(1.) THIS application under Article 227 of the Constitution arises out of proceedings under Section 3313 of the Bombay Tenancy and Agricultural Lands Act, 1948. The petitioner is a tenant of Survey No. 191/1/1 admeasuring 3 acres 34 gunthas in village Raver, District Jalgaon. Respondent No. 1 Ramjan is the landlord. The landlord, who had. no other lands, obtained an exemption certificate under Section 88C of the above Act and filed an application for possession on the ground of bona fide requirement under Section 33B. All the Courts below have held that the laud was required by respondent No. 1 bona fide for his personal cultivation. There was a difference, however, as to how much land should be given to the landlord. At the date of the application, the petitioner had under his personal cultivation 6 acres and 24 gunthas in Survey No. 200/2. The question, therefore, was raised whether under Section 33B (5) of the Act, that land was to be taken into account for determining how much of the leased land the landlord was entitled to resume from the tenant. The Tenancy Awal Karkun was of the view that for the purposes of that section, the other land held by the tenant in Survey No. 200/2 was, not held by him either as an owner or a tenant, and, therefore, it could not be taken into consideration. The Deputy Collector in appeal differed from the view of the Tenancy Awal Karkun. He held that the land was in the personal cultivation of the tenant and must, therefore, be taken into account. In revision, the Revenue Tribunal confirmed the view of the Deputy Collector, especially as the tenant had become the full owner of Survey No. 200/2 on or from February 5, 1964. Aggrieved by that decision, the petitioner -tenant has come to this Court under Article 227 of the Constitution of India.
(2.) THE application under Section 33B was filed by respondent No. 1 on March 16, 1962. It is no longer in dispute that the holding of the landlord and tenant as at the date of the application only must be taken into account. There is no dispute also that the petitioner -tenant was in actual possession for personal cultivation of Survey No. 200/2 admeasuring 6 acres and 24 gunthas. The petitioner's case was that this land had been transferred to him under a mortgage by conditional sale, whereas, respondent No. 1 contended that it was really a sale with a condition of repurchase. The issue as to the real nature of this transaction dated July 3, 1961, has not been determined by the Courts below. There is a very thin line between a transaction which could be described as a mortgage by conditional sale, and, a sale with a condition of repurchase. Even so, there is a real difference between the two types of transactions, because, one is a mortgage and the other is a sale. And, since, the Courts have not applied their mind to the real nature of the transaction as appearing from the document and the other circumstances in the case, the case will have to be remanded for a finding on that issue. It is not disputed that if it is held that the transaction was really a sale, the petitioner would be holding the land for personal cultivation as an owner on the date of the application, in which case, it would have to be taken into account for the purposes of Section 33B(5)(b).
(3.) SECTION 33B(5)(b) reads as follows: - The landlord shall be entitled to terminate a tenancy and take possession of the land leased but to the extent only of so much thereof as would result in both the landlord and the tenant holding thereafter in the total an equal area for personal cultivation -the area resumed or the area left with the tenant being a fragment, notwithstanding, and notwithstanding anything contained in Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. This provision has been construed by this Court, and, it is now settled law that for the purposes of Sub -clause (b) of Section 33B(5) the land in the personal occupation of the landlord and the tenant is to be separately taken into consideration, and then the leased land should be so distributed as to result in the landlord and the tenant having eventually, as far as possible, an equal area for personal cultivation. For example, if the landlord has two acres of his own in his personal cultivation, and, his tenant has in his cultivation four acres of land of his own and four acres of the landlord as a tenant, then, the leased land will have to be divided between the landlord and the tenant in such a way that the landlord gets in all five acres and the tenant also gets five acres for personal cultivation. In order to give the landlord five acres, three acres out of the leased land will have to be given to the landlord and one acre will have to remain with the tenant.