KAMALABEN AMBALAL PATEL Vs. SAVITABEN BHAGVANAS PATEL

JUDGEMENT

(1.) AKIL KURESHI, J. This appeal is directed against the judgement of Learned Single Judge dated 5. 12. 2006 passed in Special Civil Application No. 24855 of 2006.

(2.) SHORTLY stated, facts leading to the appeal are as follows : 2. 1 The appellants who are successor-in-title of deceased Ambalal Dahyabhai Patel, claim to be tenants of land bearing Survey No. 270, admeasuring 14 acres and 20 gunthas of village Chhanchapur, Taluka Godhra (here-in-after referred to as "the suit land" ). 2. 2 Respondents No. 1. 2. 1 to 1. 2. 4 are the heirs of original landlord. Respondents No. 2 to 6 are the purchasers of the suit land who had purchased the said land in the year 1993. 2. 3 Ambalal Dahyabhai Patel in the year 1979 filed an application being Tenancy Case No. 406/76 before the Mamlatdar and ALT under Section 32 (1b) of the Bombay Tenancy and Agricultural Lands Act (here-in-after referred to as "the Tenancy Act" ). In the said proceedings late Ambalal Dahyabhai Patel deposed before the Mamlatdar that he was cultivating the land many years back. His name as well as name of his brother Manibhai Dahyabhai Patel was therefore, entered in the revenue records. Manilal is however, Doctor by profession and does not know agricultural operations. He alone therefore, used to cultivate the land. He has not cultivated the land after 1953-1954. Since he had sufficient land of his own, he had willingly handed over the possession thereof to the landlord in the year 1953-1954. Since then, land owner is cultivating the land personally. His name is rightly deleted as a tenant from the revenue record since he had stopped cultivating the said land. He specifically stated that he handed over the possession before 15. 6. 1955 and on 15. 6. 1955, landlord was in possession. He was explained by the Mamlatdar that if he was in possession of the land as a tenant on 15. 6. 1955, he can get back the possession. He however, repeated that since he was not cultivating the land on 15. 6. 1955, he is not entitled to get the possession of the land back. Deposition of the landlord was also recorded to the same effect. Ultimately, the Mamlatdar and ALT on the basis of evidence before him, closed the proceedings under Section 32 (1b) of the Tenancy Act by his order dated 22. 2. 77. 2. 4 Tenant took no further steps for a long time to challenge the said order passed by the Mamlatdar and ALT, Godhra. Instead 10 years later, he filed a fresh application before the Mamlatdar and ALT, Godhra in the year 1987 which application was registered as Tenancy Case No. 1/87, in which also he once again sought benefit of Section 32 (1b) of the Tenancy Act. Since no one remained present before the Mamlatdar, this application was also closed on 20. 7. 87. 2. 5 Contending that he had no information about the earlier application being dismissed by Mamlatdar, Ambalal Dahyabhai Patel filed appeal against the order dated 22. 2. 77 before the Deputy Collector on 22. 7. 87 i. e. more than 10 years later. The said appeal after round of remand came to be dismissed by the Deputy Collector by his order dated 26. 11. 97. He upheld the findings of the Mamlatdar and ALT. 2. 6 Heirs of deceased Ambalal Dahyabhai Patel thereupon preferred Revision Application before the Gujarat Revenue Tribunal being TEN. B. A. No. 579/1997. This Revision Application was also dismissed by the Tribunal on 31. 3. 2006 holding that no case under Section 32 (1b) of the Tenancy Act is made out. 2. 7 Issue was further carried in writ petition before this Court. Learned Single Judge by his impugned order dated 5. 12. 2006 passed in Special Civil Application No. 24855/2006 was pleased to dismiss the petition. Learned Judge observed inter-alia that on the relevant date, the petitioners were not found in possession of the land by all the authorities. The possession was handed over prior to the relevant date. Learned Judge therefore, did not find it appropriate to interfere in exercise of writ jurisdiction under Article 227 of the Constitution of India. 2. 8 Against the said decision, present appeal has been filed.

(3.) APPEARING for the appellants, learned advocate Shri J. M. Patel submitted that deceased Ambalal Dahyabhai Patel was an illiterate person. The statement before the Mamlatdar therefore, could not have been attached undue importance. Revenue record suggests that deceased Ambalal Dahyabhai Patel and his brother Manilal were in possession of the land as tenants right upto year 1956. All ingredients of Section 32 (1b) of the Tenancy Act were therefore, fulfilled. 3. 1 He contended that admittedly, Ambalal Dahyabhai Patel was the tenant of the suit land. Even if he had handed over the possession of the land voluntarily, the same would not extinguish the tenancy since procedure under Section 15 of the Tenancy Act was not followed. The tenant therefore, had the right to recover possession under Section 15 read with Section 29 of the Tenancy Act. He relied on the following decisions in support of his contentions : 1. Amrit Bhikaji Kale and others v. Kashinath Janardhan Trade and another reported in AIR 1983 Supreme Court 643. 2. Dahiben Wd/o. Ranchhodji Jivanji and ors. v. Vasanji Kevalbhai (Dead) and ors. reported in 1996 (1) GLR 272. 3. Bapu Parasu Kaikadi (Dead) by L. Rs. v. Bapu (Dead) by L. Rs. reported in 2003 AIR SCW 6923 4. Jitubhai Mastubhai Through heirs Mohmmedbhai and anr. v. Natvarlal Mahijibhai and anr. reported in 2005 (2)GLR 1728. 5. Ramchandra Keshav Adke (Dead) by Lrs. v. Govind Joti Chavare and others reported in AIR 1975 Supreme Court 915. 6. Sita Ram Bhau Patail v. Ramchandra Nago Patil (dead) by Lrs. and another reported in AIR 1977 Supreme Court 1712. 3. 2 In particular, heavy reliance was placed on the decision in case of Bapu Parasu Kaikadi (Dead) by L. Rs. (supra) wherein the Apex Court had occasion to consider the provisions contained in Section 32 (1b), 15 and 29 of the Bombay Tenancy and Agricultural Lands Act as applicable to Maharashtra State which are similar in nature to those found in the Tenancy Act as applicable to Gujarat region of Bombay State.