MARZBAN RUSTOMJI Vs. KHUSHALBHAI PITAMBAR

JUDGEMENT

(1.) THIS is an application made under Article 227 of the Constitution of India by the petitioner Marzban Rustomji, wherein the petitioner has prayed for the quashing of an order made by the Bombay Revenue Tribunal on February 3, 1958, by which order the Revenue Tribunal confirmed the order passed by the Prant Officer on October 21, 1957. The circumstances under which this application arises may be briefly stated:

(2.) THE petitioner -landlord let out his lands, comprising two survey numbers, being S. No. 409 admeasuring 7 acres 12 gunthas and S. No. 410/2 admeasuring 2 acres 25 gunthas, of Olpad, to opponents Nos. 1, 2 and 3 under a registered lease dated August 13, 1942. On December 20, 1956, the petitioner served opponents Nos. 1, 2 and 3 with a notice under Section 31 of the Tenancy Act, asking the opponents to quit S. No. 410/2. The ground upon which the petitioner required the opponents to hand over possession of S. No. 410/2 to him was that he (the petitioner) bona fide required possession of the said land for personal cultivation. After serving opponents Nos. 1, 2 and 3 with notice in respect of S. No. 410/2 only as stated above, the petitioner made an application in April 1957, under Section 29(2) of the Act, to the Mamlatdar for obtaining possession of the land in respect of which he had given the notice. The Extra Aval Karkun, Olpad, who heard the application of the petitioner -landlord, observed in the course of his order that the notice which was given by the petitioner -landlord to his tenants was not in respect of both the survey numbers, viz., S. No. 409 and S. No. 410/2, but that the notice related only to S. No. 410/2, admeasuring 2 acres 25 gunthas, and that, therefore, at best the possession of only half the said S. No. 410/2, i.e., possession of only half of 2 acres 25 gunthas could be awarded to the landlord, and that if that be done, there would result a fragmentation of land which would be contrary to law, and in that view of the matter the Extra Aval Karkun dismissed the application of the petitioner -landlord. From that order the petitioner -landlord went in appeal before the Prant Officer, and the Prant Officer by an order made on October 21, 1957, dismissed the appeal and confirmed the order of the Extra Aval Karknn. From that order of the Prant Officer the petitioner -landlord went before the Bombay Revenue Tribunal by way of a revisional application and the Tribunal by an order made by them on February 3, 1958, rejected the said revisional application of the landlord. It is from that order of the Revenue Tribunal that the landlord, feeling aggrieved, has approached this Court under Article 227 of the Constitution.

(3.) THE learned advocate Mr. Dalai appearing for the tenants contends that it is not known whether the notice which was given by the petitioner -landlold to the tenants referred only to S. No. 410/2 or referred only to S. No. 409 or referred to both S. No. 410/2 and S. No. 409; and, says Mr. Dalal if the notice related only to S. No. 409, then, if the possession of 8. No. 409 is to be given back by the tenants to the petitioner -landlord, less than half of the lands leased out to the tenants would thereafter remain in the possession of the tenants. Of course, Mr. Dalai would be right, if we were to act on the assumption that the notice given by the landlord to the tenants was a notice in relation to S. No. 409. Survey No. 409 admeasures 7 acres 12 gunthas and therefore if that survey number is to be handed over by the tenants to the landlord, what would thereafter remain in the possession of the tenants would be only S. No. 410/2 admeasuring 2 acres 25 gunthas, and obviously, on the very face of things, 2 acres 25 gunthas would be much less than half of 9 acres 37 gunthas. But this contention of Mr. Dalai rests entirely upon the assumption made by him that the notice given by the landlord to the tenants might be a notice in relation to S. No. 409 only and not in relation to S. No. 410/2; and for this assumption we find no justification on the record. It is true that the Bombay Revenue Tribunal has pointed out in the course of its order that the notice itself has not been produced in the lower Courts nor is a copy of it placed on the record even now. However, if we turn to the order passed by the Extra Aval Karkun, whose Court was the first Court to deal with this matter in the first instance, it would appear that in the proceedings before him a reference was made to a notice which related only to S. No. 410/2 ad' measuring 2 acres 25 gunthas. This is what the Extra Aval Karkun observed in the course of his order: The applicant has not given a notice to the opponent for the S. No. 409, admeasuring 7 acres 12 gunthas, (or handing over the possession. He has only given notice for the land of S. No. 410/2 admeasuring 2 acres 25 gunthas and hence he is not entitled for getting possession of S. No. 409 admeasuring 7 acres 12 gunthas. If we turn to the order made by the Prant Officer in this case, once again it would appear that he referred to a notice which related to S. No. 410/2. The Prant Officer says in the course of his order : In the notice under Section 31 the applicant had failed to mention S. No. 409 and therefore the lower Court had dismissed his application. It may be, as the Bombay Revenue Tribunal has observed in the course of its order that no notice was brought on the record of the case before any Court. But even so, we have got before us, in this proceeding under Article 227 of the Constitution, a finding of fact recorded by the Extra Aval Karkun and confirmed by the final fact finding authority, namely, the Prant Officer, the finding being to the effect that the notice which was given by the landlord to the tenants related only to S. No. 410/2 and that it did not relate to S. No. 409. The finding may be an erroneous finding. Nevertheless, it is a finding of fact and, therefore, in the exercise of our jurisdiction under Article 227 of the Constitution, it would not be open to us to go behind that finding and take the view, which the learned advocate Mr. Dalai is contending for, that the notice might be a notice relating to S. No. 409 only and not relating to S. No. 410/2.