SCA/9242/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9242 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MANUBHAI DHARABHAI BHARWAD - Petitioner(s) Versus SURYABEN SHANTILAL VADVALA & 11 - Respondent(s) ========================================================= Appearance : MR SHITAL R PATEL for Petitioner(s) : 1, None for Respondent(s) : 1, MR PRASAD N BHATT for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 RULE SERVED BY DS for Respondent(s) : 2 - 8. MR SATYAM CHHAYA ASST GOVERNMENT PLEADER for Respondent(s) : 7, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 28/08/2008 ORAL JUDGMENT Heard learned advocates appearing for the parties. 2. The petitioner has challenged the order dated 01.07.2008 passed SCA/9242/2008 2/5 JUDGMENT by the Gujarat Revenue Tribunal in Revision Application No.TEN/BA/548 of 1995. The petitioner had initiated the proceedings under Section 70(B) of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short “the Tenancy Act”) before the Mamlatdar & ALT claiming to be tenant of the land bearing Block No.29 admeasuring Acre 1 – 13 Gunthas and Block No.248 admeasuring Acre 2 – 12 Gunthas of village Hebatpura, Taluka Daskroi. In the application, the petitioner has stated before the Mamlatdar that he is cultivating the said land since 20 years and he is also paying the land revenue for the land in question. His tenancy rights may, therefore, be decided and he may be declared deemed purchaser of the land in question. Significantly, in the application dated 11.07.1994 the petitioner filed before the Mamlatdar, he did not disclose as to how he was put in possession of the land in question and in what capacity he was cultivating the same. 3. The Mamlatdar held inquiry and after recording evidence, by his order dated 08.05.1995, held that the petitioner was tenant of the suit land. He also fixed purchase price and upon payment of which, the petitioner would become deemed purchaser. 4. The order of the Mamlatdar was carried in appeal by the land owners before the Deputy Collector. The appeal was, however, came to be dismissed by his order dated 30.09.1995. Thereupon, the land owners preferred revision application before the Gujarat Revenue Tribunal which by the impugned order, came to be allowed. The petitioner is, therefore, before this Court in the present petition. 5. Learned advocate Mr.Shital R. Patel has relied upon several factors referred to in the revision application. It is observed in the impugned order that notices were not served on the land owners. That there was SCA/9242/2008 3/5 JUDGMENT no material to show that the petitioner was tenant of the suit land. It was held that the application under Section 70(O) of the Tenancy Act was not maintainable. 6. Having heard learned advocates appearing for the parties and having perused the evidence on record, I find that the order of the Gujarat Revenue Tribunal does not call for any interference. Learned advocate Mr.Shital Patel for the petitioner though he is justified in pointing out that the Tribunal held that proper notices were not served on the land owners and under such circumstances, the proper course would be to remand the proceedings. However, this is not only a ground on which the revision application was allowed. The Tribunal found that the petitioner had failed to establish his tenancy rights. To this conclusion, I am in agreement with finding of the Tribunal. The respondents have produced the application filed by the petitioner before the Mamlatdar and the depositions of the parties. The petitioner himself in his deposition has stated before the Mamlatdar that he is cultivating the land since 20 years. That the land is in the name of widow of Ratilal Ganpatram viz. Parvatiben but the land owners are not residing in the village since many years, where they are residing the witness does not know. The petitioner further stated that he cultivates the land and enjoys possession in absence of the land owners who are not residing in the village, nor are cultivating the land. He stated that he should be declared as tenant and purchase price for the land should be fixed. Witnesses examined on behalf of the petitioner also gave similar depositions. One Kalaji Chanduji Thakor who was examined by the petitioner. He also stated that the land owners do not reside in the village and he did not know where they are residing. One Pravinbhai Mavjibhai also similarly examined by the petitioner who also gave similar deposition. SCA/9242/2008 4/5 JUDGMENT 7. From the evidence on record, it becomes clear that though the petitioner asserted before the revenue courts that he is in actual possession of the land in question and that he cultivates the land since years, nowhere the petitioner stated that he was put in possession by the land owners or he was authorised by the land owners to cultivate the land or that in any manner the petitioner cultivates the land upon sharing the crop or by paying any other rent to the land owners. In effect, the case of the petitioner himself that he was in possession of the land and cultivating the same since years. He, in fact, stated that he does not know where the land owners reside. Nowhere did the petitioner contend that he was cultivating the land as tenant. This crucial aspect was totally missing in the application of the petitioner as well as in his deposition, so also, of the depositions of other witnesses. 8. In that view of the matter, even if the Courts below were of the opinion that the petitioner was actually cultivating the land, it was not possible to hold that he was doing so as tenant. It is true that the Deputy Collector may have passed remark that the petitioner conceal tenant. However, there was no material come on record to such conclusion, nor it was not even a case of the petitioner himself. 9. When the petitioner himself has not set out a case of cultivating the land as tenant, the Mamlatdar as well as Deputy Collector could not have declared the petitioner as tenant of the suit land. The Revenue Tribunal, therefore, not committed any error in reversing such orders. In the result, the petition fails, and hereby, dismissed. 10. Learned advocate for the petitioner, however, pointed out that the land owners have obtained a decree from the Civil Court against which the petitioner has preferred an appeal which is pending. SCA/9242/2008 5/5 JUDGMENT I am sure such an appeal will be decided on the basis of material available on record. Subject to aforesaid observations, the petition is dismissed. Rule is discharged. ( Akil Kureshi, J. ) kailash