The present petition is filed by one Kantibhai Khushalbhai Patel against Dhuliben Bhikhabhai, who expired during the pendency of the petition and by Court order dated 20.07.2012 in Civil Application No.7859 of 2012, heirs and legal representatives were impleaded. The present petition is filed praying that: “14(A) The Hon. Court may be pleased to issuea writ of certiorari or any other appropriate writ, order or direction quashing and ssetting aside the impugned orders at nnexures ‘G’ and ‘H’ hereto; and cconsequently restoringthe order at Annexure ‘F’ hereto.””
2. Learned advocate Mr.A.J. Patel appearing for the petitioner invited attention of the Court to the facts of the case which are set out in paras, 2 to 9, which are reproduced hereunder for ready perusal:
“2. The petitioner says that the land bearing Survey No. 1556 admeasuring acres 2-36 gunthas out of acres 8-28 gunthas of village Karamsad, Taluka and District Anand was subject matter of mortgage by its owner Gordhanbhai Bhalabhai Patel on 30-6-1944 in favour of Bhikhabhai Ramabhai Patanwadia; and pursuant to the mortgage-deed executed in favour of Bhikabhai Ramabhai Patanwadia, he was inducted on the said land. Annexed hereto and marked Annexure 'A' is a true copy of the said mortgage-deed.
3. The petitioner says that thereafter, Gordhanbhai Bhikhabhai sold the said land to Bhikhabhai Ramabhai by a registered sale-deed dated 23-3-1961 for a total consideration of Rs. 1,300/-. Annexed hereto and marked Annexure 'B' is a true copy of the said sale- deed.
4. The petitioner says that it appears that without appreciating the implications of the aforesaid transaction under the Transfer of Property Act and its true nature, the Mamlatdar and A.L.T. Anand initiated proceedings under section 32G of the Tenancy Act in Tenancy Case No. 2682 for the purpose of fixing purchase price of the land in question. The Mamlatdar and A.L.T. No. 3, Anand by his order dated 29-4-1964 held that the land in question was already sold to the tenant and, therefore, a certificate under section 9 was required to be issued in favour of the tenant. The Mamlatdar and A.L.T. also referred to the earlier transaction and the understanding that was arrived at between the parties to the said transaction . Annexed hereto and marked Annexure 'C'. Annexure C is a true copy of the said order. The petitioner says that the aforesaid order of the Mamlatdar and A.L.T. appears to have been taken in revision by the Deputy Collector under section 76A of the Tenancy Act; and by his order dated 3-5-1996, the Deputy Collector had set aside the aforesaid order at Annexure C and remanded the case to the Mamlatdar and A.L.T. for a fresh decision. The petitioner craves leave to this Honourable Court to refer to and rely upon the said order if and when necessary at the time of hearing of this petition.
5. The petitioner says that after the remand, the Mamlatdar and A.L.T., Anand by his order dated 20-1-
1970 again fixed the purchase price of the said land at Rs. 1,750/-. Annexed hereto and marked Annexure 'D' is a true copy of the said order.
6. The petitioner says that since the relationship between the parties was not that of a landlord and tenant, but it was of a vendor and a vendee under the provisions of the Transfer of property Act, the petitioner purchased the land in question from Bhikhabhai Ramabhai Patanwadia for a total consideration of Rs. 19,000/- by a regular sale-deed dated 10-3-1980. Annexed hereto and marked Annexure 'E' is a true copy of the said sale-deed.
7. The petitioner says that to the shock and surprise of the petitioner, three years after the date of the aforesaid transaction the Mamlatdar and A.L.T., Anand initiated proceedings under section 84C of the Tenancy Act in respect of the land in question. The Mamlatdar and A.L.T. held a detailed inquiry into the whole transaction and found that proceedings under section 84C could not have been initiated in respect of the transaction in question because the relationship between the parties was not that of a landlord and tenant under the provisions of the Tenancy Act, but it was that of a vendor and vendee under the provisions of the Transfer of Property Act. The Mamlatdar and A.L.T., Anand, therefore, by his order dated 24-2-1983 directed that the proceedings under section 84C be dropped in respect of the land in question. He, however, set aside the earlier orders dated 29-4-1964 and 20-2-1970 and directed that purchase price of the land admeasuring acre 0-26 gunthas may be fixed in accordance with section 32G of the Tenancy Act. Principally he held that there was no violation of section 84C of the Tenancy Act. Annexed hereto and marked Annexure 'F' is a true copy of the said order.
8. The petitioner says that in the meanwhile, tenant Bhikhabhai Ramabhai died; and therefore, present respondent filed Tenancy Appeal No. 488 of 1990 before the Deputy Collector, Land Reform (Appeal), Kaira challenging the aforesaid order. it may be pointed out at this stage that in the first paragraph of the order of the Deputy Collector, it has been stated that the respondent herein has filed the said appeal being aggrieved by the order dated 29-4-1964 passed by the Mamlatdar and A.L.T. Anand in Tenancy Case No. 26/82-32G. However, in the operative order the Deputy Collector has stated that the appeal of the present respondent is allowed and the order passed by the Mamlatdar and A.L.T. in Tenancy Case No. 75/83 on 24- 2-1983 is set aside. Thus, the Deputy Collector by his order dated 13-1-1992 allowed the said appeal filed by the respondent herein. Annexed hereto and marked Annexure 'G' is a true copy of the Deputy Collector's order dated 13-1-1992.
9. The petitioner, therefore, being aggrieved by and dissatisfied with the aforesaid order of the Deputy Collector, preferred Revision Application No. TEN.B.A.174 of 1992 before the Gujarat Revenue Tribunal. The Gujarat Revenue Tribunal, however, by its order dated 27-9-1999 dismissed the said revision application and confirmed the order passed by the Deputy Collector at Annexure 'G' hereto. Annexed hereto and marked Annexure 'H' is a true copy of the said order of the Tribunal.”
3. Learned advocate Mr.A.J. Patel appearing for the petitioner submitted that the Gujarat Revenue Tribunal, Ahmedabad in Revision Application No. TEN.B.A.174 of 1992 was pleased to dismiss the Revision Application and uphold the impugned order passed by the Deputy Collector in Appeal No.488 of 1990 dated 13.01.1992. Learned advocate Mr.Patel submitted that in light of the judgement of the Hon’ble the Apex Court in the matter of A.A. Shirdone, etc. Vs. Saheb H. Tajbhokhari reported in A.I.R. 1985 SC 836, wherein the Hon’ble the Apex Court was pleased to hold as under:
“It cannot be said that a mortgage in possession become deemed tenant under S.2A of the act of 1939 on the strength of the saving provision in S.89 (2) (b) of the Act of 1948. Even if that be so the mortgagor, holding the decree for redemption cannot get actual possession of the lands from the mortgagee as the mortgagor did not file an application for declaration before the Mamlatdar that the mortgagees were not tenants, within one year of the coming into force of the Amendment Act of 1946 as provided in Ss. 2A and 3A of the Act of 1939 and thus he lost whatever right he had. Furthermore a relief for actual possession from the mortgagees who claimed to be protected tenants could be granted only by the revenue court and not by the civil court. The mortgagor, therefore, on the basis of the decree for redemption can get only a symbolic possession and not actual physical possession for the land in dispute.”
4. Learned advocate for the petitioner invited attention of the Court to paras 17 and 18 in this regard which are reproduced hereunder:
“17. In view of the aforesaid decision of this Court it cannot be argued for a moment that a mortgagee in possession becomes a deemed tenant under S.2A of the act of 1939 on the strength of the saving provision in S.
89 (2) (b) of the Act of 1948. The contention of the appellants that they become deemed tenants under S.2A of the act of 1939 has no force and cannot be accepted.
18. The appellants can, however, still succeed on the ground that it was open to the plaintiff-respondent to file an application for declaration before the Mamlatdar that the defendants were not tenants, within one year of the coming into force of the Amendment Act of 1946 as provided in Ss. 2A and 3A of the act of 1939 . But he did not choose to do so and, therefore, he lost whatever right he had. There is yet another ground why the plaintiff-respondent could not evict the defendants. A relief for actual possession from the defendants who claimed to be protected tenants could be granted only by the revenue court and not by the civil court. The plaintiff-respondent, therefore, on the basis of the decree for redemption can get only a symbolic possession and not actual physical possession for the land in dispute.”
5. Learned advocate Mr.A.J. Patel appearing for the petitioner invited attention of the Court to decision of this Court in the matter of Ruxmaniben, widow of Ambalal Fakirchand and others Vs.
Bipinkumar Lallubhai Pandit and others, reported in 2006 (2) GLH 768, wherein this Hon’ble Court, following the aforesaid of the Hon’ble the Apex Court in the matter of A.A. Shirdone, etc. Vs. Saheb H. Tajbhokhari (supra) was pleased to hold as under:
“Thus, considering various provisions of the Act of 1939 as well as Amended Act of 1946, the Hon'ble Supreme Court has held that the mortgagee in possession cannot be declared as deemed tenant under S.2(A) of the Act of 1939 on the strength of savings provisions in S.89(2) (b) of the Act of 1948. Thus, there is a clear-cut finding of the Hon'ble Supreme Court that the mortgagee in possession cannot be declared as a deemed tenant. Considering the above, when the Gujarat Revenue Tribunal has allowed the revision application and has answered the issue that the mortgagee in possession, i.e. deceased Ambalal Fakirchand and heirs of deceased Ambalal Fakirchand cannot be declared as deemed tenant, it cannot be said that there is any illegality committed by the Gujarat Revenue Tribunal. The Gujarat Revenue Tribunal has rightly considered that except answering the reference of the civil court, nothing further is required to be done and the question with regard to the possession, etc. is not required to be considered at this stage and it is required to be considered by the Civil Court. Thus, the question with regard to granting actual possession on passing the decree can be granted or not, is kept open and the same is not required to be decided in the present proceedings which is arising out of issue with regard to the tenancy only ”
6. Coming to merits of the matter it is not in dispute that Bhikhabhai Ramabhai Patanwadia was tenant of a part of the land bearing Survey No.1556, which he purchased in the year 1944 for an amount of Rs.750/-. Later on, he purchased the property in question for a sum of Rs.1300/- by sale deed dated 23.03.1961. The matter was under consideration of the Mamlatdar & ALT being Case No.75 of 1983 under section 84(C) which came to be decided by judgement and order dated 24.02.1983, a copy of which is produced at Annexure ‘F’ here, wherein the learned Mamlatdar & ALT was pleased to hold that when the land in question admeasuring 2 acres, 36 gunthas was purchased by the present petitioner, viz. Kantibhai Khushalbhai Patel there was no breach of condition; therefore, inquiry was ordered to be closed. The learned Mamlatdar & ALT was also pleased to hold that earlier orders dated 29.04.1964 and 20.01.1970 under section 32(G) of the Bombay Tenancy Act were nullity and therefore quashed and set aside.
The matter was carried before the Deputy Collector by way of appeal being Appeal No.488 of 1990 which came to be allowed and judgement and order dated 24.02.1983 passed in Tenancy Case No.75 of 1983 by the learned Mamlatdar & ALT was quashed and set aside against which Revision Application No. TEN.B.A.174 of 1992 was preferred which came to be dismissed as mentioned hereinabove.
7. It is being aggrieved by judgement and order dated 13.01.1992 passed by the Deputy Collector, Land Reforms (Appeal), Kaira in Appeal and judgement and order dated 27.09.1999 passed by the President, Gujarat Revenue Tribunal, Ahmedabad, the present petition is filed.
8. Learned advocate Mr.Dave appearing for the respondent though strenuously tried to convince this Court that the Deputy Collector/ President, Gujarat Revenue Tribunal has not committed any error in passing the impugned order, could not convince this Court in light of the decisions of the Hon’ble the Apex Court in the matter of A.A. Shirdone, etc. Vs. Saheb H. Tajbhokhari (supra) and the decision of this Court in the matter of Ruxmaniben, widow of Ambalal Fakirchand and others Vs. Bipinkumar Lallubhai Pandit and others (supra). In the result, this petition is allowed. Order passed by the Deputy Collector in Tenancy Appeal No. 488 of 1990 dated 13.01.1992 and order passed by Gujarat Revenue Tribunal in Revision Application No. TEN.B.A.174 of 1992 dated 27.09.1999 are hereby quashed and set aside. Order dated 24.02.1983 passed by the Mamlatdar and ALT, Anand in Tenancy Case No.75 of 1983 is restored. Rule is made absolute.
(RAVI R. TRIPATHI, J.) karim