KANBI HARJI DEVSHI Vs. KANBI PREMJI DEVSHI

JUDGEMENT

(1.) The petitioner filed this petition in which the challenge has been made to the order of the Gujarat Revenue Tribunal, Annexure "A" dated 4th November, 1982 under which the Tribunal has affirmed the judgment of the Dy. Collector, Bhuj dated 30th June, 1982 dismissing the appeal of the petitioner filed against the judgment and order of the Special Mamlatdar, Bhuj dated 29th March, 1982.

(2.) The short facts of the case are that the respondent Kanbi Premji Devshi has filed a civil suit in the Court of Civil Judge (S.D.), Bhuj for the possession and for permanent injunction to restrain the present petitioner from disturbing his possession of the land comprised in Survey No. 238 of Village Dahisara at Bhuj Taluka of Kutch District. In the suit, the issues were framed by the civil Court, and issue No. 10 is whether the defendant, i.e., the petitioner herein, is the tenant of the suitwadi. As this issue is required to be decided by the Mamlatdar under S.125 read with S.100 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, the Civil Court has sent the matter to the Revenue Court. The Special Mamlatdar, Bhuj registered the said case as Tenancy Case No. No. 40 of 1982 dismissing the appeal against the order of the Dy. Collector, Bhuj in Appeal No. 7 of 1982. 59 of 1978 and under its order dated 31st July, 1981 held that the petitioner is not the tenant of the suit land. Being dissatisfied with the said order of the Special Mamlatdar, the petitioner filed appeal to the Deputy Collector, Bhuj being Tenancy Appeal No. 8 of 1981. The appellate authority under its order dated 30th January, 1982 remanded the matter back to the Special Mamlatdar with the direction to decide whether the petitioner was lawfully cultivating the suit land or not. The remanded matter has been decided by the Special Mamlatdar on 29th March, 1982 and it has been held that the petitioner is not the tenant of the suit land. That decision has been challenged by the petitioner by filing Tenancy Appeal No. 7 of 1982 before the Dy. Collector, Bhuj which came to be dismissed on 30th June, 1982. The petitioner was not satisfied with the order of the appellate authority also and as such, he has taken up the matter in the revision before the Gujarat Revenue Tribunal being the Tenancy Appeal No. TEN. B.K. No. 40 of 1982. The revision application has also been dismissed under the order dated 4th November, 1982. Hence this Special Civil Application.

(3.) The learned Counsel for the petitioner Shri Avinash K. Mankad contended that all the three Courts below have committed serious illegality in holding that the petitioner was not the tenant of the suit land. It has next been contended that Gujarat Revenue Tribunal though held all the points in favour of the petitioner, but taking the somersault it has decided that the petitioner being the owner of the land in question, he cannot claim any tenancy right thereon. The Tribunal has exercised its jurisdiction in making out the case altogether which was only pleaded by the petitioner in the alternate.