NATHUBHAI GANDHABHAI Vs. BHAGUBHAI ICHUBHAI

JUDGEMENT

(1.) This is a petition by a citizen challenging the order of the Gujarat Revenue Tribunal in the Revision Application No. TEN B.S. 113/74 decided on 29-1-76 which is Annexure C to the petition. The Tribunal confirmed the order of the Deputy Collector in an appeal under sec. 74 of the Bombay Tenancy and Agricultural Lands Act 1948 hereinafter referred to as the Act. The Deputy Collectors order is at Annexure B to the petition. The Deputy Collector in his turn reversed the judgment of the Mamlatdar Mahuwa in Surat District in the tenancy case No. 5 of 1973 on his file.

(2.) A few facts need to be slated. There are two agricultural pieces of land S. No. 1573 and 1586/part situated in the sim of village Karchalia Tal. Mahuva in Surat District. The present petitioner in the High Court had mortgaged these two fields with the Punamchand Talkaji by way of usufructory mortgage in the year 1940. Said Punamchand had inducted one Ichubhai Bhimbhai the father of the present respondent as a tenant on the land. In the year 1956 the present petitioner filed the civil suit No. 417 of 1956 for redemption of the mortgage imploding the mortgage Punamchand as well as the respondents father Ichubhai as party respondents. A decree had come to be passed in favour of the petitioner and in execution of the said decree the petitioner had procured possession of the fields from the mortgagee as well as his tenant Ichubhai. This had taken place in the year 1958. The time then went on passing and the petitioner went on cultivating the land. Said Ichubhai thereafter died. In the year 1973 with affect from 3-3-73 the Gujarat Legislature amended the Bombay Tenancy Act and introduced sec. 32(1B) making a special provision for restoration of possession to the tenants who were on the agricultural lands on the specified date namely 15 but who were evicted on or before the appointed day namely 3-3-73 otherwise than in accordance with the provisions of the Act. Ichubhais son the present respondent who is one of the four heirs of Ichubhai thereafter made an application to the Mamlatdar Mahuwa under sec. 32(1B) of the Act for possession alleging that his father was in possession of the lands on the specified day and that he was dispossessed before the appointed day otherwise than in the manner provided under sec. 29 or any other provision of this Act and that he being the heir who had inherited the rights of the father under sec. 40 of the Act was entitled to be put into possession.

(3.) The Mamlatdar by his order Annexure A held that the mortgages tenant Ichubhai and after his demise his son the respondent could not claim to be the status of a tenant and that the application being misconceived was liable to be dismissed. The present respondent therefore Sled the appeal before the Deputy Collector Vyara who allowed the appeal on the ground that dispossession of a tenant even pursuant to the decree of a civil court would not be dispossession under sec. 29 of the Act or any other provisions of that Act and consequently sec. 32(1B) was attracted. The order for possession in favour of the respondent had come to be passed by the Deputy Collector. The present petitioner therefore moved the Gujarat Revenue Tribunal where its learned member one Mr. Patel confirmed the order of the Deputy Collector. A specific contention was raised before the Tribunal that the respondent could not claim bene. fit of sec. 40 of the Act and that even under sec. 32(1B) he was not entitled to possession. Both these specific contentions were turned down by the Tribunal. Being aggrieved by the said order of dispossession the present petitioner has moved this Court by invoking its writ jurisdiction.