SAKHARAM TRIMBAK MHASKI Vs. ANANDA YESHWANT SUTE

JUDGEMENT

(1.) The petitioner wanted resumption of 8 acres and 18 gunthas of land out of survey No. 8 in village Raipur, taluq Mehkar, district Buldana, for his personal cultivation. Respondent No. 1 was a lessee of the said field. The petitioner being minor, an application for possession was filed on his behalf by his guardian before the Tenancy Naib Tashildar. The Tenancy Naib Tahsildar enquired into the application and found that the total holding of the petitioner was more than one-third of a family holding, but less than a family holding, and he is principally dependent on agriculture and he bona fide required the suit land for personal cultivation. On these findings, he granted the application of the petitioner and ordered that he shall be put in possession of the whole of the land claimed by him, viz. 8 acres and 18 gunthas out of survey No. S. The Tenancy Naib Tahsildar also held that the total holding of the plaintiff was 31 acres and 19 gunthas and the family holding in this area being 32 acres, it did not exceed a family holding.

(2.) Respondent No. 1 preferred an appeal before the Special Deputy Collector. It appears that the finding regarding the total holding of the petitioner given by the Tenancy Naib Tahsildar was based on the statement made by the petitioner's father wherein he had shown fields at villages Raipur and Bramhapuri, the total area of which was 31 acres and 19 gunthas. It appears that this statement was not fully correct as one survey number was not mentioned, while two survey numbers were wrongly described. In appeal, parties had filed some documents, which consisted of the Jamabandi abstracts of villages Raipur and Bramhapuri and the crop-statements of the years 1962-63 and 1963-64 regarding the survey numbers of village Bramhapuri. It appears that none of the parties objected to the filing of these documents by the other party, nor was the correctness of those documents challenged by any of the parties. On the basis of these documents, the appellate Court found that the petitioner owned two survey numbers at Raipur and three survey numbers at village Bramhapuri; the total area of all these five survey numbers was 33 acres and 18 gunthas. From the documents produced before it, it was also found by the appellate Court that out of survey numbers 2/1 and 12/1 of village Bramhapuri, 2 acres 11 gun has of land was rocky and could not be brought under cultivation. This area of 2 acres and 11 gunt has was shown in column No. 11 of the crop- statements. The heading of column No. 11 of the crop-statement is HINDI MATTER (Rocky, not capable of being cultivated)." It, therefore, held that in finding out as to whether the petitioner holds a family holding or more than a family holding, this rocky land mentioned in column No. 11 of the crop-statement should be excluded. It accordingly excluded, and did not take into consideration, the area of 2 acres and 11 gunthas for finding out the total holding and came to the conclusion that the land for the purposes of a family holding with the petitioner was 31 acres and 7 gunthas. The appellate Court also found that the petitioner was solely dependent upon agriculture and that he needed the suit land for his maintenance. It may be noted that a landholder claiming possession on the ground of personal cultivation has to establish that he bona fide needs the land and that he principally earns his livelihood by agriculture or agricultural labour in a case where his total holding is less than a family holding. If his total holding is more than a family holding, he has further to prove that the income by the cultivation of the land of which he is entitled to take possession is the principal source of income for the maintenance of the landlord. On the basis that the petitioner's total holding is less than a family holding, the two requirements required under section 38 of the Bombay Tenancy Act have been held to be proved. It was however the contention of respondent No. 1 that the petitioner had also to prove the third condition, viz., of the comparative test, since the petitioner's total holding was more than a family holding. The dispute, therefore, centres round the only question as to whether the total holding of the, petitioner was more than a family holding or less than a family holding. The appellate Court also has held that the petitioner has established the two conditions which are required to be established by a land-holder having less than a family holding. The appellate Court, therefore, dismissed the appeal.

(3.) Respondent No. 1 thereupon filed a revision application before the Maharashtra Revenue Tribunal at Nagpur, and the same contention was raised before it. It was urged by respondent No. 1 before the Revenue Tribunal that, in addition to 33 acres and 18 gunthas of land which the appellate Court found to be belonging to the petitioner, the petitioner had still another field measuring 5 acres and 11 gunthas bearing survey No. 2/11. For this purpose the statement made by the father of the petitioner was relied upon. Before the Revenue Tribunal, it was stated at the Bar, that the statement made by the petitioner's father regarding survey No. 2/11, measuring 5 acres and 11 gunthas, was a mistaken statement and besides the lands which have been stated by the appellate Court, the petitioner had no other land. The Revenue Tribunal has accepted this statement of the learned counsel and held that the petitioner had no land as survey No. 2/11 and found that he held only 33 acres and 18 gunthas of land, as held by the appellate Court. The same argument was reiterated before me by the learned counsel for respondent No. 1, and he contended that besides the 33 acres and 18 gunthas of land found by the Deputy Collector, the petitioner had also 5 acres and 11 gunthas more land and, as such, even excluding 2 acres and 11 gunthas of rocky land, the total holding of the petitioner was more than a family holding. I have looked into the statement of the petitioner's father from the original record, though no copy was filed by respondent No. 1 in the petition, and it appears to me that the contention raised by the learned counsel for the petitioner before the Revenue Tribunal was correct. In the statement the petitioner's father mentioned survey No. 2/11 but did not mention survey No. 2/10. It appears that he had no papers before him and was making the statement from his memory and there was a mistake in mentioning the survey number of the field. This will be apparent from the fact that in the areas of the fields also, the petitioner's father has made some mistakes. Both sides were permitted to file documents in the appellate Court, and it does not appear that opportunity was refused to respondent No. 1 or to either party to file any more documents if they wanted to. The documents which have been filed do show that survey No. 2/11 was not shown to belong to the petitioner and no document has been filed by respondent No. 1 to show that survey No. 2/11 was of the ownership of the petitioner. After the documents were filed in the lower appellate Court, the case was pending in that Court for about 10 days and, if survey No. 2/11 really belonged to the petitioner, it was open to respondent No. 1 to file more documents to show that the petitioner owned this survey number also. Even before the Revenue Tribunal, no such attempt was made by respondent No. 1 to show that survey No. 2/11 belonged to the petitioner. It is therefore not possible to accept the contention of Mr. Deshpande that besides 33 acres and 18 gunthas of land, the petitioner also owned 5 acres and 11 gunthas more, as contended by him. There is no reason to take a different view from the finding reached by the lower appellate Court as well as the revisional Court in this respect. It must therefore be taken that the total area with the petitioner was 33 acres and 18 gunthas. The Revenue Tribunal has also found that he has satisfied the conditions as required by section 38(3) (c) of the Bombay Tenancy Act on the basis that the total holding of the petitioner was less than a family holding. This finding also is a concurrent finding of fact of all the revenue Courts and is not liable to be challenged.