LAWS(GJH)-1985-7-2

SAYED YASIN SAYED MOHMAD Vs. BAI CHANI

Decided On July 10, 1985
SAYED YASIN SAYED MOHMAD Appellant
V/S
BAI CHANI Respondents

JUDGEMENT

(1.) The following substantial questions of law have been formulated by the court at the time of admission of this Second Appeal:

(2.) This Second Appeal arises out of a suit filed by the present appellant on the ground that he is a beneficiary under the religious public trust owning the suit land bearing s. no. 494 situated in Katargam Taluka Chorasi Dist. Surat and the suit land is a graveyard and the defendants have no right to destroy the said graveyard. Respondents nos. 1 to 4 are the trustees of the public trust and Respondent No. 5 is the tenant and deemed purchaser of the suit land. The lower appellate court has held that Respondant No. 5 was a tenant of the suit land and on the abolition of the Devasthan Inam he became the deemed purchaser and he had also paid the purchase price fixed under sec. 32G of the Tenancy Act. The trustees had carried the matter in appeal under the Tenancy Act and had failed and thus the right title and interest of the trust in the suit land had become extinguished and therefore the plaintiff who claimed to be a beneficiary under the trust had no right to maintain the suit. The lower appellate court had also held that the suit land was not used for Sandal Uras; that is a clear finding of fact and no question has been raised on this count.

(3.) The first question of Jaw raised is based on sec. 43C of the Bombay Tenancy and Agricultural Lands Act which provides that nothing in secs. 32 to 33 (both inclusive) and 43 shall apply to lands in the areas which on the elate of the coming into force of the Amending Act 1955 are within the limits of a municipal corporation constituted under the Bombay Provincial Municipal Corporations Act 1949 On the basis of this provision the learned counsel for the appellant has submitted that since Katargam is within the limits of the Municipal Corporation of Surat the provisions of secs. 32 to 32R are not applicable and therefore the decisions and orders of the tenancy authorities are illegal and without jurisdiction. This argument suffers from several fundamental fallacies and is without any factual basis. Even though these questions are being raised for the first time in Second Appeal no attempt has been made to provided factual data and the relevant dates. The learned counsel for the appellant has submitted that Surat Municipal Corporation had come into existence sometimes in 1968 Assuming that this is so on 1-8-1956 Surat Municipal area was not included within any municipal corporation. It is also not shown that on 1-8-1956 Katargam was within the municipal limits of Surat. In fact it was admitted that prior to inclusion of Katargam in the municipal corporation it was a gram panchayat. On 1-8-1956 Surat was a municipal borough and cl. (c) of sec. 43C also included a municipal borough; but that clause has been deleted by Gujarat Act No. 16 of 1960. Therefore from that time onwards Sec. 43C was not applicable to Surat municipal area and therefore the provisions of sec. 32 to 32R were applicable. This is on assumption that Katargam was included in the municipal area; but there is nothing to show that Katargam was included within the municipal borough of Surat. Since it is not shown that on 1-8-1956 the area of Katargam was within the limits of Surat Municipal Borough or Surat Municipal Corporation there is no scope for any argument whatsoever that proceedings under the Tenancy Act were without jurisdiction.