TALSIBHAI RANCHHODBHAI Vs. HIRABHAI KESHAVPURI GOSAI
LAWS(GJH)-1966-9-17
HIGH COURT OF GUJARAT
Decided on September 28,1966

TALSIBHAI RANCHHODBHAI Appellant
VERSUS
HIRAPURI KESHAVPURI GOSAI Respondents

JUDGEMENT

P.N.BHAGWATI - (1.) THIS petition arises out of an application made by the first respondent against the petitioner for possession of two pieces of land bearing Survey Numbers 130A and 130B and admeasuring respectively 2 Acres 28 Gunthas and 0 Acre 9 Gunthas situate in village Lali Mehmedabad Taluka Kaira District under sec. 3217 of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act). The first respondent is the landlord and the petitioner is the tenant in respect of the said lands. Prior to 31st March 1957 the first respondent had made an application for possession of the said lands from the petitioner under sec. 31 of the Tenancy Act on the ground that he bona fide required the same for personal cultivation. But that application was rejected in the first instance by the Mamlatdar and thereafter on appeal by the Deputy Collector and the final order of rejection was made on 7 May 1957. The first respondent thereafter applied for a certificate of exemption in respect of the said lands under sec. 88C of the Tenancy Act and on the application the Mamlatdar decided that the said lands were exempt under sec. 88C from the provisions of secs. 32 to 32R and a certificate of exemption was accordingly issued to the first respondent in November 1959. The group of sections comprising secs. 325 32 and 32 was thereafter introduced in the Tenancy Act by Gujarat Act XVI of 1960 with effect from 13th December 1960. Since the first respondent held a certificate of exemption issued to him under sec. 88C he was a certified landlord within the meaning of that expression in Clause (i) of sec. 325 see the petitioner was an excluded tenant within the meaning of that expression in Clause (ii) of sec. 335. Sec. 32r conferred a right on the first respondent to terminate the tenancy of the said lands leased by him to the petitioner after giving notice on or before 31st December 1961 and making an application for possession to the Mamlatdar on or before 31 March 1962 and the first respondent accordingly served a notice in writing on the petitioner before 31st December 1961 terminating the tenancy of the petitioner on the ground that he bona fide required the said lands for personal cultivation and made an application to the Mamlatdar before 31 March 1962 for possession of the said lands from the petitioner or the same ground namely that the said lands were required bona fide for personal cultivation. The first respondent gave evidence in support of the application and in his evidence he stated that the only business he had was of vegetable shop and he was unable to maintain himself and the members of his family out of the income of the vegetable shop. The first respondent admitted that he was in possession of certain lands belonging to the Hanuman Trust and was cultivating the same as a tenant but according to him the area of the said lands was only 3 acres 15 gunthas and that was not sufficient for the maintenance of himself and the members of his family. The petitioner also gave evidence but in his evidence he did not state anything about the financial position of the first respondent and all that he stated was that whatever he wanted to say he would give in writing. The petitioner accordingly filed a statement dated 11th May 1962 and in that statement he alleged that the lands which were being cultivated by the first respondent as tenant admeasured 7 acres and not 3 acres 15 gunthas as alleged by the first respondent. On this evidence the Mamlatdar who heard the application came to the conclusion that the first respondent had failed to establish that he bona fide required the said lands for personal cultivation and he accordingly by an order dated 23 June 1962 rejected the application. It may be mentioned that so far as the other points arising in the application were concerned they were decided by the Mamlatdar in favour of the first respondent. The first respondent being aggrieved by the order rejecting his application preferred an appeal to the Prant Officer but the Prant Officer also took the same view as the Mamlatdar on the question of bona fide requirement of the suit lands for personal cultivation and by an order dated 21st November 1962 dismissed the appeal and confirmed the order of the Mamlatdar rejecting the application. The first respondent thereupon preferred a Revision Application to the Revenue Tribunal. Before the Revenue Tribunal it was urged on behalf of the first respondent that the finding of the Prant Officer that the evidence did not establish that the first respondent bona fide required the said lands for personal cultivation was vitiated by an error in appreciation of important evidence and that the Revenue Tribunal was therefore entitled to set aside that finding and to come to the conclusion that the said lands were bona fide required by the first respondent for personal cultivation and possession of the said lands could therefore be handed over to the first respondent. One of the questions which arose before the Revenue Tribunal In the determination of this contention was whether the area of the lands in the cultivation of the first respondent as tenant was 7 acres or 3 acres 15 gunthas and this question was quite material for it might conceivably have a bearing on the issue whether the first respondent required the lands leased to the Petitioner bona fide for personal cultivation The Revenue Tribunal pointed out that the evidence of the first respondent showed that he had lands admeasuring 3 acres 15 gunthas in cultivation as a tenant whereas the case of the petitioner was that the area of the said lands was 7 acres but that case was not supported by any statement on oath made by the petitioner. The Revenue Tribunal however did not proceed to find that the area of the lands in the cultivation of the first respondent as a tenant was 3 acres 15 gunthas but proceeded on the assumption that the area of of the said lands was 7 acres since in the view taken by it it was immeterial as to what was the area of the said lands. The Revenue Tribunal took the view that the lands held by the first respondent as a tenant could not provide a sure and steady means of subsistence to the first respondent and circumstances might arise in which the tenancy might be terminated or the and might go back into the passion of the landlord for one reason or the other and therefore the subsistence on the tenancy lands cannot by itself be said to be so steady and sure that a landlords asking for has own lands for personal cultivation be said to be unreason. able or not honest-if a man has lands as a tenant in a case like the present one and if he has ownership land then in those circumstances for reasons of safety and steadiness if he asks for possession of his own lands for personal cultivation I do not think it is possible to say that the demand of the small landholder in unreasonable for the reason that he has got tenancy lands under cultivation. The Revenue Tribunal observed that this aspect of the question was completely lost sight of by the Mamlatdar as well as by the Prant Officer and this constituted an error in appreciation of important evidence attracting the revisional jurisdiction of the Revenue Tribunal under sec. 76 of the Tenancy Act. The Revenue Tribunal in this view of the matter ignored the income from lands held by the first respondent as a tenant and proceeding on the basis that the only source of income for the first respondent was the business of vegetable shop the Revenue Tribunal held that the first respondent had established has bona fide requirement of the lands leased to the petitioner for personal cultivation. the Revenue Tribunal also rejected a contention urged on behalf of the petitioner namely that the application of the first respondent was barred by reason of principles analogous to res judicata since the earlier application made by the first respondent under sec. 31 on the same ground namely bona fide requirement for personal cultivation was rejected by the Mamlatdar in the first instance and on appeal by the Deputy Collector and it was held by the said authorities that the first respondent did not require the said lands bona fide for personnel cultivation and the decision of the said authorities could not be set at naught in the present proceedings unless the first respondent showed that there was change in circumstances between the date of the making of the earlier application and to date of the present application. The Revenue Tribunal held that sec. 32r sub-sec. (2)(a) in terms declared that an application under sec. 32T could be made by the certified landlord in accordance with the provisions of sub-sec. (3) of sec 32T notwithstanding that an earlier application in respect of the same tenancy made under sec. 31 was rejected and the rejection of the earlier application made by the first respondent under sec. 31 could not therefore be urged as an answer to the successful prosecution of the present application. The Revenue Tribunal in the result set aside the orders of the Mamlatdar and the Prant Officer and held that the first respondent was entitled to possession of the lands leased to the petitioners as he required the same bona fide for personal cultivation under the provisions of sec. 32T and the petitioners according to the finding of the Mamlatdar which was not challenged before the Prant Officer or the Revenue Tribunal held other lands exceeding half economic holding and made an order to that effect in favour of the first respondent. The petitioner thereupon preferred the present petition challenging the decision of the Revenue Tribunal.
(2.) THE first contention urged by Mr. C. T. Daru learned advocate appearing on behalf of the petitioner in support of the petition was that in the earlier application made by the first respondent for possession of the lands leased to the petitioner under sec. 31 it was held by the Mamlatdar In the first instance and by the Deputy Collector in appeal that the first respondent had failed to establish that he required the said lands bona fide for personal cultivation and this decision of the Revenue authorities in the earlier application was binding on the parties in the present application on principles analogous to res judicata unless the first respondent showed that there was change of circumstances between the date of making of the earlier application and the date of the present application and since there was no such change of circumstances shown by the first respondent it was not open to the Revenue authorities on the present application to hold contrary to the decision of the Revenue authorities in the earlier application that the first respondent required the said lands bona fide for personal cultivation. It is true that the principles analogous to res judicata require that a decision once reached between the parties should not be reopened except for valid cause such as change of circumstances but in the present case there is no scope for the application of the principles analogous to res judicata since there is an express provision contained in sec. 32T sub-sec. (2)(a) which entitles a certified landlord to terminate the tenancy of any land leased by him to an excluded tenant by giving notice and making an application for possession as provided in sub-sec. (3) of sec. 32r notwithstanding that in respect of the same tenancy an earlier application made by him in accordance with sec. 31 sub-sec. (2) has already been rejected. THE earlier application made by a certified landlord under sec. 3 sub-sec. (2) may have been rejected by the Revenue authorities on any ground warranting the rejection of the application but whatever be the ground on which the rejection is based the rejection cannot stand in the way of a certified landlord terminating the tenancy of the land leased to an excluded tenant by giving notice and making an application for possession if he satisfies the Revenue authorities that he bona fide requires the land for personal cultivation. Even if the earlier application is rejected on the ground that the certified landlord was unable to show that he bona fide required the land from the excluded tenant for personal cultivation the certified landlord can notwithstanding the rejection of the earlier application terminate the tenancy of the land leased to the excluded tenant under sec. 32T sub-sec. (1) if he bona fide requires such land for person cultivation. Sec. 321 sub-sec. the confers a right on a certified landlord to terminate the tenancy of any land leased by him to an excluded tenant if he bona fide requires such 1and for personal cultivation provided he gives notice and makes an application for possession as provided in sec. 32T sub-sec (3) and this right is a nest and distinct right which is conferred upon him for the first time since the principle that the tiller must become the owner of the soil is now sought to be made applicable to his tenant under sec. 32U. Before an excluded tenant is deemed to have purchased the land held by him from a certified landlord the certified landlord is given a right to terminate the tenancy of the land leased by him to the excluded tenant if such land is bona fide required by him for personal cultivation and since the consequence of the certified landlord not terminating the tenancy of the land leased to the excluded tenant would be to make the excluded tenant deemed purchaser of such land the right to terminate the tenancy on the ground of bona fide requirement for personal cultivation is conferred on the certified landlord as a new and distinct right the exercise of which is not to be influenced or affected by the rejection of an earlier application made by the certified landlord under sec. 31 sub-sec. (2). If an earlier application made by the certified landlord under sec. 31 sub-sec. (2) has been granted by the Revenue authorities and the certified landlord has obtained possession of any land held by the excluded tenant on the ground that the certified landlord required it for personal cultivation or for non-agricultural use the certified landlord cannot terminate the tenancy of the excluded tenant under sec. 32T sub-sec. (1) by reason of sub-sec. (5)(a) of sec. 32T. But if such an application has been rejected that cannot stand in the way of the certified landlord terminating the tenancy of the land leased to the excluded talent if he can show to the Revenue authorities that he bona Side requires such land for personal cultivation. THE Revenue Tribunal was therefore right in taking the view that the decision of the Revenue authorities in the earlier application made by the first respondent under sec. 31 sub-sec (2) did not bind the parties in the present application on the principles analogous to res judicata and notwithstanding the said decision the first respondent could terminate the tenancy of the lands leased to the petitioner if he could show in the present application that he bona fide required the said lands for personal cultivation. [THE rest of the judgment is not material for the report]. Petition allowed.;


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