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SCA/9242/2008 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9242 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MANUBHAI
DHARABHAI BHARWAD - Petitioner(s)
Versus
SURYABEN
SHANTILAL VADVALA & 11 - Respondent(s)
=========================================================
Appearance
:
MR
SHITAL R PATEL for
Petitioner(s) : 1,
None for Respondent(s) : 1,
MR PRASAD N
BHATT for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5
RULE
SERVED BY DS for Respondent(s) : 2 - 8.
MR SATYAM CHHAYA ASST
GOVERNMENT PLEADER for Respondent(s) :
7,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 28/08/2008
ORAL
JUDGMENT
Heard
learned advocates appearing for the parties.
2. The
petitioner has challenged the order dated 01.07.2008 passed by the
Gujarat Revenue Tribunal in Revision Application No.TEN/BA/548 of
1995. The petitioner had initiated the proceedings under Section
70(B) of the Bombay
Tenancy and Agricultural Lands Act, 1948 (for short ?Sthe Tenancy
Act??) before the Mamlatdar & ALT claiming to be tenant of the
land bearing Block No.29 admeasuring Acre 1 ? 13 Gunthas and Block
No.248 admeasuring Acre 2 ? 12 Gunthas of village Hebatpura, Taluka
Daskroi. In the application, the petitioner has stated before the
Mamlatdar that he is cultivating the said land since 20 years and he
is also paying the land revenue for the land in question. His tenancy
rights may, therefore, be decided and he may be declared deemed
purchaser of the land in question. Significantly, in the application
dated 11.07.1994 the petitioner filed before the Mamlatdar, he did
not disclose as to how he was put in possession of the land in
question and in what capacity he was cultivating the same.
3. The
Mamlatdar held inquiry and after recording evidence, by his order
dated 08.05.1995, held that the petitioner was tenant of the suit
land. He also fixed purchase price and upon payment of which, the
petitioner would become deemed purchaser.
4. The
order of the Mamlatdar was carried in appeal by the land owners
before the Deputy Collector. The appeal was, however, came to be
dismissed by his order dated 30.09.1995. Thereupon, the land owners
preferred revision application before the Gujarat Revenue Tribunal
which by the impugned order, came to be allowed. The petitioner is,
therefore, before this Court in the present petition.
5. Learned
advocate Mr.Shital R. Patel has relied upon several factors referred
to in the revision application. It is observed in the impugned order
that notices were not served on the land owners. That there was no
material to show that the petitioner was tenant of the suit land. It
was held that the application under Section 70(O) of the Tenancy Act
was not maintainable.
6. Having
heard learned advocates appearing for the parties and having perused
the evidence on record, I find that the order of the Gujarat Revenue
Tribunal does not call for any interference. Learned advocate
Mr.Shital Patel for the petitioner though he is justified in pointing
out that the Tribunal held that proper notices were not served on the
land owners and under such circumstances, the proper course would be
to remand the proceedings. However, this is not only a ground on
which the revision application was allowed. The Tribunal found that
the petitioner had failed to establish his tenancy rights. To this
conclusion, I am in agreement with finding of the Tribunal. The
respondents have produced the application filed by the petitioner
before the Mamlatdar and the depositions of the parties. The
petitioner himself in his deposition has stated before the Mamlatdar
that he is cultivating the land since 20 years. That the land is in
the name of widow of Ratilal Ganpatram viz. Parvatiben but the land
owners are not residing in the village since many years, where they
are residing the witness does not know. The petitioner further stated
that he cultivates the land and enjoys possession in absence of the
land owners who are not residing in the village, nor are cultivating
the land. He stated that he should be declared as tenant and purchase
price for the land should be fixed. Witnesses examined on behalf of
the petitioner also gave similar depositions. One Kalaji Chanduji
Thakor who was examined by the petitioner. He also stated that the
land owners do not reside in the village and he did not know where
they are residing. One Pravinbhai Mavjibhai also similarly examined
by the petitioner who also gave similar deposition.
7. From
the evidence on record, it becomes clear that though the petitioner
asserted before the revenue courts that he is in actual possession of
the land in question and that he cultivates the land since years,
nowhere the petitioner stated that he was put in possession by the
land owners or he was authorised by the land owners to cultivate the
land or that in any manner the petitioner cultivates the land upon
sharing the crop or by paying any other rent to the land owners. In
effect, the case of the petitioner himself that he was in possession
of the land and cultivating the same since years. He, in fact, stated
that he does not know where the land owners reside. Nowhere did the
petitioner contend that he was cultivating the land as tenant. This
crucial aspect was totally missing in the application of the
petitioner as well as in his deposition, so also, of the depositions
of other witnesses.
8. In
that view of the matter, even if the Courts below were of the
opinion that the petitioner was actually cultivating the land, it was
not possible to hold that he was doing so as tenant. It is true that
the Deputy Collector may have passed remark that the petitioner
conceal tenant. However, there was no material come on record to such
conclusion, nor it was not even a case of the petitioner himself.
9. When
the petitioner himself has not set out a case of cultivating the land
as tenant, the Mamlatdar as well as Deputy Collector could not have
declared the petitioner as tenant of the suit land. The Revenue
Tribunal, therefore, not committed any error in reversing such
orders.
In
the result, the petition fails, and hereby, dismissed.
10. Learned
advocate for the petitioner, however, pointed out that the land
owners have obtained a decree from the Civil Court against which the
petitioner has preferred an appeal which is pending.
I
am sure such an appeal will be decided on the basis of material
available on record.
Subject
to aforesaid observations, the petition is dismissed.
Rule
is discharged.
(
Akil Kureshi, J. )
kailash
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