ANANDA MARUTI JADHAV Vs. HANSABAI BANDU GHUNAKE

JUDGEMENT

(1.) This petition under Article 227 of the Constitution arises out of proceedings instituted by the respondent under section 33-B of the Bombay Tenancy and Agricultural Lands Act, hereinafter referred to as the "Bombay Tenancy Act." The respondent had earlier applied for a certificate under section 88-C of the Bombay Tenancy Act and the certificate was directed to be issued on 31st of July, 1965. Thereafter she filed an application under section 33-B of the Bombay Tenancy Act on 10th of March, 1966. That application was treated as Tenancy Case No. 30 of 1966. Before the proceedings pursuant to this application could be commenced, the tenants who were four in number of the suit land challenged the order granting the certificate under section 88-C of the Bombay Tenancy Act. That challenge failed sometime in the year 1976 whereafter proceedings under section 33-B in Tenancy Case No. 30 of 1966 were taken up. Before this happened, one of the four tenants, Maruti Govinda had died on 10th of July, 1966 and his heirs and legal representatives were brought on record on 9th August, 1966. Another tenant, Ganpati, also died on 6th of December, 1966, but unfortunately his heirs and legal representatives were not brought on record till 9th of September, 1976. The heirs of Ganpati had been brought on record in the proceedings arising out of the order passed under section 88-C of the of the Bombay Tenancy Act, but in the parallel proceedings, namely under section 33-B of the Bombay Tenancy Act, no separate application was made for bringing the heirs of Ganpati on record. It is only after the proceedings were taken up under section 33-B, after the termination of the challenge to the issuance of the certificate under section 88-C, that the heirs of Ganpati were brought on record.

(2.) The Tenancy Aval Karkun of Hatkanangale Taluka allowed the application by his judgment and order dated 11th of July, 1977. While so doing he held that he application which had been filed on 10th of March, 1966 was within time, that the respondent has proved her bona fide and reasonable requirement of the suit land, and that each of the tenants were holding for persona cultivation an area which was in excess of his share in the leased lands. The question of equalisation of the holding, therefore, resolved itself. Since the finding on the bona fide requirement was in favour of the respondent, the Tenancy Aval Karkun proceeded to pass the order as mentioned above.

(3.) This order of the Tenancy Aval Karkun was challenged by the petitioners in an appeal, being Tenancy Appeal No. 1 of 1978. The Sub-Divisional Officer of the Kavir Division partly allowed this appeal and remanded the case to the Court of first instance to fine out whether the certificate under section 88-C of the Bombay Tenancy Act was actually delivered on 5th of December, 1965 or was delivered on 15th of December, 1965 . If the certificate was delivered on 5th December, 1965, the application filed in Tenancy Case No. 30 of 1966 on 10th of March, 1966 would be beyond the prescribed period of limitation; if, however, the certificate had been actually delivered on 15th of December, 1965, the said application would be within time. In fact the Tenancy Aval Karkun had found that the application was within time. Unfortunately, when the sub-Divisional Officer of Karnir examined the record it was noticed that on the reverse of the certificate the date of the delivery appeared to be 5th of December, 1965. The order of the Sub-Divisional Officer is specific that the matter is remanded to the Court of first instance only to find out whether the certificate under section 88-C was actually delivered on 5th of December, 1965 and on no other point . This necessarily implied that on the question of bona fide requirement and on the question of the equalisation of the holding the Sub-Divisional Officer agreed with the findings of the Tenancy Aval Karkun. Indeed, on going through the judgment of the Sub-Divisional Officer, I find that there is warrant for this view though the findings have not been couched in very precise and clear language.