A H MAGAR Vs. THAKUBAI M TUPE

JUDGEMENT

(1.) The question arises for determination in this II appeal is.: "Whether on an application for an exemption certificate being made u/s. 88C of the Tenancy Act, during the pendency and final disposal of the said application, the land which is the subject-matter of the said application, either does not vest in a tenant u/sec. 32 or it if it has become vested, it becomes divested fay reason of the making of the application, so that if during the pendency of these proceedings, the land is incorporated within the limits of the Municipal Corporation, the tenant loses the benefits conferred upon him by the said section 32?"

(2.) Before discussing this question, it will be convenient first to set out facts which have given rise to this debate. The appellants are the heirs and L R.S. of one Hiraman. He and the II respondent were the co-owners of 5 agricultural plots of land situate in the village Hadapsar in tal, Haveli of dist. Pune, each of them having an equal share therein. The original I respondent, Maruti Narayan Tupe, who died during the pennency of this appeal and whose heirs and L. Rs. are respondents 1A to 1N. was a protected tenant in respect of the said plots of land. After coming inio foice the B. T. and A. L. (Amendment) Act, 1956 (Bom Act XIII/56), Hitaman made an application to the Mamlafdar for the certificate of exemption u/s 88C of the Act on the ground that his holding did not exceed an encomic holding as defined in s. 6 thereof and that his annual income including the rent of these plots of land did not exceed Rs. 1500/- After issuing notices to the parties of an enquiry as provided by s. o8C. (g), the Mamlatdar decided that said plots of land were exempt from the operation of the provisions of sees. 32 to 32R and issued a certificate of exemption to Hiraman on 16-12-1961. Maruti, thereupon filed an appeal to the Collector, During the pendency of this appeal on 3-3-1862 these lands were included within the limits of Poona Municipal Corporation. The I respondent's appeal succeeded & by his order dt. 14-10-62 the Collector dismissed the application.

(3.) Thereafter in 1969 the appellants, as the heirs and L- R. S. of Hiraman filed the suit out of which this second appeal arises in the Court of the Civil Judge, Jr. Div,, Poona, against Maruti and II respondent for parti'ion of the said lands and possession of their 1/2 share therein, in the suit, the appellants contended that Maruti had no rights to purchase the said lands by reason of the fact that during the pendency of the proceedings or obtaining the exemption certicate the lands had ecome incoiported in the limits of the Poona Municipal Corporation and on the date of such incorporation the certificate of exemption granted of exemption granted by the Mamlatdar was still in the force. They further contended that the subsequent decision in appeal cancelling it would operate only from the date when it was given on which date the lands formed part of municipal limits.