LPA/1946/2007 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1946 of 2007 In SPECIAL CIVIL APPLICATION No. 12915 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ============================================= = 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 ? ============================================= = BACHU CHENIYA PUNIYA & ANR. - Appellants Versus PARASING W/O BIJIYA PUNIYA & ORS - Respondents ============================================= = Appearance : MR CHIRAG B PATEL for Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 - 2, 2.2.1, 2.2.2, 2.2.3,2.2.4 None for Respondent(s) : 1, MR YM THAKKAR for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 GOVERNMENT PLEADER for Respondent(s) : 2 - 3. ============================================= ============ CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT LPA/1946/2007 2/11 JUDGMENT Date : 28/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Initially, this Court has passed the following order. “Learned counsel for the appellant withdraws the appeal with a liberty that he wants to raise his legal rights in rightful legal forum as available in law. With the aforesaid understanding, the learned counsel for the appellant is permitted to withdraw the appeal. Permission granted. Appeal stands disposed of accordingly. Ad-interim relief granted earlier is vacated. In view of the disposal of the main appeal, Civil Application No.13004 of 2007 does not survive and the same is disposed of accordingly. After the aforesaid order was passed, a request came to be made by learned Counsel for the appellants for recalling the aforesaid order and requested for inviting reasoned order. Accordingly, present appeal is being disposing of on merits. 1. The appellants who are respondents in Special Civil Application No.1295 of 1994, have preferred this Letters Patent Appeal, challenging the order dated 06/09/2007 passed by this Court (Coram: R.M.Doshit, J.), passed in aforesaid SCA, allowing the said SCA for the reasons mentioned therein. For the sake convenience and brevity, the original petitioners and the present opponents are referred to as the petitioners and the appellants who are original respondents in the petition are referred to herein as respondents. LPA/1946/2007 3/11 JUDGMENT 2. The facts of the case deserves to be set out as under: 3. The petitioners in the original petition are the heirs one Bijiya Puniya, a protected tenant in the lands Survey Nos.161/5 and 161/6 situated at Village Dahod Kasba admeasuring 1-Acre-2-Gunthas. The petitioners in the SCA challenged the common judgment and order passed by the Gujarat Revenue Tribunal (hereinafter referred to as “GRT”) DTAED 10/09/1993 in Revision Application Nos.TEN.B.A.937/1986 and TEN.B.A.494/1991. The undisputed facts as recorded by the learned Single Judge goes to indicate that one Puniya Ukadia was the tenant of a land owner one Ismail Fata Tuta. The said Ismail owned agricultural lands at two different village viz., Dahod Kasba and also at village Rabdal. Late Shri Puniya Ukadia initially cultivated the land of village Rabdal since 1993 or about that time. The said Puniya Ukadia started cultivating the lands of village Dahod Kasba. The said Puniya Ukadia passed away in the month of April, 1949 and since then he was declared to be a protected tenant in respect of the disputed lands as envisaged by Section – 4A of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'Tenancy Act'). A mutation entry bearing No.2686 came to be made on 26/12/1949 recording this fact. It is required to be noted that even after the demise of said Shri Puniya Ukadia, his name continued in the revenue records as his heirs the aforesaid Bijiya Puniya and his brothers Cheniya Puniya and Mana Puniya, the predecessors of the respondents of the respondents, did not apply for mutation in their names. The mutation took place in the year 1958 by LPA/1946/2007 4/11 JUDGMENT revenue entry No.4025 dated 14/01/1958. The name of the aforesaid Bijiya Puniya, one of the sons of the deceased Puniya Ukadia, came to be entered in the revenue record and he was also declared to be 'protected tenant'. The owner Ismail Fata had, during his life time, made gift of the lands of village Dahod Kasba to his daughter Bai Halima and of the lands of village Rabdal to his daughter Bai Hura. After the demise of the said Bai Halima, the lands of village Dahod Kasba devolved upon the said Ismail Fata and after his death, upon his surviving daughter Bai Hura. It is not in dispute anywhere that the said Bijiya Puniya cultivated the disputed lands till the tillers' day i.e. 01/04/1957. The proceedings under Section 32 of the Act came to be initiated against the landlady, the aforesaid Bai Hura. The said Bijiya Puniya was held to be the tenant- deemed purchaser under order dated 28/03/1974 made by the Mamlatdar and ALT in Tenancy Case No.452/1974 decided the same and the sale price was determined under Section 32G of the Act. Accordingly, the said Bijiya Puniya deposited the sale price on 01/06/1975. The sale certificate under Section 32M of the Act was issued in the name of the said Bijiya Puniya. For the first time, the above referred entry no.2686 came to be challenged before the Assistant Collector in RTS Appeal No.3/1979 by the heirs of the aforesaid Cheniya Puniya and Mana Puniya, the brothers of Bijiya Puniya. The Assistant Collector rejected the same on account of its maintainability vide its order dated 17/07/1979. The said appellants, therefore, preferred Tenancy Appeal No.10/1986 before the Deputy Collector, Dahod and challenged the order dated 28/03/1974 made in Tenancy Case No.452/1974. According to them, the revenue entry no.4035 made on 14th January, 1958 for mutation in the name of Bijiya Puniya alone LPA/1946/2007 5/11 JUDGMENT was not a valid entry. In-fact, on the demise of Puniya Ukadia, all his sons inherited the tenancy in respect of the disputed lands. Nevertheless, mutation was made in the name of one son Bijiya Puniya alone which was improper. They also challenged the above referred order dated 28/03/1974 made in the Tenancy Case No.452/1974. The Deputy Collector, Dahod, by order dated 08/07/1986, allowed the said appeal, setting aside aside the order made in Tenancy Case No.452/1974 and remanded the matter for deciding its afresh. The Deputy Collector recorded that the mutation entry no.4035 made on 14/01/1958 in the name of Bijiya Puniya was not legally made. After the demise of the tenant, the heirs would inherit the tenancy. The matter was required to be decided afresh after hearing all the heirs. 4. Feeling aggrieved by the said order, the said Bijiya Puniya preferred Revision Application No.937/1986 before the Gujarat Revenue Tribunal. Pending the said Revision Application, the matter was considered afresh by the Mamlatdar and ALT in Tenancy Case No.15/1986. By order dated 28/11/1986, the Mamlatdar and ALT held that on 01/04/1957 Cheniya Puniya, Mana Puniya and Bijiya Puniya, the sons of the deceased Puniya Ukadia were the tenants and that the names of Cheniya Puniya and Mana Puniya be added as the occupants of the disputed lands. 5. The heirs of the said Bijiya Puniya, feeling aggrieved and dissatisfied with the said order preferred RTS Appeal No.68/1988 before the Assistant Collector. The Assistant Collector by order dated 21/03/1988 partly allowed the said appeal. The order dated 28/11/1986 was set-aside and the LPA/1946/2007 6/11 JUDGMENT matter was remanded for decision afresh. Pursuant thereto, the Mamlatdar and ALT by order dated 01/11/1988 hold that on the tillers' day i.e. 01/04/1957, all the three sons of the deceased Puniya Ukadia were the tenants and that they were entitled to purchase the land under Section 32 of the Act. The Deputy Collector, Godhra confirmed said order in Tenancy Appeal No.1/1990. Feeling aggrieved, the petitioners – respondents preferred Revision Application No.494/1991 before the Tribunal. Both the aforesaid revision applications came to be decided by common judgment and order dated 10/09/1993. The Tribunal was pleased to uphold the claim of the aforesaid Cheniya Puniya and Mana Puniya and to dismiss the said revision applications. 6. Feeling aggrieved, the petitioners-respondents herein have preferred the petition being Special Civil Application No.12915 of 1994 wherein after elaborated discussion on the law and facts as stated herein above, allowed the same and the impugned judgment and order of the SCA, dated 10/09/1993 passed by the Gujarat Revenue Tribunal, Ahmedabad in Revision Applications Nos.TEN.B.A.937/1986 and TEN.B.A.494/1991 has been quashed and set-aside. 7. Being aggrieved and dissatisfied with the judgment and order passed in SCA, the present appellants-respondents therein has preferred this Letters Patent Appeal. 8. The contention is taken that the learned Single Judge has erred in not appreciating the fact that Puniya Ukadia was having three real sons viz., Bijiya Puniya, Cheniya Puniya and Mana Puniya, but only Bijiya Puniya was issued the LPA/1946/2007 7/11 JUDGMENT certificate under Section 32M of the Tenancy Act and this certificate issued on 01/07/1975 was wrongly issued; that the learned Single Judge has erred in considering the ground for delay which was caused by the appellate in the year 1979 and that the learned Single Judge has erred in deciding the issue in respect of delay and latches. 9. This Court has heard the learned Counsel for the respective parties and have gone closely gone through the judgment and order passed by the learned Single Judge in SCA. 10. The undisputed facts have been set out herein above and again against this backdrop, the order of the learned Single Judge is to be examined. The learned Single Judge while recording submission on behalf of the petitioners' Counsel observed that after the death of said Puniya Ukadiya, his son-Biniya Puniya, the predecessor of the petitioners- respondents herein continued to cultivate the lands of village Dahod Kasba while the aforesaid Cheniya Puniya and Mana Puniya cultivated the lands of village Rabdal. Thus, on the tillers' day i.e. on 01/04/1957, Bijiya Puniya who was cultivating the lands at village Dahod Kasba and therefore he was rightly declared to be the protected tenant entitled to purchase the land under Section 32 of the Act. The learned Single Judge has also observed and recorded in a decision that similarly the aforesaid Cheniya Puniya and Mana Puniya were held to be the protected tenants in respect of the lands situated at village Rabdal and ultimately, the said lands came to be sold under the proceedings under Section 32 of the Act to the respective tenant. It was in the family arrangement, the lands at village Dahod Kasba came to the share of Bijiya Puniya while the lands LPA/1946/2007 8/11 JUDGMENT at village Rabdal came to the share of Cheniya Puniya and Mana Puniya. Accordingly, the said Bijiya Puniya became the exclusive owner of the lands at village Dahod Kasba. The other brothers Cheniya Puniya and Mana Puniya had no right or interest in the said lands. 11. The learned Single Judge has observed that in the matter of Nanba, Wd/o deceased Hematsinh Malubha and others (supra), this Court has considered the ambit of Section 70(b) and the bar imposed by Section 85 of the Act. It has been held that the question contemplated by Section 70(b) of the Act is not limited to an issue between landlord and tenant. The question of joint tenancy also falls within the ambit of Section 70(b) of the Act and in view of the bar imposed by Section 85 of the Act, the civil court has no jurisdiction to decide such issue. 12. The Court has also observed and relied upon decision of this Court in the matter of Manibhai Jivanji Desai (supra), this Court held that the revenue tribunal had no jurisdiction to entertain revision application preferred beyond the period of limitation unless the delay was expressly condoned. In the matter of Abdul Aziz Umarbhai Karkoon and another (supra), the Division Bench of this Court has considered the scope and ambit of the proceedings under Section 32 of the Act. It has been held that, Section 32G does not contemplate only one order, as was contended before us, namely, the one determining the purchase price, but several other orders before the stage of determining the purchase price is reached. LPA/1946/2007 9/11 JUDGMENT 13. In view of this, the contention that the Mamlatdar and ALT, while considering the proceedings under Section 32G of the Act, had no jurisdiction to decide the question of tenancy under Section 70(b) of the Act requires to be rejected. 14. The learned Single Judge has also recorded that it was evident that the aforesaid Ismail Fata Tuta was the owner of the large tracts of land. Pieces/parcels of such lands were cultivated by different tenants. One of them being the aforesaid Puniya Ukadia. In other words, the said Puniya Ukadia cultivated only a part of the lands as the tenant of the said Ismail Fata Tuta. The said Puniya Ukadia has been shown to be cultivating the disputed lands since 1943. In-fact, the said Cheniya Puniya and Mana Puniya were cultivating the land of village Rabdal and they were declared to be protected tenant on the said land of village Rabdal and has it has been held by the learned Single Judge they were never in possession of the disputed land in question; nod did they cultivate the land disputed in question. Under the provisions of Section 40 of the Act, it was the landlord who had to offer tenancy to such of the heirs of the deceased tenant who were willing to cultivate the lands on same terms and conditions. The said Section thus required a positive action on the part of the landlord to offer the tenancy right to the heirs of the deceased tenant. Such of the heirs who were willing to cultivate the lands would continue the tenancy. The devolution of the right of tenancy upon the heirs of the deceased tenant was not automatic as envisaged by Section 40 of the Act since its amendment in the year 1956 and accordingly the learned Single Judge has rightly held that it was Bijiya Puniya alone who continued the tenancy after the death of the aforesaid Puniya Ukadia in the month of April, LPA/1946/2007 10/11 JUDGMENT 1949. 15. The learned Single Judge has elaborately discussed the aspect of delay and the explanation for delay given by Cheniya Puniya and Man Puniya was not found to be justifiable at all. The learned Single Judge has recorded that when they themselves were beneficial of the proceedings with regard to village Rabdal, they could not have been gainers about the development in respect of village Dahod Kasba. It has been further observed that neither the Tribunal below nor the authorities below have considered the question of limitation in its true perspective. In-fact, the authorities have entertained timely and the same claim was required to be rejeted. 16. Thus, even on the ground of delay also, the petition was required to be allowed, as the entries were not challenged in time and it was rather permitted to be confirmed by acquisition on the part of the original respondents in the SCA. 17. This Court is of the view that the judgment and order passed by the learned Single Judge does not suffer from any lacuna so as to call for any interference of this Letters Patent Bench. Thus, the present Letters Patent Appeal requires to be rejected and is accordingly rejected. Notice discharged. Ad-interim-relief granted earlier is vacated. There shall be no order as to costs. (Bhagwati Prasad, J.) LPA/1946/2007 11/11 JUDGMENT (S.R.Brahmbhatt, J.) sompura