DAULAT MAROTI BELSARE Vs. RAJARAM KISAN KALE

JUDGEMENT

(1.) THIS petition arises out of a proceeding under section 39 -A of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereafter referred to as the Tenancy Act, initially started by one Dhrupadabai, who was the owner of survey number 30/1, area 13 acres, 34 gunthas of mouza Gavhan, tahsil Khamgaon, district Buldana. The petitioner Daulat is Dhrupadabai's sister's son. Dhrupadabai's husband was Kisan, who died on 19 -9 -61 and Dhrupadabai died on 12 -9 -1963 after an order rejecting her application was passed by the Tahsildar. On 5 -3 -1963 she had filed an application under section 39 -A of the Tenancy Act alleging that she had served the necessary notice on respondent Rajaram on 12 -2 -1963 terminating his tenancy in exercise of her right under section 39A of the Tenancy Act. Sue alleged that agriculture was her only source of income. The respondent contested the application and the claim of Dhrupadabai was rejected by the Naib -Tahsildar on 13 -7 -1963. Dhrupadabai did not file any appeal against this order, and according to the respondent, the present petitioner filed a revision application before the Deputy Collector under section 110 of the Tenancy Act on 6 -7 -1964. The Deputy Collector took the view that the order passed by the Naib -Tahsildar ignored the decision of this Court in Sarjabai v. Hona Nina, 1961 N L J 615 in which it was held that the husband's income could not be taken into consideration in an application filed by the wife for resumption of the land of which she was a tenure -holder. The Special Deputy Collector, therefore, set aside the order of the Naib Tahasildar and remanded the case for a decision on merits. After remand, the Naib -Tahasildar found that the petitioner was the legal heir of Dhrupadabai, that the notice under section 39 -A was valid and that the petitioner was in possession of less than one -third of the family holding. In view of these findings the application initially filed by Dhrupadabai was allowed. It may be stated that when initially the application was considered by the Naib -Tahsildar, Dhrupadabai's evidence was already recorded.

(2.) THE respondent filed an appeal against this order and it was contended before the appellate authority that the petitioner was not the legal representative of Dhiupadabai, but that contention was rejected. The Sub -Divisional Officer found that Dhrupadabai had got the disputed land from her father and that the land had not come to her from her husband's side. On a consideration of the evidence of Dhrupadabai the Sub -Divisional Officer found that the respondent -tenant could not prove either by oral or documentary proof that Dhrupadabai acquired any land of her husband and a finding was given on a consideration of evidence that the disputed land was the only land owned by Dhrupadabai. It appears that it was contended before the Sub -Divisional Officer that 3 fields admeasuring 7 acres, 33 gunthas which were owned by Dhrupadabai's husband Kisan must be taken to have been inherited by her from her husband, but the statement of Dhrupadabai that the land held by her husband was cultivated by him as a tenant and that she had relinquished the land in favour of the owner of the fields was accepted. The appeal, therefore, came to be rejected.

(3.) THE learned counsel appearing on behalf of the petitioner contends that the Tribunal was not justified in rejecting the application initially made by Dhrupadabai on the ground that subsequently her holding has increased to one in excess of one -third of the family holding. According to the learned counsel, the crucial date for determining the holding for the purposes of an application under section 39 -A of the Tenancy Act is 15th Day of February 1961 and that it is with reference to this date that it mast be determined whether the landholder was entitled to apply under section 39 -A of the Tenancy Act. In other words, the contention is that once the landholder is shown to have held before 15 -2 -1961 as tenure -holder land not exceeding one -third of a family holding and it is further shown that the landholder earns his livelihood principally by agriculture or by agricultural labour, the application filed must be decided in favour of the landholder. In order to decide this contention it is necessary to refer to the relevant provisions of section 39 -A. The provisions material for the decision of this case are as follows :