GABHAJI LILAJI LEGAL HEIR AND REPRESENTATIVE OF DECD LILAJI MOTIJI Vs. VORA SAIYADBHAI KADARBHAIO

JUDGEMENT

(1.) The petitioner was a tenant of the land of S. No. 31 admeasuring acres 16-35 gunthas situate within the revenue limits of village Khanusa in Vijapur taluka of the Mehsana district. This piece of land was divided into two parts; S. NO.31/1 and S.No. 31/2 admeasuring acres 8-13 gunthas and acres 8-12 gunthas respectively. The respondent of special Civil Application No. 305 of 1977 purchased the land of S. No. 31 while the respondent of Special Civil Application No. 304 of 1977 purchased the land of S. NO. 3112

(2.) The grievance of the petitioner is that his name was removed from the record of rights at the instance of the respondents who applied to the Mamlatdar concerned on the ground that the petitioner was no more a tenant on the said piece of land without any inquiry being held as required by law. The petitioner therefore carried the matter in appeal before the Prant Officer who directed the respondents to seek negative declaration under sec. 70 (b) of the Tenancy Act against the petitioner that he was no more a tenant. Accordingly the respondents applied to the Mamlatdar who granted the negative declaration as sought for. The said order granting negative declaration was confirmed in appeal. However in the revision preferred by the petitioner the Gujarat Revenue Tribunal by its order of 10th December 1975 reappraised the entire evidence and in a considered judgment held that the petitioner was a tenant and therefore reversed the order of the Collector confirming the order of the Mamlatdar. It appears that the respondents in both these petitions sought review of the aforesaid order of the Tribunal. The Review Application was required to be heard by the member other than the one who disposed of the revision application on account of the sad demise of the latter. In the review application the learned Member found that there was an error apparent on the face of the record in two respects; firstly the finding of the member disposing of the revision application was contradictory in terms inasmuch as he held that the petitioner herein who was applicant before him was a tenant as well as watchman in respect of the land in question and seccondly the learned Member disposing of the revision application applied the law pertaining to surrender of tenancy rights contained in sec. 15 of the Tenancy Act which was not applicable at the relevant time namely 1940 A.D. when the land was part of the erstwhile State of Baroda. The learned Member therefore thought fit to set aside the earlier order and directed rehearing of the matter. It is this order granting the review application which has been challenged in this petition.

(3.) What is the scope and width of the power of a Court hearing review application under Order 47 Rule 1 of the Civil Procedure Code has come up for consideration in number of decisions. The power of Revenue Tribunal to review its own order is to be found in sec. 17(1) of the Bombay Revenue Tribunal Act 1957 as applied to the State of Gujarat. It is in pari materia with the provision contained in Order 47 Rule 1 of the Civil Procedure Code. This Court in Patel Gordhanbhai Garbadbhai v. Patel Bhagwandas Sanabhai & Anr (1976) 17 Guj. L.R. 326 considered the scope and width of the power of review under sec. 17(1) of the Bombay Act as applicable in the State of Gujarat. S. H. Sheth J. speaking for the Court held that none of the three grounds .which have been mentioned in the first proviso to sub-sec. (1) of sec. 17 of the Bombay Revenue Tribunal Act confers jurisdiction upon the Revenue Tribunal to rehear a matter entirely or to reappreciate the evidence all over again and if the member of the Revenue Tribunal who decided the revision Application had not applied his mind to the facts of the case and had arrived at a perverse conclusion it was open to the aggrieved party to seek against it such remedy as he had under law and not to seek review thereof since sec. 17(1) does not confer the jurisdiction upon the Revenue Tribunal to act as a Court of Appeal. It was further held that this power is exercisable only for correcting a patent error which the Tribunal can always correct and reshape its decision in the light of the correction of the error. It cannot reappreciate the evidence and arrive at a different conclusion from the one which was arrived at at an earlier stage.