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Gujarat High Court · body

2017 DIGILAW 1593 (GUJ)

Chandubhai Rambhai Patel v. State of Gujarat

2017-09-04

B.N.KARIA, M.R.SHAH

body2017
JUDGMENT : M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.12.2013 passed by the learned Single Judge in Special Civil Application No. 3560/2002 by which the learned Single Judge has dismissed the said petition and has confirmed the judgment and order dated 14.03.2002 passed by the Gujarat Revenue Tribunal (hereinafter referred to as “Tribunal”) in Revision Application No. TEN/BS/4/2001, the original petitioner claiming to be the deemed tenant of the land in question has preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent. 2. At the outset it is required to be noted that earlier the present Letters Patent Appeal was dismissed by the Division Bench of this Court vide order dated 21.02.2014 as not maintainable against the judgment and order passed by the learned Tribunal. However thereafter pursuant to the order passed by the Hon'ble Supreme Court the order dismissing the Letters Patent Appeal has been set aside and the matter is remanded to this Court. That is how the present appeal is placed on board for admission. 3. At the outset it is required to be noted that as such the present Letters Patent Appeal has a checkered history and as such the dispute between the parties is pending since 1991. 4. The facts leading to the present Letters Patent Appeal in nutshell are as under: 3.1 That the appellant herein-original petitioner initiated the proceedings under Section 70B of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “Tenancy Act”) claiming to be the tenant/deemed tenant of the land in question. The application under Section 70B of the Tenancy Act was preferred before the Mamlatdar and ALT, Chikhli by order dated 03.06.1991 the Mamlatdar and ALT, Chikhli rejected the said application and held that the petitioner is not the tenant/deemed tenant of the land in question. 3.2 Feeling aggrieved and dissatisfied by the order dated 03.06.1991 passed by the Mamlatdar and ALT, the appellant preferred Tenancy Appeal No. 26/1991 before the Deputy Collector, Navsari. By order dated 21.12.1991, the Deputy Collector dismissed the said appeal and confirmed the order dated 06.03.1991 passed by the Mamlatdar and ALT, Chikhli. 3.3 Feeling aggrieved and dissatisfied with the aforesaid two orders, the appellant preferred revision application before the learned Tribunal being TEN/BS/16/1992. The learned Tribunal vide judgment and order dated 27.08.1992 dismissed the said revision application. By order dated 21.12.1991, the Deputy Collector dismissed the said appeal and confirmed the order dated 06.03.1991 passed by the Mamlatdar and ALT, Chikhli. 3.3 Feeling aggrieved and dissatisfied with the aforesaid two orders, the appellant preferred revision application before the learned Tribunal being TEN/BS/16/1992. The learned Tribunal vide judgment and order dated 27.08.1992 dismissed the said revision application. 3.4 Feeling aggrieved and dissatisfied with the order dated 27.08.1992 passed by the learned Tribunal in dismissing the said revision application, the appellant preferred Special Civil Application No. 8429/1992 before this Court. That the appellant withdrew the said Special Civil Application with a liberty to file fresh application under Section 70B of the Tenancy Act. That thereafter the appellant again preferred a fresh application under Section 70B of the Tenancy Act before the Mamlatdar and ALT. That the Mamlatdar and ALT, Jalalpore vide order dated 31.07.2000 dismissed the said application. The appeal preferred by the appellant against the order passed by the Mamlatdar and ALT, Jalalpore came to be dismissed against which the appellant preferred revision application before the learned Tribunal being Revision Application No. TEN/BS/4/2001. By a judgment and order dated 14.03.2002, the learned Tribunal dismissed the said revision application. 3.5 Feeling aggrieved and dissatisfied with the judgment and order dated 14.03.2002 passed by the learned Tribunal in Revision Application No. TEN/BS/4/2001, the appellant herein preferred Special Civil Application No. 3560/2002. By impugned judgment and order and on appreciation of evidence and the finding recorded by all the authorities below, the learned Single Judge has dismissed the said petition which has given rise to the present Letters Patent Appeal under Clause 15 of the Letters Patent. 5. Shri S.H. Sanjanwala, learned Senior Advocate has appeared on behalf of the appellant herein-original petitioner. 6. It is vehemently submitted by Shri Sanjanwala, learned Counsel that in the facts and circumstances of the case the learned Single Judge has materially erred in dismissing the petition and confirming the order passed by the learned Tribunal. 7. It is vehemently submitted by Shri Sanjanwala, learned Counsel appearing on behalf of the appellant that as such the learned Single Judge has not properly appreciated the facts and more particularly the admissions made by the owner regarding the tenancy of the appellant. 7. It is vehemently submitted by Shri Sanjanwala, learned Counsel appearing on behalf of the appellant that as such the learned Single Judge has not properly appreciated the facts and more particularly the admissions made by the owner regarding the tenancy of the appellant. It is submitted that number of admissions by the respondent Bhagubhai Motibhai Patel were administered and pointed out by which he admitted that the appellant had grown the crop of sugarcane on the said land on crop share basis. It is submitted that despite the above the same have not been properly appreciated by the learned Single Judge. It is submitted by Shri Sanjanwala, learned Counsel appearing on behalf of the appellant that the respondent Bhagubhai Motibhai Patel admitted in his statement dated 24.03.1991 that his father had given the land on tenancy to the appellant on the basis of crop share basis. It is further submitted that he also further admitted in the criminal case regarding the breach of trust under Section 406 of the Indian Penal Code, 1860 in Criminal Case No. 412/1996 in which he specifically admitted that the father of the respondent Bhagubhai Motibhai Patel had agreed to the land for tilling to the appellant on the half crop share basis. 8. It is further submitted that even in the Chapter Case before the learned District Magistrate the respondent clearly admitted that the land was given to the appellant for tilling on half crop share basis and since the appellant had not paid the half crop sale, the case was filed. It is submitted that earlier a similar statement was made before the learned Additional District Judge, Navsari which is recorded in the order that the land was given to the appellant in July 1996 on half crop share basis. It is submitted that therefore considering section 17 of the Evidence At, the said evidence would be sufficient to prove the case of the appellant. It is submitted that therefore the learned Single Judge ought not to have confirmed the order passed by the authorities below rejecting the claim of the appellant as tenant. 9. It is further submitted by Shri Sanjanwala, learned Counsel appearing on behalf of the appellant that voluminous documentary evidences were produced before the authorities below to establish the tenancy of appellant. 9. It is further submitted by Shri Sanjanwala, learned Counsel appearing on behalf of the appellant that voluminous documentary evidences were produced before the authorities below to establish the tenancy of appellant. However, the same were not considered by the learned Tribunal on the ground that the same are not exhibited and proved. It is submitted that as such it was for the authority to exhibit the documents which he failed. It is submitted that the said aspect has not been considered by the learned Single Judge. 10. It is further submitted by Shri Sanjanwala, learned Counsel appearing on behalf of the appellant that as such the learned Tribunal heard the matter only on the issue of admission and that so understood by the parties and their Advocates. However, the learned Tribunal rejected the revision application on merits, which it could not have done. It is further submitted that as the possession of the land in question by the appellant is established, the learned Single Judge ought to have held the appellant to be the tenant. Making above submissions it is requested to admit/allow the present Letters Patent Appeal. 11. Present Letters Patent Appeal is vehemently opposed by Shri Asim Pandya, learned Advocate appearing on behalf of the respondent No. 4 herein - heir and legal representative of the original land owner. It is vehemently submitted by Shri Pandya, learned Advocate appearing on behalf of the respondent No. 4 that there are concurrent findings of fact recorded by all the authories below including the learned Single Judge holding that the appellant cannot be declared the tenant of the land in question. It is submitted that finding of the facts recorded are on appreciation of evidence which are not required to be interfered by this Court in exercise of inter-Court appellate jurisdiction more particularly when the learned Single Judge in exercise of powers under Article 226/227 of the Constitution of India refused to exercise the powers by giving cogent reasons. 12. It is further submitted by Shri Pandya, learned Advocate appearing on behalf of the respondent No. 4 that as such the very appellant claimed the ownership in the land in question and claimed to be the joint owner. It is submitted that therefore once he claimed to be the owner of the land in question, he cannot take a contrary stand to declare him as a tenant. It is submitted that therefore once he claimed to be the owner of the land in question, he cannot take a contrary stand to declare him as a tenant. It is submitted that once he was cultivating the land as owner as claimed by him, he could not have cultivated the land as tenant in his own land. 13. It is further submitted that according to the very appellant he purchased the land in question jointly with the land owner Moti Magjibhai Patel, however it is submitted that till 1990/1991 the appellant herein as such did not claim any tenancy right. However, when the mutation entry No. 5803 was made in the revenue record in which the name of the Moti Magjibhai Patel was entered into on the basis of the registered sale dated 07.08.1990, the appellant objected to the same and that too by way of RTS Proceedings in which he claimed that the land in question was purchased jointly by him with respondent No. 4 - Moti Magjibhai Patel. It is submitted that the Mamlatdar rejected the objection of the appellant and the entry in favour of respondent No. 4 was certified. It is submitted that only thereafter and after having lost in the RTS proceedings the appellant turned around and claimed the tenancy in respect of the land in question under Section 70B of the Tenancy Act. It is submitted that therefore as such no error has been committed by the learned Single Judge in dismissing the petition. 14. It is further submitted that as such the land in question is a restricted tenure land under Section 73AA of the Bombay Land Revenue Code, 1879 and therefore, even parting with the possession is prohibited without the previous sanction of the Collector. 15. It is further submitted that as such the learned Tribunal as well as the learned Single Judge have considered the so-called admissions by the respondent No. 4 and on appreciation of evidence the learned Tribunal as well as the learned Single Judge has rejected the claim of the appellant as tenant. 16. It is further submitted that even otherwise the appellant was working with Irrigation Department and he was aware about the legal position more particularly the restricted land under Section 73AA of the Bombay Land Revenue Code, 1879. 16. It is further submitted that even otherwise the appellant was working with Irrigation Department and he was aware about the legal position more particularly the restricted land under Section 73AA of the Bombay Land Revenue Code, 1879. It is submitted that therefore in the facts and circumstances of the case, no error has been committed by the learned Single Judge and therefore, it is requested to dismiss the present appeal. 17. Heard learned Advocates appearing for respective parties at length. 18. At the outset it is required to be noted that as such there are concurrent findings of fact recorded by all the authorities below by which on appreciation of evidence and even considering the original claim made by the appellant, all the authorities below including the learned Single Judge have rejected the claim of the appellant as tenant of the land in question. As such finding of fact recorded by all the authorities below are on appreciation of evidence. The so-called admissions by the respondent No. 4 are already dealt with and considered in detail by the learned Tribunal as well as also by the learned Single Judge. Only thereafter and considering the original case put up by the appellant by which he claimed the joint ownership of the land in question with the respondent No. 4 - father of the respondent No. 4, the learned Single Judge as well as the learned Tribunal have rejected the claim of the appellant as tenant of the land in question. As such we are in complete agreement with the view taken by the learned Single Judge as well as the learned Tribunal. 19. It is required to be noted that as such till 1990-1991 the appellant never claimed to be the tenant of the land in question. For the first time in the year 1991 after the appellant lost in the RTS proceedings in which he claimed to be the joint owner of the land in question, the appellant turned round and claimed tenancy under Section 70B of the Tenancy Act. It is emerging from the record that the land in question was originally owned by one Tribhovan Patel - respondent No. 2 herein. It is emerging from the record that the land in question was originally owned by one Tribhovan Patel - respondent No. 2 herein. That initially in the year 1983, Tribhovan Patel sold the land in question to one Limjibhai Babarbhai - respondent No. 3 herein but later on a sale deed in favour of respondent No. 3 was canceled on 04.08.1990 It appears that in the year 1986, Limjibhai Babarbhai - respondent No. 3 herein and Moti Magji Patel - respondent No. 4 herein entered into agreement for sale on 09.06.1986 However, subsequently, the sale deed between Tribhovan Patel and Limjibhai Babar came to be canceled on 04.08.1990 and finally the sale deed dated 04.08.1990 was executed by Tribhovan Patel in favour of Moti Magji Patel and it was registered on 07.08.1990 It appears that on the basis of the registered sale deed dated 07.08.1990 name of Moti Magji Patel was mutated in the revenue record vide Mutation Entry No. 5803 dated 21.08.1990 The appellant objected to the said mutation entry and in the RTS proceedings he claimed that the land in question was purchased jointly by him with respondent No. 4. The Mamlatdar rejected the objection by the appellant and the entry in favour of respondent No.4 was certified. Only thereafter and having lost in the RTS proceedings the appellant turned round and claimed tenancy for the first time in the year 1991 and claimed tenancy in respect of the land in question under Section 70B of the Tenancy Act. Under the circumstances, once the appellant himself claimed to be the joint owner of the land in question, as rightly held by the learned Tribunal as well as the learned Single Judge and even all the authorities below, thereafter he could not have claimed the tenancy under Section 70B of the Tenancy Act. Both the stand can be said to be contradictory. Under the circumstances, as such all the authorities below have rightly not held the appellant to be tenant/deemed tenant of the land in question. 20. At this stage it is required to be noted that as the land in question is/was a restricted tenure land under Section 73AA of the Bombay Land Revenue Code, 1879 and therefore, even parting with the possession is prohibited without previous sanction of the Collector. 20. At this stage it is required to be noted that as the land in question is/was a restricted tenure land under Section 73AA of the Bombay Land Revenue Code, 1879 and therefore, even parting with the possession is prohibited without previous sanction of the Collector. Therefore, even the possession if any of the appellant can be said to be illegal, unauthorized and in breach of section 73AA of the Bombay Land Revenue Code, 1879. Be that as it may, when on appreciation of evidence by all the authorities below and more particularly considering the fact that earlier the appellant claimed to be the joint owner of the land in question and thereafter having lost in the RTS proceedings, he claimed the tenancy rights, we are of the opinion that the learned Tribunal as well as the learned Single Judge has rightly confirmed the order passed by the authorities below. 21. Now, so far as the submission on behalf of the appellant that the admissions made by the respondent No. 4 by which he is alleged to have admitted that the appellant was cultivating jointly on half crop share basis are not considered by the learned Tribunal as well as the learned Single Judge is concerned, the aforesaid has no substance. Considering the judgment and order passed by the learned Tribunal as well as the impugned judgment and order passed by the learned Single Judge, it appears that no admissions are as such dealt with and considered by the learned Tribunal as well as the learned Single Judge. 22. Now, so far as the submissions on behalf of the appellant that as the revision before the learned Tribunal was for admission hearing only and therefore, the learned Tribunal ought not to have finally dismissed the revision application on merits is concerned, the aforesaid has no substance. It is required to be noted that as such the learned Counsel appearing on behalf of the appellant is not in a position to point out any such Rule and/or procedure of first admitting the matter and thereafter to consider it on merits. There is no such Rule and/or procedure. Even otherwise from the impugned order passed by the learned Tribunal it appears that the learned Tribunal has considered in detail the submissions on behalf of the respective parties and has re-appreciated the entire evidence on record. There is no such Rule and/or procedure. Even otherwise from the impugned order passed by the learned Tribunal it appears that the learned Tribunal has considered in detail the submissions on behalf of the respective parties and has re-appreciated the entire evidence on record. Under the circumstances, on the aforesaid ground the order passed by the learned Tribunal was not required to be set aside and the same is not rightly set aside by the learned Single Judge. 23. In view of the above and for the reasons stated above, there is no substance in the present Letters Patent Appeal and the same deserves to be dismissed and is, accordingly, dismissed. No costs. Civil Application No. 1907/2014 24. In view of dismissal of main Letters Patent Appeal, Civil Application No. 1907/2014 also stands dismissed.