SANTU GOPALA CHUMBHALE Vs. INDIRABAI JOHN KEEN

JUDGEMENT

(1.) This petition arises out of an order of eviction passed under section 84-C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Tenancy Act), directing eviction of the petitioner from field S. Nos. 174/2, 176/3, 176/4, 176/6 and 177 of village Pathardi, Taluka and district Nasik. There is no dispute that the petitioner in his own right owns half share in S. Nos. 176/3 and 177. The fields were owned by respondent No. 1 Indirabai and were originally cultivated before 1957 by one Tulsiram Kale. Tulsiram Kale owned half share in S. Nos. 176/3 and 177. He transferred to the petitioner his share in these two fields on 28-11-1958. However, he delivered possession of the entire lands to the petitioner. In 1958-59 the petitioners name were shown in the revenue records as sub-tenant. Proceedings under section 32-G of the Tenancy Act were started in respect of these fields. A notice of these proceedings was sent to Tulsiram Kale. Tulsiram Kale remained absent in the proceedings and, therefore, the sale in his favour was declared ineffective on 1-9-1960. Consequently the proceedings under section 32-P of the Tenancy Act had to be started. In the meantime the landlord Indirabai entered into an agreement of sale these lands to the present petitioner No. 1 for a sum of Rs. 3500/-. In section 32-P proceedings, according to the petitioner Indirabai stated that petitioner No. 1 Santu was a sub-tenant and that she wanted to sell the lands to him. It appears that the Agricultural Land Tribunal decided to sell the lands by auction. On 30th June, 1965, section 32-P proceedings terminated by an order passed by the Agricultural Lands Tribunal Nasik. This order, which is Ex. 5 in the original record of the proceedings under section 84-C, shows that the proceedings were carried out according to the directions of the Deputy Collector, Nasik. The order recites that the public notice were issued. It refers to the statement made by the present petitioner No. 1 who is referred to as a sub-tenant who was in actual possession of the lands, that he was willing to purchase the suit land at a price to be fixed by the Agricultural Lands Tribunal. He disclosed the agreement of sale between himself and Indirabai. It was claimed by him before the Agricultural Lands Tribunal that he had paid Rs. 1000/- to the landlady in pursuance to the agreement of sale, but since only a receipt for Rs. 600/- was produced, the Agricultural Lands Tribunal accepted the payment only in respect of Rs. 600/-. The receipt of Rs. 600/- was also admitted by the landlady who had also admitted the fact of the agreement of sale. The Lands Tribunal found that holding of the petitioner No. 1 inclusive of the suit lands was less than the ceiling area and he was, therefore found entitled to purchase the suit lands. As nobody had come forward to purchase the suit lands except petitioner No. 1, the Lands Tribunal hold that "it will be justifiable and proper to sell the suit lands to Shri Santu Gopala of Pathardi". The order was, therefore, passed that the lands should be sold to Santu Gopala for Rs. 3500/-. The instalment were also fixed. The last instalments was to be paid on or before 1-7-1967 it was made clear in the order that the sale will be subject to the provisions of section 43. Intimation was directed to be issued to the parties and the new purchaser. The record, however, shows that the intimation was directed to Tulsiram. Now inspite of this order of the Tahsildar dated 30th June, 1965 relying on a letter order dated 17-12-1965, by which according to respondent No. 1 the suit lands were directed to be restored to her, the proceedings under section 84-C were commenced for eviction of the petitioner.

(2.) It appears that the eviction proceedings against the petitioner resulted from a subsequent order dated 17-12-1965 which also seems to have been passed by the Lands Tribunal, Nasik. This order states that the purchase in respect of certain lands is ineffective and the lands are to be disposed under section 32-P of the Tenancy Act. It further recites that the land lady was willing to cultivate the fields personally and the declaration was, therefore made that the tenancy of Tulsiram was terminated and possession of the lands was ordered to be restored to Indirabai John Keen. Now it is important to note the fields in respect of which this order is passed. The fields are :- <FRM>JUDGEMENT_237_UCR(BOM)_1976Html1.htm</FRM> As compared with this the order in favour of the present petitioner was in respect of fields S. Nos. 176/2, 1-A 33-G, 176/3, 11-G, 176/4, 1-A 38-G, 176/5, 1-A 15-G, and 177, 5-A 10-G, (half land). Now apart from the fact that in respect of the lands belonging to Indirabai there was already an order under Sections 32-G and 32-P in pursuance of which the petitioner was held entitled to purchase the lands, the two orders do not seem to relate to identifical lands. In the order in favour of the petitioner the area of S. No. 177 is shown as 5-A 10-G, while in order in favour of the respondent-landlady the area is shown as 1-A 25-G. In the order in favour of the petitioner there is no S. No. 176. The area of S. No. 174/4 is referred to as 1-A 38-G while there is no survey number of that description in the order in favour of the petitioner. Same is the case with S. No. 174/2, which is not to be found in the order in favour of the present petitioner. Now the Assistant Collector, before whom these proceedings for eviction were commenced, sent the papers to the Agricultural Lands Tribunal, Nasik, for making an enquiry as to whether the two petitioners were tenants. The Lands Tribunal held that the petitioners were not the tenants. This order though it was really in the nature of the report was appealed against and it was in this appeal that the Assistant Collectors held that the petitioners were neither owners nor the tenants of the lands and that they were occupying the lands wrongfully, He, therefore, directed that they should be summarily evicted from the lands. A revision application was filed against this order by the present petitioner. The Maharashtra Revenue Tribunal took the view that in the years 1956-57 and 1957-58, the fields were shown to have been cultivated by Tulsiram and the petitioners could not have claimed the rights to purchase the lands as they were not in possession of the lands on 1-4-1967. The Revenue Tribunal referred to the agreement of sale between petitioner No. 1 and Indirabai and held that the terms of the agreement did not appear to have been complied with. Thus the learned Member of the Revenue Tribunal took the view that the petitioners could not retain possession and the lands had to be restored to Indirabai. The revision application, therefore, came to be rejected.

(3.) Now in this petition it is contended on behalf of the petitioners that the order holding that the petitioners were entitled to purchase the land have not been set aside by any authority and therefore the petitioners cannot be said to be in unauthorised occupation. It is difficult to appreciate how the Assistant Collector can exercise his jurisdiction under section 84 on the facts disclosed in the present case. Assuming that the earlier order of the Agricultural Lands Tribunal made on 13-6-1965 was erroneous, this is an order which was binding between the parties especially when the landlady had made a statement before the Tahsildar that she did not wish to cultivate the lands personally and that the lands could be transferred to petitioner No. 1 in pursuance of the agreement of sale between the parties. The Agricultural Lands Tribunal had also taken the view that nobody else had come forth to purchase the lands, the sale in respect of which had become ineffective. Now when at one stage the landlady had agreed to sell the lands in dispute to petitioner No. 1 and that arrangement was accepted by the Agricultural Lands Tribunal, it is difficult to see how as long as the order dated 13-6-1965 stood undisturbed, the petitioners or petitioner No. 1 could be said to be in unauthorised occupation. The circumstances under which the order dated 11-12-1965 holding that the landlady was entitled to possession has come to be passed have not been gone into by the Assistant Collector, the third instalment of the purchase price was required to be paid by the petitioner No. 1 who was styled as a sub-tenant on or before 1-7-1967. In any case, therefore, even if the order in favour of the present petitioner No. 1 holding that he was entitled to purchase the lands had to be received or set aside and his purchase had also to be treated as ineffective, as is contended before me, that could not have been done either before 1-7-1967 or in any case before 1-7-1966, when the second instalment had fallen due. It is now urged on behalf of the landlady that the purchaser had failed to pay the purchase price and therefore, the purchase in his favour had become ineffective. It will not be proper in these proceedings to go into this controversy, because it is contended that the notice to deposit the purchase price, which is at page 77, seems to have been issued in the name of the original tenant, who was really not concerned with the matter, after petitioner No. 1s case that he was entitled to purchase the fields had been accepted by Agricultural Lands Tribunal. Whether there was a justification for non-payment of the purchase price and what was the effect of such non-payment was required to be decided in an independent proceedings. But as long as the order holding that petitioner No. 1 was entitled to purchase the fields was operative, the petitioner could not be said to be in unauthorised occupation. I have already pointed out the discrepancy in the number of the fields in the order which purports to vest the lands in respondent No. 1. In any case it has not been disputed even before me that so far as S. Nos. 176/3 and 177 are concerned, petitioner No. 1 was the owner of half share in those fields, having purchased the share of the original tenant Tulsiram. He cannot therefore, be said to be unlawful possession of the half share. It is apparent from the orders of the Maharashtra Revenue Tribunal and the Assistant Collector that the orders for eviction have been passed against the petitioner without considering the matter in sufficient detail. The only interference which is irresistable on the facts of the instant case is that the petitioners cannot be said to be in unauthorised occupation and liable to be evicted summarily under section 84. If it is possible for respondent No. 1 to have the orders in favour of the petitioner No. 1 set aside or to have the fields dealt with in the manner provided by the law, in case he is able to show that the purchase even by petitioner No. 1 had become ineffective, she is at liberty to do so. But until there is a proper adjudication of the rights of petitioner No. 1 and respondent No. 1, the petitioners cannot be summarily evicted from the suit property.