SHRIKANT VASANTRAO DESHPANDE Vs. AHMADKHAN MANDARKHAN

JUDGEMENT

(1.) Both these petitions are filed against a common order passed by the Maharashtra Revenue Tribunal rejecting two revision applications filed by the petitioners. Fields survey number 2, area 12 acres, '22 gunthas of Dattapur, survey number 129, area 5 acres, 12 gunthas, survey number 130, area 9 acres 18 gunthas, and field survey number 130/1, area 3 acres, of Kolwad, taluq Chikhali, originally belonged to one Devidas. Devidas died sometime in 1959 leaving behind him his son Dattatraya, members of his family and the members of the family of his another son Vasant, who had pre -deceased him. Petitioner No. 1 is the grandson of Devidas and petitioner No. 2 is the mother of petitioner No. 1 and respondent No. 2 Dattatraya is the uncle of petitioner No. 1. After the death of Devidas, these fields came to be recorded in the names of the petitioners and respondent No. 2 and the Record -of -Rights showed that Dattatraya was the manager of the joint family left behind by Devidas. Dattatraya, Shrikant and Shalinibai, who will hereafter be referred to as the landholders, started proceedings for possession of these fields under Section 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereafter referred to as the Tenancy Act, on the ground that they bona fide required these fields for their personal cultivation. Field survey number 2 of Dattapur was being cultivated by Ahmadkhan son of Mandarkhan, respondent No. l in Special Civil Application No. 155 of 1968. Fields survey numbers 129 and 180 of Kolwad were being cultivated by Pandurang Ganpat, respondent No. 1 in Special Civil Application No. 156 of 1968. Field Survey number 130/1 of Kolwad was cultivated by one Mehtabkhan. The proceeding under Section 88 of the Tenancy Act against Ahmadkhan was registered as Revenue Case No. 87/59 (8) of 1960 -6], proceeding against Pandurang was registered as Revenue Case No. 90/59(8) of 1960 -61 and the proceeding against Mehtabkhan was registered as Revenue Case No. 93/59 (8) of 1960 -61. All these cases were disposed of by a common order passed by the Tenancy Naib -Tahsildar, Chikhali. The main evidence which was given on behalf of the landholders was that of one Waman Jankirao, who held a power of attorney from Shalinibai, who was also the guardian of minor landholder Shrikant. Waman was a close relative of landholders and resided in a nearby village. He had deposed that Dattatraya Devidas docs not do any work and had no occupation. They were all joint and that there were 10 members in the family of Shalinibai. On evidence it was found that Shalinibai was serving as a teacher who earned Rs. 110 per month as salary, inclusive of dearness allowance. It was also found that Dattatraya's wife was also serving as a Gram -Sewika and was earning Rs. 90 per month. Waman had deposed to the principal income from the fields in possession of the tenants at Rs. 2,000 to Rs. 3,000. This figure was not accepted by the tenants Ahmadkhan and Pandurang. According to them, the total income of the fields in their possession was about Rs. 700. It appears that after the evidence on behalf of the parties was recorded, a crop -statement was filed on behalf of tenant Pandurang in respect of one other survey number 216 having an area of 10 acres, 10 gunthas of Deulghat. This crop -statement showed that one Bapu Dewaji was cultivating this field in the year 1960 -61 on Batai. The purpose of filing this crop -statement was to show that the landholders own another field which was leased out to tenant Bapu Dewaji and that as the contesting tenants, Ahmad -khan and Pandurang, were tenants much earlier in point of time the claim against them should be rejected because the landholders had failed to terminate the tenancy of the tenant of the shortest duration.

(2.) THE Naib -Tahsildar who disposed of all the three cases found that no order for possession could be made in respect of field in possession of Mehtabkhan, because a division of that field would result in contravention of the law relating to fragmentation and consolidation of holding. On merits so far as the contesting respondents in the present petitions are concerned, the Naib -Tahsildar found that the principal source of maintenance of the joint Hindu family, who owned these fields, was agriculture and that the income of the wife of Dattatraya could not, be taken into consideration. It appears, before the Naib -Tahsildar the fact of service of notice under Section 38 of the Tenancy Act was challenged. The Naib -Tahsildar found that the notices were refused by the tenants, that the application was maintainable and that the landholders were entitled to resume half the land from the possession of the two contesting tenants, Ahmadkhan and Pandurang. He negatived the contention of the tenants that Bapu Dewaji being a tenant of shorter duration his lease should have been terminated and the Naib -Tahsildar held that Bapu could be a partner in cultivation, and therefore, could not be said to be a tenant of the shortest duration. The result of the order of the Naib -Tahsildar was that in respect of each of the three fields Nos. 2, 129 and 130 the landholders were held entitled to half the area. Thus out of field survey number 2, the landholders were entitled to 6 acres, 11 gunthas, out of survey number 129 they were entitled to 2 acres, 26 gunthas and out of survey number 130 the landholders were held entitled to 4 acres, 26 gunthas of land.

(3.) THE landholders then filed four revision applications against the orders passed by the Deputy Collector before the Maharashtra Revenue Tribunal. Four revision applications probably were filed because there were four appeals, which were disposed of by the Special Deputy Collector. The Tribunal found that the view taken by the appellate authority that the condition in Section 38(3)(c) was not satisfied was correct. The Tribunal further found that in view of the fact that the income of the family from non -agricultural sources was Rs. 2,400 per year and the total holding of the landholder exceeded one family holding, they did not satisfy the requirements of Section 38(3)(c), because the income from the non -agricultural sources would be more than half of the income, which, according to the landholders, would be about Rs. 1,500. The revision applications were, therefore, rejected. The petitioners have now filed these petitions challenging the orders of the Maharashtra Revenue Tribunal and the Special Deputy Collector.