Mudholkar, J. - (1.) This is an appeal by special leave from the judgment of the High Court of Bombay allowing a writ application preferred before it by the first respondent and setting aside the order of the Bombay Revenue Tribunal which had upheld the order of the Prant Officer in a matter arising under the Bombay Tenancy and Agricultural Lands Act. 1948 (Bom. LXVII of 1948 hereafter referred to as the Act.
(2.) The appellant was admittedly the owner of survey Nos 231 and 260 of the Village Duchakwada, Taluka Deodar, District Banaskantha in the State of Gujarat. Survey No. 231 was leased out to a tenant, Virua Pana, while survey No. 260 had been reserved by her in the year 1950 for grazing cattle. Possibly other cattle in the village were also allowed to graze there because of paucity of grazing facilities therein.
(3.) The appellant is a jagirdar and evidently possesses considerable property. The respondent No. l was for some time her karbhari (manager of her estate). While he was occupying that position he obtained from her a sale deed on October 31, 1950, in respect of both these fields. According to the appellant she received no consideration for the transaction. However, that is not material. Shortly thereafter, the appellant made an application to the Mamlatdar, Deodar, for a declaration that the sale deed was invalid as being in contravention of Ss. 63 and 64 of the Act. It would appear that at about the same time certain villagers of Duchakwada made an application before the Collector, Banaskantha under S. 84 of the Act for the summary eviction of the respondent No. 1 on the ground that the transaction was rendered void by virtue of the provisions of Ss. 63 and 64 of the Act and also seeking the reservation of survey No. 260 for grazing purposes. It seems that the appellant's application also went before the Collector, inasmuch as the order he made dealt with the appellant's contention also. It ran thus "Taking into consideration all the circumstances it is hereby, ordered that the sale made by Shrimati Achhuba in respect of two fields Vidvalu and Vaghdelavalu should be treated as void under Section 64 (3) of the Bombay Tenancy and Agricultural Lands Act and the village records corrected accordingly. Shrimati Achhuba should be persuaded to set apart these two fields as grazing area for the grazing of village cattle of Duchakwada in order to maintain the standard as fixed by the Government. If she agrees, the persons in the present occupation of the land should be evicted and the fields kept open for free grazing of village cattle." An application for revision preferred by the respondent No. l before the Bombay Revenue Tribunal was dismissed by it. Thereupon he preferred a writ petition before the High Court. The High Court, while it affirmed the order of the Revenue Tribunal, in so far as survey No. 231 was concerned remanded the matter to the Collector for deciding two points, one being whether the respondent No.1 was an agriculturist and the other whether there was a tenant on the land and if it found that there was no tenant whether the Collector was justified in declaring the sale void under S. 63 (1). When the matter went back to the Revenue Tribunal after remand it was contended on behalf of the respondent No. 1 that the Collector had no jurisdiction to declare the sale to be void without passing a consequential order under S. 84. The Tribunal held that since this point had not been raised at the earlier stages of the proceedings nor even before the High Court the point should not be allowed to be raised. The Tribunal further held that respondent No. 1 was not an agriculturist. It also held that the Collector was justified in declaring the sale even of survey No. 260 void. A second writ petition was preferred by the respondent No. l against this order:but it was dismissed by the High Court.;