HABIB GULAM RASUL v. PUNJABHAI BHAGWANBHAI — 1988 DIGILAW 2 (GUJ)

D. H. SHUKLA, J. ( 1 ) THE petitioner Habib Gulam Rasul of village Limodra taluka Jhagadia district Broach was a tenant of a parcel of land bearing Survey No. 32 of village Kunverpara taluka Jhagadia district Broach. In the year 1963 one Punjabhai Bhagwanbhai since deceased and now represented by Minor Vardhabhai Punjabhai through his guardian Mathurbhai Purshottam respondent No. 1 herein having been the owner of aforesaid parcel of land bearing Survey No. 32 (hereinafter referred to as the concerned land) obtained possession of the concerned land under Sec. 32t of the Bombay Tenancy and Agricultural Lands Act 1948 hereinafter referred to as the Tenancy Act on the ground that he required the land for personal cultivation. The concerned land was thus so recovered by Punjabhai Bhagwanbhai on 31-7-1963 by Order No. 480/kunverpara dated 31-7-1963 of the ALT Jhagadia from the present petitioner who had become a deemed purchaser of the concerned land on 1-4-1957. ( 2 ) AFTER having obtained the possession of concerned land said Punjabhai Bhagwanbhai evecuted a Registered sale deed of the concerned land on 15-5-1969 in favour of respondents No. 2 and 3 herein. The concerned land was transferred by the aforesaid sale deed along with other parcels of land. To put it in other words Survey No. 32 was one of the survey numbers which was sold by Punjabhai Bhagwanbhai to respondents Nos. 2 and 3 by the aforesaid sale-deed dated 15-5-1969. ( 3 ) THE petitioner filed an application under Sec. 37 of the Tenancy Act for obtaining possession of the concerned land on the ground that the landlord i. e. to say respondent No. 1 had ceased to cultivate the personal land and that he had committed a breach of Sec. 37 (1) of the Tenancy Act. It was his case that the concerned land was cultivated by respondents Nos. 2 and 3 and not by respondent No. 1. ( 4 ) THE Mamlatdar and ALT by his order dated 10-7-1975 a copy of which is on record at Annexure A held on the basis of the evidence before him that the petitioner had failed to prove that the land was not personally cultivated by respondent No. 1 and that it was cultivated by respondents No. 2 and 3. ( 4 ) THE Mamlatdar and ALT by his order dated 10-7-1975 a copy of which is on record at Annexure A held on the basis of the evidence before him that the petitioner had failed to prove that the land was not personally cultivated by respondent No. 1 and that it was cultivated by respondents No. 2 and 3. He therefore came to the conclusion that there was no breach of Sec. 37 (1) of the Tenancy Act as alleged by the petitioner. He also reached a conclusion that Survey No. 32 was included in the sale-deed dated 15-5-1969 under a mistake and that the parties should proceed for the rectification of that mistake according to law. Having so observed he dismissed the application of the petitioner and rejected the petitioners claim for restoration of the possession of the concerned land. ( 5 ) AFTER the order of the Mamlatdar and ALT was passed on 10 the respondent No. 1 Punjabhai Bhagwanbhai on the one hand and Thakorebhai Jethabhai and Bhikhabhai Jethabhai respondents Nos. 2 and 3 respectively on the other hand entered into a registered rectification document wherein the rival parties have admitted a mistake about incorporation of Survey No. 32 in the original sale-deed dated 15 It is specifically stated in the rectification document that the Survey numbers which are transferred by respondent No. 1 to respondent No. 3 are Survey Nos. 25 and 38 and that Survey No. 32 was not transferred nor was it intended to be transferred although by a common mistake that number had been included in the original sale-deed dated 15-5-1969. It appears that this rectification document was entered into by and between respondent No. 1 on the one hand and respondents No. 2 and 3 on the other in pursuance of the directions given by the Mamlatdar and ALT in his order dated 10-7-1975. The petitioner having been dissatisfied and aggrieved by the aforesaid order of the Mamlatdar and ALT filed an appeal bearing tenancy Appeal No. 82 of 1975 before the Deputy Collector Rajpipla. The Deputy Collector by his order dated 29-3-1976 allowed the appeal set aside the order of the Mamlatdar and ALT and declared the transfer in favour of respondents Nos. 2 and 3 as invalid and directed that the petitioner shall be restored possession of the concerned land. The Deputy Collector by his order dated 29-3-1976 allowed the appeal set aside the order of the Mamlatdar and ALT and declared the transfer in favour of respondents Nos. 2 and 3 as invalid and directed that the petitioner shall be restored possession of the concerned land. A copy of the appellate order is to he found at Annexure `b. It is necessary to note that the rectification document was produced by Advocate Mr. Gandhi. The Deputy Collector the appellate authority took the view that ALT did not have the jurisdiction to give the direction about getting the original sale deed rectified. He further observed that whether the document of sale was erroneous or fraudulent was to be decided by the Civil Court and therefore he did not countenance the registered rectification document. Further the Deputy Collector took into account the mutation entries which were made in the record of rights pursuant to the sale deed and came to the conclusion that the respondents failed to discharge the onus of displacing the presumption which arose on account of the mutation entries. He was of the view that the presumption which was raised in favour of the petitioner by the record of rights should have been duly appreciated by the Mamlatdar and ALT and he should have drawn adverse inference of non-production of any receipt etc. by respondent No. 1 to support his case. It seems that relying on the presumptive value of the mutation entries in the record of rights he held in favour of the petitioner notwithstanding the oral evidence which was produced by Respondent No. 1 to prove that he was cultivating the concerned land all along subsequent to the sale-deed. ( 6 ) HAVING been dissatisfied and aggrieved by the aforesaid appellate order dated 29-3-1976 the Respondent No. 1 Punjabhai Bhagwanbhai preferred a Revision Application bearing No. Tenancy B. A. 391 of 1976 before Shri Y. S. Shinde Member Gujarat Revenue Tribunal. The Revenue Tribunal by its order dated 14-2-1977 a copy of which is at Annexure C allowed the Revision Application and set aside the order passed by the Deputy Collector Rajpipla on 29-3-1976 and restored the order passed by the Mamlatdar and ALT on 14-7-1975. ( 7 ) THE Tribunal noted certain undisputed proposition. (i) There is no controversy raised regarding tenancy of the petitioner of Survey No. 32. ( 7 ) THE Tribunal noted certain undisputed proposition. (i) There is no controversy raised regarding tenancy of the petitioner of Survey No. 32. (ii) That the possession of the said land was obtained in 1963 by the landlord respondent No. 1. under Sec. 32t of the Tenancy Act for personal cultivation. (iii) That the document of sale in respect of the concerned land was executed by the respondent No. 1 in favour of respondents No. 2 and 3 on 15-5-1969. ( 8 ) THE Tribunal took the view that the real controversy which was to be decided by the Tenancy Court was as to whether the landlord who had obtained possession of the concerned land under Sec. 32 had ceased to cultivate personally and whether he had thereby committed breach of Sec. 37 of the Act. In his opinion it was for petitioner to establish that respondent No. 1 had ceased to cultivate the land personally. In the opinion of the Tribunal the petitioner had utterly failed to prove that fact. The Tribunal agreed with the view taken by the Mamlatdar and ALT that the petitioner had failed to prove that respondent No. 1 had failed to cultivate the concerned land personally. It appears that petitioner had absolutely no evidence to discharge the initial burden of the proof of the relevant fact. On the other hand respondent No. 1 examined himself and Natvarlal Shankarlal Zaverbhai Bijalbhai Natvarlal Jivabhai and Thakorbhai Jethabhai to prove that respondent No. 1 continued to cultivate personally the concerned land even subsequent to the same sale-deed. This evidence of the witnesses for respondent No. 1 could not be shaken even in the cross-examination. The view of the Tribunal was therefore that even if there was a presumption arising on account of the mutation entries about the transfer of the possession of the concerned land in favour of respondents Nos. 2 and 3 respondent No. 1 had led enough evidence to rebut the presumption ( 9 ) EVEN so far as the mutation entries are concerned the Tribunal found that the entry about the transfer of Survey No. 32 i. e. the concerned land was not certified after issuing the notice as required under Sec 135 of the Bombay Land Revenue Code. Therefore no presumption could in fact arise but even if for an argument it is presumed that the mutation entry had a presumption value that presumptive value was met with by the oral evidence led by respondent No. 1. In the opinion of Tribunal the appellate authority failed to consider the evidence on record and erred in deciding the question merely on the consideration of mutation entry. ( 10 ) UNDER the aforesaid circumstances the petitioner-Original opponent has preferred this Special Civil Application under Art. 227 of the Constitution of India. ( 11 ) AT the outset I must take a note of the observations found in the case of Mohd. Yunus v. Mohd. Mustaqim and Others AIR 1984 SC 38 in regard to the limitations for the exercise of jurisdiction under Art. 227 of the Constitution. The Supreme Court observed therein as under:. . "the supervisory jurisdiction conferred on the High Courts under Art. 227 of the Constitution is limited to seeing that an interior Court or Tribunal functions within the limits of its authority and not to correct an error apparent on the face of the record much less an error of law. In exercising the supervisory power under Art. 227 the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision. "i have proceeded to consider the rival submissions made before me having been fully conscious of the limitations in the exercise of jurisdiction under Art. 227 of the Constitution of India as outlined in the above decision by the Supreme Court. ( 12 ) MR. R. M. Vin the learned Advocate for the Petitioner submitted before me that the term personal cultivation of the land is defined under Sec. 2 (6) of the Tenancy Act. He emphasised that in order to show that the land was personally cultivated by respondent No 1 it was necessary that the land was cultivated by him on his own account. Since there was a transfer of Survey No. 32 by the sale deed dated 15-5-1969 it cannot be said that respondent No. 1 was personally cultivating the land in the absence of any specific evidence to that effect. Since there was a transfer of Survey No. 32 by the sale deed dated 15-5-1969 it cannot be said that respondent No. 1 was personally cultivating the land in the absence of any specific evidence to that effect. There was a registered sale-deed dated 15-5-1969 and it must be given effect to legally speaking. In that case respondents Nos. 2 and 3 had become the owners of the concerned land and if there was any cultivation by respondent No. 1 it must be presumed to be on and for behalf of respondents Nos. 2 and 3 and not on his own account. I do not find any merit in this argument inasmuch as the Mamlatdar and ALT and the Tribunal had consistently taken the view on the evidence on record that respondent No. 1 was cultivating the concerned land personally and the Tribunal has gone to the extent of observing in his judgment: It is also not in dispute that the land was under the personal cultivation of the applicant since then. We must also take into account that there was a registered rectification document dated 14 on the record of the appellate authority. However the appellate authority brushed aside a registered document on the ground that the question of rectification ought to have been got cleared from the Civil Court. He also recognised the legal situation that in the absence of any order from the Civil Court there was no go for the ALT but to accept the said document as genuine. The submission of Mr. Vin before me was that the rectification document was a fraud. The question however is against whom was that fraud committed. Mr. Vin had to admit that if there was any fraud contained in the rectification document it was against the petitioner. In that case it was for the petitioner to have challenged the rectification document before an appropriate authority. It seems that the rectification document was not challenged on the ground of fraud even before the Appellate Authority Unless set aside by an appropriate authority or Court the rectification document which was a registered document must stand. The effect of the rectification document would be that Survey No. 32 was included in the sale-deed under a mistake of fact which was common to both the parties. The effect of the rectification document would be that Survey No. 32 was included in the sale-deed under a mistake of fact which was common to both the parties. In that case there was no transfer of survey No. 32 in favour of respondents No. 2 and 3 and that its ownership continued with respondent No. 1. The argument therefore of Mr. Vin that there could not be said to be a personal cultivation of the land by respondent No. 1 on his own account since survey No. 32 was transferred in favour of respondents No. 2 and 3 by the original sale-deed does not stand since in view of the rectification document one has to reach a conclusion that Survey No. 32 was never transferred to respondents No. 2 and 3 at all. I may also note at this stage the chronology of the matter. On 1-4-1957 the petitioner had become a deemed purchaser of the concerned land. Respondent No. 1 got the possession of the concerned land on 31-7-1963 under Sec. 32t of the Tenancy Act. The sale-deed was entered into on 15-5-1969 and the petitioner applied under Sec. 37 on 29-11-1973. The period from 31-7-1963 to 29-11-1973 is obviously a long period nearly a decade and the petitioner would not have waived to file the application for restoration of possession if in fact respondent No. 1 had not cultivated personally the concerned land during this period. ( 13 ) MR. Vins second submission was that sub-sec. (IA) of Sec. 37 of the Tenancy Act has a retrospection effect and even if it is assumed that respondent No. 1 continued to personally cultivate the concerned land if he had transferred the same to any other person during a period of 12 years since the resumption of the land by him the petitioner was entitled to apply for the possession of the concerned land. Even assuming that Mr. Vin is right that sub-sec. (IA) of Sec. 37 of the Tenancy Act has a retrospective effect (although I do not decide that question since for the reasons soon staled it is not necessary for me to decide it) the question is whether respondent No. 1 has transferred the land to any other person. Even assuming that Mr. Vin is right that sub-sec. (IA) of Sec. 37 of the Tenancy Act has a retrospective effect (although I do not decide that question since for the reasons soon staled it is not necessary for me to decide it) the question is whether respondent No. 1 has transferred the land to any other person. Since the conclusion is reached by the authority below that in view of the rectification document it could not be said that the concerned land was transferred from respondent No. 1 to respondents No. 2 and 3 by virtue of the original sale-deed there is no scope for invoking sub-sec. (IA) of Sec. 37. ( 14 ) THE question to which the controversies involved in the matter boils down is the efficacy of the rectification document which was lawfully and voluntarily entered into by respondent No. 1 on the one hand and respondents No. 2 and 3 on the other who were the original parties to the sale-deed dated 15-5-1969. It cannot be said that the rectification should have been brought about only by an appropriate declaration obtained from a Civil Court. It was open to the parties to clarify the position and they did so legally by entering into a registered sale-deed. There was no bar prohibiting them from doing so. The question then is: Is rectification document a fraud? If yes against whom. Obviously the fraud could only be against the petitioner. In that case it was for the petitioner to challenge the fraudulent character of the rectification document and he has all throughout failed to do so. It cannot be said that evidently both the parties have colluded and the transaction of entering into a rectification document is palpably fraudulent. It appears from the facts on record that respondent No. 1 had continuously cultivated personally the concerned land after resumption of its possession on 31-7-1963 and that had Survey No. 32 been really transferred to respondents No. 2 and 3 they would not have allowed him to continue in possession of the concerned land-and to cultivate personally for his own advantage. The allegation of fraud therefore loses its dent when the question is prima facie examined in the perspective of facts on record ( 15 ) IN view of the above discussion I do not find any merit in this Special Civil Application and the same is hereby dismissed. The allegation of fraud therefore loses its dent when the question is prima facie examined in the perspective of facts on record ( 15 ) IN view of the above discussion I do not find any merit in this Special Civil Application and the same is hereby dismissed. The learned Advocates for the respondents fairly conceded that there may be no order for costs. Hence no order for costs. Rule discharged. .