BABULALALIASDAMODHARHIRALAL GUJARATHI Vs. KISANSHRIPAT PATIL

JUDGEMENT

(1.) THE petitioners have filed this civil revision application being aggrieved by an order dated 20th July, 1993 passed below Exhibit 23 in Regular Civil Suit No. 97 of 1990, by the Civil Judge, Junior Division, Chopada, District Jalgaon, ordering reference of issue Nos. 2, 3 and 5 to the Mamlatdar under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, "the Act of 1948" ).

(2.) THE plaintiffs had raised the contentions that the suit land was owned by them. The respondents defendants were in possession of the suit lands as the legal representatives of one Kisan Shripat Patil. The said Kisan Patil was inducted in the suit land by the mother of the plaintiffs, Tarabai w/o Hiralal, on 5th June, 1945 by executing a rent deed in his favour. Accordingly, Kisan came in possession of the suit land as a tenant. The suit land was situated within the municipal limits of Chopada town. The municipal district of Chopada was constituted in the year 1905 by the then Government of Bombay by publishing a notification under the Bombay Local Boards and District Municipal Act, 1910. The said notification was published in the Government Gazette of Bombay on 17th June, 1910. The suit lands were situated within the municipal limits. In view of the issuance of the notification, it is the case of the plaintiffs that, the provisions of the Act of 1948 were not applicable to the suit lands. The tenant of the suit lands was not entitled to claim protection of the provisions of the Act of 1948. Kisan, the original tenant, had expired. His legal representatives are, thereafter, in possession of the suit lands. It is contended that after the death of the plaintiffs' mother Tarabai. Kisan tried to take the benefit of the Act of 1948 and filed an application to the Tenancy Authorities. The Tenancy Authorities passed an order on 26th February, 1962 to the effect that the landlady Tarabai Hiralal was the widow and as such the provisions of Section 32-A of the Act of 1948 were not applicable to the present case. On 30th January, 1975 the Tenancy Authorities passed an order stating that as the suit land was within the municipal limits of Chopada town, the mutation was taken in the revenue record accordingly in respect of the suit lands. The petitioners further contend that the Government of Maharashtra had applied the provisions of the Maharashtra Regional and Town Planning Act, 1966 to the area in which the suit lands are situated. The suit lands were reserved in the said plan for residential and parking purposes. Relying on the said reservation it is contended that the suit lands were exempted by virtue of Section 88 (1) (b) of the Act of 1948 after the application of the provisions of the Maharashtra Regional and Town Planning Act, 1966. The plaintiffs issued a notice on 20th June, 1987 to the deceased Kisan terminating his tenancy under the provisions of Section 111 of the Transfer of Property Act. Deceased Kisan had replied to the said notice on 26th June, 1987. It is further contended that the defendant Kisan had admitted in his reply that as the suit lands were situated within the municipal limits, the provisions of the Act of 1948 were not applicable and as such no purchase price was fixed. Rest of the contentions were denied by him.

(3.) IT is further contended that the defendant Kisan died on 23rd April, 1988. The notice of termination of tenancy was served upon the defendants' father. As the defendants did not hand over the possession the plaintiffs had to file the suit.