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Sonappa Laxman Kondekar and ors. Vs. Vijaysinha Balwantrao Pawar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 1681
Judge
Reported inAIR1983Bom33; 1983(1)BomCR115
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 43-1B
AppellantSonappa Laxman Kondekar and ors.
RespondentVijaysinha Balwantrao Pawar and ors.
Appellant AdvocateD.M. Pinge, Adv.
Respondent AdvocateK.B. Sinwalkar, Adv. for ;Bhimrao N. Naik, Adv. and;N.D. Bhatkar, Govt. Pleader
Excerpt:
.....a revision application was filed by the defendant to the maharashtra revenue tribunal. pinge, the learned advocate for the defendanttenant, is that the tenancy courts have failed to frame the requisite issues, which he describes as statutory issues,..........the tenancy act). admittedly the lands in question (which shall be referred to hereafter as the `suit land') belonged to the joint family of which respondent no. 1 was a member. the present petitioner which will be referred to hereinafter as the defendant' was a tenant of the suit land. there was some dispute in the lower court as to whether a valid and effective partition has taken place in the joint family of the plaintiff and as to whether the suit land had come to his share or not. both the courts below have held that there was a valid and effective partition in the said joint family. the present petition is, therefore, argued on the assumption that there was a partition in the joint family and the suit land had gone to the share of the present plaintiff. there is no dispute that.....
Judgment:
ORDER

1. This is a writ Petition by the original tenant raising a point which was never raised in either of the Courts below evidently because there was no factual basis or justification for the same.

2. The question arises out of the provision under S. 43-1B of the Bombay Tenancy and Agricultural Lands Act (hereinafter the Tenancy Act). Admittedly the lands in question (which shall be referred to hereafter as the `suit land') belonged to the joint family of which respondent No. 1 was a member. The present petitioner which will be referred to hereinafter as the Defendant' was a tenant of the suit land. There was some dispute in the lower Court as to whether a valid and effective partition has taken place in the joint family of the plaintiff and as to whether the suit land had come to his share or not. Both the Courts below have held that there was a valid and effective partition in the said joint family. The present petition is, therefore, argued on the assumption that there was a partition in the joint family and the suit land had gone to the share of the present plaintiff. There is no dispute that the plaintiff at one time was a member of the Armed Forces, but had ceased to be some time before the present litigation. After he ceased to be the member of the Armed Forces, he gave a notice as required by S. 43-1B (2) of the Tenancy Act and filed an application for possession of the suit land under S. 43-1B.

The said application was contested by the defendant-tenant. He questioned the validity of effectiveness of the partition set up by the present plaintiff. However, it is significant that he did not call in question the fact that the suit lands were the only lands which were owned or belonging to the present plaintiff. The parties proceeded with the proceedings on the basis that the suit lands were the only lands held by the plaintiff and the parties were at issue only on the question as to whether the plaintiff had an exclusive title to the suit land resulting from the partition in the joint family.

3. As required by the provisions of the Tenancy Act and the Rules framed thereunder, the Sub-Divisional Officer, before reaching the final decision, sent for the report of the Tahsildar on the various relevant questions and after receiving his report proceeded to hear the parties. He held that the lands were required by the petitioner bona fide for his personal cultivation. He did not frame any issue on the question as to whether the lands, taken with the other lands held by the plaintiff, would be less than or equal to the total holding of the tenant remaining with him after he was evidently so because it was nobody's contention before him that the plaintiff had any other lands belonging to him or under his cultivation. The Sub-Divisional Officer was satisfied that the plaintiff's requirement was bona fide and reasonable and hence he passed an order determining the defendant's tenancy and ordering possession to be delivered to the plaintiff .

4. Against the said decision, a Revision Application was filed by the defendant to the Maharashtra Revenue Tribunal. But significantly enough, even before the Revenue Tribunal there was not as much as a whisper on behalf of the defendant that the plaintiff had any land other than the suit land either in his possession or of his ownership. The only question that was agitated before the Tribunal by the defendant was that the plaintiff did not have exclusive title to the suit land and further that the plaintiff's requirement was not bona fide or reasonable. The Tribunal examined the entire evidence defendants novo and came to the conclusion that the tenant's plea was without any substance. Hence the revision application was dismissed.

5. In this petition, the only point sought to be urged before me by Mr. D. M. Pinge, the learned advocate for the defendanttenant, is that the Tenancy Courts have failed to frame the requisite issues, which he describes as statutory issues, namely:

(a) as to whether the plaintiff had any other lands besides the suit land or not; and

(b) whether taking into consideration the other land, if any, held by the plaintiff, the plaintiff was entitled to possession of the suit land from the tenant so as to equalise their respective holdings;

Mr. Pinge contested that these were the statutory issues and it was incumbent upon the Tenancy Court to frame these issues before deciding as to whether the plaintiff as the erstwhile member of the Armed Forces was entitled to avail of the provisions of Section 43-1B or not.

6. I am unable to accede to Mr. Pinge's contention. In the first place, it is not quite correct to contend that the issue as to whether the landlord has got any other land or not and as to whether the landlord has got any other land or not as to whether the question of equalisation would arise or not are statutory issues. It is true that the Tribunal cannot order in favour of the landlord any land in possession of the tenant if such order will ultimately result in the landlord's getting into his possession larger holdings than that held by the tenant. But if it is nobody's case that the landlord had any other land at all, it would be an exercise in futility for the Tenancy Court to frame any such issues in the first instance. In the instant case, if is clear that the parties went to trial on the basis that the total holding held by the plaintiff -landlord was restricted to the one which was the subject matter of the suit. It was nobody's case that other than the joint family land, the present plaintiff had any additional lands in his individual capacity. It is further nobody's case that in the partition any land other than the suit land had come to the share of the present respondent. It was evidently on this realisation that the issues relating to equalisation of the lands were not invited or insisted upon by the defendant-tenant. It is evidently on account of the very reason why no question in that behalf came to be agitated by the defendant-tenant before the Revenue Tribunal. The said question is being raised before me for the first time in this petition. What is further noteworthy is that no material was placed on record even before me to show that the plaintiff had any land other than the suit land in his possession or of his ownership. All that is asked for is that an academic issue should be got framed by the trial Court and the defendant-tenant should have second inning of the litigation so that he continues to remain in possession merrily for many years to come. To my mind, this Court's writ jurisdiction is not meant for such lingering exercise.

7. To my mind, this petition has no substance and hence the same fails. The rule earlier issued is discharged. However, there shall be no order as to costs.

8. Petition dismissed.


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