SCA/2177/1980 of MAGANBHAI JETHABHAI BHOI Vs SHANKERBHAI FULABHAI PATEL on 21 September 1995

ORAL JUDGMENT

The order passed by the Mamlatdar and Agricultural LandsTribunal ('the first authority' for convenience) on 24th January 1977 in Tenancy Case No. 298 as affirmed in appeal by the orderpassed by the Deputy Collector of Kheda ('the appellateauthority' for convenience) in Tenancy Appeal No. 1010 of 1978as affirmed in revision by the decision rendered by the GujaratRevenue Tribunal ('the Tribunal' for convenience) on 20thFebruary 1979 in Revision Application No. TEN.S.A. 995/78 isunder challenge in this petition under Art. 227 of theConstitution of India. By his impugned order, the firstauthority rejected the petitioner's application under sec. 37of the Bombay Tenancy and Agricultural Lands Act, 1948 ('theAct' for brief) for restoration of possession of one parcel ofland bearing survey No. 897 (part) admeasuring 2 acres 33gunthas situated at village Ode taluka Anand district Kheda('the disputed land' for convenience).

2. The facts giving rise to this petition move in a narrowcompass. The disputed land originally belonged to the father ofrespondents Nos.1 and 2. The father of the petitioner was itstenant. The landlord obtained its possession by the orderpassed by the first authority on 7th May 1956 in Tenancy CaseNo. 249/71 under sec. 29(2) read with sec. 34 of the Act. Itappears that the landlord died as also the father of thepetitioner, that is, the original tenant. It appears thatrespondents Nos. 1 and 2 herein sold the land to respondentsNos. 3 and 4 herein by a registered sale deed executed on 31stMay 1971, The petitioner appears to have come to know that theland was sold to respondents Nos. 3 and 4 herein much earlierbut the formal transaction was executed on 31st May 1971. Hethereupon moved the first authority by means of an applicationunder sec. 37 of the Act. It came to be registered as TenancyCase No. 298. After hearing the parties, by his order passedon 24th January 1977 in the aforesaid proceeding, the firstauthority rejected it. Its copy is at Annexure A to thispetition. The aggrieved petitioner carried the matter in appealbefore the appellate authority under sec. 74 thereof. It cameto be registered as Tenancy Appeal No. 1010/78. By his orderpassed on 14th August 1978 in the aforesaid appeal, theappellate authority dismissed it. Its copy is at Annexure B tothis petition. The aggrieved petitioner carried the matter inrevision before the Tribunal under sec. 76 of the Act. It cameto be registered as Revision Application No.. TEN.S.A. 995 of1978. By its decision rendered on 20th February 1979 in theaforesaid revisional application, the Tribunal rejected it. Itscopy is at Annexure C to this petition. The aggrievedpetitioner has thereupon invoked the extra-ordinary jurisdictionof this court by means of this petition under Art. 227 of theConstitution of India for questioning the correctness of theorder at Annexure A to this petition as affirmed in appeal bythe appellate order at Annexure B to this petition as furtheraffirmed in revision by the decision at Annexure C to thispetition.

3. All the three authorities below have concurrently found that respondents Nos. 1 and 2 herein sold the disputed land torespondents Nos. 3 and 4 herein on 31st May 1971, that is 15years after the landlord obtained its possession for personalcultivation. This finding of fact cannot be interfered with bythis court under Art. 227 of the Constitution of India in viewof the binding ruling of the Supreme Court in the case of Mohd.Yunus v. Mohd. Mustaqim and Others reported in AIR 1984 SC 38.

4. It is difficult to accept the submission urged before meby Shri Amin for the petitioner to the effect that the admissionby respondent No. 1 herein to the effect that he did not knowwhen the landlord obtained possession of the disputed land forpersonal cultivation pursuant to the order passed by the firstauthority on 7th May 1956 would render the concurrent finding asperverse. The reason therefor is quite simple. As pointed outhereinabove, the original landlord was no longer alive after theaforesaid order was passed on 7th May 1956 awarding possessionto him for personal cultivation. The proceeding was initiatedby the petitioner under sec. 37 of the Act as late as in 1974,that is, 18 years after the aforesaid order was passed. Eventhe original landlord might not have been able to say withcertainty as to when he received possession pursuant to theorder passed on 7th May 1956. It is possible that respondentNo.1 herein might have been a small boy at the relevant time andhe would not be in a position to remember when his fatherobtained possession of the disputed land pursuant to theaforesaid order passed on 7th May 1956. It transpires from theimpugned orders and the impugned decision that the concurrentfinding of fact with respect to the sale transaction occurringafter 15 years was recorded on the basis of the material onrecord. It is not found to be perverse. In that view of thematter, it cannot be interfered with in view of the aforesaidbinding ruling of the Supreme Court.

5. In the result, this petition fails. It is hereby rejected. Rule is discharged with no order as to costs.

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