CHATURBHAI DAHYABHAI VAGHELA Vs. SURABHAI SOMABHAI VAGHELA

JUDGEMENT

(1.) The challenge has been made by the petitioner by this Special Civil Application to the order of the Revenue Tribunal dated 3-11-1988 passed in Revision Application No. TEN. B.A. 722 of 1983. In Tenancy Case No. Chaklasi/32G/1 of 1980, Mamlatdar and A.L.T., Nadiad vide its order dated 23-4-1982 decided that the respondents herein were tenants of the land bearing Survey No. 1784/ 1. But as the predecessor of Mamlatdar and A.L.T., had decided the matter under S. 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act') holding that as these respondents were cultivating the land under the conditional sale and the matter was closed, till that order is set aside, it operates as res judicata. Though, on merits the matter was decided in favour of the respondents but on the ground aforesaid relief was not granted. Against this order of the Mamlatdar and A.L.T., Nadiad the respondents preferred an appeal before the Dy. Collector, Nadiad being Tenancy Appeal No. 111 of 1982. That appeal came to be allowed by the Appellate Authority on 7-3-1983 and against the said order of the Dy. Collector, Nadiad the petitioners filed revision application before the Gujarat Revenue Tribunal, Ahmedabad and that revision application was came to be dismissed under the order dated 3-11-1988, hence this Special Civil Application.

(2.) The petitioner No. 1 is purchaser of the land in question from the petitioner No. 2 and he is also joined as a party to this Special Civil Application.

(3.) Learned Counsel for the petitioners contended that the Dy. Collector, Nadiad as well as the Gujarat Revenue Tribunal, Ahmedabad has fell in serious error of law in deciding the matter in favour of the respondents by resorting to the provisions of S.25A of the Act. The provisions of S.25A of the Act are only applicable where the land is mortgaged by way of usufructuary mortgage and not otherwise. In the present case, the mortgage was not an usufructuary mortgage but it was a mortgage by conditional sale and so it is not the case of putting of tenancy in abeyance during the period of mortgage and consequential revival of the same after redemption thereof. Though it is a case of mortgage and redemption thereof, but very basic requirements of applicability of S.25A of the Act is not present in this case.