Decided on January 18,1962

Lalji Harbaji Kokate Appellant


ABHYANKAR,J. - (1.)This petition under Article 227 of the Constitution is filed by Lalji son of Harbaji. He claims to be a tenant of S. No. 18/2 of mauza Wardhapur in Arvi tahsil of Wardha district. Respondent No. 4 Bapurao is the tenure holder of that field. The 'petitioner's case was that he cultivated the laud as a Lessee in the year 1958 -59. He was, therefore, recorded as a tenant in the Record of Rights prepared under Section 8(1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, Respondent No. 4, the landlord, being aggrieved by this entry made an application to the Tahsildar under Section 8(3) of the new Tenancy Act for the correction of the entry. The contention of respondent No. 4 was that the petitioner was not a tenant and that he cultivated the laud in 1958 -59 not as tenant but in partnership with him. The agreement was that ,each of them should provide a pair of bullocks. In addition respondent No. 4 kept a servant of his own for agricultural operations and incurred expenditure. The produce was to be divided, after paying 3/5th share on account of ownership of the land, half and half in respect of the remaining 2/5th. On the other hand, the petitioner's case was that he had taken the field on lease on Panchayat during 1958 -5!) and that the petitioner was to give 3/5th of the produce to respondent No. 4 and the petitioner was to retain 2/5th of the remaining share. All the expenditure, according to the petitioner, was to be incurred by him. He, therefore, claimed the status of a tenant. The Tahsildar who heard the evidence came to the conclusion that the petitioner had failed to prove that he had entered into a contract of lease and upheld the contention of respondent No. 4 that both petitioner and respondent No. 4 had cultivated the land in partnership of which terms were - as alleged by respondent No. 4.
(2.)THE petitioner challenged the order in appeal before the Deputy Collector. The Deputy Collector after considering the respective contentions affirmed the finding of the Tahsildar that the petitioner was a partner in cultivation and that in that capacity he cultivated the land along with respondent No. 4. He, therefore, dismissed the appeal.
The matter was taken in revision by the petitioner' before the Revenue Tribunal. The Tribunal stated in para. 2 of its order that the question whether the cultivation of the land was carried on on the basis of part nor ship or as a, lessee was a pure question of fact and the concurrent findings of the two authorities below were not open to challenge on any ground permissible in law. The Tribunal affirmed the finding of the Courts below that the land was cultivated in partnership and not as lessee. The petitioner took an alternative submission before this Tribunal based on the contention that he must be deemed to be a tenant under Section 6 of the new Tenancy Act because he was the person lawfully cultivating the land belonging to another person and that the land was not cultivated personally by the owner. This contention was also negatived by the Tribunal because the Tribunal held that it was clear from the record that respondent No. 4 had engaged a servant, that he contributed a pair of bullocks for the purpose of cultivation and that he had occasionally visited the land and supervised the work which was carried on by his servant under his directions. According to the Tribunal it was not necessary for the owner in order that he should be held to cultivate personally that he should go day to day in the field for the purpose of supervision. The revision was, therefore, rejected.

(3.)IN support of this petition, it is contended that the authorities below have not strictly constructed the provisions of Section 6 of the new Tenancy Act and according to the petitioner, respondent No. 4 cannot be held to be cultivating the land personally by strict interpretation of the phrase 'to cultivate personally' as given in Section 2(12) of the new Tenancy Act. Now, under the definition 'to cultivate personally' means to cultivate on one's own account (i) by one's own labour, or (ii) by the labour of any member of one's family, or (iii) under the personal supervision of ones -elf or of any member of one's family by hired labour or by servants on wages payable in, cash or kind but not in crop share.

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