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IN THE HIGH COURT OF GUJARAT
S.K. Keshote, J.
Thakore Gobarji Suraji - Petitioner
Versus
Ganpatbhai Amulakhabhai Barot and another - Respondents
Special Civil Appln. Nos. 6401 of 1984 with 3889 of 1992
Decided On : 21-09-1996
TENANCY - RES JUDICATA - ADMISSIONS - EVIDENCE - INTERPRETATION OF STATUTES - SECTION 70(B) OF THE BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - SECTION 32G OF THE BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - SECTION 88C OF THE BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - SECTION 29 OF THE BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - SECTION 32U OF THE BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - SECTION 84 OF THE BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - ARTICLE 227 OF THE CONSTITUTION OF INDIA - A declaration made by an appellate authority in favor of a petitioner in proceedings initiated by a respondent under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, without jurisdiction, is not binding and does not operate as res judicata. - Admissions made by a petitioner in tenancy proceedings and a compromise purshis in a civil suit, acknowledging the tenancy rights of the respondent, are strong evidence against the petitioner's claim of tenancy. - Entries in pahani patraks, supporting evidence of tenancy, and the absence of evidence challenging the respondent's possession strengthen the respondent's claim as a tenant. - The Tribunal's findings of fact, based on evidence and admissions, are not perverse and do not warrant interference under Article 227 of the Constitution of India.
Fact of the Case:
The petitioner challenged the Gujarat Revenue Tribunal's decision in a revision application, claiming tenancy rights over disputed land. The respondent, who claimed to be the tenant, had filed a tenancy case under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, which was dismissed. The appellate authority, while dismissing the respondent's appeal, declared the petitioner as a tenant, a decision beyond its jurisdiction. The petitioner argued res judicata, but the Tribunal held that the petitioner had waived this plea and that the issue of tenancy should be decided afresh.
Finding of the Court:
The Tribunal's decision was upheld. The appellate authority's declaration in favor of the petitioner was held to be without jurisdiction and not binding. The petitioner's admissions in tenancy proceedings and the compromise purshis in a civil suit, acknowledging the respondent's tenancy rights, were considered strong evidence against the petitioner's claim. Entries in pahani patraks, supporting evidence of tenancy, and the absence of evidence challenging the respondent's possession further strengthened the respondent's claim. The Tribunal's findings of fact, based on evidence and admissions, were not perverse and did not warrant interference under Article 227 of the Constitution of India.
Issues: 1. Whether the appellate authority's declaration in favor of the petitioner in the tenancy proceedings, despite the dismissal of the respondent's case, operates as res judicata. 2. Whether the petitioner's admissions in tenancy proceedings and the compromise purshis in a civil suit, acknowledging the respondent's tenancy rights, are sufficient evidence against the petitioner's claim. 3. Whether the entries in pahani patraks, supporting evidence of tenancy, and the absence of evidence challenging the respondent's possession strengthen the respondent's claim as a tenant. 4. Whether the Tribunal's findings of fact, based on evidence and admissions, are perverse and warrant interference under Article 227 of the Constitution of India.
Ratio Decidendi: 1. A declaration made by an appellate authority in favor of a petitioner in proceedings initiated by a respondent under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, without jurisdiction, is not binding and does not operate as res judicata. 2. Admissions made by a petitioner in tenancy proceedings and a compromise purshis in a civil suit, acknowledging the tenancy rights of the respondent, are strong evidence against the petitioner's claim of tenancy. 3. Entries in pahani patraks, supporting evidence of tenancy, and the absence of evidence challenging the respondent's possession strengthen the respondent's claim as a tenant. 4. The Tribunal's findings of fact, based on evidence and admissions, are not perverse and do not warrant interference under Article 227 of the Constitution of India.
Final Decision: The Special Civil Application was dismissed, and the Tribunal's decision was upheld.
JUDGMENT :
S.K. Keshote, J.
Heard learned counsel for the parties. Though this case has a chequered history, and the counsel for the petitioner Shri Ravindra Shah has taken all the pains to give out the detailed chequered history of this case, but I do not consider it appropriate to give out the chequered history of this case in the judgment. I am adopting this course for the reason that the chequered history is not necessary to be given out for the disposal of this Special Civil Application as the matter is only to be considered whether the decision which has been given by the Gujarat Revenue Tribunal which is under challenge in this Special Civil Application is correct or not. I consider it appropriate only to give out the facts in the judgment which are relevant for the decision of this case.
2. The challenge has been made by the petitioner to the order of the Gujarat Revenue Tribunal made in Revision application No. TEN B.A. 244/80 dated 28th Sept. 1984.
3. On 1.2.1960, Tenancy Case No. 53 of 1960 was filed by the respondent No./1 herein Shri Ganpatbhai Amulakbhai Barot in the court of Mamlatdar. This case was filed by the respondent No. 1 under Section 70(b) of the Bombay Tenancy and Agricultural Lands, Act, 1948, (hereinafter referred to as the Act, 1948). In this case, the petitioner and the respondent No. 2, Shaikh Bachumiya Bapumiya were also the parties. The aforesaid case has been dismissed on 18th Nov. 1960 and it has been held therein that the petitioner is a tenant in cultivation of the land of Survey No. 1697/2. Against the order dated 18-11-1960, the respondent No. 1, herein filed the appeal before the respondent No. 1, herein filed the appeal before the appellate authority and the appeal came to be dismissed by the said authority on 28th March, 1961. It is not in dispute that against the order of the appellate authority aforesaid, no revision or any other proceedings were taken by the respondent No. 1 on respondent No. 2. The disputed land in this case is of Survey Nos. 1683, 1697/1 and 1697/2. In the aforesaid proceedings, the claim of the respondent No. 1 was that he was a tenant of these three pieces of the land. In those proceedings, the petitioner has admitted in the deposition that he was merely a servant and not the tenant of the suit land. The respondent No. 1 Ganpatbhai Amulakbhai Barot filed a Civil Suit being Civil Suit No. 77/62 in the Court of Civil Judge, Vijapur for a declaration that he was a tenant of the suit land and consequently for the relief restraining the present petitioner and the respondent No. 2 from taking any possession from him. In the said suit, a compromise was effected between the petitioner and the respondent No. 1 on 5-1-1960 admitting and acknowledging the tenancy right of the present respondent No. 1 Ganpatbhai Amulakbhai Barot. In Feb. 1964, the proceedings under Section 32G of the Act, 1948 were initiated by the Mamlatdar, but those proceedings were dropped on 3.2.1964 holding therein that the respondent No. 1 though was entitled to purchase the land, but since the land owner i.e. the respondent No. 2 was holding a certificate under Section 88C of the Act, 1948, the sale was postponed, The respondent No. 1 made an application on 8.7.1967 under Section 32-U read with Section 32G of the Act, 1948 for declaring him as a deemed purchaser of the land in question and for fixation of the price thereof. In those proceedings, the respondent No. 2 was only a party. The Mamlatdar by his judgment and order dated 10th Dec. 1971 declared the respondent No. 1 to be the excluded tenant of the land comprised in Survey No. 1697/1 and 1697/2. It appears that the respondent No. 2 took over the forcible possession of the suit land from the respondent No. and as such, the respondent No. 1 had approached the Assistant Collector for summary eviction of the respondent No. 2 under Section 84 of the Act, 1948. The Assistant Collector ordered to evict the respondent No. 2 from the suit land by his judgm
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