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Deepabhai Ranchhodbhai Vs. Sdtharratllal Mangalbhal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR483
AppellantDeepabhai Ranchhodbhai
RespondentSdtharratllal Mangalbhal
Excerpt:
.....the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him, unless he has obtained from the tenan this refusal in writing to accept the tenancy on the same terms and conditions or has offered in writing to give possession of the land to the tenant on the same terms and conditions and the tenant has failed to accept the offer within three months of the receipt thereof. if he files such a suit the mamlatdar will be required to make an inquiry into it and to find out whether the transfer made by ramshankar in favour of the respondent was lawful or unlawful and if it was unlawful, whether the landlord had obtained from the tenant his refusal in writing to accept the tenancy on the same terms and..........gunthas of section no. 878/2 of village delol in panchmahals district. the total area of the land in question is 3 acres-14 gunthas one ramshankar lallubhai was the original landlord. he was the certified landlord because he had obtained an exemption certificate under section 88c of the bombay tenancy and agricultural lands act, 1948. the petitioner was one of his tenants in respect of half the area of the said survey number. one jhalabhai gorabhai was the tenant in respect of the other half of the said survey number. they were excluded tenants. ramshankar filed against both these tenants a suit for possession under section 32t of the tenancy, act in 1963. in that suit an order for possession was passed in favour of ramshankar to whom half the land in possession of each of the two.....
Judgment:

S.H. Sheth, J.

1. The petitioner was the tenant in respect of 1 acre-27 gunthas of Section No. 878/2 of village Delol in Panchmahals District. The total area of the land in question is 3 acres-14 gunthas one Ramshankar Lallubhai was the original landlord. He was the certified landlord because he had obtained an exemption certificate under Section 88C of the Bombay Tenancy and Agricultural Lands Act, 1948. The petitioner was one of his tenants in respect of half the area of the said survey number. One Jhalabhai Gorabhai was the tenant in respect of the other half of the said survey number. They were excluded tenants. Ramshankar filed against both these tenants a suit for possession under Section 32T of the tenancy, Act in 1963. In that suit an order for possession was passed in favour of Ramshankar to whom half the land in possession of each of the two tenants was ordered to be given. It is the case of the petitioner that Ramshankar did not recover possession of half his land from him in pursuance of that order. Sometime thereafter Ramshankar sold the land to the respondent. Both the tenants, therefore, applied to the Collector on 15th July 1965 under Section 84 of the tenancy Act for summary eviction of the respondent. The Assistant Collector inquired into the matter, recorded the conclusion against the respondent and ordered him to be summarily evicted from 1 acre-27 gunthas of the land in question. The respondent challenged that order in a revision application which he filed before the Gujarat Revenue Tribunal. The Revenue Tribunal allowed the revision application, set aside the order of summary eviction and dismissed the original application made by the petitioner.

2. It is that order which is challenged by the petitioner in this petition.

3. The revenue tribunal has on appreciation of evidence recorded the finding that in 1963-64 the tenants had handed over possession of 1 acre-27 gunthas of land to ramshankar. Therefore, when order for possession was passed against them by the Mamlatdar, they agreed that possession handed over by them to ramshankar of 1 acre-27 gunthas of land should be treated as possession taken by ramshankar in execution of the order for possession passed in his favour. The petitioner also agreed that his name should be deleted from the record in respect of the land of which possession had been given to ramshankar. The finding recorded by the Revenue Tribunal is a pure finding of fact. I cannot interfere with it in this petition filed under Article 227.

4. Mr. Patel has however argued before me that ramshankar had no right to transfer to the respondent the land of which he had obtained possession in pursuance of the order of possession made in his favour by the Mamlatdar in proceedings under Section 32T of the tenancy Act. According to him, therefore, the transfer of the land in question by ramshankar to the respondent was unlawful and the possession of the respondent was for that reason unlawful. He has, therefore, submitted that the respondent is liable to be summarily evicted from the land in question under Section 84 of the tenancy Act. This argument was not raised on behalf of the petitioner before the revenue tribunal. Mr. Patel has invited my attention to Section 37 read with Section 39 of the tenancy Act Sub-section (1) of Section 37 provides that if, after the landlord has taken possession of the land fifter having terminated the tenancy of his tenant under Section 32T, lie fails to use it for any of the purposes specified in the notice given under Section 32T within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him, unless he has obtained from the tenan this refusal in writing to accept the tenancy on the same terms and conditions or has offered in writing to give possession of the land to the tenant on the same terms and conditions and the tenant has failed to accept the offer within three months of the receipt thereof. Sub-section (1) of Section 37 appears to lend some support to the contention raised by Mr. Patel that the transfer of the land in question by Ramshankar to the respondent was unlawful it appears to me from Sub-section (1) of Section 37 that such a transfer made by a landlord in favour of a third party gives rise to fresh rights for the tenant the remedy of the tenant lies in filing a suit under Section 37 of the Tenancy Act for restoration of the possession of the land in question to him. If he files such a suit the Mamlatdar will be required to make an inquiry into it and to find out whether the transfer made by ramshankar in favour of the respondent was lawful or unlawful and if it was unlawful, whether the landlord had obtained from the tenant his refusal in writing to accept the tenancy on the same terms and conditions or whether the landlord had offered in writing to give possession of the land to the tenant on the same terms and conditions and the tenant had failed to accept the offer within three months of the receipt thereof. It is, therefore, clear that Section 37 which confers upon such a tenant a fresh right to claim restoration of possession of the land of which he was dispossessed earlier in pursuance of the order of the Mamlatdar requires a substantive inquiry to be made into several facts. The tenant cannot make a short shrift of Section 37 and ask the Collector to summarily evict the respondent.

5. The respondent claims through Ramshankar who was in lawful pos-session-whlch he obtained in pursuance of the order of the Mamlatdar. If Ramshankar, the predecessor-in-title of the respondent, was in lawful possession the respondent, his purported transferee, cannot be said to be a rank trespasser who can be evicted from the land in question summarily under Section 84. Therefore, no order can be made against him under Section 84. The petitioner has got informal course a remedy under Section 37 of the tenancy Act. He cannot therefore be allowed to resort to an extraordinary remedy of summary eviction of the respondent who claims through Ramshankar who in his turn was in lawful possession of the land in question.

For the reasons stated above, the order by which the Revenue Tribunal dismissed the tenants original application made under Section 84 is perfectly justified. In my opinion, he cannot avail himself of the remedy, under Section 84. If he has a remedy under Section 37 of the tenancy Act, he may pursue it.

In the result there is no substance in this petition. It fails and is dismissed. Rule is discharged with no order as to costs in the circumstances of the case.


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