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1985 DIGILAW 123 (GUJ)

DHOLIBEN VALABHAI v. MANSUKHBHAI BHAICHAND

1985-07-02

A.S.QURESHI

body1985
A. S. QURESHI, J. ( 1 ) IN thess two petitions a common question is involved and hence they are heard together and disposed of by this common judgment at the request of the learned counsel for the parties. ( 2 ) THE petitioners in both these petitions claim to be the tenants of suit Survey Nos. 263 262 and 264 admeasuring 2 Acres and 22 Gunthas 5 Acres and 16 Gunthas and 1 Acre and 24 Gunthas respectively in all aggregating 9 Acres and 12 Gunthas situated in village Khambhada Taluka-Dhandhuka District-Ahmedabad. All the three Survey Nos. had been under cultivation of one Arjanbhai the ancestor of the present petitioners. The land had been under his cultivation for a long time. After his death the said land appears to be under the joint cultivation of the two sons of Arjanbhai viz. Gopalbhai and Valabhai. In the ordinary course the said tenants would have become deemed purchasers on the tillers day. But prior to that date the landlord had filed application under sec. 29 of the Bombay Tenancy and Agricultural Lands Act 1948 (hereafter-Tenancy Act) for possession on the ground that the landlord needed it for personal cultivation. These proceedings under sec. 29 of the Tenancy Act prolonged till they terminated by the order dated 18/11/1969 passed by this court confirming the decision of the Gujarat Revenue Tribunal (hereafter-Tribunal) dismissing the revision application of the landlord in one matter and allowing the tenants appeal in the other. The said proceedings under sec. 29 of the Tenancy Act had the result of postponing the deemed purchase till the final rejection of the landlords application for possession. The main contention in the present two petitions is what is the date when the decision can be said to have become final on the landlords application for possession ? ( 3 ) MRS. K. A. Mehta the learned counsel for the petitioners in both the petitions has submitted that under proviso to sec. 32 (1) clause (b) sub-clause (iii) of the Tenancy Act the final order of rejection could be the order dated 18/11/1969 passed by this courts whereby the decision of the Tribunal was confirmed. Mr. ( 3 ) MRS. K. A. Mehta the learned counsel for the petitioners in both the petitions has submitted that under proviso to sec. 32 (1) clause (b) sub-clause (iii) of the Tenancy Act the final order of rejection could be the order dated 18/11/1969 passed by this courts whereby the decision of the Tribunal was confirmed. Mr. P. V. Nanavati the learned counsel for the respondents in both the petitions has urged that on a true construction of the aforesaid proviso the final order of rejection was the order of the Tribunal passed on 15/01/1963. The date on which the final order of rejection can be said to have been passed is of utmost importance in these two cases because it seems that the two branches one belonging to Valabhai and the other belonging to Gopalbhai are said to have undergone a division and hence whether each branch had a holding in excess of the ceiling would be materially affected. It is argued that it the decision of the Tribunal in January 1963 is held to be final then the holdings of the petitioners may exceed the ceiling limit. But if the final order of rejection is regarded as November 1969 when this court upheld the decision of the Tribunal then the petitioners may not be affected adversely by the ceiling limits. ( 4 ) AS regards the decision of the Tribunal to remand the matter back for the purpose of deciding certain questions regarding acquisition of other lands and the dates on which the parties are said to have separated from one another there is no dispute between the parties that the remand order to that extent is valid and those questions may be decided by the Mamlatdar on the evidence which the parties may adduce before him. Hence the only question before this court in these two petitions is whether the decision of the Tribunal in January 1963 should be regarded as final order of rejection or whether the decision of this court in November 1969 should be regarded as the final order of rejection. Hence the only question before this court in these two petitions is whether the decision of the Tribunal in January 1963 should be regarded as final order of rejection or whether the decision of this court in November 1969 should be regarded as the final order of rejection. ( 5 ) IT is quite obvious that an order can be said to be final only when that order is not challenged any further by the party who is entitled to challenge it or when the decision is given by the last court and there is no possibility of taking it any further. A matter may become final at any stage either before the first forum or any other intermediate forum if the concerned party chooses not to challenge it in the superior court. If the challenge continues right upto the last court then the decision of the last court can be regarded as final order. The contention of Mr. Nanavati that under the aforesaid proviso the judgment and order of the Tribunal should be regarded as final is not tenable and therefore it must be rejected. While it is true that the said proviso refers to the three forums viz. Mamlatdar Collector and the Gujarat Revenue Tribunal specifically and does not make any reference to any other court above these three forums. But that does not mean that the decision of the Tribunal is the final order. That is so because the order of the Tribunal is subject to supervisory jurisdiction of this court under Article 227 of the Constitution of India. The decision of this court is also not final decision if it is challenged in the Supreme Court by Special Leave under Article 136 or any other appropriate provision of law. If this court has power to scrutinise the decisions of the Tribunal under Article 227 of the Constitution of India the decisions of the Tribunal cannot be regarded as final. Any decision which is subject to scrutiny by a higher court can never be regarded as final. It is also true that the jurisdiction of this court under Article 227 of the Constitution of India is a very limited one. But even within that limited jurisdiction in an appropriate case this court may set aside the decision of the Tribunal. Similarly the decision of this court may be set aside by the Supreme Court. It is also true that the jurisdiction of this court under Article 227 of the Constitution of India is a very limited one. But even within that limited jurisdiction in an appropriate case this court may set aside the decision of the Tribunal. Similarly the decision of this court may be set aside by the Supreme Court. Hence the decision of the Tribunal can only be regarded as an intermediate decision subject to scrutiny by this court and further scrutiny by the Supreme Court. ( 6 ) MRS. Mehta has relied on the decision in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat A. I. R. 1970 S. C. 1 wherein Supreme Court has held that the decision of the lower court merges in the decision of the High Court in exercise of the High Courts appellate or revisional jurisdiction. Relying on this decision Mrs. Mehta has urged that in these two petitions the decision of the Tribunal must be held to have merged into the decision of this court when it upheld the decision of the Tribunal. Mr. Nanavati has on the other hand urged that the decision of the lower court does not always merge in the order of the superior court. For this proposition Mr. Nanavati has relied on the decision in State of Madras v. Madurai Mills Co. Ltd. A. I. R. 1967 S. C. 681. This was a case where a decision of the Sales Tax Officer was challenged before the Appellate Commissioner. The facts of this case are entirely different and can have no application to the facts of the present two petitions The general principle that the judgment and order of the subordinate court merges into the judgment and order of the superior court in appeal as well as in revision is of a much wider application. ( 7 ) HENCE the impugned order of the Tribunal holding that the earlier decision of January 1963 should be considered as final order of rejection and not the decision of this court given in November 1959 is obviously erroneous and deserves to be set aside. The Tribunal has put unduly narrow interpretation on the words final order of rejection occurring in the aforesaid proviso to the Tenancy Act. The Tribunal has put unduly narrow interpretation on the words final order of rejection occurring in the aforesaid proviso to the Tenancy Act. On the correct interpretation of those words the final order in this particular case would be the decision of this court given on 18/11/1969 as the matter was not taken further and it was allowed to end here. 8 Both the petitions are partly allowed. The impugned judgment and order of the Tribunal regarding the final order is quashed and set aside. The order of remand is confirmed. Both these matters will be remanded back to the Mamlatdar to decide under the ceiling law the questions regarding when the lands other than the suit lands were acquired by the petitioners or their ancestors whether there is any partition and if yes when did the partition take place whether the petitioners or any one of them was holding land in excess of the ceiling. All these questions will have to be decided by the Mamlatdar on the evidence which the parties may choose to lead before him. Considering that this litigation has been going on for several decades it is hoped that it will be given due priority and will be disposed of as expeditiously as possible. Both the petitions are partly allowed. Rule made absolute to the aforesaid extent. In the circumstances of the case there shall be no order as to costs. (KMV) petitions partly allowed. .