SHANABHAI GHANABHAI BARAIYA THROUGH HEIRS Vs. CHUNIBHAI GOVINDBHAI THROUGH HEIRS & KARTA OF H.U.F. & ORS.

JUDGEMENT

(1.) The appellant has filed this appeal under Clause 15 of the Letters Patent challenging the order dated 08.10.2010 passed in Special Civil Application No.7244 of 2008 whereby the learned Single Judge [Coram : Hon'ble Mr. Justice K.S.Jhaveri] confirmed the order dated 31.12.2007 passed by th Gujarat Revenue Tribunal in Revision Application No.TEN.BA.817/1992.

(2.) Certain facts recorded about earlier proceedings in para 2 about round of litigations undertaken by the parties are not in dispute, which reads as under:

(3.) Mr. Nikhil Kariel, learned counsel for the appellant at the outset submitted that order impugned in this appeal passed by the learned Single Judge in exercise of powers under Article 226 and 227 of the Constitution of India discloses no reasons and it referred to events of earlier round of litigation in brief and what transpired before the lower authorities viz. Mamlatdar & ALT, Deputy Collector and the Tribunal for which agreement is recorded. In absence of any discussion of the nature of findings, conclusions of lower authority as are found just and proper, the writ petition came to be dismissed and the same deserves to be interferred with. At the same time, taking us through the merit of the appeal, it is contended that a statement made by deceased­tenant Shanabhai Ghanabhai Baraiya recorded on 14.10.1962 in proceedings under Section 32G that since the year 1947 deceased Shanabhai was not cultivating the suit land and, therefore, he was not a deemed purchaser and the suit land under Section 32 of the Act is of no consequence for deciding and determining the status as tenant and exercising power under the Act. It is further submitted that by virtue of operation of Section 32 of the BT and AL Act and such record qua suit land available would reveal deceased ­ Shanabhai was cultivating the land and in addition to the above, nature of inquiry envisaged in such a case by concerned Mamlatdar exercising power under a benevolent piece of Legislature enacted require crosschecking about occupancy of the suit land. In support of submissions, as above, learned counsel for the appellant has placed reliance on the decision reported in the case of Bhikubhai Bhima Gaidhane and Anr. v. Khandu Daji Pagar & Anr. [AIR 1973 BOMBAY 101] wherein proceedings under Section 32G were initiated and statement was made by tenant of similar nature about surrendering the suit land to the landlord and the learned Single Judge held that simply because the tenant makes a statement that he was no more in possession, the same cannot be treated as truth as he has given up his tenancy rights and cannot be accepted. The contention of landlord about surrendering tenancy rights by the tenant based on a statement came to be negated. Para 7 of the judgment in the case of Bhikubhai Bhima Gaidhane [supra] reads as under: