Shakuntalaben vs Gajraben and Others

D.A. Mehta, J.—Respondents appear through learned advocate on caveat and as the pleadings are complete the petition is taken up for final hearing and disposal. RULE. Learned advocate for the respondents is directed to waive service of rule.

The facts in brief are that the petitioners herein are legal heirs of deceased- Mahendrasinh Dhirsinh (hereinafter referred to as the landlord) while the respondents are the legal heirs of deceased-Bhimsinh Dhirsinh Rathod (hereinafter referred to as the tenant). The landlord moved Mamlatdar & ALT for a certificate u/s 88C of the Bombay Tenancy and Agricultural Lands Act, 1948 (the Act) which came to be granted to the landlord. The tenant went in appeal and thereafter in revision in succession but failed. The matter was carried before the High Court by way of a petition being Special Civil Application No. 1471 of 1970 which came to be decided by judgment rendered on 31.01.1976. The High Court recorded as under:

These lands are in the possession of the petitioners-tenants from before the tillers'' day (April, 1957). The lands were owned by Dhirsinh, the father of the respondent-landlord. It is the case of the respondent-landlord that his father had effected a partition of the lands in his possession amongst his sons on June 14, 1956 when he was a minor aged about 7 years (he was born on February 15, 1949). It is his contention that these lands fell to his share in the partition. As he was minor, his right to claim possession from the tenants for personal cultivation in a bona fide manner u/s 31 read with Section 32-T read with Section 29 of the Tenancy Act was postponed for a period of one year from the date of his attaining majority. So also his right to claim a certificate of exemption from the provisions of Sections 32 to 32-R as contemplated by Section 88-C could be availed by him till the expiry of six months from the date on which he attained majority under Rule 53(A)(1) of the Bombay Tenancy and Agricultural Lands Rules, 1956. Accordingly, he made an application for a certificate u/s 88-C within six months of his attaining majority which he did on 29th April, 1967. This application was opposed by the petitioners-tenants inter alia, on the ground that in fact there was no partition at all and that even if there was a partition, it did not conform to the requirements of the Tenancy Act. The respondent examined himself as a witness but, did not examine any other witness. Now, he had no personal knowledge about the alleged partition in view of the fact that at the time of the alleged transaction he was about 7 years old. When the factum of partition itself was being questioned, it was incumbent on him to establish the same by satisfactory evidence. The A.L.T., the Assistant Collector and G.R.T. had failed to take into account the circumstance that the respondent himself had no personal knowledge and that he has not adduced any evidence to establish that really speaking such a partition had taken effect. Under the circumstances, the order passed by the A.L.T. as confirmed by the Assistant Collector and the G.R.T. cannot be sustained....

Thereafter referring to provisions of Sections 32F and 31 the High Court recorded the final operative portion in the following terms:

In order to enable a minor to claim the benefit contemplated by the Act, he has to fulfill the conditions embodied in other provisions. It must be realized that u/s 88-C the landlord is exempted from the provisions of Sections 32 to 32-R. Section 32-T is outside those provisions. It will therefore, apply even to certified landlords. Under the circumstances, in order to entitle a minor to claim the benefit of Section 88-C, the proviso to Section 32-T must be taken into account in order to harmonize the provisions and make them meaningful. It will have, therefore, to be established that there was a separation by metes and bounds and that the requisite conditions namely that the share of the minor having regard to the area, assessment, classification and value of the land was in the same proportion as the share of a person and that the share of the minor was not in larger proportion than that of the other were satisfied. The G.R.T. was in error in interpreting Section 88-C in the light of Section 32-T only. The decision rendered by the G.R.T. must under the circumstances, be quashed and set aside. The matter must now go to the A.L.T. for a fresh decision in accordance with law in the perspective of the proviso. It will be open to the respondent landlord to adduce fresh evidence to establish that in fact, there was a partition which satisfied the conditions as claimed by him. So also the petitioners will have a right to adduce evidence in order to establish that there was no such partition.

The matter was once again taken up by Mamlatdar & ALT pursuant to the judgment of the High Court and on 28.09.2001 a certificate was issued u/s 88C of the Act to the landlord. The tenant went in appeal but vide order dated 26.07.2002 the Deputy Collector confirmed the order made by Mamlatdar & ALT. The tenant therefore, approached Gujarat Revenue Tribunal (the Tribunal) by way of Revision Application No. TEN/BA/261/2002 which came to be decided by impugned judgment and order rendered on 01.04.2008. The Tribunal has quashed and set aside both the orders made by Mamlatdar & ALT and the Deputy Collector holding that the landlord is not entitled to a certificate u/s 88C of the Act. It has further been held by the Tribunal that the tenant having become entitled to purchase the land on 14.02.1968 as a deemed purchaser, a direction has been issued to Mamlatdar & ALT to decide the price and hand over the possession of the land which has been forcibly taken over by the landlord illegally. It is this order of the Tribunal which is under challenge in the present petition.

Learned advocate for the landlord submitted that the Tribunal has seriously erred in not accepting the findings of fact recorded by two lower authorities concurrently by re-appreciating the evidence and recording a contrary finding. That the Tribunal could not have recorded such contrary finding of facts without giving the parties an opportunity to place on record further evidence, if necessary. The Tribunal was therefore required to remand the matter back to the lower authority for deciding the matter afresh. It was further submitted that even if the Tribunal was entitled to re-appreciate the evidence it was not open to the Tribunal to appreciate the evidence for the first time which had not been considered by the lower authorities. That the Tribunal had proceeded on conjectures and surmises and drawn inference not warranted in the facts of the case.

DATE: 28.04.2009

Learned advocate further contended that even the High Court in the earlier round of proceedings had not recorded any final finding but had remanded the matter to the authority and thus on parity the Tribunal was required to remand the matter back without recording any final finding. Alternatively, it was submitted that the High Court had merely directed the lower authorities to ascertain whether there was a partition or not and once such a finding had been recorded by the lower authorities it was not open to the Tribunal to record any further finding as to whether the partition was equal or by metes and bounds.

Lastly it was contended that the income, which was to be ascertained for the purposes of provisions of Section 88-C of the Act, had to be as on 01.04.1957 and the Tribunal had erred in taking the income at the point of time when the Tribunal decided the matter. That in fact the averments made by the witnesses in this regard would itself indicate that the said evidence was in relation to the income earned by the petitioners at the point of time when the statements were recorded and was not relatable as on 01.04.1957. Learned advocate therefore submitted that the entire approach of the Tribunal was bad in law and vitiated and the matter required consideration.

The contention that it is not open to the Tribunal to record a finding different from the finding recorded by the lower authorities on re-appreciation of the same evidence cannot be accepted. The Tribunal is the final fact finding authority and is entitled, in fact is duty bound, to record findings of fact after appreciating the evidence on record, more so when there is a substantial defect in following the procedure and in appreciating important evidence. [Reference: Mahendrasinh Ranmalsinh and Another Vs. J.R. Patel and Others, Therefore, to contend that the Tribunal cannot record a finding contrary to the finding recorded by the lower authorities on re-appreciation of the same evidence is an incorrect proposition. There is no prescription in law that in every such case where the Tribunal does not agree with the findings recorded by the lower authorities the matter is required to be remanded as that would lead to a situation where there would be no finality of proceedings at any point of time. In other words, the proceedings would attain finality only in the event the Tribunal agrees and accepts the findings recorded by the lower authorities. This would virtually negate the statutory right granted to a person to challenge the orders of the lower authorities before the Tribunal. The contention is therefore misconceived and is not supported by any legal proposition.

In fact as noted hereinbefore the High Court has categorically stated that it will have to be established that there was a partition by metes and bounds and that the requisite condition, viz. that the share of the minor was in the same proportion as the share of a person and not in a larger proportion than the share of the other having regard to the area, assessment, classification and value of the land, but the lower authorities had failed to record any findings of the said nature, except recording a finding that a partition had taken place. The Tribunal has found, on appreciation of the same oral evidence, that the partition was not by metes and bounds and was not a complete partition between the parties. It is in the aforesaid circumstances that the Tribunal recorded a finding contrary to the finding recorded by the lower authorities and no fault can be found with the order of the Tribunal in this regard. The Tribunal has found, after recording the evidence on record, that provisions of Section 31 of the Act are not attracted in light of the facts recorded by the Tribunal as regards Entry No. 1655, Entry No. 213 and Entry No. 462 relating to the partition and finding therefrom that the partition is only a make believe act and no share has gone to the major persons of the family, the partition is not equal amongst the three minors and finally the landlord has not made any application within a period of one year u/s 31 of the Act from the date of attaining majority viz. 14.02.1967. It is not possible to state that there was no evidence with the Tribunal for recording such a finding. The very same entries which were considered by the lower authorities have been appreciated by the Tribunal. Therefore, the Tribunal''s order cannot be termed to be incorrect or bad in law in the facts and circumstances of the case.

In so far as determination of the annual income for the purposes of Section 88-C of the Act is concerned, the Tribunal has found that for obtaining a certificate under the said provision a period of six months is available from the date of attaining majority. That once provisions of Section 88-C of the Act are invoked the provisions of Sections 32 to 32R of the Act will stand excluded and only when the person, who claims benefit under provisions of Section 88-C of the Act, attains majority will the scheme become operational. Therefore, the income has to be considered at the said point of time and not on 01.04.1957. This finding of the Tribunal cannot be faulted with in light of a conjoint reading of provisions of Sections 88-C and other provisions of the Act commencing from Section 32 of the Act onwards. In fact the right available to a tenant u/s 32 of the Act remains suspended in a case where provisions of Section 88C of the Act get attracted. Under provisions of Section 88D of the Act it is open to the State Government to cancel the certificate granted u/s 88C of the Act by initiating action on its own. In the facts of the case admittedly the minor attained majority on 14.02.1967 and had made an application for obtaining certificate on 29.04.1967.

The Tribunal has found that in so far as the tenant is concerned, the date for considering the tenant as a deemed purchaser shall be 14.02.1968 and, therefore, the income of the landlord has to be considered on the said date, viz. the date on which the tenant became entitled to make a claim. Thereafter, the Tribunal has found that the income of the landlord exceeds a sum of Rs. 1500/- on the said date and this finding has been recorded on the basis of the oral depositions of various witnesses, including witnesses appearing on behalf of the landlord. In the circumstances there is no warrant to interfere with the aforesaid findings based on appreciation of evidence on record, the Tribunal having approached the matter correctly.

In the circumstances on none of the grounds pleaded can the petitioners succeed in absence of any legal infirmity in the impugned order of the Tribunal. Accordingly, the petition is summarily rejected.