Judgement

ORDER:- The appellant is the tenant of the land in dispute which is situated in Taluka Walwa, district Sangli in the State of Maharashtra. On the Tillers Day, i.e., 1-4-1957, the appellant was the tenant in occupation of the lands in question. The landlords as of 1-4-57 was a joint family of which the original respondent was a member. On 31-3-1958 a partition took place of the joint family and the lands in question came to the share of the original respondent.

2. Thereafter, the original respondent applied for a certificate under section 88C of the Bombay Tenancy and Agricultural Lands Act, 1948 (the Act). It is the case of the appellant that no notice was given to him of this application under Section 88C nor was he aware of a certificate being granted under Section 88C in favour of the original respondent on 14-4-1959.

3. In 1962, the original respondent made an application under Section 33B for obtaining possession of the land. In these proceedings under Section 33B, the appellant challenged the bona fide requirements of the original respondent for cultivating these lands personality. During the pendency of these proceedings the original respondent died and his heirs were brought on record: as a result a fresh enquiry was required to be made about the bona fide requirements of the heirs of the respondent under Section 33 B. Before the Maharashtra Revenue Tribunal, the appellant contended that there was no valid certificate under Section 88C on the basis of which the respondent(s) could make an application under Section 33B because, on the relevant date, namely, 1-4-1957 the original respondent was not the landlord of the land in question. Only the joint family which was the landlord on the relevant date, could have applied for a certificate under Section 88C. In the absence of any such application by the joint family, the appellants rights as on 1-4-1957 under Section 32-G cannot be now defeated by a subsequent certificate under Section 88C obtained by a person who was only a member of the joint family on the relevant date and who had subsequently acquired these lands under a partition which took place after the Tillers Day. The Revenue Tribunals had upheld this contention. The High Court, however, in a writ petition filed by the respondents to challenge the findings of the Revenue Tribunal, held that the certificate under Section 88C cannot be examined. On the basis of this certificate, the respondents are entitled to succeed in their application under Section 33 B in the light of the findings given by the revenue authorities in their favour.

4. The High Court was not right to coming to this conclusion. Under the scheme of the Act, a tenant becomes the deemed purchaser of the land on 1-4-1957. Under Section 88C, however, an exemption is granted to the lands of a small landlord whose land does not exceed an economic holding as defined under the Act and whose total annual income does not exceed Rs. 1,500/-. The landlord must fulfill these criteria on the date (1-4-1957) when the tenant would have become a deemed owner of the land, under Section 32-G in order to save his lands from the operation of Section 32-G. Any subsequent change in ownership will not confer any right on the subsequent "owner" to get the benefit of Section 88C. Unless the person who is the landlord on 1-4-1957 makes an application under section 88C, the rights of a tenant cannot be defeated. (See in this connection Chanchalben v. Gujarat Revenue Tribunal, (1971) 12 Guj LR 4281).

5. It is contended on behalf of the respondents that since the original respondent was a member of the joint family on 1-4-1957, he was entitled to apply for a certificate under Section 88C. The requirements of Section 88C, however, have to be complied with by the joint family looking to the holding of all the members of the joint family as also the income of the joint family, because it was the joint family which was the owner of the land on 1-4-1957. (See i