KANBI HARJI RAMJI Vs. BAROT MURUDAN HAMIRJI

JUDGEMENT

(1.) This order shall dispose of Special Civil Applications No.8524 and 8523 of 1990.

(2.) By these two writ applications, the present petitioners Kanbi Harji Ramji and Kanbi Govind Ramji, both sons of the respondent No.2 (since deceased) Kanji Ramji Ratna, have challenged the orders dtd.12/9/1983 passed in Tenancy Cases No.204 of 1980 and 211 of 1981, upheld in Appeals No.1 and 2 of 1984 by the Deputy Collector vide his orders dtd.16/2/1985 and confirmed by the Gujarat Revenue Tribunal by its orders dtd.25/3/1990 passed in Revision Cases No.21 and 21-A of 1985.

(3.) Short facts necessary for disposal of the present writ applications are that the respondent No.1 Barot Murudan Hamirji had filed Civil Suit No.40 of 1974 seeking redemption of mortgage and a declaration that the sale deed dtd.9/12/1957 executed by Jashodabai in favour of the respondent No.1 was illegal, void and was not binding upon the plaintiffs. The original defendants raised various pleadings, they asserted that the sale deed dtd.9/12/1957 was in accordance with law, was valid and was with due consideration and the same could not be set aside. However, in the alternative, they submitted that on coming into force of Kutch Tenancy Act (w.e.f.13/12/1958) and Kutch Inam Abolition Act (w.e.f.31/12/1958), they had acquired status of occupant / tenant and under the circumstances, they being tillers, could not be ordered to be evicted from the land. It was also submitted that the property was mortgaged by the erstwhile owner somewhere in the year 1903 with Swaminarayan temple and the said Swaminarayan temple executed sub-mortgage in favour of the defendants' Predecessor-in-title. It was submitted that on either of the counts, the suit was liable to be dismissed.