Case: Krishnabai Anaji Ghule and Others Vs. Nivrutti Ramchandra Raykar and Another

the appellate stage. T he Tribunal observed that the delay in producing this evidence having been satisfactorily explained, the tenants ought to have been allowed to produce the evidence which has some bearing in the issues arising in the matter. The piece of evidence sought to be produced at the appellate stage by the tenants was bearing on the question of bonafide of the partition. It is the same contention differently clothed. In this connection, the Tribunal observed that despite the proceedings under Sec. 88-C having finally concluded between the parties:"It was still open to the tenants to show that the manner in which the partition was effected and the time chosen therefore and particularly the fact that the entire tenanted land was allotted to the share of one coparcener to the exclusion of others has an important bearing on the question of bonafides."This view was sought to be supported by relying upon Arvindlal Bhukhanda v. Khandu. The High Court in a petition under Art. 2 27 while setting aside the order of remand observed that the delay in producing additional evidence was unexplained looking to the protracted proceedings commencing from 1962 and the bonafide of the partition was not questioned, except at the revisional stage.Mr. Tarkunde, learned counsel for respondents took serious exception to the second observation and pointed out that it is contrary to record. In this connection, he drew our attention to Point No. 5 framed by the Tehsildar while holding the enquiry after the remand which was as under:"5. Whether the partition made by the landlord is valid. And whether it can be challenged in these proceedings?"12. He recorded a finding that there was a partition in the landlords family in 1959 and the same cannot be challenged in the present proceedings, In the appeal by the tenants, the Appellate Court disposed of the contention on the bonafide of the partition by observing that he was in agreement with the reasoning of the Tehsildar. The Maharashtra Revenue Tribunal in the revision petition by the tenants held that once a certificate is granted to a landlord under Sec. 88-C on the basis that he is the exclusive owner of the land it is not open to the tenant in an enquiry under Sec. 33-B to challenge the partition under it. In support of this view, the Tribunal relied upon two un-reported decisions of the Bombay High Court and finally observed that it is futile to challenge the validity of the partition. It thus appears that High Court committed an error apparent on record while observing that the validity of partition was questioned for the first time at the revisional stage. But having said this it must also be pointed out that the contention raised by the tenant about the bonafides of partition in the proceedings under Sec. 33-B has been rightly negatived on the short ground that the bona fides, genuineness and validity of the partition was directly and substantially in issue in the proceedings under Sec. 88-C and concurrently held in favour of the landlord upto the High Court and the same must be held to be concluded between the parties and on this short ground, the decision of the High Court setting aside the order of remand can be confirmed.In the view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the contention raised by Mr. Tarkunde becomes a non-issue and it will also dispose of his supplementary contention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine nor bonafide. And in our opinion in the facts of this case it is no more relevant.13. Incidentally it was urged that the landlord is staying at Poona and that he is florist and the land involved in dispute is at Village Manjari and therefore it is not possible to believe that the landlord would be able to personally cultivate the land or that he can undertake the avocation of cultivation of land by investing funds when the area available is less than an economic holding. These are pure questions of facts concurrently held in favour of the landlord and we are not disposed to re-examine them at this stage and at this distance of time.14. One aspect which, frankly has dominated out thinking is the relative economic position of tenants and landlord in this case. Anaji Ghule was a tenant of 4 acres out of 7 acres and 13 gunthas of land comprising in Survey No. 14/A/2. Tilekar was a tenant of the remaining 3 acres and 13 gunthas. Anaji Ghule died leaving behind him two sons and a widow, who are appellants No. 1 to 3. Appellant " Krishnabai the widow holds excluding the leased land 16 acres and 17 gunthas of land; first son Shivaji 8 acres and 9 gunthas, and Bala the second son 8 acres and 10 gunthas of land. Presumably all the three inherited the land from Shri Ghule and therefore the total holding would be 32 acres and 36 gunthas of land. And it is interesting to no te some features of the partition effected by tenants heirs amongst themselves. The widow is allotted double the share of each son. There is nothing to show that the mother and two sons have separated. And their total holding is 32 acres an d 36 gunthas. As against the holding of first set of tenants of 32 acres and 36 gunthas, the landlord seeks possession of 4 acres of land. In the case of Tilekar he holds 8 acres and 4 gunthas and the landlords 3 acres and 13 gundhas. Would it be fair to deny this very reasonable request in appeal under Art. 136 when all authorities including High Court have held in favour of this petty small landlord. We decline to interfere.Accordingl

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

Explanation:
0[ds]One aspect which, frankly has dominated out thinking is the relative economic position of tenants and landlord in this case. Anaji Ghule was a tenant of 4 acres out of 7 acres and 13 gunthas of land comprising in Survey No. 14/A/2. Tilekar was a tenant of the remaining 3 acres and 13 gunthas. Anaji Ghule died leaving behind him two sons and a widow, who are appellants No. 1 to 3. Appellant " Krishnabai the widow holds excluding the leased land 16 acres and 17 gunthas of land; first son Shivaji 8 acres and 9 gunthas, and Bala the second son 8 acres and 10 gunthas of land. Presumably all the three inherited the land from Shri Ghule and therefore the total holding would be 32 acres and 36 gunthas of land. And it is interesting to no te some features of the partition effected by tenants heirs amongst themselves. The widow is allotted double the share of each son. There is nothing to show that the mother and two sons have separated. And their total holding is 32 acres an d 36 gunthas. As against the holding of first set of tenants of 32 acres and 36 gunthas, the landlord seeks possession of 4 acres of land. In the case of Tilekar he holds 8 acres and 4 gunthas and the landlords 3 acres and 13 gundhas. Would it be fair to deny this very reasonable request in appeal under Art. 136 when all authorities including High Court have held in favour of this petty small landlord. We decline tothe view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the contention raised by Mr. Tarkunde becomes aand it will also dispose of his supplementary contention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine nor bonafide. And in our opinion in the facts of this case it is no morethus appears that High Court committed an error apparent on record while observing that the validity of partition was questioned for the first time at the revisional stage. But having said this it must also be pointed out that the contention raised by the tenant about the bonafides of partition in the proceedings under Sec.has been rightly negatived on the short ground that the bona fides, genuineness and validity of the partition was directly and substantially in issue in the proceedings under Sec.and concurrently held in favour of the landlord upto the High Court and the same must be held to be concluded between the parties and on this short ground, the decision of the High Court setting aside the order of remand can be confirmed.Inthe view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the contention raised by Mr. Tarkunde becomes aand it will also dispose of his supplementary contention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine nor bonafide. And in our opinion in the facts of this case it is no more