BALKU LAXMAN KHATIK Vs. BIRU RAMACHANDRA KOTMIRE

JUDGEMENT

(1.) THE petitioner in the above Special Civil Application under Art. 227 of the Constitution of India is the tenant of S. Nos. 159/2 - 3, 162/3 and 187/7 totally measuring only Acres 3 and Gunthas 8, situate at village Are in Karvir Taluka of Kolhapur District. Respondent No. 1 - landlord filed an application under Section 33 - B of the Bombay Tenancy and Agricultural Lands Act, 1948, against him after obtaining a certificate under Section 88 - C for recovery of possession of the said lands on the ground of bona fide requirement for personal cultivation. The application was granted by the Tenancy Aval Karkun on February 23, 1964. the order of the Tenancy Aval Karkun was set aside in appeal by the District Deputy Collector on October 27, 1964, observing as follows :-"i am satisfied that comparative position of land in possession is not considered adequately by the lower Court. I, therefore, partly allow the appeal and set aside the order of the lower Court and remand to consider the issue of comparative land in possession as required under Section 33 - B and then decide the matter. No other issues is open for consideration".

(2.) AFTER the remand the Tenancy Aval Karkun allowed the parties to lead Evidence. The petitioner contended that the Registered partition deed dated December 22, 1956, under which the landlord had taken to himself only s Acres and 24 - 1/2 gunthas and given 49 acres and 9 gunthas to his son and 37 acres and 4 gunthas to one of his two wives was disproportionately unequal and effected solely with a purpose of defeating the rights of the petitioner - tenant under the provisions of the Bombay Tenancy Act; and there was no partition in fact effected, as at the time of the date of the alleged partition, respondent No. 1, his son and wife were all living together and only at the time of the hearing of the application, they were living separately in houses Nos. 1857 and 1899.

(3.) THE Tenancy Aval Karkun considered the evidence before him and found that there was tenant only in the suit lands, and it was, therefore, clear that the landlord had taken a very small portion of 3 acres and 24 - 1/2 gunthas of land including the suit lands with an intention to withdraw the suit lands from the tenant although about 30 acres of land comes to the share of the application if an equal partition is made. The Tenancy Aval Karkun therefore ignored the alleged partition and found that respondent No. 1 - landlord had already other lands larger in area than the lands with the tenant; and therefore, he was not entitled to possession of he lands in dispute in view of the provisions of Section 33 - B (5) (b) of the Bombay Tenancy Act. Under that Section the landlord shall be entitled to terminate a tenancy and take possession of the land leased but to the extent only of so much thereof as would result in both the landlord and the tenant holding thereafter in the total an equal area for personal cultivation. Respondent No. 1 had, if all lands measuring Acres 89 Gunthas 21, alleged to be partitioned are found to be held by him, larger area than the tenant; and therefore, by his order dated August 14, 1965, the Tenancy Aval Karkun rejected the application.