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2017 Supreme(Guj) 211

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R. Subhash Reddy and V.M. Pancholi, JJ.
Shankerbhai Bhikhabhai - Appellants
Vs.
Laxmidas Zaverbhai and Ors. - Respondent
Letters Patent Appeal No. 1278 of 2016 in Special Civil Application No. 2704 of 1996 and Civil Application No. 11817 of 2016 in Letters Patent Appeal No. 1278 of 2016
Decided On : 14-02-2017

Advocates Appeared:
For the Appellant : Dhaval D. Vyas and S.P. Majmudar
For the Respondents: R.S. Sanjanwala, and Darshan M. Varandani

Headnote:

Letter Patent Appeal Clause 15 -Tenancy and Agricultural Lands Act, 1948 , -Bombay Tenancy and Agricultural Lands Act, 1972 -Sections -32(1B) -32(1G) -29 -32 -32A to 32R - (2) of Section 32P – 15 -31 -31A - Subsection (1) -Subsection (2) - Subsection (2) -Section 32D -Appeal filed under Clause of the Letters Patent the appellants -Original petitioners seek to challenge order dated passed by the learned Single Judge in Special Civil Application by which the learned Single Judge has dismissed -Petitioners are legal heirs of deceased who was allegedly occupying the land bearing Survey ad-measuring and Acre respectively in Village -In the record of rights of the said land the name of the deceased tenant has been shown from onwards being a protected tenant -Tenant was in occupation of the land in question and his name was shown in the record of rights –Held, Aforesaid decision would not render any assistance to the petitioners in the facts of the present case. In the present case -Petitioner have not initiated any proceedings under Section of the Act but the and ALT has initiated proceedings after a period of years -Decision in the case Dave said decision would not be applicable to the facts of the present case as in the present case name of the tenant has been deleted pursuant to order passed in RTS and entry to that effect mutated in the record of rights -Supreme Court in the case of Kale relied by the learned advocate is not applicable to the facts of the present case -Therefore reliance placed by learned advocate is misconceived -Reasons recorded by the learned Single Judge we are of the view that no error is committed by the learned Single Judge while dismissing the petition and therefore, present appeal is required to be dismissed. Accordingly appeal is dismissed -Civil Application also stands disposed -Appeal is dismissed

JUDGMENT :

V.M. Pancholi, J.

1. By way of this appeal filed under Clause 15 of the Letters Patent, the appellants - original petitioners seek to challenge order dated 16.08.2015 passed by the learned Single Judge in Special Civil Application No. 2704 of 1996, by which the learned Single Judge has dismissed the petition.

2. Brief facts for deciding the issue involved in the present case are as under:-

"[2.1] That the appellants - original petitioners are legal heirs of deceased Shankarbhai Bhikhabhai who was allegedly occupying the land bearing Survey Nos. 240, 241 and 253 ad-measuring Acre 2-85 Gunthas, Acre 1-19 Gunthas and Acre 1-28 Gunthas respectively in Village Sama. In the record of rights of the said land, the name of the deceased tenant has been shown from 1951-52 onwards being a protected tenant. On 01.04.1957, said tenant was in occupation of the land in question till 1965 and his name was shown in the record of rights. It is the say of the original petitioners that as tenant was in occupation of the land in question on 01.04.1957, he became deemed purchaser of the land in question. However, RTS, Mamlatdar by his order dated 01.04.1965 has mutated the Entry No. 1020 whereby name of the tenant has been deleted from the second right by relying on order dated 03.03.1966. It is the case of the petitioners that thereafter, land owner has sold the land in question by executing two different registered sale deeds to Laxmidas Zaverbhai and Shantibhai Laxmidas. Entries to that effect has been mutated in the record of rights. Thereafter, on 18.09.1992, RTS Team Unit has sent a report to the Mamlatdar and ALT and on the basis of the same, proceedings has been initiated by the Mamlatdar and ALT against private respondents. However thereafter, said proceedings are dropped. The petitioners therefore, filed appeal before the Deputy Collector against the order passed by the Mamlatdar and ALT. Deputy Collector partly allowed the said appeal and matter was remanded back to the Mamlatdar and ALT. Thereafter, Mamlatdar and ALT once again by his order dated 29.11.1991 has withdrawn the notice issued under section 32(1B) of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act'). The petitioners therefore, once again filed appeal against the said order before the Deputy Collector. The Deputy Collector quashed and set aside the order passed by the Mamlatdar and ALT and thereby held that as tenant was in possession of the land in question as protected tenant on 01.04.1957, he is required to be considered as deemed purchaser and therefore, proceedings under section 32(G) of the Act are required to be initiated.

[2.2] Private respondents therefore, filed appeal being Revision Application No. 728 of 1992 before the Gujarat Revenue Tribunal and the Tribunal by order dated 05.10.1995 quashed and set aside the order passed by the Deputy Collector and thereby confirmed the order passed by the Mamlatdar and ALT. The petitioners therefore, filed captioned petition before this Court, wherein the petitioners prayed for following reliefs:-

"9(A) ....

(B) This Hon'ble Court would be pleased to issue an appropriate writ, order or direction quashing and setting aside the order passed by the Gujarat Revenue Tribunal in Revision Application No. TEN/BA/728 of 1992 dated 05.10.1995; and thereby upholding the orders passed by the Deputy Collector, Baroda in Tenancy Appeal No. 16 of 1992 dated 04.08.1999 and thereby directing the authorities to fix the purchase price of the land in question under the provisions of Section 32(1G) of the Act."

(C) .....

(D) ....

(E) ...."

[2.3] Learned Single Judge by impugned order dated 16.08.2016 dismissed the petition and therefore, present appeal is filed."

3. Heard learned advocate Mr. Majmudar for the appellants - original petitioners and learned Senior advocate Mr. Sanjanwala assisted by learned advocate Mr. Darshan Varandani for private respondents i.e. respondent Nos. 1.1 to 1.4.

4. Learned advoca












































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