RANCHHOD FAKIR HALPATI Vs. GAVANBHAI BHIKHABHAI
LAWS(GJH)-1966-10-9
HIGH COURT OF GUJARAT
Decided on October 14,1966

RANCHHOD FAKIR HALPATI Appellant
VERSUS
GOVANBHAI BHIKHABHAI Respondents

JUDGEMENT

P.N.BHAGWATI - (1.) This is a petition by a poor illiterate Halpati challenging the decision of the Revenue Tribunal holding that he is not tenant of two pieces of land bearing Survey Numbers 57 and part of 182 3 Acres 0 Gunthas situate in village Tighra Taluka Navsari District Bulsar. In order to appreciate the contentions raised in the petition it is necessary to notice briefly a few facts giving rise to the petition. The lands bearing Survey Nos. 57 and part of S. No. 182 (3 Acres 0 Gunthas) were originally granted by the Government to one Jogi Purshottam by way of service Inam for filling the water trough in the village which was a service useful to the community. It appears that Jogi Purshottam was not in a position to render this service and he therefore gave the lands to the father of the petitioner for cultivation on condition that he rendered service by filling the water trough in the village. The petitioners father accordingly cultivated the lands and regularly rendered service by filling the water trough in the village. This state of affairs continued until about 1944 when the service Inam in respect of the lands was transferred from Jogi Purshottam to respondents Nos. 1 to 4 as representing the village community but even after the transfer of the service Inam to the names of respondents Nos. 1 to 4 the petitioners father continued to cultivate the land and to render service by filling water in the village trough. On 22nd December 1953 the Bombay Service Inams (Useful to Community) Abolition Act 1953 was passed by the Legislature and by virtue of a notification issued by the State Government under sec. 1(3) the Act was brought into force from 1st April 1954. Sec. 3 of the Act provided that with effect from and on the appointed day which was 1st April 1954 not with standing anything contained in any law usage settlement grant sanad or order: (1) all service nams shall be deemed to have been abolished and all incidents appertaining thereto shall be deemed to have been extinguished; (2) all rights to hold office and any liability to render service appertaining to the said Inams are hereby extinguished.
(2.) Sec. 4 made provision in regard to service inam villages and service inam lands which were adjudicated under Rule 8 of Schedule B to the Bombay Rent-free Estates Act 1852 but the lands which were in the possession of the petitioners father did not fall within this category and they were therefore governed by sec. 5. That section provided omitting portions immaterial:- 5 (1) All service inam lands which have not been adjudicated under rule 8 of Schedule B to the Bombay Rent-free Estates Act 1852 are hereby resumed and shall be liable to the payment of land revenue under the provisions of the Code and the rules made thereunder and the provisions of the Code and the rules relating to the unalienated lands shall apply to such lands. (2) A service inam land resumed under the provisions of sub-sec. (1) shall be regranted to the holder on payment of the occupancy price equal to six times the amount of the full assessment of such land within five years from the appointed day and the holder shall be deemed to be an occupant within the meaning of the Code in respect of such land and shall primarily be liable to pay land revenue to the State Government in accordance with the provisions of the Code and the rules made thereunder. The effect of these provisions of the Act was that the service inam in the possession of the petitioners father was abolished and the liability to render service by filling water trough in the village appertaining to the said inam was also extinguished and the lands were resumed and became liable to the payment of land revenue under the provisions of the Bombay Land Revenue Code and the Rules made under the Code. The lands however continued to remain in the possession of the petitioners father and the petitioners father cultivated the lands and appropriated to himself the produce of the 1ands. Respondents Nos. 1 to 4 thereafter made 8n application to the Government under sec. 5(2) for re-granting the lands to them on payment of the occupancy price equal to six times the amount of the full assessment of the lands. A similar application was also made by the petitioners father on the ground that he was a tenant of the lands and them the lands should therefore be regranted to him under sec. 5(2). During the pendency of these applications the petitioners father died leaving the petitioner as his heir and the petitioner came into possession of the lands and cultivated the same. The Prant Officer by an order dated 3rd November 1961 regranted the lands to respondents Nos. 1 to 4 but made it clear that if the petitioner claimed to be a tenant of the lands he was free to establish his title as tenant under the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act). The lands were thus re-granted by the Prant Officer to respondents Nos. 1 to 4 subject to the rights If any of the petitioner as a tenant of the lands. The petitioner was served with a copy of this order on 7th December 1961 and the petitioner therefor filed an application before the Mamlatdar on 25th March 1962 under sec. 70(b) of the Tenancy Act for a declaration that he was a tenant of the lands. The application was resisted by respondents Nos. 1 to 4 who contended that the lands were not given to the petitioner as a tenant but that they were given to him merely for the purpose of filling water trough in the village and the petitioner was therefore not a tenant of the lands. The Mamlatdar by an order dated 30th November 1963 rejected the claim of the petitioner to be a tenant of the lands and this view taken by the Mamlatdar was affirmed in appeal by the District Deputy Collector. The petitioner thereupon preferred a Revision Application to the Revenue Tribunal. Before the Revenue Tribunal the main argument advanced on behalf of the petitioner rested on sec. 4 of the Tenancy Act and he urged that since his father was lawfully cultivating the lands belonging to Jogi Purshottam and respondents Nos. 1 to 4 since many years past his father was a deemed tenant of the lands under sec. 4 of the Tenancy Act and the petitioner was therefore by virtue of sec. 40 of the Tenancy Act entitled to a declaration that he was a deemed tenant of the lands. This contention was not raised in so many terms before the Mamlatdar and the District Deputy Collector but the Revenue Tribunal allowed it to be raised before it and proceeded to examine its validity. The Revenue Tribunal accepted that the petitioners father was lawfully cultivating the lands belonging to Jogi Purshottam and respondents Nos. 1 to 4 but took the view that the presumption under sec. 4 was a rebuttable presumption and it was clearly rebutted by respondents Nos. 1 to 4 by showing that the lands were gives to the petitioner merely for the purpose of filling water trough in the village and not on rent as a tenant. The Revenue Tribunal held that the petitioner had not acquired the status of a deemed tenant or a statutory tenant under sec. 4 of the Tenancy Act since the lands were not let out to him on lease but were given on the express condition of performing certain service to the village people. The Revenue Tribunal in this view of the matter rejected the Revision Application and confirmed the order declaring that the petitioner was not a tenant of the lands. The petitioner thereupon preferred the present petition challenging the decision of the Revenue Tribunal. Now it is clear from what is stated above that until 1st April 1954 when the Bombay Service Inams (Useful to Community) Abolition Act 1953 came into force the petitioner was lawfully cultivating the lands which stood in the name of Jogi Purshottam until 1944 and thereafter in the name of respondents Nos. 1 to 4 as service inam lands and this was found as a fact by the Revenue Tribunal on a consideration of the evidence before it. It is no doubt true that the lands were given to the petitioner for cultivation by Jogi Purshottam and respondents Nos. 1 to 4 on condition that the petitioners father should render service to the village people by filling the village water trough but the petitioner admittedly compiled with this condition and his cultivation of the lands was therefore lawful. Since the petitioner was lawfully cultivating the lands belonging initially to Jogi Purshottam and thereafter to respondents Nos. 1 to 4 he was clearly by virtue of sec. 4 of the Tenancy Act a deemed tenant of the lands of 1st April 1954 when the Bombay Service Inams (Useful to Community) Abolition Act 1953 came into force. The Revenue Tribunal rejected the applicability of sec. 4 of the Tenancy Act on the ground that that section merely provided for raising of a rebuttable presumption but this view taken by the Revenue Tribunal was obviously wrong. Sec. 4 does not enact a presumption of tenancy which can be rebutted by the landlord. It does not say that if a person is lawfully cultivating land belonging to another he shall be presumed to be a tenant unless the contrary is proved by the other side. What sec. 4 does is to enact a legal fiction whereby a person who would not otherwise be a tenant is by fiction of law deemed to be a tenant for the purpose of the tenancy Act. It has been said by Lord Radcliffe that a legal fiction is apt to describe the obvious the uncertain and the impossible and here it is the impossible which is sought to be encompassed by means of the legal fiction enacted in sec. 4. Once the conditions specified in sec. 4 are fulfilled the legal ficion must arise and the person who is lawfully cultivating the land of another must be deemed to be the tenant of the land even though the land is not let out to him as a tenant and under the ordinary law he would not be a tenant. There is therefore no doubt that on 1st April 1954 when the Bombay Service Inams (Useful to Community) Abolition Act 1953 came into force the petitioners father was a tenant of the lands. Now if the petitioners father was a tenant of the lands at the date of coming into force of the Bombay Service Inams (Useful to Community) Abolition Act 1953 there is nothing in any provision of that Act which would affect the tenancy of the petitioners father. Sec. 12 of that Act on the contrary expressly provides that nothing in that Act shall in any way be deemed to affect the application of any of the provisions of the Bombay Tenancy and Agricultural Lands Act 1943 to any service inam village or service inam land or the mutual rights and obligations of a holder and his tenants. Moreover the right of the petitioners father and consequently that of the petitioner as a tenant of the lands was expressly preserved by the order of regrant made by the Prant Officer and the regrant was made subject to such right. It may also be noted that after 1st April 1954 the petitioners father continued to lawfully cultivate the lands and that would clearly attract the applicability of sec. 4 of the Tenancy Act and on that ground too the petitioners father must be held to be a tenant of the lands. Mr. S. M. Thakkar learned advocate appearing on behalf of respondents Nos. 1 to 4 however urged that sec. 888(1)(c) of the Tenancy Act excluded the applicability of sec. 4 to the lands and the petitioner was therefore not entitled to claim to be a deemed tenant of the lands under sec. 4 of the Tenancy Act. Sac. 88B(1)(c) provides that nothing in the foregoing provisions of the Act baring certain sections which are not material for the purpose of the present petition shall apply to lands assigned or donated by any person before the 1st day of August 1956 for the purpose of rendering any of the following services useful to the community namely maintenance of water works lighting of filling of water troughs for cattle. The argument of Mr. S. M. Thakkar based on this provision was that the lands in question were assigned by Jogi Purshottam and respondents Nos. 1 to 4 to the petitioners father before 1st August 1956 for the purpose of filling of water trough for the cattle which was a service useful to the community and sec. 4 of the Tenancy Act did not therefore apply to the land by reason of sec. 88B(1)(c). This argument is clearly fallacious for though It is no doubt true that the lands were given by Jogi Purshottam and respondents Nos. 1 to 4 to the petitioner before 1st August 1956 and they were so given for the purpose of rendering a service useful to the community namely filling of water trough in the village it could not be said that the lands were assigned or donated by Jogi Purshottam or respondents Nos. 1 to 4 to the petitioners father within the meaning of sec. 88 The lands were admittedly not donated by Jogi Purshottam or respondents Nos. 1 to 4 and the only question can be whether they were assigned by Jogi Purshottam or respondents Nos. 1 to 4. Now the word assigned in the juxtaposition of the word donated must be held to refer to transfer of property in the lands by assignment and cannot be interpreted to mean mere physical handing over of possession of the lands. The object of the Legislature in enacting this provision clearly was that the provisions of the Act relating to compulsory purchase of lands by tenants restrictions on transfer etc. should not be applicable to lands which were transferred or gifted by any person before 1st August 1956 for the purpose of rendering any of the specified services useful to the community. But where lands were given to a person without assignment or donations for cUltivation on condition that he should render any particular serVice useful to the community this provision could have no application so as to defeat the right of such person to claim to have become a deemed tenant under sec. 4 of the Tenancy Act. The Legislature in enacting this provision could not have intended to take away the right to be a deemed tenant accrued to a person prior to 1st August 1956 when the entire object of the Act was to ameliorate the lot of the tiller of the land and to make him the owner of the land tilled by him. The conclusion must therefore inevitably follow that the lands in the possession of the petitioner were not covered by sec. 88B(1)(c) and the applicability of sec. 4 of the Tenancy Act to the lands could not be denied on the basis of sec. 88B(1)(c) and in any event sec. 88B(1)(c) could not be held to have taken away the right to be a deemed tenant of the 1ands which was vested in the Petitioners father on 1st August 1956. The petitioners father was therefore a tenant of the lands upto the time of his death and on his death the petitioner became the tenant of the lands by virtue of sec. 40 of the Tenancy Act.
(3.) Mr. S. M. Thakkar on behalf of respondents Nos. 1 to 4 however contended that the application of the petitioner for a declaration that he was a tenant of the lands was barred by limitation since the application was not filed within a period of six months from the date of the accrual of the cause of action to him. He urged that the cause of action for filing an application for a declaration of his tenancy arose to the petitioners father on 31st December 1957 when an engine pump was set up by respondents Nos. 1 to 4 for filling the water trough and the petitioners father was called upon to hand over possession of the lands to respondents Nos. 1 to 4 and since the application was not filed within a period of six months from that date the application was barred by limitation. This contention is in my view wholly without substance. Apart from the fact that there is no merit in this contention I cannot allow 1t to be raised for the first time at the hearing of the present petition. This contention was not raised before the Revenue Tribunal and the jurisdiction of this Court under Article 227 being confined to an examination of the validity of the decision of the Revenue Tribunal this contention cannot be permitted to be raised in the present petition. Moreover I find that this contention is not set out as a ground even in the present petition and that by itself would be sufficient justification for refusal to entertain it at the hearing of the petition. On merits also this contention is clearly unsustainable. It is no doubt true that according to the evidence of the petitioner a notice dated 31st December 1957 was given by respondents Nos. 1 to 4 to the petitioner in respect of the lands but the evidence does not show what were the contents of that notice. It does not appear from the evidence as to whether the notice contained any denial of the right of the petitioners father as a tenant of the lands. Moreover it may be noted that on 31st December 1957 the lands had not been regranted to respondents Nos. 1 to 4 and they had therefore no title to the lands so as to make it necessary for the petitioners father to make an application for a declaration that he was a tenant of the lands. There is therefore no substance in the plea of limitation which is now sought to be raised on behalf of respondents Nos. 1 to 4 and that plea must be rejected.;


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