RUXMANIBEN AMBALAL FAKIRCHAND Vs. BIPINKUMAR LALLUBHAI PANDIT

JUDGEMENT

(1.) By way of this petition under Article 227 of the Constitution of India, the petitioners -" heirs and legal representatives of deceased Ambalal Fakirchand - mortgagee in possession, who also claimed to be tenant under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as ""the Act"" for convenience) have challenged the legality and validity of the judgement and order passed by the Gujarat Revenue Tribunal dtd.27/3/1990 in Revision Application No.TEN/BA/247 of 1982 in allowing the said revision application and quashing and setting aside the order passed by the Deputy Collector (Land Reforms) (Appeals), Ahmedabad dtd.21/10/1981 in Tenancy Appeal No.414/111/9/75 and restoring the order passed by the Mamlatdar and Agricultural Lands Tribunal ("ALT" for short), Sanand in Tenancy Case No.2020 of 1975.

(2.) The dispute is with regard to the land bearing Survey No.2033 admeasuring 3 Acres and 27 Gunthas of land situated at village Sanand, Taluka ; Sanand, District ; Ahmedabad. Deceased Ambalal Fakirchand was the mortgagee of the aforesaid land in question prior to 1941 and deceased Lallubhai Manilal Pandit and others were mortgagor. The mortgagor had filed a civil suit bearing Regular Civil Suit No.524 of 1968 against deceased Ambalal Fakirchand in the court of learned Civil Judge (SD), Ahmedabad Rural for redemption of the mortgage and for getting possession. In th said civil suit, deceased Ambalal Fakirchand claimed tenancy rights and therefore, an issue about the tenancy was raised. The learned Civil Judge (SD), Ahmedabad Rural referred the matter to the Mamlatdar and ALT, Sanand under sec.85-A of the Act for giving finding on the issue with regard to the tenancy i.e. whether the deceased Ambalal Fakirchand can be declared to be tenant/deemed tenant with respect to the land in question under the provisions of the Act or not. The proceedings were registered as Tenancy Case No.2020 of 1975. The Mamlatdar and ALT, Sanand after conducting an inquiry, by order dtd.31/7/1975 decided that Ambalal Fakirchand is not tenant. The heirs of deceased Ambalal Fakirchand preferred an appeal before the Deputy Collector, Dholka who dismissed the said appeal and confirmed the order passed by the Mamlatdar and ALT dtd.31/7/1975. The matter was further carried to the Gujarat Revenue Tribunal by way of Revision Application No.88 of 1987 which also came to be dismissed by judgement and order dtd.8/7/1976. It appears that there was a review application filed before the Gujarat Revenue Tribunal and the Gujarat Revenue Tribunal remanded the matter. On remand, the Deputy Collector decided th matter holding the heirs of Ambalal Fakirchand as deemed tenants by his judgement and order dtd.21/10/1981. Being aggrieved and dissatisfied with the order passed by the Deputy Collector (Land Reforms) (Appeals), Ahmedabad dtd.21/10/1981 in Tenancy Appeal No.444/111/9/75, the respondents herein " heirs of mortgagor preferred a revision application before the Gujarat Revenue Tribunal being Revision Application No.TEN/BA/247 of 982 and the Gujarat Revenue Tribunal b its impugned judgement and order dtd.27/3/1990 allowed the said revision application by quashing and setting aside the order passed by the Deputy Collector (Land Reforms) (Appeals), Ahmedabad. That thereafter, the petitioners herein preferred Review Application No.TEN/CA/18 of 1990 and the Gujarat Revenue Tribunal by its order dtd.6/5/1995 dismissed the said review application. Being aggrieved and dissatisfied with the judgement and order passed by the Gujarat Revenue Tribunal dtd.27/3/1990 in Revision Application No.TEN/BA/247 of 1982 as well as order passed by the Gujarat Revenue Tribunal dtd.6/5/1995 in Review Application No.TEN/CA/18 of 1990, the petitioners " heirs of original mortgagee named Ambalal Fakirchand have preferred the present petition under Article 226 of the Constitution of India.

(3.) Mr.A.J. Patel, learned advocate appearing on behalf of the petitioners has heavily relied upon the judgement of the Hon'ble Supreme Court in the case of A.A. Shirdone etc. Vs. Saheb H. Tajbhokhari, reported in AIR 1985 SC 836, more particularly para 18 of the said judgement and has submitted that as the mortgagor did not submit an application for declaration before the Mamlatdar within a period of one year of coming into force of the Amendment Act of 1946 as provided under Sec.2(A) and 3(A) of the Act of 1939 for declaration that the deceased Ambalal Fakirchand was not tenant and therefore, they lost the right. Relying upon the aforesaid paragraph, he has submitted that even if the mortgagor succeeds before the Civil Court, in that case also, as held by the Hon'ble Supreme Court in the aforesaid decision, they will get only symbolic possession and not actual and physical possession of the land in question and therefore, it is submitted to allow the present petition by quashing and setting aside the judgement and order passed by the Gujarat Revenue Tribunal. He has submitted that admittedly the land was mortgaged prior to 1941 i.e. at the relevant time Act of 1939 was in force and therefore, the provisions of the Amendment Act of 1946 will not be applicable retrospectively and consequently, the petitioners are required to be declared as tenant or deemed tenant under the provisions of the Act and the Deputy Collector has rightly declared the petitioners as tenants and therefore, it is requested to allow the present petition.