EBRAHIM YUSUF LAMBE Vs. ABDUL RAZAK ABDUL RAHIMAN MULLA

JUDGEMENT

(1.) The Petitioner applied to the Tahsildar for a declaration of his being the tenant of certain land. The application was made under Section 70 (b) of the Bombay Tenancy and Agricultural Lands Act, (hereinafter referred to as "the Act"). Tenancy is claimed on the basig of contract with opponents' father and rent also is claimed to have been paid to him during his lifetime and thereafter to the opponents. Opponents denied all this. On evidence, the Aval Karkun accepted his claim. In an appeal by the opponents, the petitioner raised a preliminary point that Section 74 (1) did not provide for any appeal against such declaration under Section 70 (b) of the Act. The Collector overruled this, saying that the Petitioner is found to be a-deemed tenant under Section 4 of the Act and hence appeal under Section 74 (1) (a) was competent. The Revenue Tribunal declined to interfere in revision.

(2.) In the case of Shantabai v. Pan-durang, reported in 75 Bom LR 79 = (AIR 1973 Bom 203), Malvankar, J., held that no appeal against the order of Tahsildar passed under Section 70 (b) would lie unless it is in regard to the claim of deemed tenancy.

(3.) Mr. Limaye, the learned Advocate appearing for the Petitioner, relied on this case and contends that the petitioner having claimed contractual tenancy and succeeded therein, appeal to the Collector was not competent. But in Spl. Civil Appln. No. 1908 of 1970. decided on 3-4-1972 (Bom), Vaidya, J., on the other hand held that every order under Section 70 (b), is appealable to the immediate Superior Revenue Officer, under Section 247 of the Land Revenue Code which according to him is made applicable to tenancy appeals by virtue of Section 74 (2) of the Act. Mr. Parule-kar, learned Advocate for Respondents relied on this. He also contended that a claim of even being a contractual tenant cannot be excluded from Section 4 of the Act, order under which is made expressly appealable under Section 74 (1) (a) of the Act, even though Section 4 deals with "who can claim to be a deemed tenant".