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1977 Supreme(Bom) 187
IN THE HIGH COURT OF BOMBAY
(B. C. Gadgil J.)
GANESH GOVINDRAO KHULEY -Petitioner.
Versus
NARAYAN WASUDEO BAND and others-Respondents.
Spl. C. A. No. 236 of 1973
Decided on 20-9-1977
Advocate Appeared
For petitioner - P.Y. Deshpande.
For respondents-So N. Kherdekar.
The right of a tenant to purchase land under sections 46 or 49A of the Tenancy Act is subject to the condition that the tenant's total holding, including the land purchased, should not exceed three family holdings. However, in the case of tenants-in-common, the individual holdings of each co-lessee must be considered separately to determine whether the purchase would exceed the limit of three family holdings.
Headnote:
TENANCY ACT - SECTIONS 42, 46, 49A - TENANT'S RIGHT TO PURCHASE LAND - CONDITIONS - JOINT TENANCY VS. TENANCY IN COMMON - INTERPRETATION - EFFECT ON TRANSFER OF OWNERSHIP.
Fact of the Case:
Petitioner challenged the Maharashtra Revenue Tribunal's order allowing respondents-tenants to purchase lands under sections 46-49A of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (Tenancy Act). The issue was whether the respondents, who held the land as tenants-in-common, could purchase the land under sections 46 or 49A, considering that their combined holdings exceeded three family holdings.
Finding of the Court:
The court held that the respondents, as tenants-in-common, could purchase the land under sections 46 or 49A, even though their combined holdings exceeded three family holdings. The court reasoned that the right of a tenant to purchase land under these sections is subject to the condition that the tenant's total holding, including the land purchased, should not exceed three family holdings. However, in the present case, the respondents' individual holdings, after adding their share in the disputed property, would not exceed three family holdings.
Issues: 1. Whether the respondents, as tenants-in-common, could purchase the land under sections 46 or 49A of the Tenancy Act, considering that their combined holdings exceeded three family holdings. 2. Whether the transfer of ownership of the land to the respondents would be hit by the provisions of the Bombay Prevention of Fragmentation of Holdings Act.
Ratio Decidendi: 1. The court held that the respondents, as tenants-in-common, could purchase the land under sections 46 or 49A of the Tenancy Act, even though their combined holdings exceeded three family holdings. The court reasoned that the right of a tenant to purchase land under these sections is subject to the condition that the tenant's total holding, including the land purchased, should not exceed three family holdings. However, in the present case, the respondents' individual holdings, after adding their share in the disputed property, would not exceed three family holdings. 2. The court did not decide whether the provisions of the Bombay Prevention of Fragmentation of Holdings Act would apply to the transfer of ownership of the land to the respondents. The court left it to the Agricultural Lands Tribunal to decide this issue when the matter is further enquired into by it.
Final Decision: The petition was dismissed, and the rule was discharged. No orders were made as to costs.
2. The above mentioned three lands were let out to three brothers Parashram Daulat, Mahddeo Daulat and Bapurao Daulat. Parashram is dead and the present respondents 1 and 2 are his heirs and legal representatives. The petitioner-landlord filed an application under section 38 read with section 36 of the Tenancy Act for getting possession of these lands for personal cultivation, That application was Revenue Case No. 946/59 (6) j60·61. It was decided on 30-11-1960. Resumption to the extent of 8 acres of land was allowed to the petitioner of survey No. 18/2. Thus, the remaining area of 7.16 gunthas from these fields continued to be with the respondents as tenants. A suo motu proceeding was started by the Agricultural Lands Tribunal in order to decide as to whether the respondents were entitled to have a transfer of ownership of 7 acres 16 gunthas from out of these three lands. These cases were Revenue Cases Nos. 2126, 2127 and 2128/59 (13) 64-65. The right of getting a transfer of ownership under sections 46-49-A is controlled by some other sections. For example section 42 or section 49A (4) imposes a condition that after such a compulsory purchase, the holding of the tenure holder should not exceed three family holdings. Here a family holding is of 26 acres, and, as such, three family holdings would constitute 78 acres. Respondents 1 and 2 together were holding 26 acres while respondent No.3 Mahadeo owns 16 acre5 and 30 gunthas. Respondent No.4 Bapurao is having 29.20 acres of land of his own. The Agricultural Lands Tribunal came to a conclusion that all these three holdings exceed 18 acres and, as such, the respondents together were owning more than 3 family holdings. The Agricultural Lands Tribunal, therefore, dropped the proceedings as the transfer of additional area of 7.16 acres is not permissible under section 42 as also under section 49A (4).
3. The matter was taken up by the respondents in an appeal before the Sub-Divisional Officer. Achalpur. The appeals were Nos.26, 27 and 28/59 (13) /70-71. The appellate Authority dismissed these appeals by holding that the present respondents were not entitled to a purchase of the land under sections 46 or 49 A. The respondents then filed revision applications Nos. 1110/71, 1111/71 and 1112/71. These three revisions were also decided by a common judgment. The Maharashtra Revenue Tribunal held that the respondents (who belonged to the said family), had already partitioned the private property in 1952. It was, therefore, held that the tenancy rights over the disputed property was as tenants in common. The three brothers Parashram (predecessors-in-title of respondents 1 and 2), Mahadeo (respondent No.3) and Bapurao (respondent No.4) were each holding less than one family holding. The Maharashtra Revenue Tribunal, therefore, came to the conclusion that the transfer of ownership of 7.16 acres in favour of these three branches would not increase the holding of each of these 3 branches so as to exceed three family holdings. It is in this manner that the Maharashtra Revenue Tribunal held that the respondents would not be prohibited to have the ownership of the land on account of the fact that their individual holdings, if added together exceed three family holdings. The Tribunal, therefore, remanded the cases to the Agricultural Lands Tribunal for determining the purchase price of the fields in dispute. It is this order that is being challenged before me.
4. At this stage, there is no dispute that if the lands separately owned by the three branches of Parashram, Mahadeo and Bapurao are clubbed
