1. The petitioner in the above Special Civil Application under Art. 227 of the Constitution of India is the tenant of S. Nos. 159/2 - 3, 162/3 and 187/7 totally measuring only Acres 3 and Gunthas 8, situate at village Are in Karvir Taluka of Kolhapur District. Respondent No. 1 - landlord filed an application under Section 33 - B of the Bombay Tenancy and Agricultural Lands Act, 1948, against him after obtaining a certificate under Section 88 - C for recovery of possession of the said lands on the ground of bona fide requirement for personal cultivation. The application was granted by the Tenancy Aval Karkun on February 23, 1964. the order of the Tenancy Aval Karkun was set aside in appeal by the District Deputy Collector on October 27, 1964, observing as follows :-
'I am satisfied that comparative position of land in possession is not considered adequately by the lower Court. I, therefore, partly allow the appeal and set aside the order of the lower Court and remand to consider the issue of comparative land in possession as required under Section 33 - B and then decide the matter. No other issues is open for consideration'.
2. After the remand the Tenancy Aval Karkun allowed the parties to lead Evidence. The petitioner contended that the Registered partition deed dated December 22, 1956, under which the landlord had taken to himself only s Acres and 24 - 1/2 gunthas and given 49 acres and 9 gunthas to his son and 37 acres and 4 gunthas to one of his two wives was disproportionately unequal and effected solely with a purpose of defeating the rights of the petitioner - tenant under the provisions of the Bombay Tenancy Act; and there was no partition in fact effected, as at the time of the date of the alleged partition, respondent No. 1, his son and wife were all living together and only at the time of the hearing of the application, they were living separately in houses Nos. 1857 and 1899.
3. The Tenancy Aval Karkun considered the evidence before him and found that there was tenant only in the suit lands, and it was, therefore, clear that the landlord had taken a very small portion of 3 acres and 24 - 1/2 gunthas of land including the suit lands with an intention to withdraw the suit lands from the tenant although about 30 acres of land comes to the share of the application if an equal partition is made. The Tenancy Aval Karkun therefore ignored the alleged partition and found that respondent No. 1 - landlord had already other lands larger in area than the lands with the tenant; and therefore, he was not entitled to possession of he lands in dispute in view of the provisions of Section 33 - B (5) (b) of the Bombay Tenancy Act. Under that Section the landlord shall be entitled to terminate a tenancy and take possession of the land leased but to the extent only of so much thereof as would result in both the landlord and the tenant holding thereafter in the total an equal area for personal cultivation. Respondent No. 1 had, if all lands measuring Acres 89 Gunthas 21, alleged to be partitioned are found to be held by him, larger area than the tenant; and therefore, by his order dated August 14, 1965, the Tenancy Aval Karkun rejected the application.
4. The said order was confirmed in appeal by the District Deputy Collector by his order dated January 17, 1966, after agreeing with the findings recorded by the Tenancy Aval Karkun. The said decisions were set aside by the Maharashtra Revenue Tribunal in a revision application filed by respondent No. 1 landlord on the ground that as the holding of the landlord had already been considered, while granting the certificate under Section 88 - C, it was not open to the Tenancy Authorities to consider once again the holding of the landlord.
5. The said decision of the Tribunal dated November 25, 1966, is challenged in the above petition. Mr. Hombalkar, learned Counsel for the petitioner, contended that the Tribunal has committed a manifest error in assuming that Section 88 - C proceedings involve the consideration of the holding of the landlord notwithstanding that section requires only consideration of the 'lands leased'. This contention of Mr. Hombalkar must be upheld because the Tribunal has observed :-
'Section 88 - C is very clear. It says only such landlord would be given exemption certificate whose land or holding is less than or equal to the economic holding as defined in Tenancy Act and whose income is less than Rs. 1,500/-........................................'
It appears that the Tribunal did not care to look into sub - section (1) of S. 88 - C, which reads as follows :-
'88 - C (1) Save as otherwise provided by Sections 33 - A, 33 - B and 33 - C, nothing in Sections 32 to 32 - R (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/-.
Provided that the provisions of this sub - section shall not apply to any person who holds such land as a permanent tenant or who has leased such land on permanent tenancy to any other person.'
6. The holding referred to in the section is clearly the holding in respect of 'land leased' and not the other holdings of the landlord. The Tribunal, therefore, misconceived the section and approached the case illegally.
7. Mr. Kotwal, learned Counsel for the landlord, however, submitted that although Section 88 - C did not refer to the holding of the landlord, while considering the income of the landlord, it was necessary to consider the holding of the landlord; and once a certificate under Section 88 - C was granted on the basis that the landlord had income less than Rs. 1,500/-, it would not be open to the Tenancy Authorities to challenge that certificate by considering the other holdings of the landlord, which would yield more income. Mr. Kotwal is unable to say whether the holding of the landlord was in fact considered while granting the certificate under Section 88 - C in connection with the income of the landlord, because no certified copy of the order granting the certificate is on the record. The certificate under Section 88 - C, which is on the record, does not show that the holding of the landlord other than the leased land was considered. There is nothing on the record to show that while granting certificate under Section 88 - C all the holdings of the landlord were taken into account. The Tribunal was, therefore, quite wrong in assuming that it was not open to the Tenancy Authorities to consider the holding while passing an order under Section 33 - B, particularly having regard to the provisions of Section 33 - B (5) (b) of the Tenancy Act.
8. Mr. Kotwal then submitted that the Tenancy Authorities had no jurisdiction to invalidate a registered partition - deed. This contention of Mr. Kotwal must be rejected because the tenancy Authorities have to ascertain the holdings of the landlord while deciding the question of restoring possession under Section 33 - B (5) (b) of the Bombay Tenancy Act. If, in finding out the holding of the landlord, it is necessary for the tenancy Authorities to consider the factum of partition or validity of the partition - deed they are bound to look at it and say whether it is a real partition. In the present case the fact - finding authorities, viz. the Deputy Collector and the Tenancy Aval Karkun, disbelieved the landlord and held that the partition was a sham partition effected for the purpose of defeating the rights of a tenant. The terms of partition referred to above fully support their findings. It is difficult to believe that the partition was real when only the tenanted lands measuring acres 3 gunthas 8 and a small piece of land to made a total of acres 3 and gunthas 24 - 1/2 disproportionately unequal proportions were allotted to his son and his wife. In many judgment, the Deputy Collector and the Tenancy Aval Karkun were, therefore, right in ignoring the alleged partition between the landlord and his son and one of his wives; and in rejecting his application under Section 33 - B.
9. In the result the judgment and order of the Maharasthra Revenue Tribunal dated November 25, 1966, is quashed. The order of the Tenancy Aval Karkun dated August 14, 1965, and the order of the Deputy Collector dated January 17, 1966, are restored.
10. Rule absolute with costs.
11. Application allowed.