1994 Supreme(Guj) 34

Gujarat High Court
Judgename :A.N.Divecha
NATHABHAI BABABHAI PATEL - Appellant
Versus
NAYI SHANKERLAL JETHALAL - Respondent
W.P.(CRI.) 4838 of 1993
Decided On : 02/08/1994

Headnote:Bombay Tenancy & Agricultural Lands Act, 1948 - Sec.32 - Deemed purchaser - Scope of - Once tenant is found in possession of land as its tenant on 1.4.1957 he would become deemed purchaser of that land - In the instant case in absence of any other cogent & convincing evidence on record Tribunal was justified in drawing the conclusion on perusal of revenue record that respondent No. 1 was tenant of disputed land.

       In absence of any other cogent and convincing evidence on record, the Tribunal was justified in drawing the conclusion drawn by it on perusal of the revenue records. The presumption arising with respect to the entries in the revenue records under Section 135-J of the Code will remain operative unless it is rebutted by cogent and convincing evidence on record. Even at the cost of repetition it may be reiterated that no material whatsoever was brought on record by or on behalf of the present petitioner to rebut such presumption arising on the basis of the entries in the revenue records. In that view of the matter, the conclusion reached by the Tribunal to the effect that respondent No.1 herein was the tenant of the disputed land cannot be said to be perverse in any manner.

       [Para 4]

       It is a settled principle of law that the tenant inducted by a mortgagee in possession on a piece of agricultural land would be a tenant for the purposes of the Act in view of the binding ruling of the Supreme Court in the case of Dahya Lala v. Rasul Mahomed reported in AIR 1964 Supreme Court at page 1320. Once the tenant was found in possession of the disputed land as its tenant on 1st April 1957, he would become its deemed purchaser by virtue of Section 32 of the Act. That conclusion reached by the Tribunal is therefore unassailable.

       [Para 5]

       Bombay Tenancy & Agricultural Lands Act, 1948 - Secs. 32 & 32G - Declaring respondent no. 1 tenant as deemed purchaser & directing to fix its purchase price - Order in absence of mortgagee in possession - Held, once the tenant of mortgagee in possession become the tenant of disputed land, on redemption of mortgage the relationship of landlord & tenant between owner of the land & person in possession would come into existence and mortgagee in possession would pale into insignificance - He would become formal party and his absence at the time of impugned order not material.

       Once the tenant of the mortgagee in possession becomes the tenant of the disputed land on redemption of the mortgage, the relationship of the landlord and the tenant between the owner of the land and the person in possession of the disputed land as a tenant would come into existence and the mortgagee in possession would pale into insignificance. The proceeding culminating into the order at Annexure-C to this petition was essentially between the landlord and the tenant. The mortgagee in possession at the most could be said to be a formal party and not a necessary party. Absence of a formal party in the proceeding would not vitiate it more particularly when no such point appears to have been canvassed by or on behalf of the petitioner before the Tribunal. It is too late in the day for the petitioner to urge that point before this Court. Even otherwise, in view of my aforesaid discussion, I am unable to persuade myself to accept the submission to the effect that the successors-in-interest of the mortgagee in possession were necessary parties to the proceeding in question.

       [Para 6]

       Bombay Tenancy & Agricultural Lands Act, 1948 - Secs. 32, 32FF r/w 2 (18) (d), 32G, 32 (1-B) & 29 - Respondent no. 1 neither in possession of disputed land nor made application under Sec. 29 of the Act for restoration of possession - Effect of - In order to protect such tenants provisions like Secs. 32 (1-B) & 32FF r/w Sec. 2 (18) (d) have been brought on statute book - Provisions are intended to retrieve those tenants who are neither in possession nor made application under Sec. 29 of the Act for possession - Order, that tenant became its deemed purchaser by virtue of Sec. 32 or Sec. 32FF can not be availed on that ground.

       The legislative policy has undergone a sea change after Gujarat Act No.5 of 1973. In order to protect persons like respondent No.1 herein, Gujarat Act No. 5 of 1973 has seen the light of the day. Thereby the provisions like Sections 32(1-B) and 32-FF read with Section 2(18)(d) of the Act have been brought on statute book. These benevolent provisions have been introduced with a view to retrieving the tenants from the position on account of their having missed the bus by invoking Section 29 of the Act within the prescribed time-limit. Prior to coming into force of Gujarat Act No.5 of 1973, the dispossessed tenant was required to resort to Section 29 of the Act for restoration of possession of the disputed land. After 3rd March 1973, the specified date for the purposes of the Act, resort can be made to Section 84 of the Act for removal of unauthorised person in occupation and possession of any tenanted land in respect of which the tenant became its deemed purchaser by virtue of Section 32 of the Act or any other provision of law like Section 32-FF thereof.

       [Para 7]