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CA/8334/2009 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR CONDONATION OF DELAY No. 8334 of 2009
In
LETTERS PATENT APPEAL No. 552 of 2010
With
LETTERS
PATENT APPEAL No. 552 of 2010
In
SPECIAL CIVIL APPLICATION No. 6027 of 1996
With
CIVIL
APPLICATION No. 3122 of 2010
In
LETTERS PATENT APPEAL No. 552 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
=============================================
RAISINH
AJABSINH RANA - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=============================================
Appearance
:
MR PY DIVYESHVAR for
Petitioner(s) : 1,
MS KRINA CALLA ASST. GOVERNMENT PLEADER for
Respondent(s) : 1 - 3.
UNSERVED-EXPIRED (N) for Respondent(s) :
4,
MR NILESH A PANDYA for Respondent(s) : 4.2.1, 4.2.2, 4.2.3,
4.2.4, 4.2.5,4.2.6
=============================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: /09/2010
CAV
ORDER
(Per
: HONOURABLE MR.JUSTICE ANANT S. DAVE)
CIVIL
APPLICATION NO. 8334 OF 2009 (FOR CONDONATION OF DELAY)
By
an order dated 30.3.2010, Letters Patent Appeal was ordered to be
listed along with Civil Application No.8334 of 2009 (for condonation
of delay) on 26th April, 2010.
Considering
the facts and circumstances of the case and being satisfied on
grounds and sufficient cause is shown, delay of 1070 days stands
condoned.
Civil
Application accordingly stands disposed of.
LETTERS
PATENT APPEAL NO. 552 OF 2010 WITH CIVIL APPLICATION NO. 3122 OF 2010
(FOR STAY)
1. The
dispute is pertaining to the land situated at Survey No.584
admeasuring 4 Acres 17 Gunthas of village Vakaner, Taluka Savli,
District Vadodara, belonging to respondent No.4-temple trust and
vis-a-vis claim made by the petitioner over the land as a tenant.
2. Respondent
No.4-trust filed Regular Civil Suit No.129 of 1969 before the learned
Civil Judge, (J.D.) Savli, for possession of the above land, after
terminating the tenancy of one Roopsinh Bajibhai and in the said suit
the petitioner was joined as defendant No.7. However, during
pendency of the said suit upon framing the issue about jurisdiction
of the Civil Court to decide the dispute with regard to tenancy, a
reference was made by the Civil Court to the Mamlatdar, Savli, and
accordingly by an order dated 21.11.1988 Mamlatdar & ALT, Savli,
decided that said Roopsingh Bajibhai was tenant on specified dates
namely 1.4.1957 under the Tenancy Act and also on 15.11.1969 as per
provisions of Section 88(e)(2) of the Bombay Tenancy and
Agricultural Lands Act, 1948 (hereinafter referred to as “the
Tenancy Act”). An appeal was preferred before the Dy.
Collector, Vadodara being Tenancy Appeal No.15 of 1989 and vide order
dated 8.10.1990, the appeal was partly accepted and the order of
Mamlatdar & ALT dated 21.11.1988 was quashed and set aside and it
was remanded for taking a decision afresh. Accordingly, the
Mamlatdar & ALT considered merit of the case and possession of
the land in question based on rival claims and by an order dated
31.3.1993 passed in Tenancy Case No. 1702 of 1990.
2.1. That,
Shri Raisinh Ajabsinh, the occupier of the land was found to have
been cultivating the land and Talati-cum-Mantri /Secretary, Village
Panchayat was directed to enter the name of the petitioner in record
of rights as tenant of the land in question. That, temple trust
preferring Tenancy Appeal No.86 of 1993, the Dy. Collector quashed
and set aside the order of Mamlatdar & ALT, Savli, on the ground
that the occupier namely Raisinh Ajabsinh was not tenant on specified
date as per Section 88E of the Tenancy Act, since original tenant
Shri Roopsinh Bajibhai died issueless on 6.3.1973 and claim made by
some persons claiming to be legal heirs of said Shri Roopsinh
Bajibhai, was finally negatived by High Court in a Writ Petition
No.922 of 1983 vide order dated 28.11.1985. That, challenge was made
before Gujarat Revenue Tribunal by filing Revision Application
No.TEN.B.A.241/95 dated 31.7.1996 and the revision application came
to be dismissed by upholding the order of Collector, Vadodara dated
29.4.1995 passed in appeal.
2.2. The
Gujarat Revenue Tribunal also confirmed the reasonings of the
appellate authority on the ground that the occupier namely Raisinh
Ajabsinh had no valid or deemed tenancy and after death of tenant
Shri Roopsingh Bajibhai on 6.3.1973, no one had inherited any title
or tenancy of the land in question and on specified dates as required
under Section 88E(2) of the Act Shri Raisinh Ajabsinh was not a
tenant. Besides, no application was filed under Section 7o(b) before
the Mamlatdar by Raisinh Ajabsinh declaring him to be tenant of the
suit land.
2.3. That
challenge in the writ petition under
Articles 226 and 227 of the
Constitution of India before this Court was the above order of GRT
dated 31st July, 1996, also failed.
3. Learned
advocate for the appellant submitted that the Collector and the
Gujarat Revenue Tribunal, while exercising the appellate and
revisional powers, respectively, have failed to notice the possession
of the tenancy of the petitioner and while confirming the findings of
the above authorities, learned Judge also committed an error while
exercising powers under Articles 226 and 227 of the Constitution of
India. It is further submitted that considering revenue record,
namely, village form No.7/12 and payments of revenue dues made by the
petitioner, it was established that the petitioner was in possession
of the land in question since last 40 years. It is further submitted
that when the Mamlatdar & ALT, Savli, arrived at a finding on the
basis of appreciation of evidence on record in the order dated
31.3.1993, the appellate and revisional authority were not justified
taking a different view than the competent authority.
4. The
learned AGP appearing for the respondent-State submits that no error
apparent on the face of the record or law appears and, therefore, the
learned Judge was justified in dismissing the writ petition filed
under Articles 226 and 227 of the Constitution of India. It is
further submitted that on specified date, namely, 15.11.1969, the
petitioner was not found to be a tenant and no application under
Section 70(b) before the Mamlatdar was filed for declaring him as a
tenant of the suit land and a belated claim on the basis of a few
entries in the revenue record would not entitle the appellant to
claim tenancy rights over the suit land. In view of the above, it is
submitted that no interference is called for in the decision of the
learned Judge.
5. Having
heard learned advocates for the parties and on perusal of the
record, we find that the appellate as well as revisional authorities
have arrived at findings about the fact that the appellant herein was
neither a tenant on any of the specified dates namely on 1.4.1957
tillers’ day nor on 15.11.1969 under Section 88E(2) of the Tenancy
Act. The above fact was duly noticed by learned Single Judge and
concurred with while exercising powers under Articles 226 and 227 of
the Constitution of India.
5.1. We
have also carefully examined the record pertaining to claim made by
the appellant about tenancy right of the land in question and noticed
that except a few entries from 1927 to 1932 and in the year 1941 to
1942, where name of the father of the appellant was shown as
cultivating the suit land but nowhere name of father of the appellant
or the appellant herein was shown in the cultivation form thereafter.
That, the claim based on such sporadic entries for a few years in
the revenue record in the name of the father of the appellant would
not establish any right of tenancy neither in favour of his father
nor the appellant herein. The above claim is not based on the record
because the revenue record from 1951-52 to 1981 to 1982 in the
cultivation column name of Roopsinh Baji who was declared as tenant
is shown. That, name of the appellant or his father is nowhere found
in village form No.7/12 after 1942-1943. So far as entry No.1232
dated 17.5.1965 of village Form No.6 pertaining to suit land appears
to have been recorded on the basis of the order of Mamlatdar &
ALT dated 15.10.1962 stating that the trust had obtained the
certificate of the exemption under Section 88B of the Tenancy Act
and the tenant Roopsinh Baji was not entitled to purchase the suit
land. Even, this entry was certified on 21.8.1965 by the Circle
Inspector, Savli and even this entry was also not challenged by the
appellant or his father. So far as, legal heirs namely Pratap Mavji
and Chandaben, nephew and niece of the deceased Roopsinh Baji, who
died on 6.3.1973 and ‘will’ executed in their favour and claim based
on such ‘will’ for tenancy was negatived upto the High Court. Thus,
neither Roopsinh Baji, his legal heirs nor the appellant or his
father could claim any tenancy right whatsoever. Besides, no
application was preferred under provisions of Section 70(b) of
Tenancy Act by the appellant or his predecessors before the Mamlatdar
or declaring him to be the tenant of the suit land.
6. In
view of the above, contentions of learned advocate to allow the
appeal and writ petition with prayers fail.
7. We
are in agreement with concurrent findings of fact recorded by both
the authorities namely, the appellate as well as revisional as
confirmed by learned Single Judge while exercising powers under
Articles 226 and 227 of the Constitution of India and in absence of
any jurisdictional error much less error of law in exercise of
powers, no interference is called for and the appeal fails. Notice
discharged with no order as to costs.
8. In
view of the above, Civil Application for stay does not survive and is
disposed of accordingly.
[S.J.MUKHOPADHAYA,
C.J.]
[ANANT
S. DAVE, J.]
//smita//
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