SONAPPA LAXMAN KONDEKAR Vs. VIJAYSINHA BALWANTRAO PAWAR

JUDGEMENT

(1.) This is a writ petition by the original tenant raising a point which was never raised in either of the courts below evidently because there was no factual basis or justification for the same.

(2.) The question arises out of the provision under section 43-IB of the Bombay Tenancy and Agricultural Lands Act (hereinafter the Tenancy Act). Admittedly the lands in question (which shall be referred to hereafter as the suit land) belonged to the joint family of which respondent No. 1 was a member. The present petitioner which will be referred to hereinafter as the defendant was a tenant of the suit land. There was some dispute in the lower Court as to whether a valid and effective partition has taken place in the joint family of the plaintiff and as to whether the suit land had come to his share or not. Both the courts below have held that there was a valid and effective partition in the said joint family. The present petition is, therefore, argued on the assumption that there was a partition in the joint family and the suit land had gone to the share of the present plaintiff. There is no dispute that the plaintiff at one time was a member of the armed forces, but had ceased to be so some time before the present litigation. After he ceased to be the member of the armed forces, he gave a notice as required by section 43-IB(2) of the Tenancy Act and filed an application for possession of the suit land under section 43-IB. The said application was contested by the defendant-tenant. He questioned the validity of effectiveness of the partition set up by the present plaintiff. However, it is significant that he did not call in question the fact that the suit lands were the only lands which were owned or belonging to the present plaintiff. The parties proceeded with the proceedings on the basis that the suit lands were the only lands held by the plaintiff and the parties were at issue only on the question as to whether the plaintiff had an exclusive title to the suit land resulting from the partition in the joint family.

(3.) As required by the provisions of the Tenancy Act and the rules framed thereunder, the Sub-Divisional Officer, before reaching the final decision, sent for the report of the Tahsildar on the various relevant questions and after receiving his report proceeded to hear the parties. He held that the lands were required by the petitioner bona fide for his personal cultivation. He did not frame any issue on the question as to whether the lands taken with the other lands held by the plaintiff, would be less than or equal to the total holding of the tenant remaining with him after he was disposed of the suit land. But this was evidently so because it was nobodys contenting before him that the plaintiff had any other land belonging to him or under his cultivation. The Sub-Divisional Officer was satisfied that the plaintiffs requirement was bona fide and reasonable and hence he passed an order terminating the defendants tenancy and ordering possession to the plaintiff.