Case: Patel Sureshbhai Jashbhai Vs. Patel Satabhai Mathurbhai

unwillingness to purchase the land, and"* * *3. Pursuant to this fresh opportunity afforded by sec. 32PP respondent made an application requesting the Tribunal to determine the purchase price. The Gujarat Revenue Tribunal (Revenue Tribunal for short) held that the sale had become ineffective under sub-sec. (3) of sec. 32G by reason of the tenant failing t o appear before the Revenue Tribunal and therefore in an application under sec. 32PP the status of the applicant being a tenant is no more open to debate or dispute and must be deemed to be concluded between the parties. It is difficult to subscribe to this view. Sec. 32PP confers a right upon a person claiming to be a tenant and the precondition is that he having failed to appear before the Tribunal in a proceeding u/s 32G, can make an application for determining the price. In such a situation, the landlord is a necessary party. The landlord can and would be entitled to contend that the person claiming to be a tenant and making an application u/s 32PP was not a tenant on April 1, 1957. It is difficult to subscribe to t he inter- pretation of sec. 32PP adopted by the Tribunal. Undoubtedly only that person is entitled to make an application u/s 32PP who having failed to appear before the Tribunal in a proceeding u/s 32G, the statutory saie was declared in effective but on that account such person making an application under sec. 32PP must be accepted as tenant without further enquiry and without permitting the landlord to challenge the status of the applicant is not warranted by the language of sec. 32PP. It is undoubtedly true that an application u/s 32PP can be made where the purchase of the land by the tenant has been declared ineffective u/s 32G(3) by reason of the tenant failing to appear before the Tribunal or making a statement expressing his unwillingness to purchase the land. But it should not be overlooked that where a notice was sent by the Tribunal u/s 32G to the person to whom the Tribunal prima facie believed to be a tenant and if such a tenant did not appear and the Tribunal without anything more proceeded to declare the sale becoming ineffective, the application u/s 32 PP would not preclude the landlord from contesting the petition by showing that the applicant was not a tenant on 1.4.57. In any proceeding u/s 32G and 32PP the most important issue to be determined is whether the person claiming to be a tenant was a tenant on April 1, 1957 and an additional issue will have to be determined in an application u/s 32PP whether to such a person notice had been issued u/s 32G and on his failure to appear the sale became ineffective. The Revenue Tribunal appears to be of the view that unless the landlord challenged the order u/s 32G declaring the sale having become ineffective on the footing that a person to whom notice was sent was a tenant on April 1, 1957 and is failure to appear without anything more would clothe him with the status of a tenant. This approach overlooks the possibility of a person to whom notice is served, not appearing because he had nothing to do with the land.In such a situation an unadjudicated inferential determination of status cannot preclude an inquiry into the status which is a sine qua non for claiming the right i n a subsequent proceeding between the parties. Therefore the failure of the landlord to question the sale being declared ineffective on account of the absence of the person to whom notice was sent and who defaulted would not either on the general pri nciple of res judicata or principle analogous to constructive res judicata preclude the landlord from challenging the status in the subsequent enquiry. There is only one situation which may preclude the enquiry in that if on receipt of notice th e tenant did not appear and the landlord appeared and unequivocally admitted that the defaulting person was a tenant on the relevant date and on his failure to appear the sale should be declared ineffective, the landlord in subsequent proceeding under sec. 32 PP would be estopped from challenging the status of the applicant tenant. Such is not the case. Otherwise on a challenge by the landlord in a proceeding under sec. 32 PP the Tribunal have to determine the jurisdictional facts that (i) the applicant was a tenant on April 1, 1957 and (ii) that the sale was declared ineffective under sec. 35G. Therefore, the view of the Tribunal that in a proceeding u/s 32PP, the status of the applicant as a tenant is incontrovertible does not commend to us and is not correct.4. Mr. Bobde contended that once the view of the Tribunal is not in consonance with law the only course open to us is to remit the matter to the Tribunal. We are not inclined to accept the submission for the obvious reason that there is material on record that the respondent was a tenant on the relevant date. Apart from a piece of circumstantial evidence that a notice was sent to the respondent both by a registered post and service was sought to be effected by substituted service on the basis of tenancy record, his name appears in the record of tenancy for certain years. Further the landlord has not put on record his statement in the proceeding u/s 32G whether he disputed the status. The landlord did not take any step under sec. 15 after the sale was declared ineffective. Nathabhai Zaverbhai who according to the landlord was the only tenant of land was not examined by the landlord. The cumulative effect of these circumstances would affirmatively show that the respondent was a tenant and if he was a tenant on the relevant date, the Tribunal was right in directing that the purchase price be determined.This is the only point involved in this appeal. A

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Mr. Bobde contended that once the view of the Tribunal is not in consonance with law the only course open to us is to remit the matter to the Tribunal. We are not inclined to accept the submission for the obvious reason that there is material on record that the respondent was a tenant on the relevant date. Apart from a piece of circumstantial evidence that a notice was sent to the respondent both by a registered post and service was sought to be effected by substituted service on the basis of tenancy record, his name appears in the record of tenancy for certain years. Further the landlord has not put on record his statement in the proceeding u/s 32G whether he disputed the status. The landlord did not take any step under sec. 15 after the sale was declared ineffective. Nathabhai Zaverbhai who according to the landlord was the only tenant of land was not examined by the landlord. The cumulative effect of these circumstances would affirmatively show that the respondent was a tenant and if he was a tenant on the relevant date, the Tribunal was right in directing that the purchase price be determined.This is the only point involved in this appeal.