BHANUSHANKER AMBALAL JOSHI Vs. LAXMAN KALA
LAWS(GJH)-1960-7-11
HIGH COURT OF GUJARAT
Decided on July 28,1960

BHANUSHANKER AMBALAL JOSHI Appellant
VERSUS
LAXMAN KALA Respondents


Referred Judgements :-

KHALILULLA HASAMIYA V. YESU [DISTINGUISHED]
WAMAN GANESH JOSHI VS. GANU GUNA KHAPRE [DISTINGUISHED]


JUDGEMENT

S.T.DESAI - (1.)This petition came up for hearing before my brother Miabhoy and myself when Mr. Nanavati learned advocate for the petitioner relied on a decision of the Bombay High Court in Waman Ganesh Joshi v. Ganu Guna Khapre (1959) 61 B. L. R. 1267 in support of the argument that the Revenue Tribunal was in error in interpreting sec. 31A(d) of the Bombay Tenancy and Agricultural Lands Act 1948 It was also argued before us that the decisions of the Bombay High Court are binding on this Court. The question had by that time been referred to a Full Bench of this Court. The Full Bench has now expressed the view that a decision of the Bombay High Court given prior to the 1/05/1960 is binding on this High Court Therefore speaking generally that decision of a Division Bench would be followed by a Division Bench of this Court. At that time we had found It difficult to agree with the view expressed in the case of Waman Ganesh and the petition is now before us for disposal.
(2.)The facts are these. The petitioner is the landlord of the survey numbers 681 and 681 respectively held by opponents 1 and 2 as tenants of the same. The petitioner gave due notice and then filed a tenancy suit before the Mamlatdar Kodinar for possession of the same on the ground that he required the lands bona fide for personal cultivation. Both the fields had been gifted to the petitioner by his father on 1/06/1953 and a mutation entry in that behalf had been made. The petitioner's father is alive. The Mamlatdar decided the suit in favour of the petitioner holding that he required the lands bona fide for his personal cultivation and that the income from the lands would be his principal source of income. The Mamlatdar being of the view passed an order in favour of the petitioner for possession of half of the suit land. In appeal the Prant Officer felt that the gift was invalid under the Act and therefore the petitioner had no right to apply for possession. He remanded the case for enquiry whether under the Tenancy Act the transfer was valid or not. On remand the Mamlatdar held that the petitioner had obtained a certificate under section 84A of the Tenancy Act and therefore the transfer in his favour should in any event be regarded as valid. In the result he confirmed his original judgment and passed an order in favour of the petitioner for possession of half the suit land. The matter was once again carried in appeal this time to the Collector who reversed the decision of the Mamlatdar on two grounds firstly that the gift was not valid because it did not fulfill the requirements of section 123 of the Transfer of Property Act secondly that the landlord had not fulfilled the conditions laid down in section 31A(d) of the Tenancy Act. The landlord carried the matter in revision to the Revenue Tribunal. The Revenue Tribunal decided in favour of the landlord on the point relating to the factum of relationship of landlord and tenant but it decided against him on the ground that he had not fulfilled the conditions laid down in section 31A(d). In the result the Tribunal dismissed the revision application and the landlord has come to this Court on this petition.
(3.)The question that has been argued before us by Mr. Nanavati lies in a narrow compass. He relies strongly on the decision of the Bombay High Court in the case of Waman Ganesh v. Ganu Guna of which we have already made mention and to which we shall presently turn. He has also drawn our attention to a number of provisions in the Act. Relying on section 14 of the Act it is argued that the landlord envisaged by that section would be not only the individual landlord himself but would include predecessor-in title of that landlord. The argument has proceeded that the expression landlord should have the meaning in section 14 as well as in section 31 It will be convenient to set out the provision of section 31A(d) :-
"31A The right of a landlord to terminate a tenancy for cultivating the land personally under section 31 shall be subject to the following conditions:- (c) The land leased stands in the record of rights or in any public record or similar revenue record on the 1st day of January 1952 and thereafter during the period between the said date and the appointed day in the name of the landlord himself or of any of his ancestors or if the landlord is a member of a joint family in the name of a member of such family."

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