PUNABHAI DHEDUBHAI BARAIYA Vs. PATEL CHHAGANBHAI PARSHOTAMDAS
LAWS(GJH)-1983-3-4
HIGH COURT OF GUJARAT
Decided on March 03,1983

PUNABHAI DHEDUBHAI BARAIYA Appellant
VERSUS
Patel Chhaganbhai Parshotamdas Respondents

JUDGEMENT

S.B.MAJMUDAR - (1.) The petitioner who is a deemed purchaser on agricultural land bearing S. No. 800 admeasuring 3 acres and 34 Gunthas situated at village Mankani in Sankheda taluka of Baroda district has filed this petition under Article 296 of the Constitution which in substance is one under Article 227 thereof wherein he seeks to challenge the order passed by the Gujarat Revenue Tribunal (GRT for short) in revision application TEN.B.A. 1290 of 1977. The said revision application came to be allowed by the GRT and the orders passed by the lower authorities were set aside. The petitioner submits that the GRT patently erred in law in doing so.
(2.) In order to appreciate the grievance of the petitioner it is necessary to glance through a few relevant facts. The petitioner who was the sitting tenant of the land in question was declared to be a deemed purchaser under the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 (the Tenancy Act). The petitioner on account of his poverty was not in a position to pay the purchase price instalments. He therefore had to incur debts for payment of these instalments and with a view to raising money for payment of the purchase price he borrowed the requisite amount from respondent No. 1 who is a professional moneylender. By way of security for the land he mortgaged the land which was purchased by him under the provisions of the Tenancy Act to respondent No. 1 by an agreement dated 14 The said agreement according to the petitioner was a mortgage transaction but the agreement was not registered. No previous sanction of the Collector under sec. 43 was obtained in respect of the said mortgage transaction. It appears that the land in question was handed over in possession to respondent No. 1 by the petitioner_ by way of security for ensuring repayment of the loan advanced to the petitioner by respondent No. 1. Under the aforesaid circumstances the petitioner applied to the Mamlatdar and ALT Sankheda requesting him to initiate proceedings under sec. 88-C of the Tenancy Act against respondent No. 1 on the ground that the transaction in his favour was entered into contrary to the provisions of sec. 43 of the Tenancy Act and hence the transaction was liable to be declared as invalid. The Mamlatdar and ALT after issuing notices to the concerned parties came to the conclusion that the transaction entered into by the petitioner in favour of respondent No. 1 was in breach of section 43 of the Tenancy Act and hence it was declared to be invalid. Respondent No. 1 was directed to restore possession of the land to the petitioner as laid down by sec. 84-C(2) of the Tenancy Act. Respondent No. 2 thereupon preferred an appeal before the Deputy Collector Chhota Udepur being tenancy appeal No. 2076 of 1977. The appellate authority concurred with the reasoning of the Mamlatdar and dismissed the appeal It is thereafter that the first respondent carried the matter in revision before the GRT under sec. 76 of the Tenancy Act. The GRT came to the conclusion that the document dated 14-3-1970 under which possession of the land was given by the petitioner to respondent No. 1 would not amount to a completed mortgage transaction as it was not a registered document. Consequently the said transaction which was in the realm of mere agreement to create a mortgage was held not to be covered by the provisions of sec. 43 of the Tenancy Act. It was therefore held that the said agreement could not be declared to be invalid under sec. 84 of the Tenancy Act. On the basis of this finding the GRT set aside the orders passed by the authorities below and directed the first respondent to be restored possession of the land which was taken away from him prior to filing of the revision application before the Tribunal in execution of the orders of the authorities below. The GRT made it clear that it would be open to the competent authority to take action under sec. 32-R if deemed fit. It is under these circumstances that the petitioner has come to this court by way of the present proceedings.
(3.) Mr. Mehta learned Advocate for the petitioner raised the following three contentions in support of this petition ; 1. The GRT had patently erred in law in holding that sec. 43 of the Tenancy Act did not hit the transaction in question. 2. In any case the provisions of sec. 43 as amended by Gujarat Act 30 of 1977 could have been applied to the facts of the present case and the impugned agreement to transfer land by way of mortgage was required to be treated as invalid under the amended provisions of sec. 43(1) of the Tenancy Act. 3. He lastly contended that in any view of the matter the petitioner who was a deemed purchaser was duped by respondent No. 1 and was made to part with possession of the land which was purchased by him under the Tenancy Act and consequently the competent authority should have been directed by the GRT to take proper steps under sec. 32-R of the Tenancy Act.;


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