RAMCHANDRA GAJANAN BHOI Vs. UDAYSING ABASAHEB MOHITE

JUDGEMENT

(1.) BOTH these Petitions can be disposed of by common Judgment and I proceed to do so by this judgment.

(2.) THIS is the third round of proceeding before the High Court between the same parties. For deciding the point in issue, it will not be necessary for us to burden the Judgment with all the events. Briefly stated, land bearing Survey no. 105/1 situated at Phaltan, admeasuring 17 acres and 32 gunthas was held by the predecessor of the petitioners as tenant since prior to the tillers day i. e. 1st August 1957. It is common ground that the said land originally stood in the name of ganpatrao Laxmanrao Mohite as the Manager of the joint family of the Respondents herein. Mutation entry also rain forces the position that the joint family comprising of Ganpatrao and his Uncle rangrao, were owners of the suit land. It is not in disputes that the landlords did not initiate proceecings for possession either under Section 29 or Section 31 of the Bombay Tenancy and agricultural Lands Act, 1948 (hereinafter referred to as 'the Act') prior to 1st April 1957. The said ganpatrao died on 22nd February 1961. It is only thereafter the Respondents in the respective Writ petitions claimed that partition was affected between the family members and the portion of suit lands came to their respective shares. It is on that basis, on September 30, 1961 application under section 88-C of the Act came to be filed by the respondents in the respective Writ Petitions, for issuance of exemption certificates. It is relevant to note that before such applications were filed by the Respondents in the respective Writ Petitions, application for same relief was filed by their predecessor said Ganpatrao, in his capacity as landlord against the original tenant, who had already died. That application was therefore rejected, against which, Ganpatrso had filed appeal. in which, it is stated that order came to de passed granting liberty to the Respondents herein to pursue their remedy for issuance of exemption certificates under Section 88-C of the act. It is not necessary for us to go into the controversy as to whether the second set or applications filed by Respondents here it was permissible in law, because the matter can be decided on the basis of admitted facts and the settled legal position, on merits. The application as filed by the Respondents has been eventually decided in their favour by the Authorities on the reasoning that the lands in question came to the share of respective Respondents on 6th September 1964 and the eligibility of the landlords for getting exemption certificate under Section 88-C of the Act will have to be decided with reference to that date. The correctness of this view is put in issue in these Petitions. In substance, the grievance of the Petitioners is that on the tillers day i. e. 1st April 1957 the predecessor of the petitioners being in lawful cultivation, became deemed purchaser as admittedly, no application for possession of the suit land? either under Section 29 or under Section 31 was instituted by the landlord before that date. Moreover, even the provisions of Section 32f of the Act had. no application to the facts on hand. Besides, it is common ground that the land stood in the name of ganpatrao as Manager of the joint family on 1st april ,1957 and he expired on 22nd February 1961, only where after, the Respondents claim to have got separate share in the suit lands. In other words, the Respondents in the respective Writ Petitions claim to have acquired ownership in respect of the land which has come to their share, after the tillers day. These are the admitted facts which can be culled out from the record and which are not disputed an the Counsel appearing for the respondents.

(3.) IN view of the aforesaid facts, it is argued on behalf of the Petitioners that the authorities below had no option but to dismiss the applications filed by the Respondents in the respective Writ Petitions because on 1st April 1957, the predecessor of the Petitioners became deemed purchaser. Moreover, the acquisition of ownership subsequent to the tillers' day, of the respective Respondents, cannot be the basis for maintaining application under Section 88-C. To buttress this proposition, reliance is placed on the decision of the Apex Court reported in A. I. R. 1996 S. C. 3487 in the case of Ganpati Bayaji Patil vs. Shridhar Babaji Vibhute (D) by LRs. and Others and also on the exposition of the Full Bench of our high Court in the case of Anna Balgonda Patil vs. Vasant Raghunath Kulkarni - 1962 (Vol. LXIV) B. L. R. 591.