MOHMAD YUSUF BACHLA Vs. DEPUTY COLLECTOR GODHRA

JUDGEMENT

(1.) This Appeal under Clause 15 of the, Letters Patent is preferred against the judgment and order dated 27.1.1998 passed by the learned Single Judge dismissing Special Civil Application No. 13682 of 1994 arising from the judgment and order dated 12.12.1994 of the Gujarat Revenue Tribunal ("the Tribunal" for brevity) in Revision Application No. TEN-BA 216 of 1989 under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 ("the Tenancy Act" for brevity).

(2.) The facts involved in this dispute are as under : 2.1 By the judgment and order dated 15.11.1977 delivered by the Tribunal in Revision Application No. 379/77, it was held that respondent No. 3 herein, Mohmad Said Ibrahim Bhatuk was the tenant and, therefore, deemed purchaser of the land admeasuring 15 gunthas of survey No. 523/1 in village Godhra of Panchmahals District. It was held therein that the land in question was being cultivated by the father of respondent No. 3 herein since 1945. After the death of his father, the land was being cultivated by respondent No. 3. There was a dispute as to whether the tenancy rights were inherited by respondent No. 3 alone or whether his brothers also inherited the same. The orders passed by the Mamlatdar and Agricultural Land Tribunal and the Deputy Collector that the brothers and mother of respondent No.3 were also the tenants and had become deemed purchasers of the land in question along with respondent No. 3, were set aside by the Tribunal to the extent that they had held brothers and mother of respondent No. 3 as joint tenants and joint deemed purchasers. Against the aforesaid order of the Gujarat Revenue Tribunal, the other brothers filed Special Civil Application No. 1864 of 1977. Said petition came to be withdrawn on 16.4.1984, in view of the settlement between the parties. The fact remains that the aforesaid judgment of the Tribunal which ultimately held that respondent No. 3 was the tenant and deemed purchaser of the land in question continued to hold the field and the same was not challenged by the appellant herein. 2.2 In the consequential proceedings at the instance of respondent No. 3 for fixation of the price of the land and for ancillary orders under the Tenancy Act, the Mamlatdar & ALT passed orders dated 15.7.1987 fixing the price, and held that the question about the tenancy rights of respondent No. 3 herein had already become final in view of the decision of the Tribunal rendered in the year 1977. However, by his order dated 10.2.1989 the Deputy Collector, Godhra, allowed the appeal Of the appellant herein and remanded the matter to the Mamlatdar & ALT for considering the question the property in question being the evacuee property obtained by the appellant from custodian of evacuee property, whether the provisions of the Tenancy Act were applicable and whether respondent No. 3 could be treated as a tenant of the evacuee property or not. " 2.3 Against the said order dated 10.2.1989 of the Deputy Collector, respondent No. 3 filed Revision Application No. TEN. BA 216 of 1989 before the Tribunal, which held that the question of status of respondent No. 3 as the tenant and deemed purchaser in respect of the land in question was already concluded by the Tribunal as far back as on 15.11.1977 and that the same could not be reopened in view of the doctrine of res judicata and the principle of estoppel. The Tribunal, therefore, set aside the order of the Deputy Collector and restored the order of the Mamlatdar & ALT. 2.4 Aggrieved by the aforesaid judgment of the Tribunal, the appellant filed the petition under Arts. 226 and 227 of the Constitution of India. After hearing, the learned counsel for the parties, the learned Single Judge dismissed the petition as per his judgment dated 27.1.1998, which is challenged in the present appeal.

(3.) At the hearing of this appeal Mr. G.R. Shaikh, learned counsel for the appellants contended that in view of the fact that the land in question was evacuee property, the provisions of the Tenancy Act could not apply to the land in dispute. Mr. Shaikh, relied on the decision dated 3.7.1970 of this Court in Special Civil Application No. 1209 of 1966 for raising the aforesaid contention and also relied on the decision of this Court in Ghanchi Pirbhai Kala (Decd.) through his heirs Adam Pirbhai & Ors. vs. Meghamal Sirumal, Rajkot, 1989 (1) GLR 183, and on the decision of the Apex Court in Haji Siddik Haji Umar and Ors. vs. Union of India, AIR 1983 SC 259. Finally Mr. Shaikh relied on the decision of this Court in Vibhubhai Jethabhai Rajput vs. Rikhavdas Dhulchand Sanghavi, 1997 (3) Gujarat Current Decisions 28 for contending that since the order dated 15.11.1977 of the Tribunal was passed without jurisdiction, it was a nullity and that the plea of nullity could be raised at any stage, at any time and in any proceedings.