KRISHNABAI ANAil GHlJLE AND OTHERS

' v.

NIVRUTTI RAMCHANDRA RAYKAR AND ANOTHER •

September 5, 1983

(D. A. DESAI AND R.B. MISRA, JJ.]

Bombay Tenancy and Agricultural Land, Act, 1948_;.S, 33-B-Certificated landlord's right to obtain posseJsion of exempted land from excluded tenarrt- Requirements to be satisfied byland/ord-Scop.e of proceedings under s. 33-B.

Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 provides that every tenant of agricultural land shall be deemed to have purchased from his landlord as on April I, 1957 (Tiller'• Day) the land held by him as tenant free.from all encumbrances. However to protect petty or small landlords against statutory compulsory purchase, provision w.as made in Part

II-A of Chapter III read with s. 88-C of the Act enablin& them to obtain exemption certificate under s. 88-C. Whiles. 33-A designates such petty land- _lords as 'certificated landlords' and the tenants of such exempted lands as

•excluded tenants', s. 33-B confers a special right on a certificated landlord to terminate the tenancy of the excluded tenant in respect of the exempted land and obtain possession of such land if he bona fide requires the same for cultivating it personally.

The land in question in this appeal had fallen to the share of the respondent in a family partition. The bonajides of the partition was the main issue in the prOceedings held undet s. 88-C for grant of an exe?lption certificate in favour of the respondent.. However, the order granting the certificate withstood all challenge from the tenants and became final. In the subsequent proceedings instituted by the respondent under s. 33B for possession _of the land the Tehsildar arrived a, t the finding that tbe respondent .required the land bona fide for his personal cultivation and this finding was confirmed by the

Sub.Divisional Officer in appeal and the tenants were directed to hand over possession of the land to the respondent.

Th~ tenants filed revision applications before the Revenue Tribunal which allowed them on the .grotind that the Sub-Divisional Officer had wrongly declined to admit an important piece of evidence having a direct beil.ring on the question of bona/ides of the parti tion. The r(:spondent moved the. Hig'h Court under Art. 227 and the High Court set aside the Tribunal's judgment holding that the bona fides of the partition which had already been agitated inter par/es in proceedings under · s. 88C could nol be reconsidered in a subsequent proceedings under s. 33B and directed the Tribunal to decide the revision in accordance with law. The Tribunal, taking note of the tact that the respondent had sold a. piece of land l 1/2 years before filing the present application for possession and also that he owned house property in Poona City, came to the conclusion that the respon dent did not bona fide require .the land in question for personal cultivation and

It.A. OHULE V; N.R. RAYKAR 823

dismissed the application-for possession of , land. The respondent once aaain moved the High Court under Art. 227. The High Court restored the decision of the Sub-Divisional Officer, holding that the Tribunal was in error in holding that in order to obtain pOssession of land from an excluded tCnant' under s. 33B, it was obligatory upon a certificated landlord to prove the compelling necessity to cultivate the land, and that the sale of. land by the rspondent prior to the commencement of the present proceedin&s which was -for a small price did not have an adverse impact ?D his bona fides. ·

Counsel for appetlanttenants submitted that even assuming that the High Court was right in holding tht the bon~ fides or the partition could not "be the subject matter of a collateral attack in the present proceedings as the

same had been considered and decided iri proceedini:s he1d under s. 88-C, still the question could be gone into to ascertain the bona fides of the landlord when he moved an application under s. 33-B seeking eviction for personal cllltivation.

Dismissing the appeal,

HELD : It is true that a certificated landlord is not entitled to recover

possessio~ from the excluded tenant merely for asking. He can only obtain the direction for possession if he bona fide requires the exempted land for cultivati; g it personally. When it" is said that the landlord bona fide requires possession of the land, it would be neceSsary for him to prove that he i.s acting

\,.. honestly and that the application for possession is not a device to dispossess 4the tenant and that he requires, in the sense needs possession of, the land for personal cultivation. In other words, personal cultivation is necessary to obtain the yield of the land for himself. Some element of requirenient could inhere the requirement for maintenance by undert::iking the avocation of personal cultivation. It is not that the landlord e\en if he has sufficient source of maintenance, can seek posse:; sion merely because he wants to pursue the avocation of cultivating the land personally' but this aspect hardly ever arises in an application under s. 33-B because such "an application can only t_e made by a certificated landlord and none else and the certificated landlord is one whose holding does not exceed an economic holding.

As long as the certificate of exemption under s. 88-C subsists, two inferences flow therefrom : that the landlord is a petty or small land holder arid that his annual income from all sources including rent of land does not exceed R5, 1,500. lt is the bona fide requirement of such a small and petty landlord for personal cultivation that has to be examined under s. 33-B. It may be that while examining the bana /ides of the requirCment of the certificated lalldlord, the court may take into account how the landlord became the owner of the land and, if it is by

paition, the. bona/ides of the partition may be examined. [830 G-H; 831. A-D]

Arvind Lal Bhukanda v. Khandu, 63 B.L.R. 929 approved and

distinguishd.

In the nstant cas~. the appellant-tenants contested the proceedings initiated by the landlord for certificate of exemption under s. 88-C at all levels and on all availab]e contentions, the principal one being the natur_e and

• c

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824 ' SUPREME COURT'llEPORTS (!983) 3 s.c.R.

character of the partition. That contention having been concurrently negatived cannot be re-opened. The Tehsildar arr.ived at the finding that the respondent required the land bona fide for his personal cultivation and it was confirmed by the first appellate court which was the last fact-findiug court.

The Triborial interfered with this finding on the ground that some important piece of evidence had been over-looked. The finding cannOt be re-opened at this stage on the short submission that .the Court declined to eX.amine· thC genuiqeness or validity or bona fides of the partition particularly when this very question was considered in an earlier round of proceedings and decided in favour of the landlord. [832 E-F; 833 E-HI _

CIVIL APPELLATf JURISDICTION : Civil Appeal No. 2896 of 1977 .

Appeal by Special leave from the Judgment and Order dated the 4th November, 1977 o.fthe Bombay High Court in Special Civil Appln. No. 107 of 1977.

V. M. Tarku11de, P. JJ. Parekh and Mrs. Manik Karanajawala D for the Appellants.

U. R. La/it, V. N. Ganpule, _Mrs.

V. D. Khanna and Alta/ Ahmad for the Respondents. )

The Judgment of the Court was delivered by

DESAI, J. Two decades have elapsed since the commencement of the proceedings involving a simple issue whether the first respondent designated as certificated landlord is entitled to recover possession of land bearing Suvey No. 14/A/2 admeasuring 7 acres and. 13 gunthas situated at Village Manjari Badruk Tahika Haveli Distt.

Poona in Maharashtra State from the appellants I to 3 who are heirs of excluded tenant Shri Ghule and appellant No. 4 who is also an excluded tenant.

.A brief resume of the various proceedings leading to the present appeal may .shed some light on a simple issue involved in this appeal.

One Ramchandra Gopal Raykar, father of the first rep6ndcnt landlord leased land included in Survey No. 14/A/2 to two different

persons. Land admeasuring 4 acres out of. total area of 7 acres and

- 13 gunthas was leased to Shri Anaji Maruti Ghule'.

Appellants. No. I to 3 are the heirs and legal representatives Of Sh. Gh.ule. The

it.A. GllULE V. N.R. RAYKAR (Desai, J.) 82$

remaining 3 acres and 13 gunthas of land was leased to Vishnu

Maruti Tilekar Appellant No. 4 in this appeal. .

After a partition in the family of the landlord, the land involved in this appeal fell to the share of the first respondent.landlord. He moved an application under sec. 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 ('Tenancy Act, for short) praying for a certificate therein envisaged on the allegation that his holding does not exceed the economic holding and total annual income of the landlord including the rent of such Jarid does not exceed Rs. 1,500.

After an enquiry made by the Mamlatdar as contemplated by sec. 88-C (iii) and (iv) an exemption certificate was granted to the landlord. The order of the Mamlatdar was challenged by the tenants upto the High Court of Judicature at Bombay, but the order of the Mamlatdar granting exemption certificate witstood the challenge.

And that order has become final. The effect of the granting of an exemption certificate is that, amongst others, provisions contained in secs. 32 to 32R shall not apply to the land leased by such certificated .landlord. In other words, the excluded tenants of such certificated landlord shall not become the owners of the land on the Tillers' day i.e. 1st April, 1957.

Sec. 33-B confers a right on the certificated landlord to terminate the tenancy of the land in respect of which exemption certificate is granted, and to make an application to the Mamlatdar for obtaining possession if such certificated landlord bonafide requires such land for cultivating it personally. Accordingly the 'fespc.ndent landlord made an application on March 29, 1962 to the Mamlatdar having jurisdiction in the area praying for an order for possession of the land in respect of which certificate was granted. This application was resisted by both the tenants raising , various contentions, one such worth noticing being that appellants No. I to 3 were not served with the statutory notice as required by Sec: 33-B. In the meantime it, appears that the land bearing Survey No. 14/A/2 was put to auction to recover arrears of irrigation dues and the same was purchased for a consideration of Re: I by the Government; Taking note of this fact, the Mal)llatdar rejected the application of thelandlord observing that he had no title to the land. In an appeal by the landlord, the order of the Mamlatdar was set aside and the matter was remanded to the Mal)llatdar for disposal according to law. A revision petition by the appellants was dismissed by the Maharashtra-Revenue Tribunal. Mamlatdar designated asTel)-sildar,

. , slii>RBME co\JRt R.Etioirrs [i983) 3 s.c.R..

GU remand held an enquiry, recorded a finding that notice terminating the tenancy was served on present appellant No. 4, but it was not served on Appellants No. I to 3, the heirs of Anaji Ghule. He accordingly allowed :the application of the landlord for possession against Appellant No. 4 Tilekar but dismissed the same against Appellants No. I to 3, the heirs of Ghule.

For separate appeals came to be filed against the decision of tl; le Tehsildar, two by two sons of Anaji, Appellants. No. 2 and 3 Herein, one by the landlor<! against the dismissal of his application against the heirs of Shri Ghule and one by Shri Tilekar against that gart of the order by which he was directed to hand over possession o:fl:the land to the landlord. All the four appeals were disposed of by. the Sub Divisional Officer with appellate powers by a common judgment. He held that there was effective service of notice on the heirs Of Shri Anaji Gliule. All other contentions of tenants were rejected with the result that appel by the respondent landlord was allowed and appeal by tenant Tilekar was dismissed. As a result, an order was made directing both the tenants to hand over possession of land comprised in Survey No. 14/A/2.

Four separate revision applications were filed against the order of the Sub Divi; ional Officer before the Maharashtra Revenue Tribunal. By a common judgment, a learned member of the Tribunal held that the Sub. Divisional Officer, while disposing of the appeals wrongly declined to admit an important piece of evidence which was sought to be pwduced before him by the tenants and that'.piece of evidence has a direct bearing on the bonafides of the landlord and therefore; the appellate court was not justified in shutting out the evidence. In accordance with this finding, the Maharashtra Revenue Tribunal allowed the two revision applications filed by the tenants and set aside ti)e order of the Sub Divisional Officer as well as' of the Tehsildar and remanded the matter to the Tchsildar for decision fresh. The judgment of the Maharashtra -Revenue Tribunal was challenged by the landlord in a petition under Art. 227 of the Constitution being Special Civil Application No. 1794 . . of1975.

 . A learned Single Judge of the Bombay High Court, who heard ttie petition was of the opinion that the partition in the joint family of.the landlord had taken place before 30th March,. 1,960 and the bonafides of the partition having been agitated inter-partes in the

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proceedings under sec. 88-C initiated by the landlord for obtaining the exemption certificate upto the High Court and decided iu favour of the landlord, the samecannot be re-opened and re-considered in a subsequent proceeding under Sec. 33-B under which a certificated landlord may sue for obtaining possession from the excluded tenant, the land in respect of which certificate is granted. Having reached this conclusion and after examining other contentions, it was_ held that the Maharashtra Revenue Tribunal _was. in error in holding that the Sub Divisional Officer hearing the appeal committed error in not allowing fresh _evidence to be led at the appellate stage because a party has no right to adduce additional evidence in an appeal and there was no discretion in the appellate authority either to accept or reject the additional evidence. The learned judge also observed thitt the Sub Divisional Officer has given reason for rejecting the evidence.

Approaching the matter from this angle, the !ear_ned judge held that

th~ 'Maharashtra Revenue Tribunal had no justification to remand the matter for a further fresh enquiry when the parties had already taken opportunity to.make out their respective cases. Accordingly, the High Court set aside the decision of the Maharashtra Revenue Tribunal remanding the matier to the Tehsildar and directed the Tribunal to decide the revision applications filed by the teµailts in accordance with law.

Pursuant to this direction, .the matter went back to the Maharashtra Revene Tribunal. It was heard by a learned member of the Revenue Tribunal. The learned member formulated the point for decision.: as to wheiher the certificated landlord has been able \o establish that he bonafide requires the land for personal cultivation: While examining this contention, the Tribunal observed that bonafide requirement for personal cultivation as contemplated" by Sec. 33-B envisages both the compelling need to cultivate personally as well as genuine intention to do so. The learned member took note of the fact that the certificated landlord had sold the land under sugarcane crop admeasuring 20 gunthas on August 11, '1960 to Bhiru Bahn Ghule and that the sale was effected Ii years before the certificated landlord approached the Tehsildar for obtaining possession of the land from the excluded tenant. This sale, according to the learned member, raised considerable doubt about the bonafides -of the landlord because if he had a compelling necessity or need to cultivate the land personally, he atleast would not have sold the land which was in his actual possession. The learned member took note of the fact that landlord owns a house property in Poona -City and that

once upon a time, the fafuily was the owner of extensive land holdin~.

For these reasons, the learned. member held that he was not satisfied that the certificated landlord bonafide required the land invplved in the dispute for personal cultivation. He accordingly allowed the revision applications of the tenants and dismissed the application of the landlord for obtaining possession of the land.

The certificated landlord moved Special civil Application No. 107 of 1977 in the Bombay High Court under Art. 227 of the Constitution questioning the correctness of the decision ohe Maharashtra Revene Tribunal. A learned single judge of the High Court, who heard the petition held that there was an error apparent on the face of the record when the learned member of the Tribunal held .that in order to obtain possession of land by a certificated land

lord from an excluded tenant under Sec. 33-B it is obligatory upon such landlord to prove the compelling necessity to cultivate the land.

It was observed that that element may be relevant and valid in an application under Sec. 31 of the Tenancy Act, wherein the landlord has to prove that the 1and of which he seeks possession is the principal source of income for his maintenance. The learned judge was of the view that the sale of the land admeasuring 20 gunthas prior to the commencement of the present proceedings was for a ,- small price and cannot have an adverse impact on the bonafides of the landlord. Accordingly the learned judge allowed the application of the landlord and set aside the decision of the Maharashtra Revenue Tribunal and restored the decision of the Sub Divisional Officer directing handing over of possession of the .land to the landlord. It is this decision of the High Court which is questioned fa this appeal.

Sec. 32 of the Tenancy Act ushered in an era of revolutionary change' in the life of the tiller of the soil, It provided that every tenant of agricultural land shall be deemed to have purchased from his landlord on the Tiller's day, the land held by him as tenant free from all encumbrances subsisting on the said day subject to the various conditions therein provided which we consider unnecessary to refer here, The fr-rcaching change introduced by Sec. 32 was . noticed by a Constitution Bench of this Court in Sri Ram Ram

Narain Med/ii v. State of Bombay(1) wherein it was held that the

(1) {1959j Suppl. I S.C.R.489 at SIS.

) -+

title of the landlord to the land passes immediately to the tenant on the Tiller's day and there is a complete purchase or sale thereby . as between the landlord and the tenant. But the Legi.slature was aware that there was a class of landlords who if, by the operation of law, were deprived of the ownership of land would be worse of than the tillers for whose benefit the provision was made. With a view to saving such petty lal)dlords Part II-A was introduced in Chapter III of the Tenancy Act in 1961. Simultaneously, Sec. 88-C was amended by introducing a non-obstante clause which would have the effect of excluding the land of such petty landlords who would be covered by Part II-A from the operation of Sec. 32 pro viding for compulsory purchase of land by the tenant. Sec. 88-C provides that save as provided by Sec. 33-A. 33-B and 33Cnothing in Sec. 32 to 32R (both inclusive) shall apply to lands leased by any person if such land does not exceed an economic holding and the total annual income of such person including the rent of such land does not exceed Rs. ] ,500. In other words, petty or small landlords wose holding does not exceed an economic holding as specified in Sec. 6 and whose total annual income does not exceed Rs. 1,500 where sought to be exempted from the operation of Sec. 32. Such petty or small landlords in orde~ to save their land from becoming subject matter of compulsory. sale by the operation of law were required to obtain a certificate from the Mamlatdar as envisaged in Sec. 88-C. In order to obtain the exemption certificate the landlord . had to make an applicati<in to the Mamlatdar and the Mamlatdar after holding an enquiry after giving notice to the tenant had to decide whether (1) the holding of such landlord did not exceed economic holding; and (2) his total annual income including the rent of such land did not exceed Rs. l ,500. If both the condi tions were cumulatively satisfied, the Mamlatdar had to give a certificate in the prescribed form showing -ihat the land of such landlord is exempt from the operation of Sec. 32. The effect would be that a tenant of such landlord would not become a deemed purchaser on the Tiller's day.

Sec. 33-A provides that such landlord is to be designated as certificated landlord and the tenant of such land exempted from the operation of Sec. 32 was to be designated as excluded tenant. Sec. 33-B conferred a special right on the certificated landlord to terminate the tenancy of the excluded tenant in respect of the exempted land and obtain possession if landlord bonafide required the posseesion of such land for cultivating it personally.

Respondent landlord is a certificated landlord. The tenants• appellants had challenged the proceedings initiated by the respondent landlord fer obtaining exemption certificate under Sec. 88-C intera/ia contending that the partition in the family of the landlord was not bonafide and that it was so contrieved that the landlord may obtain advantage of sec. 88-C. This contention was negatived by the Mamlatdar hearini:. the application u/s 88-C and the appeal against the decision by the tenants to the Collector and a revision petition to the Maharashtra Revenue Tribunal and a petition under Art. 227 of the Constitution to the Bombay High Court at the instance of tenants successively filed, all failed. The net outcome is that the partition was held to be bonafide and genuine. The proceedings between the landlord and the tenant for exemption certi. ficate under Sec. 88-C cameto an end with the decision of the High Court and the grant of the certificate became final and not question able in the present proceedings which could have been commenced only by a landlord who has obtained a certificate of exemption.

The first contention raised on behalf of the appellants-tenants was that the partition in the fainily of the landlord was neither honest nor bonafide nor genuine but it was contrived with a view to obtaining an unfair advantage by the respondent-landlord by so allocating the share that he can get ben.efit of the provision of Sec. 88-C.

The High Court declined to entertain this contention presumably on the ground that this very conten.tion has been negatived by all courts in the earlier r.ound of proceedings u/s 88-C and it cannot be the subject-11\atter of a collateral attack in the present proceedings which can only be commenced after proceedings under Sec. 88-C are finally concluded between the parties.

No serious exception can be taken to this view of the .High Court. But it was urged that even if the Court may not re-examine .the validity or bonafidcs of the parti _ tion, the question can still be gone iuto to ascertain the bonafides of the landlord when he moves an application under Sec. 33-B seeking eviction for personal cultivation. It is undoubtedly true that a certificated landlord is not entitled to recover possession from the excluded tenant merely for asking. He can only ob:ained the direction for possession if he bonofide requires such land meaning thereby the

lad exempted from the operation of Sec. 32 for cultivating it personally. When/ it is said that the landlord bonojide requires possession of the land, it wo, uld be necessary for him to prove that

K.A. GHULE v. N.R. R"YK,\R (Desai, J.) 831

he is acting honestly and that the application for possession is not a device to dispossess the tenant and that he requires in the sense. needs possession of the land for personal cultivation. In oiher words, personal cultivation is necessary to obtain 1he yield of the land for himself. Some element of requirement would inhere the requirement for maintenance by undertaking the avocation of personal cultivation.

It is not for a moment suggested that the landlord even if he has sufficient source, of maintenance, he can seek possession merely because he wants to pursue the avocation of cultivating the land personally but this aspect hardly ever arises in an application under Sec. 33-B because such an application can only be made by a certificated landlord .and none else and the certificated landlord is one. whose holding does not exceed an economic holding and whose income from all sources including the rent of the land does not exceed Rs. 1, 500 per annum. It is such a small or petty landlord whose requirement for personal cultivation has to be examined under Sec. 33-B. It may be that while examining the bonafides of the repuirement of the certificated landlord, the Court may take into account how the landlord became the owner of the land and if it is by partition, the bonafide of the partition may be examined. The view taken by the Bombay High Court in Arvindlal Bhukanda v.

Khaitdu(') that if a partition is made in an unusual manner -it may have a bearing on the question of bonafides commends to us with this specific reservation that the proceedings in that case arose under Sec. 32 and .not under Sec. 33-B as in the present case. Having said this, let' it be remembered that the appellants tenants contested the proceedings initiated by the landlord for certificate of exemption under Sec. 88-C at all levels .and on all available contentions the principal being the nature and character of the partition. That having been concurrently negatived, we are not disposed to re-open that. question which even the High Court declined to examine. Till the certificate of exemption under Sec: 88-C subsists, two inferences flow therefrom, that the landlord is a petty or small land holder and his annual income from all sources including rent of land does not exceed RS. l, 500. It is the bonafide requirement for personal cultivation of such landlord that the Court is called upon to examine.

After the remand, the Tehsildar on the question of bonafide requirement recorded a finding as under :

(I) 63 B.L.R. 929.

. '

"In my opinion the deposition of the applicant in regard to his requirement and income is substantially correct and the opponents have not led sufficient and satisfactory evidence to displace the conclusions arising from (he reading of.his deposition as a whole .............. .. ... ...... ... .. Having given anxious thoughts to the evidence on record, I am satisfied that the applicant requires .the land bonafide for. personal cultivation".

'l'his finding was confirmed by the fint appellate court which is the last fact-finding court. The Maharashtra Revenue Tribunal interfered with this finding and remanded the case to the Tehsildar on the ground that some important piece of evidence was overlooked. This order of remand ha.s been set aside by the High Court on an earlier .occasion. In this background, it would be too late in the day to reopen this finding, at this stage on the short submission that .the Court declined to examine the genuineness or validity or bonafides of the partition, and w~ are not disposed to re-open this question more particularly for the reason that this very question in the .earlier rciund of proceedings upto the High Court was concurrently held in favour of the landlord and by authorities in the presen1 round of proceedings.

 It was next contended that the High Court was in error in interfering with the order of remand made by the Maharashtra Revenue Tribunal. The Tribunal set aside the concurrent findings on the question of bonafide requirement of the landlord by observing that the appellate court erroneously rejected a piece of evidence which . the tenants sought toproduce at the appellate stage. The Tribunal observed that the delay in producing this evidence having been satis factorily 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 copar

cener to the exclusion of others has an important bearing on the question of bonafides_.'' This view was sought to be supported by.

A relying upon Arvindla/ Bhukhanda v. Khandu.

The High Court in a petition under .Art. 227 while setting aside the order of remand observed that the delay in producing additional evidence was un explained looking to the protracted proceedings commencing from .. 1962 and the bonafide of the partition was not questioned, except at B the revisional stage.

Mr. Tarkunde, learned counsel for respondents took serious exception to the second observation and pointed out that it is con trary to record. In this connection, he drew our attention to Point C 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 proceedini:s?"

He recorded a finding that there was a partitfon iq the landlord's 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 observ ing 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 be 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 rccoro while observing that the validity of partition was questioned for the first time at the revisional stage. But having said this it must also he pointed out that the contention raised by the tenant about the bonafide!i. of partition in the proceedings under Sec. 33B 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. Tarktind~'becomes a non-issue and it will also dispose of his supplementary contention that the Stib Divisional Officer hearing the appeal was in error in declining to give a1i -opportunity

to the tenants to produce additional eyidence which was primarily for the purpose of showil\g that the partition was neither genuine nor bonafide. And in our opinion in the facts of this case it is no more relevant.

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 n.ot disposed to re-examine them at this stage and at this distance of time.

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 guntbas of land comprising in .Survey No. 14/A/2. Tilekar was a tenant of the remaining 3 acres and 13 gunthas. Anaji Gbule 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 Janel ; first son Sbivaji 8 acres .and 9 gunthas, and Bala the second son 8 acres and I 0 guntbas of land. Presum.ably all the three inherited the land from Shri Ghule.and therefore the total holding would be 32 acrs and 36 gunthas of land: And it is interesting to note 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 lll.Other and two sons have, separated. And their total holding is .32 acres and 36 gunthas. -As against ihe 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 be holds 8 acres and 4 gunthas and the landlords 3 acres and 13 gunthas. Would it l:>e 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 A interfere.

• Accordingly this appeal fails and is dismissed with no order as to costs.

H.L.C .

Appeals dismisseii.

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