CASE NO.: Appeal (civil) 2653 of 1972 PETITIONER: DIGAMBAR ADHAR PATIL RESPONDENT: DEVRAM GIRDHAR PAUL (DIED) AND AMR. DATE OF JUDGMENT: 21/02/1995 BENCH: K. RAMASWAMY & B.L. HANSARIA JUDGMENT:
JUDGMENT
1995 (1) SCR 133
The following Order of the Court was delivered:
Substitution allowed.
This appeal by special leave arises from the judgment of the Bombay High
Court in Special Civil Application No. 1097 of 1968 dated April 26, 1972.
The respondents filed an application under s32G of the Bombay Tenancy &
Agricultural Lands Act, 1948, (for short, ‘the Act) to deter-mine the price
payable to the appellant to purchase 8 acres 26 guntas of land which was
admittedly in his possession as a tenant The Tribunal below under the Act
found that the respondent No. 1 was is possession of 54 acres of land. In
other words, in excess of 48 acres, which in the ceiling limit prescribed
under the Act. Therefore, he was not entitled to purchase the land in
question from the appellant. The High Court found that the conclusion
reached by the Tribunals was vitiated by personal law, namely, Hindu Law
and also by evidence on record.
We are concerned in this case with the land held by the respondent’s minor
son to the extent of 7 acres 34 guntas and the land said to have been,
allotted to the share of his brother by name, Ram Chander, at a partition
between them. The High Court has held that by operation of provisions of
S.32B of the Act, the land which the respondent held as an owner and tenant
alone should be taken into consideration in determining the area of ceiling
limit. The land cultivated by the respondent belonging to his minor son was
not as a tenant but as a guardian of his minor son. The land allotted to
his brother was evidenced by the entries in the Record of Rights and,
therefore, the oral evidence coupled by those entries established that
there was a partition between him and his brother Ram Chander and thereby
the said land stood excluded. Even assuming that the land belonging to his
minor son and cultivated by the respondent was considered to be either held
as a tenant or as a member of the joint family, the total land held by the
respondent was within the ceiling limit and therefore, he is entitled to
purchase the land of the appellant to the extent of 8 acres 26 guntas
cultivated as a tenant by the respondent under s.32B of the Act.
Accordingly, it directed the Mamlatdar to conduct the enquiry under s.32G
and remanded the matter for fixing the price. Thus this appeal by special
leave.
It is contended for the appellant that three Tribunals below, namely,
Mamlatdar, appellate authority and the Land Tribunal concurrently held that
the respondent was in possession of 54 acres 23 guntas. In other words, hi
excess of the ceiling limit. It is a finding of fact based on appreciation
of evidence. The High Court, therefore, while exercising the revisional
power under Art. 227 of the Constitution should not have embarked upon
appreciation of evidence to reverse the finding of fact recorded by the
Tribunal below. It is also contended that the definition of the person
includes joint family and the Act does indicate that the land belonging to
the minor son should be included in the holdings held by the respondent-
tenant. If that land is included, it would be beyond the ceiling limit. It
is also contended that the partition said to have been effected between the
respondent and his brother Ram Chander was not evidenced by any documentary
evidence which was claimed to be in the possession of respondent but was
denied by Ram Chander. Therefore, the High Court was not right in reversing
the concurrent findings recorded by the Tribunals below.
We find no force in the contention. Section 32B clearly postulates that the
land held as an owner or as a tenant alone should be taken into
consideration to determine ceiling limit and if the land held as owner or
tenant is within the ceiling limit, he shall be entitled to purchase the
land held by him as a tenant. Admittedly, the respondent held the land as
an owner to the extent of 36 acres 1 guntas. The area of dispute is only in
respect of the land held by his minor son and the land allotted at a
partition to his brother Ram Chander. With regard to the land held by the
son, even assuming that it is a joint family property for the purpose of
the Act and it is incuudible in his holding yet he is within the ceiling
limit, namely, 43 acres 35 guntas. As rightly held by the High Court he
cultivated it on behalf of his minor son. As to the land allotted to the
brother of the respondent, the Tribunals below negatived it on two grounds,
namely, in the cultivation column of the Revenue records, it was shown that
the respondent had cultivated the land and no documentary evidence of
partition was produced before the authorities. The Tribunals below did not
advert to the entries in the Record of Rights or to the factum of
partition, while the High Court has taken this factor into consideration,
which in our considered view had rightly been taken into account. The
entries in the Record of Rights regarding the factum of partition is a
relevant piece of documentary evidence in support of the oral evidence
given, by the respondent and his brother to prove the factum of partition.
Even in the evidence of Ram Chander, he dearly stated that there was a
partition but he could not give the date and year in which the partition
was effected nor the deed of the partition was produced. Under the Hindu
Law, it is not necessary that the partition should be effected by a
registered partition deed. Even a family arrangement is enough to
effectuate the partition between coparceners and to confer right to a
separate share and enjoyment thereof. Under those circumstances, when the
factum of partition was evidenced by entries in the Record of Rights, which
was maintained in official course of business, the correctness thereof was
not questioned, it corroborates the oral evidence given by the brother and
lends assurance to accept it.
The High Court, therefore, was right in its conclusion that the land
allotted to the brother of the respondent, namely, Ram Chander should be
excluded. If that land is excluded necessary conclusion is that the respon-
dent was within the ceiling limit. Consequently, he is entitled to purchase
the land of the appellant who is the owner under the provisions of the Act
as he is a deemed tenant on the tiller date under s32 of the Act. Whether
the respondent is in excess of the land or not would be considered while
computing the holding as ordered by the High Court in its remand order. The
appeal, therefore, does not warrant interference. It is accordingly
dismissed.