RANCHHOD FAKIR HALPATI Vs. GAVANBHAI BHIKHABHAI

JUDGEMENT

(1.) This is a petition by a poor illiterate Halpati challenging the decision of the Revenue Tribunal holding that he is not tenant of two pieces of land bearing Survey Numbers 57 and part of 182 3 Acres 0 Gunthas situate in village Tighra Taluka Navsari District Bulsar. In order to appreciate the contentions raised in the petition it is necessary to notice briefly a few facts giving rise to the petition. The lands bearing Survey Nos. 57 and part of S. No. 182 (3 Acres 0 Gunthas) were originally granted by the Government to one Jogi Purshottam by way of service Inam for filling the water trough in the village which was a service useful to the community. It appears that Jogi Purshottam was not in a position to render this service and he therefore gave the lands to the father of the petitioner for cultivation on condition that he rendered service by filling the water trough in the village. The petitioners father accordingly cultivated the lands and regularly rendered service by filling the water trough in the village. This state of affairs continued until about 1944 when the service Inam in respect of the lands was transferred from Jogi Purshottam to respondents Nos. 1 to 4 as representing the village community but even after the transfer of the service Inam to the names of respondents Nos. 1 to 4 the petitioners father continued to cultivate the land and to render service by filling water in the village trough. On 22nd December 1953 the Bombay Service Inams (Useful to Community) Abolition Act 1953 was passed by the Legislature and by virtue of a notification issued by the State Government under sec. 1(3) the Act was brought into force from 1st April 1954. Sec. 3 of the Act provided that with effect from and on the appointed day which was 1st April 1954 not with standing anything contained in any law usage settlement grant sanad or order:

(2.) Sec. 4 made provision in regard to service inam villages and service inam lands which were adjudicated under Rule 8 of Schedule B to the Bombay Rent-free Estates Act 1852 but the lands which were in the possession of the petitioners father did not fall within this category and they were therefore governed by sec. 5. That section provided omitting portions immaterial:-

(3.) Mr. S. M. Thakkar on behalf of respondents Nos. 1 to 4 however contended that the application of the petitioner for a declaration that he was a tenant of the lands was barred by limitation since the application was not filed within a period of six months from the date of the accrual of the cause of action to him. He urged that the cause of action for filing an application for a declaration of his tenancy arose to the petitioners father on 31st December 1957 when an engine pump was set up by respondents Nos. 1 to 4 for filling the water trough and the petitioners father was called upon to hand over possession of the lands to respondents Nos. 1 to 4 and since the application was not filed within a period of six months from that date the application was barred by limitation. This contention is in my view wholly without substance. Apart from the fact that there is no merit in this contention I cannot allow 1t to be raised for the first time at the hearing of the present petition. This contention was not raised before the Revenue Tribunal and the jurisdiction of this Court under Article 227 being confined to an examination of the validity of the decision of the Revenue Tribunal this contention cannot be permitted to be raised in the present petition. Moreover I find that this contention is not set out as a ground even in the present petition and that by itself would be sufficient justification for refusal to entertain it at the hearing of the petition. On merits also this contention is clearly unsustainable. It is no doubt true that according to the evidence of the petitioner a notice dated 31st December 1957 was given by respondents Nos. 1 to 4 to the petitioner in respect of the lands but the evidence does not show what were the contents of that notice. It does not appear from the evidence as to whether the notice contained any denial of the right of the petitioners father as a tenant of the lands. Moreover it may be noted that on 31st December 1957 the lands had not been regranted to respondents Nos. 1 to 4 and they had therefore no title to the lands so as to make it necessary for the petitioners father to make an application for a declaration that he was a tenant of the lands. There is therefore no substance in the plea of limitation which is now sought to be raised on behalf of respondents Nos. 1 to 4 and that plea must be rejected.