NAGAYYA GURUPADAYYA CHARANTIMATH Vs. CHAYAPPA SANTANAPPA HUILGOL

JUDGEMENT

(1.) A short point which has arisen in this application, which is filed by the tenants under Articles 225 and 227 of the Constitution of India, may be stated in this way. There is an application filed by a landlord under Section 34, Bombay Tenancy and Agricultural Lands Act, 1948, before a Mamlatdar for recovering possession of his lands from his tenant for bona fide personal cultivation. The Mamlatdar considered certain questions of fact, including a question whether the landlord required possession of his lands for bona fide personal cultivation, and came to the conclusion that the landlord wanted possession of the lands for bona fide personal cultivation and ordered the tenant to hand over possession to him. On the tenant appealing to the Assistant Collector, the Assistant Collector disposed of the appeal only upon a preliminary point raised by the tenant, viz. , whether in view of a certain entry in respect of the lands in the record of rights, the respondent before him had established that he was a landlord at all. The Assistant Collector held that the respondent had failed to establish a relationship of landlord and tenant between the parties, that therefore the provisions of the Act did not apply and that accordingly the respondent was not entitled to recover possession of the lands from the appellant. The landlord went in revision before the Bombay Revenue Tribunal and the Tribunal held that the finding of the Assistant Collector that there was ho relationship of a landlord and tenant between the parties was erroneous in law and reversed the Assistant Collector's order. The effect was that the Mamlatdar's order was restored. Now the point in these proceedings under Articles 226 and 227 is whether the finding of the Mamlatdar that the landlord wanted possession of the lands for bona fide personal cultivation is conclusive in this case.

(2.) UPON the application on the landlord before the Mamlatdar, the points which arose for the Mamlatdar's decision were: (1) Whether the present applicants were protected tenants of the suit lands; (2) whether proper notice terminating the tenancy was given to them by the landlord under Section 34 of the Act; (3) whether the lands were required by the landlord for bona fide personal cultivation and (4) whether the landlord was already cultivating 50 acres or more of land. The Mamlatdar held that the present applicants were protected tenants of the suit lands, that proper notice terminating their tenancy was given to them under Section 34 of the Act, that the lands were required by the landlord for bona fide personal cultivation and that the landlord was culti vating less than 50 acres of land at the date of his application. The finding with which we are at present concerned is regarding the landlord's claim that he needs to have possession of his lands, because he bona fide wants to cultivate them personally. To this finding the Assistant Collector paid no attention and gave no consideration whatever while deciding the tenant's appeal. He disposed of the appeal solely upon a preliminary point taken by the tenant that his alleged landlord was not really his landlord at all since his name was not shown as a kabjedar (occupant) of these lands in, the record of rights, but was shown in the column of 'other rights'. The Assistant Collector upheld that point, did not go into any question of fact and upset the order of the Mamlatdar. The aggrieved landlord appealed to the Bombay Revenue Tribunal in revision and the Tribunal in the exercise of its revisional jurisdiction, came to the conclusion that the finding of the Assistant Collector, based purely upon an entry in the record of rights which had only a presumptive value, was erroneous in law. The Tribunal observed that there were clear admissions by the respondent be fore them that he was a protected tenant of these lands and that these admissions were sufficient to rebut the presumption arising out of an entry in the record of rights under Section 135 (j) of the Land Revenue Code. In view of these admissions the Tribunal held that the applicant before them was the landlord of the respondent and accordingly they reversed the Assistant Collector's order. This resulted in the restoration of the Mamlatdar's order.

(3.) NOW, it is clear that under Article 227 every High Court has superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction and in the exercise of this power we have jurisdiction to interfere where there is an error apparent 'on the face of the record. In this case, we are satisfied that there is an error apparent on the face of the order of the Revenue Tribunal, in that the Revenue Tribunal overlooked an important fact that the finding of the Mamlatdar that the lands were required by the landlord for bona fide personal cultivation, which was a finding of fact, was not examined and considered and its correctness was not tested and determined by the Assistant Collector in the appeal which was filed before him by the tenant. The Revenue Tribunal failed to consider that the effect of merely reversing the decision of the Assistant Collector would be to restore the finding of the Mamlatdar on a question of fact without the propriety of the said finding having been ascertained by the Assistant Collector who was a superior fact finding authority. The Assistant Collector adopted a short-cut and though he, being an appellate authority, was a final fact-finding tribunal under the Act, he did not apply his mind at all to the material question of fact whether the possession of the lands was required by the respondent before him for bona fide personal cultivation. This question of fact went to the very root of the relief asked for by the landlord under Section 34 of the Act, and the decision of the Mamlatdar upon it should not have been allowed to remain as the last word on the point. The Assistant Collector, apparently in his zest to finish the appeal quickly, evidently forgot that if his view that there was no relationship of a landlord and tenant between the parties, which was based upon his Interpretation of an entry in the record of rights, was reversed by the Revenue Tribunal, the finding of the Mamlatdar that the possession of the lands was wanted by the landlord for bona fide personal cultivation would stand untested on the record. As a final fact finding tribunal, he should have taken the account of such a situation arising and should not have resorted to a short-cut. A shortcut is most undesirable in cases where the dispute between the parties relates to important rights to property. The result of the error on the part of the Revenue Tribunal, which error as I have said is apparent on the face of its order, has been that the tenant has been deprived of an opportunity of showing that the Mamlatdar's finding on a question of fact whether the landlord wants to recover possession of his lands for bona fide personal cultivation is erroneous. The tenant's contention before the Mamlatdar was that the landlord did not want possession of the lands for bona fide personal cultivation and there is nothing to show that the tenant had given up this contention during his appeal before the Assistant Collector. Simply because a point, which the Assistant Collector called a preliminary point, was taken by the tenant, it could not follow that the tenant had abandoned his substantial contention upon - which he had resisted the landlord's application for possession, viz. , that the possession was not required by the landlord for bona fide personal cultivation. There is also nothing to show that before the Revenue Tribunal the tenant conceded that the landlord required the lands for bona fide personal cultivation. It is true that before the Revenue Tribunal the tenant's Advocate pressed certain two contentions which were contentions on points of law. But this would not mean that the advocate had expressly abandoned his client's (tenant's) important contention on a question of fact, the Revenue Tribunal, not being a fact-finding tribunal, the tenant's advocate might well have thought that if his submissions on points of law were accepted by the Tribunal, the Tribunal would remand the matter to the Assistant Collector for final determination of the question of fact whether the landlord's claim that he wanted possession of these lands for personal cultivation was a bona fide one. In short, there is nothing to show that either before the Assistant Collector or before the Revenue Tribunal, the tenant had abandoned his contention that the landlord's demand for possession of the lands for personal cultivation was not a bona fide one. It is true that the Revenue Tribunal, not being a fact-finding tribunal, could not have decided a question of fact whether the landlord wanted possession of these lands for bona fide personal cultivation or not. If the Assistant Collector had considered this question and had given his finding about it, then it would not have been open to the Revenue Tribunal to go behind that finding of fact and they would have been bound to accept it. As the matters stand, however, the Assistant Collector not haying gone into the question at all, it was necessary in the ends of justice for the members of the Revenue Tribunal to remand the case back to the Assistant Collector for giving a finding on the important question of fact regarding the landlord requiring the possession of these lands for bona fide personal cultivation and for disposal according to law.