PRATAPSINH RUPSINH v. RUPABHAI RANCHHODBHAI — 1993 DIGILAW 120 (GUJ)

R. K. ABICHANDANI, J. ( 1 ) THE petitioners seek to challenge the decision of Gujart Revenue Tribunal Ahmedabad dt. 13. 7. 81 in Revision Application No. TEN. B. A. 11/80 dismissing the revision of the petitioners and confirming the orders of the lower courts passed on 1. 12. 77 and 19. 10. 79. ( 2 ) IT appears that the respondent no. 1 gave an application on 24. 3. 75 before the Mamlatdar and Agricultural Lands Tribunal no. 3 Borsad for a declaration that he was entitled to purchase the land as a deemed purchaser being a tenant thereof. The Mamlatdar and Agricultural Lands Tribunal no. 3 Borsad after considering the material on record came to a finding that it was established that the respondent no. 1-applicant was a tenant of the disputed land and that he had also continued to cultivate the same upto 1974-75 and was entitled to get the same as deemed purchaser under the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Act) as that he was also entitled to gel back possession of the land under the provisions of section 84 of the Act from the purchasers of the land. The order of the Mamlatdar and Agricultural Lands Tribunal dt. 1. 12. 77 was challenged by the petitioners before the Deputy Collector (Tenancy Appeal) who after careful consideration of the evidence on record found that the name of the respondent no. 1 appeared in the village records from 1950-51 to 1959-60 as a tenant. It was found that the documentry evidene clearly indicated that repondent no. 1 was a tenant of the disputed land. The Collector confirmed the finding of the Mamlatdar and Agricultural Lands Tribunal that respondent no. 1 was in possession of the disputed land on 1. 4. 1957 as a tenant. It was therefore held that the respondent no. 1 was a deemed purchaser of the disputed land and that the petitioners were liable to be removed from the land under the provisions of section 84 of the Act. The Collector (Tenancy Appeals) Kheda therefore by his order dt. 11. 10. 1979 dismissed the appeal of the peitioners. It was therefore held that the respondent no. 1 was a deemed purchaser of the disputed land and that the petitioners were liable to be removed from the land under the provisions of section 84 of the Act. The Collector (Tenancy Appeals) Kheda therefore by his order dt. 11. 10. 1979 dismissed the appeal of the peitioners. The Tribunal before with the Revision Application was preferred by the petitioners after examining the orders passed by the courts below and the material on record found that it was established that the name of the respondent no. 1 appeared as a cultivator in respect of the land in dispute right upto 1965-66. It was found that the alleged mortgage in favour of one Chhotabhai was not proved nor was it established that Chhotabhai had inducted one Punabhai as his tenant. It was found that the possession of the disputed land appeared to have been taken over by the petitioners from the respondent no. 1 after 1974-75 by filing a criminal complaint. The Tribunal upheld the finding of the courts below that the respondent no. 1 was in actual possession of the land as a tenant since before 1. 4. 57 and that he was entitled to claim benefit of the provisions of section 32ff of the said Act. The Revision Application therefore came to be rejected. ( 3 ) ALL the authorities have found that the respondent not was cultivating the land as a tenant as on 1. 4. 57 and had therefore become the deemed purchaser. These finding are findings of facts and there is no ground made out for interference with these findings in exercise of the writ jurisdiction of this Court. It was contended on behalf of the petitioners that the provisions of section 32ff of the act could not have been invoked by the authorities because the respondent no. 1 was not in actual possession of the land on 24. 3. 1975 when he made the application under section 32ff. The authorities have found that the respondent no. 1 was in possession of the land on the specified date of 3. 3. 1973 and merely because by filing a criminal complaint he was later on dispossessed of the land his rights of having become a deemed purchaser as on 11. 4. 57 under the said Act could not have been adversely affected. 1 was in possession of the land on the specified date of 3. 3. 1973 and merely because by filing a criminal complaint he was later on dispossessed of the land his rights of having become a deemed purchaser as on 11. 4. 57 under the said Act could not have been adversely affected. ( 4 ) UNDER section 32f is provided that notwithstanding anything contained in the preceding sections a person who is a tenant within the meaning of sub-clause (d) of clause (18) of section 2 shall be deemed to have purchased the land in his possession of which he is the tenant free from all encumbrances subsisting thereon on the specified date. Under sub-clause (d) of clause (18) of section 2 of the said Act a tenant includes a person who after the surrender of his tenancy in respect of any land at any time after the appointed day but before the specified date has continued or is deemed to have continued to remain in actual possession with or without the consent of the landlord of such land till the specified date. The specified date was 3. 3 The evidence on record clearly established that the respondent no. 1 was in actual possession till the specified date. Even according to the petitioners the sale deed came to be executed only in 1975. Therefore since the respondent no. 1 was in possession of the land in dispute on the said specified date and was a tenant even within the meaning of section 2 (18) (d) he was entitled to purchase the land under the provisions of the said Act as a deemed purchaser. In fact since the respondent no. 1 had become a deemed purchaser on 1. 4. 57 sale of the disputed land purported to have been made in 1975 could not have adversely affected that position. ( 5 ) IT was submitted that surrender contemplated by section 33ff read with section 2 (18) (d) of the Act would mean surrender which is made in accordance with the provisions of section 15 of the said Act and no other surrender was contemplated. There is a basic fallacy in this argument. ( 5 ) IT was submitted that surrender contemplated by section 33ff read with section 2 (18) (d) of the Act would mean surrender which is made in accordance with the provisions of section 15 of the said Act and no other surrender was contemplated. There is a basic fallacy in this argument. Under the provisions of section 15 (1) of the Act no tenant can surrender his interest in tenancy in favour of the landlord and if he intends to do so then the procedure prescribed under sub section (2) is required to be followed which has the effect of terminating the tenancy and vesting of the land in the State Government free from all encumbrances. In contradistinction with this section 2 (18) (d) of the Act speaks of a person who aster the surrender of his tenancy in respect of any land at any time after the appointed day i. e. 15. 6. 55 but before the specified date i. e. 3. 3. 1973 has continued or is deemed to have continued to remain in actual possession with or without the consent of the landlord of such land till the specified date. It speaks of surrender of tenancy between the two dates and therefore could not have contemplated a valid surrender under section 15 of the Act which was substituted by Gujarat Act (5 of 1973 and the consequences of which were to terminate the tenancy and vest the land in State Government. Therefore the surrender of tenancy contemplated by section 2 (18) (d) cannot be a valid surrender made under the substituted provisions of section 15 is but the surrender of tenancy made in favour of the landlord at any time after the appointed day i. e. 15. 6. 1955 but before the specified date of 3. 3. 1973. Therefore the contention of the learned counsel in this regard cannot be accepted. ( 6 ) ON going through the impugned decision I am satisfied that the Tribunal has not committed any error in exercise of is jurisdiction and the decision of the Tribunal confirming the orders of the authorities below it is valid and in accordance with law warranting no interference by this court in exercise of its extraordinary powers under Article 227 of the Constitution of India. This petition is therefore rejected. Rule discharged with no order as to costs. Petition Rejected. .