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1993 Supreme(Guj) 466
Gujarat High Court
Judgename :A.N.Divecha
DESAIBHAI SHANABHAI PATEL - Appellant
Versus
BHULABHAI PRABHUDAS PATEL - Respondent
S.C.A.3877 of 1986
Decided On : 12/08/1993
Headnote:Bombay Tenancy & Agricultural Lands Act 1948 - Secs. 70 (b) ,71 & 72 - Constitution of India 1950, Art 227 - Declaration that respondent No. 1 to be the tenant of disputed land prior to 1.4.1957 - Petition challenging declaration - Held, it was a question of fact and all the three authorities have concurrently given finding that respondent no 1 was tenant of disputed land - In absence of any perversily pointed out, it would not be open for the Court to upset such finding in exercise of its limited jurisdiction under Art 227.
It has to be held that whether or not respondent No. 1 was the tenant of the disputed land prior to 1st April 1957 was a question of fact and all the three authorities have concurrently held that he was the tenant of the disputed land. It would not be open to this Court in exercise of its limited powers under Article 227 of the Constitution of India to upset this concurrent finding of fact recorded by the three authorities below. Shri Desai for the petitioners has not been able to show how the aforesaid concurrent finding of fact recorded by the three authorities below is perverse in any manner.
[Para 5]
Bombay Tenancy & Agricultural Lands Act 1948 - Secs. 29, 70, 71 & 72 - Mamlatdars Court Act 1906, Sec. 5(3) - Limitation prescribed under - Applicability - Limitation prescribed under Sec. 5(3) of M. C. Act applicable to proceedings under Sec. 29 but does not govern the application under Sec. 70(b) of the Tenancy Act - In view of that impugned application of respondent made could not be styled as time barred.
Exception with respect to the proceeding under Section 29 of the Tenancy Act carved out in Section 72 thereof would not suggest that the period of limitation provided in Section 5(3) of the MC Act would be applicable to the proceeding under Section 70 read with Section 71 of the Tenancy Act. The reason therefor is quite simple. The proceeding under Section 29 of the Tenancy Act will not be governed by Section 71 thereof for the simple reason that a separate procedure is prescribed thereunder. Section 71 thereof carves out an exception in favour of an express provision made for a separate proceeding. Besides the application under Section 29 thereof has to be made in a prescribed from and the particulars in the prescribed from need not necessarily be the same as set out in Section 71 thereof. In that view of the matter, the exception made in favour of Section 29 thereof in Section 72 thereof is not with a view to emphasing the separate period of limitation but it is with a view to emphasising the different nature of the proceeding itself. In view of my aforesiad discussion, I am of the opinion that the application made by respondent No. 1 herein under Section 70(b) of the Tenancy Act could not be styled as time-barred.
[Para 12 & 13]
( 1 ) ). The order passed by the Mamlatdar and Agricultural lands Tribunal at Thasara (the First Authority for convenience) on 17/04/1982 in Tenancy Case No. 28 of 1980 as affirmed in appeal by the order passed by the Deputy Collector at Anand (the Appellate Authority for convenience) on 30/10/1982 in Tenancy Appeal No. 108 of 1982 as further affirmed in revision by the decision rendered by the Gujarat revenue Tribunal at Ahmedabad (the Tribunal for convenience) on 4/07/1985 in Revision Application No. TEN. B. A. 2012 of 1982 is under challenge in this petition under Art. 227 of the Constitution of India. By his impugned order the First Authority declared respondent No. 1 herein to be the tenant of one parcel of land bearing Block No. 37 (Survey No. 43) admeasuring 1 acre 29 gunthas situated in village Mithana Muvada, taluka Thasara, District Kheda (the disputed land for convenience) prior to 1/04/1957.
( 2 ) ). This litigation has a somewhat chequered history. Petitioner No. 1 claims to be the owner of the disputed land. One Rambhai Raghubhai filed one suit, bearing Civil Suit No. 198 of 1953, in the Court of the Civil judge (J. D.) at Dakor against petitioner No. 1 (the landlord for convenience) for recovery of his dues. A decree came to be passed therein. In execution thereof the disputed land came to be attached and put for sale in auction, respondent No. 3 herein purchased it in its auction for Rs. 2,200/~. He in his turn transferred it to respondent No. 2 herein. The necessary sale certificate was thereupon issued in the name of the father of respondent no. 2 herein. Thereafter, respondent No. 2 in the company of one more person filed one Civil suit, bearing Civil Suit No. 115 of 1957, in the court of the Civil Judge (J. D.) at Dakor for possession of the disputed land from petitioner No. 1 herein. A decree for possession came to be passed therein. It was affirmed in appeal and in further appeal by this court. In execution thereof its possession was taken from the petitioners on or around 20/09/1967. Thereafter, the petitioners herein made one application on 16/12/1967 to the Collector of Kheda for restoration of possession of the disputed land inter alia contending that the aforesaid decree passed by the Civil Court in Civil Suit No. 115 of 1957 was a nullity because the disputed land was a fragment and its sale in favour of respondent No. 2 herein was in contravention of the Bombay prevention of Fragmentation and Consolidation of Holdings Act, 1947 (the fragmentation Act for brief ).
( 3 ) ). It appears to have been assigned to the concerned Deputy collector. It appears to have been registered as Case No. OCN/vasi/2057. By his order passed on 26/09/1971 in the aforesaid proceeding, the Deputy collector accepted the application and held that the sale of the disputed land made in execution of the decree passed by the Civil Court in Civil Suit No. 198 of 1953 in favour of respondent No. 3 and in turn in favour of respondent No. 2 herein was in contravention of Sec. 14 of the Fragmentation act and was, therefore, null and void and ordered removal of the father of respondent No. 2 herein from the disputed land and restoration of its possession to petitioner No. 2 herein. That aggrieved respondents Nos. 2 and 3 herein. They carried the matter in appeal before the Special Secretary (Revenue Department) at Ahmedabad by means of their Appeal No. SS. RD. Com. 187 of 1971. That appeal was accepted and the aforesaid order passed by the Deputy Collector was quashed and set aside. That aggrieved the present petitioners. They moved this Court by means of Special Civil Application No. 682 of 1972. By its decision rendered on 22/06/1977 in Special Civil Application No. 682 of 1972, this Court upset the aforesaid order passed by the Special secretary (Revenue Department) at Ahmedabad and restored the aforesaid order passed by the Deputy Collector. That aggrieved respondents Nos. 2 and 3 herein. They questioned the correctness
