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Motibhai Gopalbhai and ors. Vs. Gujarat Revenue Tribunal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1966)7GLR693
AppellantMotibhai Gopalbhai and ors.
RespondentGujarat Revenue Tribunal and anr.
Excerpt:
.....he had no chance of success in the appeal. 2, a minor, being the landlord in respect of the said survey numbers on 1st april 1957 as appearing from the entry certified by the mamlatdar-which entry had presumptive value section 32f(1)(a) clearly applied and respondent no. when we turn to section 32f(1)(a) we find that that section applies only where the landlord is a minor or a widow or a person subject to any mental or physical disability or a serving member of the armed forces and where such a landlord is a member of a joint family, the proviso to section 32f(1)(a) declares that the provisions of that section shall not apply if at least one member of the joint family is outside the categories mentioned in the section, unless before the 31st day of march 1958 the share of such landlord..........and 3 are the sons of petitioner no. 1. petitioner no. 1 was at all material times owner of three survey numbers, namely, 98, 99 and 103 situate in the sim of village savad, baroda taluka, baroda district. the second respondent was the protected tenant of petitioner no. 1 in respect of the said survey numbers in or about the beginning of july 1956, petitioner no. 1 transferred, the said survey numbers to petitioner no. 2 by way of partition by metes and bounds and an application was made to the collector, baroda, on 10th july 1956 to effect the necessary mutation in the record of rights. the collector sent the application to the mamlatdar, baroda, and the mamlatdar in his turn forwarded it to the talati of savad. the talati made an entry in accordance with the application in the.....
Judgment:

P.N. Bhagwati, J.

1. This petition is directed against an order passed by the Revenue Tribunal setting aside an order made by the Prant Officer, Baroda, in appeal against an order of the Mamlatdar, Baroda, allowing the application of respondent No. 2 and declaring the transfer of certain lands by petitioner No. 1 in favour of petitioner No. 2 by way of partition as sham and bogus. Petitioners Nos. 2 and 3 are the sons of petitioner No. 1. Petitioner No. 1 was at all material times owner of three Survey Numbers, namely, 98, 99 and 103 situate in the Sim of village Savad, Baroda Taluka, Baroda District. The Second respondent was the protected tenant of petitioner No. 1 in respect of the said Survey Numbers In or about the beginning of July 1956, petitioner No. 1 transferred, the said Survey Numbers to petitioner No. 2 by way of partition by metes and bounds and an application was made to the Collector, Baroda, on 10th July 1956 to effect the necessary mutation in the Record of Rights. The Collector sent the application to the Mamlatdar, Baroda, and the Mamlatdar in his turn forwarded it to the Talati of Savad. The Talati made an entry in accordance with the application in the register of eatries on 27th July 1956 being Entry No. 197 and after issuing notices under Section 135D of the Bombay Land Revenue Code, 1879, the Mamlatdar certified the entry on 22nd October 1957. In the meantime before the entry was certified, petitioner No. 2 gave a notice to respondent No. 2 on 20th December 1956 stating that the said Survey Numbers had been transferred to him by petitioner No. 1 by way of partition on 10th July 1956 and terminating the tenancy of respondent No. 2 under Section 31 of the Bombay Tenancy and Agricultural Lands Act, 1948, (hereinafter referred to as the Tenancy Act). Petitioner No. 2 thereafter on the expiration of the period set out in the notice, filed an application before the Mamlatdar for recovering possession of the said Survey Numbers from respondent No. 2 on the ground that he bona fide required them for personal cultivation. The application was made under Section 29 read with Section 31 of the Tenancy Act and since petitioner No. 2 was a minor, the application was filed by his mother as next friend of the minor. Now the entry registering the said Survey Numbers in the name of petitioner No. 2 was certified only on 22nd October 1957 and, therefore, at the date when petitioner No. 2 gave notice terminating the tenancy of respondent No. 2 as also at the date of the filing of the application for possession, petitioner No. 2 was not entered as the owner of the said Survey Numbers and the said Survey Numbers were standing in the name of petitioner No. 1 and the application made by petitioner No. 2 was, therefore, dismissed. No appeal against the order dismissing the application was preferred by petitioner No. 2 presumbly because he realised that in view of the fact that at the relevant dates the entry transferring the said Survey Numbers in the name of petitioner No. 2 was not certified, the application was rightly dismissed and he had no chance of success in the appeal.

2. Now since the effect of the certification of the entry by the Mamlatdar was that at the relevant date, namely, 1st April 1957, the said Survey Numbers stood in the name of petitioner No. 2 who was a minor, no notice under Section 32G was issued by the Agricultural Lands Tribunal to respondent No. 2 for determining the purchase price of the said Survey Numbers even though respondent No. 2 was a tenant in respect of the said Survey Numbers. The Agricultural Lands Tribunal obviously proceeded on the basis that petitioner No. 2, a minor, being the landlord in respect of the said Survey Numbers on 1st April 1957 as appearing from the entry certified by the Mamlatdar-which entry had presumptive value Section 32F(1)(a) clearly applied and respondent No. 2 did not become the deemed purchaser of the said Survey Numbers on 1st April 1957 under Section 32 but was entitled to purchase the said Survey Numbers within one year after the expiration of the date on which petitioner No. 2 would attain majority unless the case fell within the proviso to Section 32F(1)(a) in which event respondent No. 2 would become the deemed purchaser of the said Survey Numbers on 1st April 1958. Since no notice was issued to respondent No. 2 by the Agricultural Lands Tribunal under Section 32G on the basis that the said Survey Numbers belonged to petitioner No. 2 who was a minor, respondent No. 2 made an application to the Mamlatdar on 27th December 1960 for a declaration that the transfer of the said Survey Numbers byway of partition made by the petitioned No. 1 in favour of petitioner No. 2 was sham and bogus and that petitioner No. 1 continued to be the owner of the said Survey Numbers and respondent No. 2 was accordingly entitled to purchase the said Survey Numbers on 1st April 1957. The application was purported to be made under Section 70(o) read with Section 32F of the Tenancy Act. The allegation of respondent No. 2 in the application was that the transfer of the said Survey Numbers made by petitioner No. 1 to petitioner No. 2 by way of partition was not genuine and there was in fact no partition at all and that petitioner No. 2 was, therefore, not the landlord in respect of the said Survey Numbers and petitioner No. 1 continued to be the landlord and the right of respondent No. 2 to become the deemed purchaser of the said Survey Numbers on 1st April 1957 under Section 32, was, therefore, not affected. Respondent No. 2 thus disputed the claim of the petitioners that petitioner No. 2 who was a minor was the landlord in respect of the said Survey Numbers on 1st April 1957 and contended that it was not the minor petitioner No. 2 but the major petitioner No. 1 who was the landlord in respect of the said Survey Numbers and Section 32F(1)(a) had therefore no application. The Mamlatdar who heard the application took the view that the partition alleged to have been effected by petitioner No. 1 in favour of petitioner No. 2 was sham and bogus and he accordingly made an order declaring that the transfer of the said Survey Numbers made by petitioner No. 1 to petitioner No. 2 by way of partition was bogus and the right of respondent No. 2 to become the deemed purchaser of the said Survey Numbers was, therefore, not at all affected. The petitioners being aggrieved by this order passed by the Mamlatdar preferred an appeal to the Prant Officer. It may be pointed out here that before the Mamlatdar, in addition to the contentions on merits, a preliminary contention was raised on behalf of the petitioners that the application of respondent No. 2 was barred by limitation but that contention was rejected by the Mamlatdar and in the appeal before the Prant Officer the same contention was repeated on behalf of the petitioners. The Prant Officer accepted the contention and held that the application of respondent No. 2 was barred by limitation and he accordingly allowed the appeal and set aside the order of the Mamlatdar. Respondent No. 2 thereupon preferred a Revision Application to the Revenue Tribunal. The petitioners did not remain present at the hearing of the Revision Application and the Revenue Tribunal after hearing respondent No. 2 by an order dated 12th June 1962 allowed the Revision Application, set aside the order of the Prant Officer and restored that of the Mamlatdar. The Revenue Tribunal took the same view as the Mamlatdar, namely, that the transfer of the said Survey Numbers by way of partition made by petitioner No. 1 in favour of petitioner No. 2 was sham and bogus and petitioner No. 2 was, therefore, not the landlord in respect of the said Survey Numbers at the relevant date and the right of respondent No. 2 to become the deemed purchaser of the said Survey Numbers on 1st April 1957 was, therefore, not affected. The petitioners thereupon preferred the present petition challenging the validity and legality of the order passed by the Revenue Tribunal.

3. There were various grounds of challenge urged before us on behalf of the petitioners, but it is not necessary to refer to them since we find that out of them there is one ground which is sufficient to dispose of the petition. That ground is that the application made by respondent No. 2 before the Mamlatdar was misconceived and did not lie under any provision of the Act. The application, as we have pointed out above, was purported to be made under Section 70(o) read with Section 32F and those were the sections under which it was sought to be sustained before us on be-half of respondent No. 2. Section 70(o) provides that one of the duties and functions to be performed by the Mamlatdar shall be to decide such other matters as may be referred to him by or under this Act'. It is clear that in order to invoke the jurisdiction of the Mamlatdar under Section 70(o) the matter which is sought to be brought before the Mamlatdar must be such as is referred to him by or under any provision of the Tenancy Act. The application to be maintainable under Section 70(o) must hang on the peg of some other provision of the Tenancy Act and when we asked the learned advocate appearing on behalf of respondent No. 2 which was the provision of the Tenancy Act on which he relied in this connection, the answer was Section 32F(1)(a). That was the only section on which reliance was placed or could be placed on behalf of respondent No. 2 and the argument was that the question raised in the application was referable to the Mamlatdar by or under the provision enacted, in that section. The argument is plainly incorrect. When we turn to Section 32F(1)(a) we find that that section applies only where the landlord is a minor or a widow or a person subject to any mental or physical disability or a serving member of the armed forces and where such a landlord is a member of a joint family, the proviso to Section 32F(1)(a) declares that the provisions of that section shall not apply if at least one member of the joint family is outside the categories mentioned in the section, unless before the 31st day of March 1958 the share of such landlord in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such landlord in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as his or her share in the entire joint family property and not in a larger proportion. The postulate of Section 32F(1)(a) is that the landlord is a person belonging to any one of the four categories specified in the section and it is only where the landlord belongs to one of those categories that the question of considering the applicability of the proviso arises. According to the proviso, where such landlord is a member of a joint family, the provisions of Section 32F(1)(a) do not apply if at least one member of the joint family is outside the categories mentioned in the section. Such landlord does not get the benefit of Section 31(3) and his or her tenant is deemed to have purchased the land on 1st April 1958. But if such landlord can show that before 31st March 1958 his or her share in the joint family has been separated by metes and bounds pod the Mamlatdar on inquiry is satisfied that his or her share in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as his or her share in the entire joint family property and not in a larger proportion, he or she would still be entitled to the benefit of Section 31(3) and the tenant would not be entitled to purchase the land until the expiry of the period prescribed in the relevant clause of Section 31(3). The question of the Mamlatdar holding an inquiry for the purpose of satisfying himself that the share of the land lord in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of the landlord in the entire joint family property and not in a larger proportion, therefore, arises only where the landlord is a person belonging to any of the four categories specified in Section 32F(1)(a). Where the landlord does not belong to any of these categories, no question of satisfying the Mamlatdar on this point arises for in such a case the proviso does not come into the picture at all.

4. Now it was not the case of respondent No. 2 in the application that petitioner No. 2 was his landlord and his landlord was therefore a minor and yet, despite the landlord being a minor, the provisions of Section 32F(1)(a) were not applicable on the ground that the share of petitioner No. 2 in the joint family had not been separated by metes and bounds prior to 31st March 195 8 or that his share in the said Survey Numbers was not separated in the same proportion as his share in the entire joint family property but was separated in a larger proportion. If such had been the application of respondent No. 2, it would have certainly laid before the Mamlatdar under Section 70(o) read with Section 32F(1)(a). But the application of respondent No. 2 was that the transfer of the said Survey Numbers by way of partition made by petitioner No. 1 in favour of petitioner No. 2 on 10th July 1955 was sham and bogus and that petitioner No. 2 was, therefore, not the landlord and petitioner No. 1 continued to be the landlord in respect of the said Survey Numbers. The case made out by respondent No. 2 in the application was that it was not the minor petitioner No. 2 but the major petitioner No. 1 who was his landlord and, therefore, according to respondent No. 2 his. landlord was not a person belonging to any of the four categories specified in Section 32F(1)(a). The question raised by respondent No. 2 in the application was, therefore, not a question which fell within the proviso to Section 32F(1)(a). The application actually sought to negative the applicability of Section 32F(1)(a) and not to raise a question coming within it. The application was, therefore, not maintainable under Section 70(o) read with Section 32F(1)(a) and since apart from Section 32F(1)(a) no other section could be pointed out on behalf of respondent No. 2 to sustain the application, it must be held that the application was not maintainable. If the application was not maintainable, no orders could be passed adjudicating upon the merits of the question raised in the application and the orders passed by the Mamlatdar, the Prant Officer and the Revenue Tribunal were, therefore, without jurisdiction.

5. We, therefore, allow the petition and make the rule absolute by issuing a writ of certiorari quashing and setting aside the orders of the Mamlatdar, the Prant Officer and the Revenue Tribunal. Respondent No. 2 will pay the costs of the petition to the petitioners.


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