RAGHUVIRSINH D DASONDI Vs. S J SHAH

JUDGEMENT

(1.) It appears inspite of order, dated 16.10.1997 passed by this court (Coram: S.K.Keshote,J) in CA No.726/93 in SCA No.655/87 necessary correction is not carried out by the office nor the legal heirs are brought on record. Office to comply with the order, dated 16.10.1997 and carry out necessary correction in the cause title of Spl.C.A.No.655/87 within a period of one month from today.

(2.) The short facts of the case are that the petitioner is claiming the right as landlord of the land bearing S.No.404 of Revenue village Vanswda, Dist.Valsad admeasuring 8 acre 8 gunthas. It appears that the Mamalatdar conducted the inquiry under section 70(b) in respect of two Tenancy Case Nos 896/76 and 1315/77. It was the case of the respondent No.2-Zinia Devla that he is cultivating half of the land. The Mamalatdar passed the order on 4.4.1977 whereby after considering the evidence in support of the deposition of another tenant Bhaylu Navsu and other aspects the matter was decided. The appeal was preferred by Bhaylu Navsu being Tenancy Appeal No.78/77 which came to be dismissed by the Dy,Collector on 27.4.78. The respondent No.2 herein, another tenant also preferred appeal being Tenancy Appeal No.83/77 and in the said appeal there was delay which came to be condoned as per order, dated 9.8.79 and in the said appeal on merits the Dy.Collector passed the order on 4.2.84 whereby he found that the Mamalatdar & ALT while passing the order in respect of both two separate tenancy cases as not maintainable considered the case of Zinia Devla-respondent No.2 herein and therefore the matter is remanded to Mamalatdar. It appears that the petitioner carried the matter before the tribunal by preferring Revision Application No.67/84 and the tribunal also found that the facts narrated by the Dy.Collector in the impugned order are correct and it is also found that the finding of the Dy.Collector of the the year 1964 in respect of inquiry under section 32(G) can not be binding in the inquiry under section 70(b) as resjudicata and therefore ultimately the tribunal has not interfered with the order passed by the Dy.Collector for remanding. It is under these circumstances, the petitioner has approached this court by preferring this petition.

(3.) Mr.Patel, Ld.counsel appearing for the petitioner raised the contention that as per the order passed by the Prant Officer, dated 26.8.1967 in Appeal No.61/65 the proceedings under section 32(G) are dropped and the said order of the Prant Officer has become final and therefore subsequently the proceedings under section 70(b) were not maintainable before the Mamalatdar and ALT and in any case as the Mamalatdar had dismissed the matter and therefore the order of remand ought not to have been passed by the Dy.Collector in appeal. He submitted that the proceedings are barred by principles of resjudicata. Therefore, he submitted that the approach of the tribunal of not to interfere with the order passed by the Dy.Collector of remand can not be said to be legal and proper and more particularly when there is long drawn litigation between the landlord and the tenant.