Krishnabai Anaji Ghule & Ors Vs.
Nivrutti Ramchandra Raykar & ANR [1983] INSC 114 (5 September 1983)
DESAI, D.A.
DESAI, D.A.
MISRA, R.B. (J)
CITATION: 1983 AIR 1213 1983 SCR (3) 822 1984
SCC (1) 179 1983 SCALE (2)258
ACT:
Bombay Tenancy and Agricultural Lands Act,
1948-S. 33-B - Certificated landlord's right to obtain possession of exempted
land from excluded tenant- Requirements to be satisfied by landlord-Scope of
proceedings under s. 33-B.
HEADNOTE:
Section 32 of the Bombay Tenancy and
Agricultural Lands Act, 1948 provides that every tenant of agricultural land
shall be deemed to have purchased from his landlord as on April 1, 1957
(Tiller's Day) the land held by him as tenant free from all encumbrances.
However to protect petty or small landlords against statutory compulsory
purchase, provision was made in Part lI-A of Chapter III read with s. 88-C of
the Act enabling them to obtain exemption certificate under s. 88-C. While s.
33-A designates such petty land lords as 'certificated landlords' and the
tenants of such exempted lands as `excluded tenants', s. 33-B confers a special
right on a certificated landlord to terminate the tenancy of the excluded
tenant in respect of the exempted land and obtain possession of such land if he
bona fide requires the same for cultivating it personally.
The land in question in this appeal had
fallen to the share of the respondent in a family partition. The bona fides of
the partition was the main issue in the proceedings held under s. 88-C for
grant of an exemption certificate in favour of the respondent. However, the
order granting the certificate withstood all challenge from the tenants and
became final. In the subsequent proceedings instituted by the respondent under
S. 33-B for possession of the land the Tehsildar arrived at the finding that
the respondent required the land bonafide for his personal cultivation and this
finding was confirmed by the Sub-Divisional officer in appeal and the tenants
were directed to hand over possession of the land to the respondent. The
tenants filed revision applications before the Revenue Tribunal which allowed
them on the ground that the Sub-Divisional officer had wrongly declined to
admit an important piece of evidence having a direct bearing on the question of
bona fides of the partition. The respondent moved the High Court under Art.
227 and the High Court set aside the
Tribunal's judgment holding that the bona fides of the partition which had
already been agitated inter partes in proceedings under s. 88-C could not be
reconsidered in a subsequent proceedings under s. 33-B and directed the
Tribunal to decide the revision in accordance with law. The Tribunal, taking
note of the fact that the respondent had sold a piece of land 1 112 years
before filing the present application for possession and also that he owned
house property in Poona City, came to the conclusion that the respondent did
not bona fide require the land in question for personal cultivation and 823
dismissed the application for possession of land. The respondent once again
moved the High Court under Art. 227.
The High Court restored the decision of the
Sub-Divisional officer, holding that the Tribunal was in error in holding that
in order to obtain possession of land from an excluded tenant under s. 33-B, it
was obligatory upon a certificated landlord to prove the compelling necessity
to cultivate the land, and that the sale of land by the respondent prior to the
commencement of the present proceedings which was for a small price did not
have an adverse impact on his bona fides.
Counsel for appellant-tenants submitted that
even assuming that the High Court was right in holding that the bona fides of
the partition could not be the subject matter of a collateral attack in the
present proceedings as the same had been considered and decided in proceedings
held under s. 88-C, still the question could be gone into to ascertain the bona
fides of the landlord when he moved an application under s. 33-B seeking
eviction for personal cultivation.
Dismissing the appeal,
HELD: It is true that a certificated landlord
is not entitled to recover possession from the excluded tenant merely for
asking. He can only obtain the direction for possession if he bona fide
requires the exempted land for cultivating it personally. When it is said that
the landlord bonafide requires possession of the land, it would be necessary
for him to prove that he is acting honestly and that the application for
possession is not a device to dispossess the tenant and that he requires, in
the sense needs possession of, the land for personal cultivation. In other
words, personal cultivation is necessary to obtain the yield of the land for
himself. Some element of requirement could inhere the requirement for
maintenance by undertaking the avocation of personal cultivation. lt is not
that the landlord even if he has sufficient source of maintenance, can seek
possession merely because he wants to pursue the avocation of cultivating the
land personally but this aspect hardly ever arises in an application under s.
33-B because such an application can only be made by a certificated landlord
and none else and the certificated landlord is one whose holding does not
exceed an economic holding. As long as the certificate of exemption under s.
88-C subsists, two inferences flow therefrom: that the landlord is a petty or
small land holder and that his annual income from all sources including rent of
land does not exceed Rs. 1,500. it is the bonafide requirement of such a small
and petty landlord for personal cultivation that has to be examined under s.
33-B. It may be that while examining the bona fides of the requirement of the
certificated landlord, the court may take into account how the landlord became
the owner of the land and, if it is by partition, the bona fides of the
partition may be examined. [830 G-H; 831 A-D] Arvind Lal Bhukanda v. Khandu, 63
B.L.R. 929 approved and distinguished.
In the instant case, the appellant-tenants
contested the proceedings initiated by the landlord for certificate of
exemption under s. 88-C at all levels and on all available contentions, the
principal one being the nature and 824 character of the partition. That
contention having been concurrently negatived cannot be re-opened. The
Tehsildar arrived at the finding that the respondent required the land bonafide
for his personal cultivation and it was confirmed by the first appellate court
which was the last fact-finding court. The Tribunal interfered with this
finding on the ground that some important piece of evidence had been over- looked.
The finding cannot be reopened this state on the short submission that the
Court declined to examine the genuineness or validity or bona fides of the
partition particularly when this very question was considered in an earlier
round of proceedings and decided in favour of the landlord. [832 E-F; 833 E-H]
C[VIL APPELLATE JURISDICTION: Civil Appeal
No. 2896 of 1977.
Appeal by Special leave from the Judgment and
order dated the 4th November, 1977 of the Bombay High Court in Special Civil
Appln. No. 107 of 1977.
Y. M. Tarkunde, P. N. Parekh and Mrs. Manik
Karanajuwala for the Appellants.
U. R. Lalit, V. N. Ganpule, Mrs. V. D. Khanna
and Altaf Ahmad for the Respondents. ;
The Judgment of the Court was delivered by
DESAI, J. Two decades have elapsed since the commencement of the proceedings
involving a simple issue whether the first respondent designated as
certificated landlord is entitled to recover possession of land bearing Survey
No. 14/A/2 admeasuring. 7 acres and 13 gunthas situated at Village Manjari
Badruk Taluka Haveli Distt.
Poona in Maharashtra State from the
appellants 1 to 3 who are heirs of excluded tenant Shri Ghule and appellant No.
4 who is also an excluded tenant.
A brief resume of the various proceedings
leading to the present appeal may shed some light on a simple issue involved in
this appeal.
One Ramchandra Gopal Raykar, father of the
first respondent landlord leased land included in Survey No. 14/A/2 to two
different persons. Land admeasuring 4 acres out of total area of 7 acres and 13
gunthas; was leased to Shri Anaji Maruti Ghule. Appellants No. 1 to 3 a,re the
heirs and legal representatives of Sh. Ghule. The 825 remaining 3 acres and 13
gunthas of land was leased to Vishnu Maruti Tilekar Appellant No. 4 in this
appeal.
After a partition in the family of the
landlord, the Land involved in this appeal fell to the share of the first
respondent landlord. He moved an application under sec. 88-C of the Bombay
Tenancy and Agricultural Lands Act, 1948 ('Tenancy Act, for short) praying for
a certificate therein envisaged on the allegation that his holding does not
exceed the economic holding and total annual income of the landlord including
the rent of such land does not exceed Rs. 1,500.
After an enquiry made by the Mamlatdar as
contemplated by sec. 88-C (iii) and (iv) an exemption certificate was granted
to the landlord. The order of the Mamlatdar was challenged by the tenants upto
the High Court of Judicature at Bombay, but the order of the Mamlatdar granting
exemption certificate withstood the challenge. And that order has become final.
The effect of the granting of an exemption certificate is that, amongst others,
provisions contained in secs. 32 to 32R shall not apply to the land leased by
such certificated landlord. In other words, the excluded tenants of such
certificated landlord shall not become the owners of the land on the Tillers'
day i.e. 1st April, 1957.
Sec. 33-B confers a right on the certificated
landlord to terminate the tenancy of the land in respect of which exemption
certificate is granted, and to make an application to the Mamlatdar for
obtaining possession if such certificated landlord bonafide requires such Land
for cultivating it personally. Accordingly the respondent landlord made an
application on March 29, 1962 to the Mamlatdar having jurisdiction in the area
praying for an order for possession of the land in respect of which certificate
was granted. This application was resisted by both the tenants raising various
contentions, one such worth noticing being that appellants No. 1 to 3 were not
served with the statutory notice as required by Sec. 33-B. In the meantime it,
appears that the land bearing Survey No. 14/A/2 was put to auction to recover
arrears of irrigation dues and the same was purchased for a consideration of
Re. 1 by the Government. Taking note of this fact, the Mamlatdar rejected the
application of the landlord observing that he had no title to the land. In an
appeal by the landlord, the order of the Mamlatdar was set aside and the matter
was remanded to the Mamlatdar for disposal according to law. A revision
petition by the appellants was dismissed by the Maharashtra Revenue Tribunal.
Mamlatdar designated as Tehsildar, 826 on remand held an enquiry, recorded a
finding that notice terminating the tenancy was served on present appellant No.
4, but it was not served on Appellants No. 1 to 3, the heirs of Anaji Ghule. He
accordingly allowed the application of the landlord for possession against
Appellant No. 4 Tilekar but dismissed the same against Appellants No. 1 to 3,
the heirs of Ghule.
For separate appeals came to be filed against
the decision of the Tehsildar, two by two sons of Anaji, Appellants No. 2 and 3
herein, one by the landlord against the dismissal of his application against
the heirs of Shri Ghule and one by Shri Tilekar against that part of the order
by which he was directed to hand over possession of the land to the landlord.
All the four appeals were disposed of by the Sub Divisional officer with
appellate powers by a common judgment. He held that there was effective service
of notice on the heirs of Shri Anaji Ghule. All other contentions of tenants
were rejected with the result that appeal by the respondent landlord was
allowed and appeal by tenant Tilekar was dismissed. As a result, an order was
made directing both the tenants to hand over possession of land comprised in
Survey No, 14/A/2.
Four separate revision applications were
filed against the order of the Sub Divisional officer before the Maharashtra
Revenue Tribunal. By a common judgment, a learned member of the Tribunal held
that the Sub Divisional officer, while disposing of the appeals wrongly
declined to admit an important piece of evidence which was sought to be
produced before him by the tenants and that piece of evidence has a direct
bearing on the bona fides of the landlord and therefore, the appellate court
was not justified in shutting out the evidence. In accordance with this
finding, the Maharashtra Revenue Tribunal allowed the two revision applications
filed by the tenants and set aside the order of the Sub Divisional officer as
well as of the Tehsildar and remanded the matter to the Tehsildar for decision
afresh. The judgment of the Maharashtra Revenue Tribunal was challenged by the
landlord in a petition under Art. 227 of the Constitution being Special Civil
Application No. 1794 of 1975.
A learned Single Judge of the Bombay High
Court, who heard the petition was of the opinion that the partition in the
joint family of the landlord had taken place before 30th March, 1960 and the
bonafides of the partition having been agitated inter-partes in the 827
proceedings under sec. 88-C initiated by the landlord for obtaining the
exemption certificate upto the High Court and decided in favour A of the
landlord, the same cannot be re- opened and re-considered in a subsequent
proceeding under Sec. 33-B under which a certificated landlord may sue for
obtaining possession from the excluded tenant, the land in respect of which
certificate is granted. Having reached this conclusion and after examining
other contentions, it was held that the Maharashtra Revenue Tribunal was in
error in holding that the Sub Divisional officer hearing the appeal committed
error in not allowing fresh evidence to be led at the appellate stage because a
party has no right to adduce additional evidence in an appeal and there was no
discretion in the appellate authority either to accept or reject the additional
evidence. The learned judge also observed that the Sub Divisional officer has
given reason for rejecting the evidence. Approaching the matter from this
angle, the learned judge held that the Maharashtra Revenue Tribunal had no
justification to remand the matter for a further fresh enquiry when the parties
had already taken opportunity to make out their respective cases. Accordingly,
the High Court set aside the decision of the Maharashtra Revenue Tribunal
remanding the matter to the Tehsildar and directed the Tribunal to decide the
revision applications filed by the tenants in accordance with law.
Pursuant to this direction, the matter went
back to the Maharashtra Revenue Tribunal. It was heard by a learned member of
the Revenue Tribunal. The learned member formulated the point for decision as
to whether the certificated landlord has been able to establish that he
bonafide requires the land for personal cultivation. While examining this
contention, the Tribunal observed that bonafide requirement for personal
cultivation as contemplated by Sec. 33-B envisages both the compelling need to
cultivate personally as well as genuine intention to do so. The learned member
took note of the fact that the certificated landlord had told the land under
sugarcane crop admeasuring 20 gunthas on August 11, 1960 to Bhiru Bahu Ghule
and that the sale was effected 1-1/2 years before the certificated landlord
approached the Tehsildar for obtaining possession of the land from the excluded
tenant. This sale, according to the learned member, raised considerable doubt
about the bonafides of the landlord because if he had a compelling necessity or
need to cultivate the land personally, he atleast would not have sold the land
which was in his actual possession. The learned member took note of the fact
that landlord owns a house property in Poona City and that 828 once upon a
time, the family was the owner of extensive land holding. For these reasons,
the learned member held that he was not satisfied that the certificated
landlord bonafide required the land involved in the dispute for personal
cultivation. He accordingly allowed the revision applications of the tenants
and dismissed the application of the landlord for obtaining possession of the
land.
The certificated landlord moved Special Civil
Application No. 107 of 1977 in the Bombay High Court under Art. 227 of the
Constitution questioning the correctness of the decision of the Maharashtra
Revene Tribunal. A learned single judge of the High Court, who heard the
petition held that there was an error apparent on the face of the record when
the learned member of the Tribunal held that in order to obtain possession of
land by a certificated landlord from an excluded tenant under Sec. 33-B it is
obligatory upon such landlord to prove the compelling necessity to cultivate
the land. It was observed that that element may be relevant and valid in an
application under Sec. 31 of the Tenancy Act, wherein the landlord has to prove
that the land of which he seeks possession is the principal source of income
for his maintenance. The learned judge was of the view that the sale of the
land admeasuring 20 gunthas prior to the commencement of the present
proceedings was for a small price and cannot have an adverse impact on the
bonafides of the landlord. Accordingly the learned judge allowed the
application of the landlord and set aside the decision of the Maharashtra
Revenue Tribunal and restored the decision of the Sub Divisional officer
directing handing over of possession of the land to the landlord. It is this
decision of the High Court which is questioned in this appeal.
Sec. 32 of the Tenancy Act ushered in an era
of revolutionary change in the life of the tiller of the soil.
It provided that every tenant of agricultural
land shall be deemed to have purchased from his landlord on the Tiller's day,
the land held by him as tenant free from all encumbrances subsisting on the
said day subject to the various conditions therein provided which we consider
unnecessary to refer here. The far-reaching change introduced by Sec. 32 was
noticed by a Constitution Bench of this Court in Sri Ram Ram Narain Medhi v.
State of Bombay(1) wherein it was held that the 829 title of the landlord to
the land passes immediately to the tenant on the Tiller's day and there is a
complete purchase or sale thereby as between the landlord and the tenant. But
the Legislature was aware that there was a class of landlords who if, by the
operation of law, were deprived of the ownership of land would be worse of than
the tillers for whose benefit the provision was made. With a view to saving
such petty landlords Part II-A was introduced in Chapter III of the Tenancy Act
in 1961. Simultaneously, Sec. 88-C was amended by introducing a non-obstante
clause which would have the effect of excluding the land of such petty
landlords who would be covered by Part II-A from the operation of Sec. 32 providing
for compulsory purchase of land by the tenant. Sec. 88-C provides that save as
provided by Sec. 33-A. 33-B and 33-C nothing in Sec. 32 to 32R (both inclusive)
shall apply to lands leased by any person if such land does not exceed an
economic holding and the total annual income of such person including the rent
of such land does not exceed Rs. 1,500. In other words, petty or small
landlords wose holding does not exceed an economic holding as specified in Sec.
6 and whose total annual income does not exceed Rs. 1,500 where sought to be
exempted from the operation of Sec. 32. Such petty or small landlords in order
to save their land from becoming subject matter of compulsory sale by the
operation of law were required to obtain a certificate from the Mamlatdar as
envisaged in Sec. 88-C. In order to obtain the exemption certificate the
landlord had to make an application to the Mamlatdar and the Mamlatdar after
holding an enquiry after giving notice to the tenant had to decide whether (1)
the holding of such landlord did not exceed economic holding; and (2) his total
annual income including the rent of such land did not exceed Rs. 1,500. If both
the conditions were cumulatively satisfied, the Mamlatdar had to give a
certificate in the prescribed form showing that the land of such landlord is
exempt from the operation of Sec. 32. The effect would be that a tenant of such
landlord would not become a deemed purchaser on the Tiller's day. Sec. 33-B
provides that such landlord is to be designated as certificated landlord and
the tenant of such land exempted from the operation of Sec. 32 was to be
designated as excluded tenant. Sec. 33-B conferred a special right on the
certificated landlord to terminate the tenancy of the excluded tenant in
respect of the exempted land and obtain possession if landlord bonafide
required the possession of such land for cultivating it personally.
830 Respondent landlord is a certificated
landlord. The tenants-appellants had challenged the proceedings initiated by
the respondent landlord for obtaining exemption certificate under Sec. 88-C
inter-alia contending that the partition in the family of the landlord was not
bonafide and that it was so contrieved that the landlord may obtain advantage
of sec. 88-C. This contention was negatived by the Mamlatdar hearing the
application u/s 88-C and the appeal against the decision by the tenants to the
Collector and a revision petition to the Maharashtra Revenue Tribunal and a
petition under Art. 227 of the Constitution to the Bombay High Court at the
instance of tenants successively filed, all failed. The net outcome is that the
partition was held to be bonafide and genuine. The proceedings between the
landlord and the tenant for exemption certificate under Sec. 88-C came to an
end with the decision of the High Court and the grant of the certificate became
final and not questionable in the present proceedings which could have been
commenced only by a landlord who has obtained a certificate of exemption.
The first contention raised on behalf of the
appellants-tenants was that the partition in the family of the landlord was
neither honest nor bonafide nor genuine but it was contrived with a view to
obtaining an unfair advantage by the respondent-landlord by so allocating the
share that h can get benefit of the provision of Sec. 88-C.
The High Court declined to entertain this
contention presumably on the ground that this very contention has been
negatived by all courts in the earlier round of proceedings u/s 88-C and it
cannot be the subject-matter of a collateral attack in the present proceedings
which can only be commenced after proceedings under Sec. 88-C are finally
concluded between the parties. No serious exception can be taken to this view
of the High Court. But it was urged that even if the Court may not re-examine
the validity or bonafides of the partition, the question can still be gone into
to ascertain the bonafides of the landlord when he moves an application under
Sec. 33-B seeking eviction for personal cultivation. It is undoubtedly true
that a certificated landlord is not entitled to recover possession from the
excluded tenant merely for asking. He can only obtain the direction for
possession if he bonafide requires such land meaning thereby the land exempted
from the operation of Sec. 32 for cultivating it personally. When it is said
that the landlord bonafide requires possession of the land, it would be
necessary for him to prove that 831 he is acting honestly and that the
application for possession is not a device to dispossess the tenant and that he
requires in the sense needs possession of the land for personal cultivation. In
other words, personal cultivation is necessary to obtain the yield of the land
for him.
Some element of requirement would in here the
requirement for maintenance by undertaking the avocation of personal
cultivation. It is not for a moment suggested that the landlord even if he has
sufficient source, of maintenance, he can seek possession merely because he
wants to pursue the avocation of cultivating the land personally but this
aspect hardly ever arises in an application under Sec. 33-B because such an
application can only be made by a certificated landlord and none else and the
certificated landlord is one whose holding does not exceed an economic holding
and whose income from all sources including the rent of the land does not
exceed Rs. 1, 500 per annum. It is such a small or petty landlord whose
requirement for personal cultivation has to be examined under Sec. 33-B. It may
be that while examining the bonafides of the requirement of the certificated
landlord, the Court may take into account how the landlord became the owner of
the land and if it is by partition, the bonafide of the partition may be
examined. The view taken by the Bombay High Court in Arvindlal Bhukanda v.
Khandu(1) that if a partition is made in an unusual manner it may ave a bearing
on the question of bonafides commends to us with this specific reservation that
the proceedings in that case arose under Sec. 32 and not under Sec. 33-B as in
the present case. Having said this, let it be remembered that the appellants
tenants contested the proceedings initiated by the landlord for certificate of
exemption under Sec. 88-C at all levels and on all available contentions the
principal being the nature and character of the partition. That having been
concurrently negatived, we are not disposed to re-open that question which even
the High Court declined to examine.
Till the certificate of exemption under Sec.
88-C subsists, two inferences now therefrom, that the landlord is a petty or
small land holder and his annual income from all sources including rent of land
does not exceed Rs. 1, 500. It is the bonafide requirement for personal
cultivation of such landlord that the Court is called upon to examine.
After the remand, the Tehsildar on the
question of bonafide requirement recorded a finding as under:
832 "In my opinion the deposition of the
applicant in regard to his requirement and income is substantially correct and
the opponents have not led sufficient and satisfactory evidence to displace the
conclusions arising from the reading of his deposition as a whole
.....................
Having given anxious thoughts to the evidence
on record, I am satisfied that the applicant requires the land bonafide for
personal cultivation".
This finding was confirmed by the first
appellate court which is the last fact-finding court. The Maharashtra Revenue
Tribunal interfered with this finding and remanded the case to the Tehsildar on
the ground that some important piece of evidence was overlooked. This order of
remand has been set aside by the High Court on an earlier occasion. In this
background, it would be too late in the day tore open this finding, at this
stage on the short submission that the Court declined to examine the
genuineness or validity or bonafides of the partition, and we are not disposed
to re- open this question more particularly for the reason that this very
question in the earlier round of proceedings up to the High Court was
concurrently held in favour of the landlord and by authorities in the present
round of proceedings.
It was next contended that the High Court was
in error in interfering with the order of remand made by the Maharashtra
Revenue Tribunal. The Tribunal set aside the concurrent findings on the
question of bonafide requirement of the landlord by observing that the
appellate court erroneously rejected a piece of evidence which the tenants
sought to produce at the appellate stage. The Tribunal observed that the delay
in producing this evidence having been satisfactorily explained, the tenants
ought to have been allowed to produce the evidence which has some bearing in
the issues arising in the matter. The piece of evidence sought to be produced
at the appellate stage by the tenants was bearing on the question of bonafide
of the partition. It is the same contention differently clothed. In this
connection, the Tribunal observed that despite the proceedings under Sec. 88-C
having finally concluded between the parties: "It was still open to the
tenants to show that the manner in which the partition was effected and the
time chosen therefore and particularly the fact that the entire tenanted land
was allotted to the share of one copar- 833 cener to the exclusion of others
has an important bearing on the question of bonafides." This view was
sought to be supported by relying upon Arvindlal Bhukhanda v. Khandu. The High
Court in a petition under Art. 227 while setting aside the order of remand
observed that the delay in producing additional evidence was unexplained
looking to the protracted proceedings commencing from 1962 and the bonafide of
the partition was not questioned, except at the revisional stage.
Mr. Tarkunde, learned counsel for respondents
took serious exception to the second observation and pointed out that it is
contrary to record. In this connection, he drew our attention to Point No. 5
framed by the Tehsildar while holding the enquiry after the remand which was as
under:
"5. Whether the partition made by the
landlord is valid. And whether it can be challenged in these proceedings?"
He recorded a finding that there was a partition in the landlord's family in
1959 and the same cannot be challenged in the present proceedings, In the
appeal by the tenants, the Appellate Court disposed of the contention on the
bonafide of the partition by observing that he was in agreement with the
reasoning of the Tehsildar. The Maharashtra Revenue Tribunal in the revision
petition by the tenants held that once a certificate is granted to a landlord
under Sec. 88-C on the basis that he is the exclusive owner of the land it is
not open to the tenant in an enquiry under Sec. 33-B to challenge the partition
under it. In support of this view, the Tribunal relied upon two un-reported
decisions of the Bombay High Court and finally observed that it is futile to
challenge the validity of the partition. It thus appears that High Court
committed an error apparent on record while observing that the validity of
partition was questioned for the first time at the revisional stage. But having
said this it must also be pointed out that the contention raised by the tenant
about the bonafides of partition in the proceedings under Sec. 33-B has been
rightly negatived on the short ground that the bona fides, genuineness and
validity of the partition was directly and substantially in issue in the
proceedings under Sec. 88-C and concurrently held in favour of the landlord
upto the High Court and the same must be held to be concluded between the
parties and on 834 this short ground, the decision of the High Court setting
aside the order of remand can be confirmed.
In the view that we take in the circumstances
herein discussed, the bonafides of the partition cannot be put in issue, the
contention raised by Mr. Tarkunde becomes a non- issue and it will also dispose
of his supplementary contention that the Sub Divisional officer hearing the
appeal was in error in declining to give an opportunity to the tenants to
produce additional evidence which was primarily for the purpose of showing that
the partition was neither genuine nor bonafide. And in our opinion in the facts
of this case it is no more relevant.
Incidentally it was urged that the landlord
is staying at Poona and that he is florist and the land involved in dispute is
at Village Manjari and therefore it is not possible to believe that the
landlord would be able to personally cultivate the land or that he can
undertake the avocation of cultivation of land by investing funds when the area
available is less than an economic holding. These are pure questions of facts
concurrently held in favour of the landlord and we are not disposed to
re-examine them at this stage and at this distance of time.
One aspect which, frankly has dominated out
thinking is the relative economic position of tenants and landlord in this
case. Anaji Ghule was a tenant of 4 acres out of 7 acres and 13 gunthas of land
comprising in Survey No. 14/A/2. Tilekar was a tenant of the remaining 3 acres
and 13 gunthas. Anaji Ghule died leaving behind him two sons and a widow, who
are appellants No. 1 to 3. Appellant " Krishnabai the widow holds
excluding the leased land 16 acres and 17 gunthas of land; first son Shivaji 8
acres and 9 gunthas, and Bala the second son 8 acres and 10 gunthas of land.
Presumably all the three inherited the land
from Shri Ghule and therefore the total holding would be 32 acres and 36
gunthas of land. And it is interesting to note some features of the partition
effected by tenants' heirs amongst themselves. The widow is allotted double the
share of each son. There is nothing to show that the mother and two sons have
separated. And their total holding is 32 acres and 36 gunthas. As against the
holding of first set of tenants of 32 acres and 36 gunthas, the landlord seeks
possession of 4 acres of land. In the case of Tilekar he holds 8 acres and 4
gunthas and the landlords 3 acres and 13 gundhas. Would it be fair to deny this
very reasonable request in 835 appeals under Art. 136 when all authorities
including High Court have held in favour of this petty small landlord. We
decline to interfere.
Accordingly this appeal fails and is
dismissed with no order as to costs.
H.L.C. Appeals dismissed.
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