APPA SHIVLING Vs. VITHAL BABA

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution of India by one Anna son of Shivling of Pusad frmerly a protected lessee of S. No. 130/1-B, situate at mouza Pusad. It arises out of a matter under the Berar Regulation of Agricultural Leases Act, hereinafter referred to as the Act. Originally the petitioner had taken a lease from the joint family consisting of Baba and his two sons Vithal and Sambha, third son Mortiram had already separated. Facts germane to the point we have to consider in brief are: On 27-12-54, a partition amongst the members of the family was reduced to writing on that date and the doucment was registered on 29-12-1954. It appears that prior to the exeuction of the deed of partition on 27-12-1954 a notice was sent by Baba on behalf of Vithal under S. 9(1) of the Act intimating to the petitioner that the land was required by Vithal for personal cultivation and therefore it was proposed to terminate the tenancy as and from 31-3-1955. To remove the lacuna that this notice was prior to the dare of the execution of the deed of partition, another notice by telegram was given on 23-12-54. The petitioner then move the Sub-Divisional Officer under S. 9(3) for a declaration that the aforesaid notices had no effect. He inter alia contended that the alleged partition was a mala fide one, it was only a cloak, Baba, Vithal an Sambha were all joint, they had more than 50 acres of land therefore they were not entitled to give notice. It was also denied that Vithal wanted the land for personal cultivation. Another contention was also raised that the notice given after the partition by telegram was not a valid notice within the meaning of sub-section (1) of S. 9. The Sub-Divisional Officer took a view that the notice dated 22-12-54 being prior to the date of partition was nt a valid notice; the notice dated 28-12-54 being a notice by telegram was not a notice within the meaning of sub-section (1) of S. 9 of the Act. In the alternative he held that the partition deed was registered on 29-12-54; and therefore it took effect as and from 2912-54, the notice by telegram being a day before the date of partition was also not valid and inthis view of the matter he allowed the application of the petitioner and gave a declaration that the notice given by the landlord vithal under S. 9(1) of the Act was of no effect. Vithal took an appeal against this decision of the Sub-Divisional Officer to the Additional Deputy Commissioner, who disposed of the appeal on altogether a different ground. He did not agree with the finding of the Sub-Divisional Officer. He held that there was a partition, notice given on 28-12-54 was a notice within the meaning of S. 9(1) and was perfectly a valid notice. He however took a view that even though the field in question had fallen to the share of Vithal he cannot be deemed to be a landholder inasmuch as his name was not recorded in the record of rights and he not having been recorde as a landholder inasmuch as this name was not recorded in the record of rights and he not having been recorded in the record of rights and he not having been recorded as a landholder was not a landholder within S. 9(1) of the Act competent to give notice. In this view of the matter an on grounds entirel;y different fro those given by the Sub-Divisional Officer he theBombay Reveue Tribunal. The learned Members of the Tribunal disposed of the second appeal again on a different ground. The Tribuna relying on its previous decison that partitionwas a transfer dismissed the appeal. Vithal then approached this Court by a petition under Articles 226 and 227 of the Constitution. The view taken by the Bombay Revenue Tribunal that partition was a transfer was not maintained in Special Civil Aplication No. 24 of 1958 decided on 24-6-58 and in view of tha decision of this Court the order of the Bombay Revenue Tribunal wasset aside an case was remanded this appeal was disposed of by the Bombay Revenue Tribunal on 26-11-1958. It held tha the partition was a genuine partition. Notice dated 28-12-54 was a valid notice within the meaning of S.9(1) of the Act and consistently with this view it allowed the appeal, set aside the orders of the revenue authorities below and dismissed the application filed by the petitioner under S.9(3) of the Act. It is against this order of the Bombay Revenue Tribunal that the Petitioner has come to this Court.

(2.) Mr. J. N. Chandurkar, learned counsel for the petitioner, in the first instance contends that the Bombay Revenue Tribunal had committed an error of law in deciding the question of genuineness or otherwise of the partition; the Tribunal was not a Court of fact; there was no finding of fact recorded on this question either by the S. D. O. or the Collector; the Tribunal should therefore hve remanded the case to the subordinate revenue authorities; If deciding this question of fact is beyond its jurisdiction, the order of the tribunal is liable to be set aside. In support of is contention he relied on a decision reported Nagayya Gurupadayya v. Chayappa Santanappa, 58 Bom Lr 144: (AIR 1956 Com 560). In our opinion, this contention has very little merit. Even assuming that the Bombay Revenue Tribunal is not a Court of fact and had no jurisdiction to decide a question of fact and the petitioner had never objected before the Tribunal it appears that elaborate arguments had been advanced on behalf of the petitioner on this question; the qrguments had been considered by the Tribunal and ultimately it had recorded its aforesaid decision. A party who takes a chance before a Court or a Tribunal cannot later on turn round and say that the finding recore is without jurisdiction. A Division Bench of this Court in Gandhinagar Motor Transport Society v. State of Bombay, 55 Bom LR 922: (AIR 1954 Bom 202) has held that before a question of jurisdiction of a Tribunal is raised on a petition under Articles 226 and 226, objection to jurisdiction must be taken before the Tribunal whose order is being challenged. The petitioner not having done so, on the other hand, having chosen to invite a decision of the Tribunal on this question it is no more open to him to say that the decision of the Tribunal on this question of fact is without jurisdiction so far as this petition is concerned. The decision of the Tribunal on this question it is no more open to him tosay that the decision of the Tibunal on this question of fact is without jurisdiction so far as this petition is concerned. The decision which is relied upon, 58 Bom. R 144: (AIR 1956 Bom 560), is distinguishable on facts. Apart fromt he fact that it deals with another enactment in that case the points of law, yet the Tribunal of its own accord recorded a finding on a question of fact on which there was no finding at all recorded by either of the recenue authorities below. That being the position, hat order was set aside by the High Court in exercise of its jurisdiction under Article 227 of the Constitution and the case was remanded. Such is not the position here.

(3.) It is next contended by Mr. Chandurkar that Vithal respondent No. 1 is only a minor; he is living with his father; the father is looking after his cultivation. In these circumsatnces it cannot be said that the landlord viz. Vithal requires the land for personal cultivation. Reference was made to certain extracts from a book on the basis of which he contends that the use of the expression 'requires' in sub-section (1) of S. 9 connotes an element of necessity or urgency.