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Wamanrao Trimbakrao Vs. Bhaurao Mahadu - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 2225 of 1957
Judge
Reported in(1960)62BOMLR587
AppellantWamanrao Trimbakrao
RespondentBhaurao Mahadu
DispositionAppeal Allowed
Excerpt:
.....tenancy and agricultural lands act, 1950, secs. 38(7)(c), 38-e-protected, tenants entitled to purchase lands held by them on notified date-whether such tenants can purchase lands in excess of double family holding of all lands held by landholder in other parts of territory to which act applicable.; under the hyderabad tenancy and agricultural lands act, 1950, what a protected tenant is entitled to purchase is the land which is in excess of double the family holding fixed for the particular local area and not that which is in excess of the total holding of the landholder in the area to which the act applies, that is in marathwada. section 38(7)(c) of the act indicates that regard must be had only to the extent of the landholder's holding in a particular area and not to the..........is wholly untenable. sub-section (7) of section 38 confers a right upon a protected tenant to purchase land from a landholder. sub-section (7), however, expressly provides that the right given to the protected tenant shall be subject to the conditions laid down in that sub-section. three conditions are laid down therein and one of those is that the extent of the land remaining with the landholder after the purchase of the land by the protected tenant shall not be less than two times the area of the family holding for the local area concerned. it follows from this that a protected tenant has a right to purchase the land which is in his possession provided that it is in excess of the land which the law permits the landholder to retain with him as owner in the particular local area, in.....
Judgment:

Mudholkar, J.

1. This is an application for revision under Section 91 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. The relevant facts are as follows: The petitioner before me is admittedly the landholder of survey Nos. 34 and 36 in Khuldabad taluqa of Aurangabad district having, according to the tribunal below, a total area of 46 acres and 39 gunthas. In addition to this, the petitioner is the landholder of survey Nos. 9/1, 18/1, 16/1 and 119/1 and 32 situate in Kannad taluqa having a total area of 56 acres and 5 gunthas. The opponent is a protected tenant of survey No. 34 having an area of 22 acres 37 gunthas situate in Khuldabad taluqa. Section 38-E of the Act provides that the ownership of lands held by protected tenants on the notified date, and which they are entitled to purchase from their landholders, should stand transferred to them. It is common ground that January 26, 1956, was the date notified under this section. This section, however, provides that the provisions thereof will be subject to those of Section 38, Sub-section (7), of the Act. The Tehsildar granted a declaration to the opponent that he had become the owner of survey No. 34 on January 26, 1956, under the provisions of the Act. The petitioner preferred an objection in which she con-tended that the opponent was not entitled to such a declaration on the ground that the petitioner did not own more than two family holdings in Khuldabad taluqa. Now, it may be mentioned that Clause (c) of Sub-section (7) of Section 38 provides that the rights of a protected tenant to purchase the land from his landholder would not be exercisable if the extent of the land remaining with the landholder after the purchase of the land by the protected tenant would be less than two times the area of the family holding for the local area concerned. It is not disputed before me that Khuldabad taluqa has been constituted a local area under Section 3 of the Act and under Section 4 the size of the family holding therein has been fixed at 36 acres. The petitioner's contention is that since his total holdings in Khuldabad taluqa are less than 72 acres, i.e., double the family holding fixed for that taluqa, the opponent had no right to purchase survey No. 34/1 and consequently he is not entitled to foe declared its owner under Section 38-E of the Act.

2. On behalf of the opponent Mr. Kanade contends that we cannot ignore the extent of land which the petitioner owns in Kannad taluqa in considering the question whether the tenant, i.e., the opponent, has a right to purchase survey No. 34. Looking, however, to the relevant provisions of thelaw. I have no doubt whatsoever that this contention is wholly untenable. Sub-section (7) of Section 38 confers a right upon a protected tenant to purchase land from a landholder. Sub-section (7), however, expressly provides that the right given to the protected tenant shall be subject to the conditions laid down in that Sub-section. Three conditions are laid down therein and one of those is that the extent of the land remaining with the landholder after the purchase of the land by the protected tenant shall not be less than two times the area of the family holding for the local area concerned. It follows from this that a protected tenant has a right to purchase the land which is in his possession provided that it is in excess of the land which the law permits the landholder to retain with him as owner in the particular local area, In other words, what a protected tenant is entitled to purchase is the land which is in excess of double the family holding fixed for the particular local area and not that which is in excess of the total holdings of the landholder in the area to which the Act applies, that is in Marathwada. Here, the total holding of the landholder in Khuldabad local area is less than two times the area of a family holding. Therefore, the opponent has no right whatsoever to purchase the holding in his possession. Since he has no right to purchase the holding he is not entitled to be declared under Section 38-E an owner thereof. The reason why the lands belonging to the landholder in other local areas cannot be taken into account is that Clause (c) of Section 38(7) clearly indicates that regard must be had only to the extent of the landholder's holding in a particular local area and not to the totality of his holdingsin other parts of the territory to which the Act applies. That being the position I hold that the declaration that was granted to the opponent cannot be allowed to stand. Accordingly, I revoke it, allow the application for revision and make the rule absolute. Costs of the proceedings will be borne by the opponent.


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