THAKAR BHANUPRASAD KRIPASHANKER Vs. JADAV MAHIJIBHAI DESAIBHAI
LAWS(GJH)-1988-3-5
HIGH COURT OF GUJARAT
Decided on March 01,1988

THAKAR BHANUPRASAD KRIPASHANKER Appellant
VERSUS
JADAV MAHIJIBHAI DESAIBHAI Respondents




JUDGEMENT

P.M.CHAUHAN - (1.)Petitioner Thakkar Bhanuprasad Kripashanker is occupant of Survey No. 371/14 admeasuring 3 acres 25 gunthas situated at village Nisraya Taluka Borsad District Kaira. Admittedly Mahijibhai Desaibhai was the tenant of that land till surrender on 4/03/1955 Tenant Mahijibhai filed Tenancy Case No. 225 of 1973 before the Mamlatdar Borsad mainly contending that he continued to be in possession of that land even after 1955 and he continued to be the tenant of the said land. He also contended that even if the petitioner landlord had taken away the possession on termination of the tenancy rights he is entitled to purchase the land under the provisions of the Bombay Tenancy 8r Agricultural Lands Act (to be referred as `BT&AL Act) as he continued to be in possession of that laud. He submitted an application for interim injunction under Sec. 70 (nb) BT&AL Act which was granted but subsequently vacated. In the appeal against that order the Deputy Collector set aside the order vacating the interim injunction and reinstated the order of interim injunction. In Revision Application No. GRT. TEN B. A. 598 of 1973 the Gujarat Revenue Tribunal observed that the surrender was legal and valid and set aside the order by the Deputy Collector and directed for fresh hearing of the interim application along with the main application. The evidence was then recorded by the Mamlatdar who on appreciation of evidence held that the respondent tenant continued to be in possession of the land as the tenant even after the date of the surrender and he occupies certain residential premises situated on that land. The Mamlatdar therefore declared the respondent-Mahijibhai as tenant of the land and of the farm houses situated on that land. That order of the Mamlatdar was challenged in the Tenancy Appeal No. 410 of 1976-1977. Appellate authority the Deputy Collector on appreciation of the evidence held that respondent-tenant Mahijibhai was not in possession of the land from the date of the surrender i.e. 4/03/1955 and the petitioner landlord was in actual possession. He accordingly allowed the appeal and dismissed the application by the respondent-tenant Mahijibhai. A Revision Application No. TEN. B. A. 725 of 1979 was preferred against the judgment and order by the Deputy Collector. Learned Member of the Gujarat Revenue Tribunal on appreciation of the evidence agreed with the findings of the Deputy Collector and held that the respondent tenant was not in possession of the land from the date of the surrender i.e. 4/03/1955 On facts therefore the Deputy Collector and the Gujarat Revenue Tribunal held finally that the respondent-tenant was not in actual possession of the land from the date of the surrender i.e. 4/03/1955 Learned Member of the Gujarat Revenue Tribunal however held that surrender by the respondent-tenant was not validly endorsed on the instrument of surrender and therefore the provisions of Sec. 5 BT&AL Act and Rule 2A of BT&AL Rules were not complied with and therefore even though the respondent-tenant was not in actual possession of the land relationship of the tenant and the landlord continued. Learned Member therefore set aside the order by the Deputy Collector and declared that the respondent-tenant Mahijibhai to be the deemed purchaser of the land under Sec. 32G of the Act. So far as the farm houses were concerned the learned Member observed that the said houses belong to the landlord and not to the tenant. That order of the learned Member of the Gujarat Revenue Tribunal is challenged in this Special Civil Application under Art. 227 of the Constitution.
(2.)During the pendency of this petition the respondent-tenant Mahijibhai expired on 23/11/1987 and therefore his legal representatives are joined as respondents.
(3.)So far as the finding of the fact that the petitioner got the possession of the land on 4/03/1955 is concerned that factual aspect is concluded by the order of the Deputy Collector and the Gujarat Revenue Tribunal. It is therefore not necessary for me to consider that aspect. The Mamlatdar has on appreciation of the evidence of the witnesses and the relevant circumstances held that the respondent-tenant Mahijibhai continued to be in possession since the date of surrender and after that he had given the share and therefore he was the tenant of the said land. That finding of the Mamlatdar is not approved by the Deputy Collector who on appreciation of the oral and documentary evidence came to the contrary conclusion and held that the petitioner landlord was put in actual possession of the land on the date of the surrender. Same is the finding by the Gujarat Revenue Tribunal which also appreciated the evidence and concurred with the finding by the Deputy Collector.
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