RASHIDKHAN Vs. MALTIBAI

JUDGEMENT

(1.) The basic facts involved in these two petitions are common and, therefore, they are being disposed of by one judgment.

(2.) The respondent, Smt. Maltibai became an exclusive owner in respect of field Survey No. 24/1 measuring 6 acres 35 gunthas and 25/1 measuring 4 acres and 36 gunthas both of village Akot in District Akola by virtue of a sale deed dated 4-12-1947. Petitioner Gulab son of Puran in Special Civil Application No. 386 of 1974 is concerned with those fields. On 1-4-1957 the respondent created a tenancy in respect of these two fields in favour of one Shri Puran, the father of the petitioner Gulab. On 28-12-1958 notice was given by the respondent terminating the tenancy on the ground of bona fide personal cultivation. This was followed by an application dated 30-9-1959 under Section 36 (2) read with Section 39 of the Bombay Tenancy and Agricultural Lands (Vidar-bha Region) Act, 1958 (hereinafter referred to as "the Act" filed before the Tah-sildar, Akot, for possession. This was revenue case No. 173-59(10F)/60 61 decided on 9-3-1962. The order was in favour of the respondent holding that the need was established. Inasmuch as on the date of the application this was the only land with the respondent possession in respect of l/3rd of a family holding that is 8 acres was granted in terms of Section 38 (4) (a) (i) of the Act. It may be mentioned that total area of the two fields comes to 11 acres 31 gunthas.

(3.) Inasmuch as few events have occurred between the date of the filing of the application arid the order dated 9-4-1962, their reference at this very stage will be necessary. These events are that father of the respondent Shri Dattatrava died on 29-12-1960, leaving he-hind him as his legal heirs his widow and two married daughters; out of them Maltibai being one. Thus, legal heirs of Dattatraya succeeded to the estate of Dattatraya and the estate included agricultural fields. On 6-2-1961 these 3 legal heirs effected a partition and in that partition some agricultural fields were allotted to the share of the respondent and one such property is field Survey No. 242 measuring 6 acres and 7 gunthas of Mouza Sarfabad, taluq Akot. The petitioner Rashidkhan son of Usmankhan in Special Civil Application No. 332 of 1974 is concerned with that property. The respondent gave a notice on 10-2-1961, terminating the tenancy of this land on the ground of bona fide personal cultivation and proceedings for possession against the said Rashidkhan who was a tenant on the field were initiated before the Tahsildar, Akot on 22-3-1981. This is Revenue Case No. 158/59 (1) of 60-61. The case filed against tenant Gulab, after receiving some jolts in remand, reached the Maharashtra Revenue Tribunal which vide order dated 15-10-1965 came to the conclusion that the position of the landlord as on the date of the filing of the application should be considered without any reference to the lands acquired subsequently and, therefore, ordered delivery of possession of 8 acres an area equivalent to l/3rd of the family holding which was more than half of the total area of the two fields which came to 11 acres 31 gunthas. Aggrieved by the order passed by the Maharashtra Revenue Tribunal, petitioner Gulab moved the High Court under Article 227 of the Constitution of India by filing Special Civil Application No. 150 of 1966- By judgment dated 143-1968 the petition came to be allowed and the matter was remanded back holding that position as regards the acreage of the land as emerged not on the date of the application but on the date of the order should be considered. The High Court observed as under in the remand order of the revision:-- "Hence the additional land which the respondent No. 4 got on partition had to be taken into consideration for granting the relief on the view taken by the Division Bench of this Court. Thus, on the date of the order the respondent No. 4 having more than a family holding, she was not entitled to any relief under Section 39 (1) of the Tenancy Act. However, the respondent No. 4 will he entitled to have her application considered under Section 38 of the Tenancy Act, though she would not be entitled to a relief under Section 39. This aspect of the matter has not been considered by the Revenue Tribunal on the view it has taken. It appears to me that the view taken by the Special Deputy Collector remanding the matter for enquiring into the application as one under Section 38 (2) read with Section 38 of the Tenancy Act is correct. Accordingly, the order of the Revenue Tribunal is set aside and the order of the Special Deputy Collector is restored. The petition thus succeeds to the extent indicated and is allowed." After the remand order from the High Court, the matter went back to the Tahsildar and to the Sub-Divisional Officer in appeal who was again pleased to remand the matter to the Tahsildar.