PATEL HATIBEN VENABHAI Vs. PATEL KARSANBHAI SUKHABHAI

JUDGEMENT

(1.) BY this Writ Application, the petitioners seek to challenge the order dated 14th June, 1996 in Review Application No. TEN.C.A.21/95 (Annexure -F) passed by the Gujarat Revenue Tribunal.

(2.) THE short facts necessary for disposal of the present Writ Application are that respondent No.1, Patel Karsanbhai Sukhabhai, filed an application before the learned Mamlatdar -cum -Agricultural Lands Tribunal, Himmatnagar, submitting, inter alia, that he was cultivating the land of Survey No.73 admeasuring 1 Acre - 17 Gunthas of Village : Kamalpur and land of Survey No.81/1 admeasuring 34 Gunthas only of Village: Sadoliya; therefore, his names be recorded. The present petitioners, who were made parties to the said application, opposed the application, submitting, inter alia, that the land of Survey No.73 was mortgaged with the present respondent, Karsanbhai, therefore, under the law, Karsanbhai could not acquire the tenancy rights. For the land of Survey No.81/1, it was submitted that Karsanbhai, respondent No.1, could not acquire the tenancy rights being nephew of the last holder Joitaram. The Mamlatdar, vide his order dated 19th February, 1990, passed in Case No.32 -O/1628/89/Sadoliya, holding that the present petitioners could prove their case accordingly rejected the application. Patel Karsanbhai Sukhabhai filed a tenancy appeal under Section 74 of the Bombay Tenancy and Agricultural Lands Act, 1949 Sthe Tenancy Act 1/2 for short) as Appeal No.21/1990, but, the same came to be dismissed by the Deputy Collector, vide his order dated 27th August, 1990; he confirmed the findings recorded by the Mamlatdar -cum -ALT that the lands were mortgaged, the mortgage was redeemed therefor and the original applicant/respondent No.1 being nephew of the last holder could not acquire any tenancy rights over the land. The said findings of facts were confirmed by the learned Member, Gujarat Revenue Tribunal in Revision Application No. TEN.B.A.646/90 vide his order dated 13th February, 1995. After considering the complete records, specially that in the earlier inquiry made under Section 32G of the Tenancy Act, the competent authority recorded a finding that Joitaram and Karsanbhai were uncle and nephew. He also held that the mortgage deed was available at page 57, from which it was clear that Survey No.73 was mortgaged with Karsanbhai, the same was redeemed in the year 1970 and that there was an endorsement at the foot of the said mortgage deed that the mortgage was redeemed. Relying upon Section 4(a) of the Act, it was held that the mortgagee in possession or the nephew could not acquire the tenancy rights. The Tribunal, accordingly, dismissed the revision. The respondent No.1 thereafter filed an application for review. The review application came to be dismissed in default, but, was restored vide order dated 7th March, 1996 passed upon Restoration Application No. TEN.B.A.1/96. After restoring the matter, the parties were heard in Review Application No. TEN.C.A.21/95.

(3.) SHRI Harin P. Raval, learned Counsel for the petitioners, submits that the scope of review under Section 17 of the Bombay Revenue Tribunal Act, 1957 is not equivalent to the scope, as available to an authority under its original jurisdiction. He submits that while deciding the review application, the authority is required to exercise its discretion with caution and such authority would not be allowed to unsettle the findings, which have already been recorded. According to him, if there appears to be a mistake apparent on the face of the records or certain documents or evidence could not be brought earlier, which if are produced, would have a material bearing on the judgement or if the Court finds that the matter requires to be taken under review, only then, such authority would be entitled to exercise its powers of review. Referring to the merits of the matter, it is submitted that the learned Member erred in misreading the documents, it ignored the mortgage deed and even the findings recorded in the inquiry made under Section 32 -G of the Tenancy Act. He submits that the authority under the law was not entitled to record fresh finding of facts simply on the ground that yet another view was possible and the earlier view, therefore, would be wrong.