EKNATH NAMDEO MATEY Vs. KONDBA LAXMAN GADHAVE

JUDGEMENT

(1.) FIELD survey number 28/1, admeasuring 12 acres 29 gunthas, situated at mouza Palaskhed in taluq Chandur Railway district Amrawati, originally belonged to respondents Nos. 2 and 3, Vasant and Dhundiraj respectively and it was the case of respondent No. 1 Kondba that he was a tenant of the said field. According to Kondba, he was cultivating the field for the years 1957 -58 and 1958 -59 as a tenant. He further contended that he was dispossessed by the landlords illegally, and therefore, he filed an application for restoration of possession under section 36 (1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, referred to hereinafter as the Tenancy Act. The said case was registered as Revenue Case No. 6/59 (10 -A) /61 -62 on the file of the Additional Tahsildar (Tenancy), Chandur Railway. It seems that at about the same time respondent No. 3 Dhundiraj also has filed application for resumption of 4 acres 10 gunthas of land out of survey number 28/1 under the provisions of section 36 (2) read with section 39 of the Tenancy Act contending that he required the land for personal cultivation. The said case was registered as Revenue Case No. 2/59 (10 -F) 61 -62 in the same Court. Similarly respondent No. 2 Vasant also filed an application against Kondba for resumption of the land under section 36 (2) read with section 39 of the Tenancy Act and the said case was registered as Revenue Case No. 3/59(10 -F) /61 -62. All these cases were consolidated and by a common order passed 23 -1 -1964 the Additional Tahsildar held that respondent No. 1 Kondba was a tenant of the suit field and was illegally dispossessed by the landholders in the year 1959 -60, and as such he was entitled to restoration of possession thereof. However, the Additional Tahsildar further found that the landlords were also entitled to resumption of the suit field under section 39 of the Tenancy Act and in this view of the matter he passed an order that the plaintiffs -landlords shall retain the suit land for their personal cultivation. As much of the controversy involved in this writ petition is based on this order passed by the Additional Tahsildar, Chandur Railway, on 23 -1 -1964, it will be useful to reproduce relevant paragraphs 14 and 15 of the said order. Paragraphs 14 and 15 of the Said order are as under :

(2.) THERE is no dispute between the parties that the landlords thereafter gold the field by different sale -deeds. 4 acres 10 gunthas of land out of the laid field on the Southern side along with 1 /4 the share in 15 mango trees was sold to petitioner Eknath vide sale -deed dated 14 -12 -1964. Vasant also transferred 5 acres 10 gunthas of land by sale -deed dated 19 -2 -1965 along with 1 /4th share in 15 mango trees to petitioner No. 2 Namdeo. He also transferred Northern 3 acres of land out of the said survey number to respondent No. 4 Bhimrao on 29 -2 -1965. In this view of the matter respondent No. 1 Kondba filed an application for restoration of possession under section 52 (1) read with section 36 (2) of the Tenancy Act.

(3.) THE application filed by Kondba under section 52 of the Act was allowed by the order dated 6 -4 -1988 passed by the Tenancy Naib -Tahsildar, Chandur Railway. The learned Tenancy Naib -Tahsildar held that respondent Kondba was the tenant of the suit field and that the landholders had taken possession of the suit field under section 39 of the Tenancy Act and have failed to use the land for the purpose Specified in the notice given by them under section 39 of the Tenancy Act. In substance the learned Naib -Tahsildar held that inspite of the order of resumption passed in their favour under section 39 of the Tenancy Act they have failed to cultivate the suit field personally and have sold the land as per the sale -deeds to the petitioners as well as respondent No. 4 Bhimrao. In this view of the matter the learned Naib -Tahsildar further held that respondent No. 1 Kondba is entitled to restoration of possession of the suit field.