SONABAI Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS is a petition under Arts. 226 and 227 of the Constitution of India directed against an order passed by the Board of Revenue on llth January, 1. 958 (Annexure 8 ).

(2.) THE petitioner Sona Bai Balwate was the occupancy tenant of a field bearing khasra No. 276, -which had a garden and a bungalow upon it. The third respondent Gyarsiram made an application on 21-1-1952 under Section 40 of the c. P. Tenancy Act for a declaration that Sona Bai was habitually subletting this field and that he was thus entitled to be declared an occupancy tenant of the field. According to him, the field had been sublet for the statutory period and that he himself was the sub-tenant for the agricultural years 1949-50, 1950-51 and 1951 52. The case was sent for enquiry and report to the Naib-Tahsildar, who reported on 29-6-1953 that on the date of the application (21-1-1952) Gyarsiram was not a tenant 'but a trespasser and that he was not entitled to make an 'application under section 40 of the C. P. Tenancy Act. The papers were placed before the Sub-Divisional Officer, Harda, who held by his order dated 31-8-1953 that Gyarsiram was a tenant and was thus entitled to make the application. On appeal the Deputy Commissioner, Hoshangabad, held by his order dated 26-3-1954 that there was no proof that Gyarsiram was given the lease for the year 1951-52 and thus he was not entitled to maintain the application.

(3.) GYARSIRAM thereupon appealed to the Board of Revenue, which in view of the decisions of this Court conceded that it was a condition precedent to the making an application under S, 40 of the Tenancy Act that the applicant should be a subtenant on the date of the application. The learned President of the Board of revenue felt, in view of the contrary findings on the subject given by the Sub-Divisional Officer and the Deputy Commissioner, that it was necessary for him to give a finding once again. The learned President considered the matter and gave a finding that Gyarsiram was a subtenant on the date he had made the application. He, therefore, set aside the order of the Deputy "commissioner, Hoshangabad, and restored that of the sub-Divisional Officer. The present petition has been filed against the order of the board of Revenue after an application for review filed before it had been dismissed.