land in question and that upon payment of the purchase price, the entry was mutated in the name of the petitioner and the same was certified on 05/02/1965. The said fact is clear from the document placed at Annexure-D. 3.1 Mr.Buch learned advocate for the petitioner has submitted that the Entry which was confirmed in the year 1965 was never challenged by the present respondent or the mother of the petitioner, and therefore, it has achieved finality. He has submitted, that, thereafter, no dispute of whatsoever nature was raised by the respondent or his mother for almost three decades.