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1996 Supreme(Guj) 300
Gujarat High Court
Judgename :J.N.Bhatt
Thakore Lilaji Kesaji - Appellant
Versus
Vallabhadas P.Parikh - Respondent
S.C.A. 11089 of 1994
Decided On : 07/08/1996
Headnote:Bombay Tenancy & Agricultural Lands Act, 1948 - Secs. 2(18) & 4 - Deemed tenant - Definition of - Person in lawful possession and cultivating the land belonging to another person is deemed tenant - Person cultivating the land and wages are paid in cash or kind but not in crop share is however excluded from the purview of deemed tenant - In the case there is admission that the deceased was sharing crop of the land in question is ipso facto sufficient to hold that the deceased was a deemed tenant.
It could very well be seen from the provisions of Sec. 4 that person cultivating the land and wages are paid in cash or kind but not in crop share is excluded from the definition of Sec. 4. If a person who is personally cultivating the land even in capacity of servant and who receives crop share, may be in part, could be said to have been covered by the definition of `deemed tenant under Sec. 4. Apart from the other evidence on record or even evidence of the petitioners, the admission unequivocally made by the owner of the lands clearly goes to show that the father of the petitioners who was originally engaged by him for the purpose of cultivation of lands in question four decades ago was sharing the crop.
[Para 20]
Even assuming that the case of the respondent-owner is correct, then also, the admission that the deceased was sharing crop, the produce out of cultivation of the lands in question, is ipso facto sufficient to hold that the deceased was a deemed tenant under Sec. 4. No doubt, it is found without any hesitation from the evidence of the petitioners that there was relationship of landlord and tenant. It is found from the record without any doubt that the deceased Keshaji, father of the petitioners, came to be in lawful possession of the disputed lands in 1947 or around that time. Therefore, the Nokar Nama alleged to have been executed in 1955 cannot be said to be the real design and instrument of the agreement of service. A peson who is in lawful possession much prior to execution of the Nokar Nama had no reason to execute such agreement of service.
[Para 21]
( 1 ) THE Tenancy Versus Employment is the central theme and heart of this petition under Art. 227 of the Constitution of India involving applicability and interpretation of provisions of Secs. 2 (18), 4 and 70 (b) of the Bombay Tenancy and agricultural Lands Act, 1948 (bombay Tenancy Act for short ). Whether the petitioners are the tenants or the servants in respect of three agricultural properties bearing Survey nos. 3911/1, 3911/2 and 3909 situated in the sim of village Vadnagar, Taluka Kheralu, district Mehsana belonging to the respondent (disputed lands for short), is the sole but substantial issue which has come up for consideration and adjudication in the petition in the light of the aforesaid provisions of Bombay Tenancy Act.
( 2 ) WITH a view to appreciate the merits of this petition, a few material facts tracing shortly the long history of litigation which is pending in the high and long legal conduit pipe since more than two decades obviously would require narration.
( 3 ) THE petitioners by invoking the aids of the provisions of Sec. 70 (b) of the Bombay tenancy Act, claiming tenancy rights in respect of the disputed lands submitted an application before the Mamlatdar and ALT, Kheralu on 27-2-1974 who by his order dated 13-12-1978 dismissed the application holding them to be the servants and not tenants. On an appeal against that order of the Mamlatdar preferred by the petitioners before the deputy Collector (land reforms), Mehsana being tenancy appeal No. 223 of 1979, the appellate authority dismissed the appeal confirming the finding of the Mamlatdar. Being dissatisfied by the appellant authoritys order, the petitioners carried the matter in the revision under Sec. 76 of the Bombay Tenancy Act before the Gujarat Revenue Tribunal (GRT for short ). The revision came to be allowed by an order dated 8-1-1979 whereby the crt remanded the matter to the Mamlatdar keeping the question of tenancy open.
( 4 ) THE respondent-owner of the disputed land in the meantime, had filed Regular civil Suit No. 100 of 1974 in the court of Civil Judge (Junior Division) at Kheralu and obtained interim injunction against the petitioners. The petitioners filed Miscellaneous appeal against the interim injunction order in the District Court at Mehsana wherein the interim injunction order came to be quashed. Thus, the appeal was allowed after hearing the parties. The Civil Court had referred the issue of tenancy to the Mamlatdar and ALT, kheralu for his decision under the Tenancy Act as the petitioners inter alia contended that they are protected tenants in respect of the disputed lands. The GRT in remand order had also kept the question of tenancy open. The petitioners had therefore submitted an application to the concerned Mamlatdar who held that they are tenants of the disputed lands. Upon transfer application submitted by the respondent, the case came to be transferred from the Court of Mamlatdar and ALT, Kheralu to the court of Mamlatdar and alt, Mehsana. The Tribunal at Mehsana by its order dated 24-3-1986 held that petitioners are not the tenants of the disputed lands but are servants. During the pendency of the dispute before the Mamlatdar, stay was granted in favour of the petitioners. The respondent thus had been restrained from disturbing possession of the petitioners of the disputed lands. The District Court did not grant interim injunction against the petitioners in favour of the respondent-owner. Thus, interim orders of both the courts were in favour of the petitioners. By virtue of the interim orders, the petitioners have been in possession of the disputed lands during the pendency of the proceedings.
( 5 ) THE petitioners challenged the order of the Mamlatdar, Mehsana by filing an appeal before the Deputy Collector, Patan being Tenancy Appeal No. 45/86. The Deputy collector, by an order dated 18-8-1988 dismissed the appeal of the petitioners. The petitioners being aggrieved by the order of the appellate author
