RANGARAO SHANKARRAO Vs. PANDHARINATH EKNATH

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India is directed against the judgment of the Maharashtra Revenue Tribunal in Appeal No. 5/a/84-Parbhani, decided On 17. 12. 1986.

(2.) THE brief facts which require consideration are as follows. The petitioner [original plaintiff] and respondent no. 2 [original defendant] are real brothers. Resppndent no. 1 is a purchaser from the respondent no. 2 of survey no. 82, to the extent of 6 Acres and 15 Gunthas, which is 1/2 of the total area of the said survey number. The said land is of the share of the respondent no. 2-original defendant no. 2, namely the brother of the petitioner/plaintiff. The respondent no. 1/original defendant no. 1 has purchased it from the respondent no. 2/original defendant no. 2 on 22. 9. 1953. After the said purchase, the petitioner/plaintiff has filed a civil suit no. 36/1/1955, which was subsequently re-numbered as 36/1958. The plaintiff filed the said suit to claim a right of pre-emption being the co owner of the survey no. 82 i. e. Jabte Shikmidaran [means law applicable to the share-holders and in that capacity one of the rights claimed is the pre-emption. ] In the said suit, the issue was framed by the Civil Court "whether the area of the land held by the plaintiff after the alienation or transfer of the suit land [i. e. half share of survey no. 82/1, situated at Shakara area 6 Acres and 15 Gunhas assessed at Rs. 16. 4] would exceed three times the family holding after excluding the area of the land held by the plaintiff, which is in the possession of the protected tenant in respect of which the plaintiff relinquishes the right of resumption for his personal cultivation under section 44 of the Tenancy Act. " The said issue was referred to the revenue authorities in view of the provisions of Section 99-A of the Hyderabad Tenancy and agricultural Lands Act, 1950. It is submitted at the bar that the issue referred to above has been framed because of the provisions of Section 47 of the Hyderabad tenancy and Agricultural Lands Act. The said provision has undergone change by the Amending Act 45 of 1965. The change is to be noted from the issue framed and the amended provisions. As per issues the holding of the purchaser after the alienation or a transfer should not exceed three times the family holding and while calculating three times the family holding, the area in the possession of the protected tenants in respect of which the transferee has relinquished rights of presumption of the said land for personal cultivation should be excluded. That means the holding of the person shall not exceed the three times the family holding after deducting the lands in the possession of the protected tenants and after having given up the right of resumption. In short, a sort of limit has been put on the right of a purchaser i. e. after the purchase the holding of the purchaser shall not exceed the limit shown in Section 47 of the Hyderabad Tenancy and Agricultural Lands act. In 1965 this section was amended and instead of the family holding the provisions were linked up with the provisions of the Ceiling Act and it is stated that the holding shall not exceed 2/3rd of the ceiling area declared in the Maharashtra agricultural Lands (Ceiling on Holdings) Act, 1961. It is further interesting to note that the words 2/3rds have also undergone a change after the amendment of 1975, Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1975 and presently the provision says that the purchaser's holding shall not exceed more than the ceiling area. On the basis of the factual acreage prior to 1965 family holding was a criteria and three times the family holding was the limit. As disclosed to this Court by the Lawyers, the family holding was 24 Acres dry crop land and, therefore, 72 acres of the dry crop land is the limit upto which the purchaser can purchase. In the Maharashtra Agricultural Lands (Ceiling on Holding) Act, 1961, the ceiling provided is 108 Acres dry crop land and, therefore, 2/3rd of the said area comes to 75 Acres and, therefore, from 1965 to 1975 the limit was 2/3rds of the ceiling area. In the Amending Act of 1975, whereby the ceiling area was further lowered down and brought to 54 Acres of dry crop land and, therefore, Section 47 was amended and it Said that the purchaser can purchase upto the ceiling area i. e. upto 54 Acres. I have analysed these amended provisions for the purpose that the common theme in section 47 and in all the amendments is that the purchaser's holding shall not exceed the particular limit provided under the Act. A sort of limitation on holding has been provided on the right of the purchaser and, therefore, an issue, which is required to be considered as stated above, was linked up with the family holding specifically and that has to be marked.

(3.) INITIALLY the matter was decided by the Deputy Collector (Land Reforms)by judgment dated 20. 12. 1983, who came to the conclusion that the holding of the present petitioner/plaintiff is 3 Acres and 8 Gunthas and, therefore, does not exceed as per the limit shown in Section 47. The said order was challenged by the respondent before the Maharashtra Revenue Tribunal and it was held by the Revenue tribunal that the holding of the petitioner exceeds three times of the family holding and answered the issue against the present petitioner. Therefore, the present writ petition.