KAILASBA WD JAYENDRASINH GOHIL Vs. KABHAIBHAI PUNJABHAI PARMAR

JUDGEMENT

(1.) THIS petition has been preferred by the petitioners who are the owners of land bearing Survey No. 229/1 admeasuring 2 Acres - 29 Gunthas of Village Kathol, Taluka: Borsad, District: Kheda. The principal grievance raised by the petitioners is formulated by way of the following four questions: (1) Whether the respondents are entitled to claim status of tenants when the land in dispute was mortgaged to them under a document which was styled as a conditional sale? (2) Whether the provisions of Section 25a of the Act would apply to the facts of the present case and vitiate the judgments rendered by the authorities below? (3) Whether in the context of the language employed in Section 25a of the Act the authorities below committed jurisdictional error in holding the plea of the respondents about tenancy when they were mortgagees holding the land in that capacity? (4) Whether on the correct interpretation of the document of mortgage, the plea about tenancy of the respondents could have been upheld by the authorities below as has been erroneously done by them?

(2.) THE petitioners have challenged the order dated 9. 5. 1997 rendered by Gujarat Revenue Tribunal (the Tribunal") in Revision Application No. TEN-BA-405/92 whereby the order made by the Deputy Collector, Land Reforms (Appeal), Kheda, dated 7. 3. 1992 in Tenancy Appeal No. 319 of 1991 came to be confirmed. It is an accepted position that the appellants before the Deputy Collector were the present petitioners and while dismissing the appeal, the Deputy Collector confirmed the order dated 24. 4. 1985 made by the Mamlatdar and ALT (ALT") in Tenancy Case No. 273 of 1984.

(3.) THE respondents herein went before the ALT seeking an order in terms of provisions of Section 85a of the Bombay Tenancy and Agricultural Lands Act, 1948 (the Act") read with provisions of Section 32g of the Act. The ALT found as a matter of fact that the respondents, through predecessor-in-title, have been tilling the land since 1950-51 and that the respondents were never divested of possession despite entry No. 1428 made in 1962-63 deleting the names of the respondents, because the petitioners had failed to place on record any material to disprove the say of the respondents of being in possession. This basic finding has been confirmed by the appellate authority and the Tribunal.