PANDURANG VITHAL SHINDE Vs. VIJAYSINGH KHANDERAO GAIKWAD

JUDGEMENT

(1.) THIS petition involves interpretation of section 43-1b of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the B. T. and A. L. (Act) as to (a) when does a person cease to be a member of the Joint Family and (b) if there is a part partition of the property where the landlord is a member of the Armed Forces, whether he is entitled to avail of the benefit under section 43-1b of the Bombay Tenancy Act.

(2.) THE petitioners admittedly are the original tenants and the respondent is the landlord. Though in some earlier proceedings, the respondent landlord had challenged the relationship of landlord and tenant, this controversy, however, does not survive in view of the orders passed in those proceedings. Suffice it to say that the respondent-landlord has now acknowledged the petitioners as tenants and moved an application under section 43-1b of the Bombay Tenancy Act against the petitioners herein. The subject matter of the property is agricultural land bearing Regular Survey No. 178 (Gat No. 607) at village Badhani, Taluka Karvir, District Kolhapur admeasuring 8 Acres 18 Gunthas (3 Hectares 27 Areas ). The respondent herein had moved an application on 29th June, 1991 after having issued a notice dated 15th April, 1991. Informing the petitioners that their tenancy had been terminated. The said application was numbered as Tenancy Case No. 2 of 1991. The Tahsildar by his order dated 12th October, 1992 held that the applicant is not a member of any joint family and that the suit land is not joint family property and consequently held that the applicant holds the suit land as a sole owner.

(3.) THE matter had been referred to the Tahsildar pursuant to a writ petition filed by the petitioners before this Court being Writ Petitions No. 1899 of 1992 which was preferred against an order passed by the Additional Commissioner, Pune, who had allowed the application of the respondent herein and had refused (sic referred) the matter to the Tahsildar for enquiry into the share of the respondent in the joint family property as sought for by the respondent. This Court by its order dated 1st July, 1992 relying on the judgment of the Apex Court reported in the case of (Balkrishna Somnath v. Sadu Devram Koli) reported in 77 T. L. R. 77 directed that reference to be made to the Tahsildar and that the Tahsildar to decide it within a time frame. Subsequent to the matter being decided by the Tahsildar, the Collector of Kolhapur by his order dated 5th December, 1992 was pleased to allow the application of the respondent and held that the tenancy stands terminated and the possession of Gat No. 607 (Old Survey No. 178, of village Badhani, Taluka Karvir, Dist. Kolhapur should be restored to the applicant-landlord by evicting the opponents-tenants. The petitioners being aggrieved by the said order had preferred a Revision Application being Revision Application No. Ten. Kop. 141. The Additional Commissioner, Pune held that the orders of the authorities below are based on facts on record and supported by the provisions of the B. T. and A. L. Act and that he found no illegality or impropriety in the order of the Collector and accordingly dismissed the revision application. Hence, this petition.