VISHNU SADASHIV DESHPANDE Vs. RANGNATH KRISHNA SALUNKHE

JUDGEMENT

(1.) WHAT is the material date for comparing the holdings of the landlord and tenant in a proceeding under section 33-B (5) (b) of the Bombay Tenancy and Agricultural Lands Act, 1948 ? (hereinafter referred to as the Tenancy Act) is a short but important question involved in this writ petition.

(2.) IT arises as follows: The petitioner is the landlord of land bearing Survey No. 420/4 admeasuring 3 Acres 38 Gunthas of Village Rethare-Harnax, Taluka Walwa, District Sangli. The petitioner also owned other lands, Survey Nos. 300 and 374/1 of Village Rethare, which were held by the other tenants. The petitioner applied for and obtained exemption certificate under section 88-C of the Tenancy Act on 10-10-1968 from Tenancy Aval Karkun in respect of these three lands separately. The petitioner then issued notice terminating the tenancy of the respondent, herein, on 7-11-1968 which was duly received by the tenant-respondent. Thereafter, on 29-11-1968, he filed application under section 33-B (5) (b) read with section 29 of the Tenancy Act for possession of the land. It appears that the order granting exemption certificate under section 88-C was challenged by the tenant before the appellate authority and also the Maharashtra Revenue Tribunal at Kolhapur and also in the High Court and all these proceedings were decided in favour of the petitioner-landlord; High Court ultimately dismissing the writ petition on 3rd April 1974. It also appears from the judgment of the Tenancy Courts that, meanwhile, the papers of the case filed by the petitioner for possession were not traceable and, therefore, the record was directed to be reconstructed. Thereafter, evidence was recorded.

(3.) APPEAL was preferred against this decision before the Leave Reserve Deputy Collector, Sangli, being Appeal No. 198 of 1980. The appellate authority disagreed with the Tenancy Aval Karkun in regard to the date on which the holding of the landlord and tenant is to be taken into consideration and held that the respective holding on the date of the order which is passed on 28-4-1980 by the Tenancy Aval Karkun is to be taken into consideration and on that day the petitioner was in possession of 3 Acres 34 Gunthas of land. Thus, in case possession of 4 Gunthas land out of the suit land was to be given it would create a fragment which was prohibited. That is how, the Leave Reserve Deputy Collector set aside the order of Tenancy Aval Karkun by allowing the appeal by his judgment and order dated 8th September 1981.