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1971 Supreme(Bom) 69
IN THE HIGH COURT OF BOMBAY
G.N. Vaidya, J.
Appellants: Balku Laxman Khatik
Vs.
Respondent: Biru Ramachandra Kotmire and Anr.
Special Civil Appln. No. 1614 of 1967 Decided On: 28.08.1971
Counsels:
For Appellant/Petitioner/Plaintiff: N.D. Hombalkar, Adv.
For Respondents/Defendant: M.R. Kotwal, Adv.
Important Points
Subject
Landlord and Tenant - Tenancy
Act Referred
CONSTITUTION OF INDIA : Art.227
Headnote
BOMBAY TENANCY ACT - SECTION 33-B - SECTION 88-C - LANDLORD'S HOLDING - CERTIFICATE UNDER SECTION 88-C - TENANCY AUTHORITIES' JURISDICTION TO CONSIDER HOLDING OF LANDLORD - PARTITION - SHAM PARTITION - EFFECTED TO DEFEAT TENANT'S RIGHTS - TENANCY AUTHORITIES' JURISDICTION TO IGNORE PARTITION.
Fact of the Case:
Landlord filed an application under Section 33-B of the Bombay Tenancy and Agricultural Lands Act, 1948, against the tenant for recovery of possession of the lands on the ground of bona fide requirement for personal cultivation. The application was granted by the Tenancy Aval Karkun but set aside in appeal by the District Deputy Collector, who remanded the matter for consideration of the issue of comparative land in possession as required under Section 33-B. The Tenancy Aval Karkun, after considering the evidence, found that the landlord had taken a very small portion of land including the suit lands with an intention to withdraw the suit lands from the tenant and that the landlord had larger area than the tenant. The order was confirmed in appeal by the District Deputy Collector. The Maharashtra Revenue Tribunal set aside the decisions on the ground that as the holding of the landlord had already been considered, while granting the certificate under Section 88-C, it was not open to the Tenancy Authorities to consider once again the holding of the landlord.
Finding of the Court:
The High Court held that the Tribunal misconceived Section 88-C and approached the case illegally. The holding referred to in the section is clearly the holding in respect of land leased and not the other holdings of the landlord. The Tenancy Authorities have to ascertain the holdings of the landlord while deciding the question of restoring possession under Section 33-B (5) (b) of the Bombay Tenancy Act. If, in finding out the holding of the landlord, it is necessary for the tenancy Authorities to consider the factum of partition or validity of the partition-deed they are bound to look at it and say whether it is a real partition. In the present case, the fact-finding authorities disbelieved the landlord and held that the partition was a sham partition effected for the purpose of defeating the rights of a tenant.
Issues: 1. Whether the Tribunal was right in assuming that Section 88-C proceedings involve the consideration of the holding of the landlord? 2. Whether the Tenancy Authorities have jurisdiction to invalidate a registered partition-deed?
Ratio Decidendi: 1. Section 88-C (1) of the Bombay Tenancy and Agricultural Lands Act, 1948, clearly refers to the holding in respect of land leased and not the other holdings of the landlord. The Tribunal, therefore, misconceived the section and approached the case illegally. 2. The Tenancy Authorities have to ascertain the holdings of the landlord while deciding the question of restoring possession under Section 33-B (5) (b) of the Bombay Tenancy Act. If, in finding out the holding of the landlord, it is necessary for the tenancy Authorities to consider the factum of partition or validity of the partition-deed they are bound to look at it and say whether it is a real partition.
Final Decision: The judgment and order of the Maharasthra Revenue Tribunal dated November 25, 1966, is quashed. The order of the Tenancy Aval Karkun dated August 14, 1965, and the order of the Deputy Collector dated January 17, 1966, are restored.
"I am satisfied that comparative position of land in possession is not considered adequately by the lower Court. I, therefore, partly allow the appeal and set aside the order of the lower Court and remand to consider the issue of comparative land in possession as required under Section 33 - B and then decide the matter. No other issues is open for consideration".
2. After the remand the Tenancy Aval Karkun allowed the parties to lead Evidence. The petitioner contended that the Registered partition deed dated December 22, 1956, under which the landlord had taken to himself only s Acres and 24 - 1/2 gunthas and given 49 acres and 9 gunthas to his son and 37 acres and 4 gunthas to one of his two wives was disproportionately unequal and effected solely with a purpose of defeating the rights of the petitioner - tenant under the provisions of the Bombay Tenancy Act; and there was no partition in fact effected, as at the time of the date of the alleged partition, respondent No. 1, his son and wife were all living together and only at the time of the hearing of the application, they were living separately in houses Nos. 1857 and 1899.
3. The Tenancy Aval Karkun considered the evidence before him and found that there was tenant only in the suit lands, and it was, therefore, clear that the landlord had taken a very small portion of 3 acres and 24 - 1/2 gunthas of land including the suit lands with an intention to withdraw the suit lands from the tenant although about 30 acres of land comes to the share of the application if an equal partition is made. The Tenancy Aval Karkun therefore ignored the alleged partition and found that respondent No. 1 - landlord had already other lands larger in area than the lands with the tenant; and therefore, he was not entitled to possession of he lands in dispute in view of the provisions of Section 33 - B (5) (b) of the Bombay Tenancy Act. Under that Section the landlord shall be entitled to terminate a tenancy and take possession of the land leased but to the extent only of so much thereof as would result in both the landlord and the tenant holding thereafter in the total an equal area for personal cultivation. Respondent No. 1 had, if all lands measuring Acres 89 Gunthas 21, alleged to be partitioned are found to be held by him, larger area than the tenant; and therefore, by his order dated August 14, 1965, the Tenancy Aval Karkun rejected the application.
4. The said order was confirmed in appeal by the District Deputy Collector by his order dated January 17, 1966, after agreeing with the findings recorded by the Tenancy Aval Karkun. The said decisions were set aside by the Maharashtra Revenue Tribunal in a revision application filed by respondent No. 1 landlord on the ground that as the holding of the landlord had already been considered, while granting the certificate under Section 88 - C, it was not open to the Tenancy Authorities to consider once again the holding of the landlord.
5. The said decision of the Tribunal dated November 25, 1966, is challenged in the above petition. Mr. Hombalkar, learned Counsel for the petitioner, contended that the Tribunal has committed a manifest error in assuming that Section 88 - C proceeding
