(1.) This writ petition arises out of the proceedings under Sections 46 and 48 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short "Tenancy Act',) before the Agricultural Lands Tribunal, Akola filed in 1963-64. The petitioner and the respondents Nos. 4 and 5 are the joint owners of field survey No. 14 of village Nandapur, tahsil and district Akola admeasuring 17 acres and 23 gunthas. The respondent No. 1 and one Ramjivan son of Rampratap Tiwari were the joint tenants of the aforesaid field survey No. 14. The said Ramjiwan died after the impugned order of the Maharashtra Revenue Tribunal. The respondents Nos. 2 and 3 are his legal heirs. The Agricultural Lands Tribunal by the order dated 28-2-1974 held that the respondent No. 1 and the deceased Ramjiwan were the co-tenants of the aforesaid field survey No. 14 on 1-4-1961, and, therefore, the rights of ownership in respect of the said field vested in them on the said date unde Section 46 of the Tenancy Act. In the appeal, the Sub-Divisional Officer remanded the proceedings back to the Agricultural Lands Tribunal for determining the question whether the land held by the tenants exceeded three family holdings as contemplated by Section 42(b) of the Tenancy Act. The Agricultural Lands Tribunal, after remand, held that the land held by each of the two co-tenants including the suit land, does not exceed three family holdings and hence the said co-tenants are entitled to the rights of ownership under Section 46 of the Tenancy Act. The decision of the Agricultural Lands Tribunal is confirmed in appeal by the Sub-Divisional Officer and in revision by the Mahrashtra Revenue Tribunal. Hence this petition.
(2.) the learned counsel for the petitioners has first urged that the holding of the landlords is less than one family holding and, therefore, in view of the then provisions of Section 42(c) (deleted in 1962) of the Tenancy Act, the ownership cannot be conferred upon the tenant in respect of the suit field. Thus so far as this question is concerned, no such question is raised in the grounds taken in the instant writ petition before the authorities below and there is no material on record to show what the total holding of the landlords is. Apart from the fact that the said question cannot be allowed to be urged in writ jurisdiction orally for the first time during the hearing in the absence of any material on record, it cannot be held that the landlords had less than one family holding. This contention raised on behalf of the petitioners, therefore, fails and is rejected.
(3.) The learned counsel for the petitioners has then urged that there was a joint tenancy of the respondent No. 1 and the deceased Ramjiwan in respect of the suit field and as such in calculating their three family holdings, the holding of both of them should have been taken together. It is not in dispute that the respondent No. 1 as a tenure holder possessed 69 acres and 1.5 gunthas as agricultural land. The deceased Ramjiwan as a tenure-holder has 38 acres of land. The total agricultural land possessed by the respondent No. 1 and the deceased Ramjiwan comes to 107 acres and 1.5 gunthas. According to the petitioners, one family holding in the district of Akola is 28 acres. The three family holdings would, therefore, be 84 acres and since the total holding of the respondent No. 1 and deceased Ramjiwan exceeds 84 acres, the submission is that they are not entitled to purchase the suit field as per the provisions of Section 41 of the Tenancy Act and since they are not entitled to purchase the suit field as per the provisions of Section 41 of the Tenancy Act, the rights of ownership cannot vest in them on 1-4-1961 as per the provisions of Section 46 of the Tenancy Act. All the tenancy authorities below have considered this aspect by considering the holding of each of the co-tenants separately and adding to the same, the half share from the suit field in regard to which the rights of ownership are claimed by them by virtue of provisions of Section 46 of the Tenancy Act. The crucial question that is necessary to be decided, therefore, is as to whether the character of possession of the respondent No. 1 and the deceased Ramjiwan is that of joint tenants or as tenants in common ?