Rewaben vs Balubhai Gemabhai and Another

Rajesh H. Shukla, J.—Present Second Appeal has been filed by the Appellant-original Defendant raising the substantial question of law, challenging the concurrent findings of both the Courts below, which read as under:

(1) Whether the lands in respect of which the award was made u/s 32G of the Bombay Tenancy and Agricultural Land Act, 1948 where under the Appellant became the owner on payment of the price fixed under the said provision, could be made the subject matter of partition on the Plaintiff that the Respondent Respondent had a proprietary right in so far as those lands were concerned.

The facts of the case briefly stated are that the Plaintiffs filed Regular Civil Suit No. 219 of 1975 before the learned Civil Judge, Senior Division, Bharuch, claiming right, title, interest in the suit property, which came to be decreed holding that they have share in the property. The Defendant filed Regular Civil Appeal No. 6 of 1981 challenging the said order which came to be dismissed by learned Assistant Judge, Bharuch vide judgment and order dated 22nd October, 1982, and, therefore, present Second Appeal has been filed, as stated above raising the aforesaid substantial question of law.

Heard Mr. Mankad, learned advocate for the Appellant. Learned Counsel Mr. Mankad has contended that there is bar of Section 85 with regard to filing of the suit.

Though he has referred the details with regard to the share in the property as well as house, he has become the deemed purchaser or purchaser under the Bombay Tenancy and Agricultural Lands Act. There is no substance in the submissions made in view of the clear-cut findings which have been discussed. J. Karshan was the original tenant who was cultivating the land. Thereafter, after his death, the entries were mutated in the name of present Appellant-Defendant No. 1 as he was the only major and the Plaintiff and the Defendant No. 2 were minor. This aspect has been discussed with the pedigree and other details. It is also discussed and observed in paras:14, 15 and 17, that J. Karsha was cultivating the said land as a tenant. This aspect has been admitted by Defendant No. 1 present Appellant in the cross examination. Thereafter a mutation entry was made at Exh.92 after the death of J. Karshan. Name of present Appellant-original Defendant No. 1 was mutated by aforesaid entry in respect of the said land. Admittedly, the Plaintiff and Defendant No. 2 were minors and were residing together and the mother was also cultivating the land. Thus, as it appears that because of the provisions of Bombay Tenancy Agricultural Lands Act, which is indicated as and by way of reforms for the agricultural, the tenants were sought to be given some benefits and that is how original tenant J. Karshan would have got the benefits. However, as he expired, his heirs including the present Appellant could get the benefits, and, therefore, under the Act, on payment of some money, as required under the law, it may have been mutated in his name when the other heirs like Respondent original Plaintiff was minor. Therefore, the submission that he was the purchaser or deemed purchaser is without any substance which has also been discussed by both the Courts below. Therefore, there is no substantial questions of law which can be said to be raised and therefore, present Second Appeal deserves to be dismissed as the Hon''ble Apex Court in its judgment has observed that it is well settled that scope of exercise of discretion u/s 100 of the Code of CPC is very limited. The High Court in exercise of discretion in Second Appeal can interfere only when substantial question of law is involved or formulated. A useful reference can be made by the Hon''ble Court in a judgment reported in Gurdev Kaur and Others Vs. Kaki and Others, and therefore laying down the guidelines or principles with regard to its discretion, the Hon''ble Apex Court in its judgment in referring to various aspects in para 17 has also focused the scope of exercise of discretion u/s 100 ofCode of Civil Procedure . After the amendment in 1976, it is also discussed as to what would be substantial question of law and it has also been observed that "The amendment clearly indicates that the legislature never intended the second appeal to become a third trial on facts." The same principles have been reiterated and discussed in subsequent judgment reported in State Bank of India and Others Vs. S.N. Goyal, Therefore, in light of the aforesaid well settled principles and guidelines, as there is no substantial question of law which can be said to have arisen for consideration, present Second Appeal deserves to be dismissed and accordingly, it stands dismissed. For the contention with regard to bar of the jurisdiction of the Civil Court and the suit has been raised, it is required to be mentioned that bar is with regard to issue raised under the Agricultural Tenancy Act and not with regard to the right, title interest claimed by the heirs inter-se claiming the share in the ancestral property like in the facts of the present case, and, therefore, such submission cannot be considered.