(Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR) 1. By way of this Letters Patent Appeal, the appellants are challenging the order passed by learned Single Judge in Special Civil Application No.24060 of 2007. By the impugned order, learned Single Judge dismissed the writ petition filed by the petitioners herein.
2. It is the case of the petitioners that their ancestral had given certain portion of land by way of gift to the State Government for the purpose of educational activities. The land in question bears Survey Nos. 792, 793 and 795 situated at Prantij town. It is the case of the petitioners that after such gift, the Government has not looked after educational interest and have not constructed college and therefore, Government was asked to handover the said lands back to the petitioners, who are heirs of original owners since they have died. The aforesaid land in question is an agricultural land and at that time, it was cultivated by the tenant under the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 (for short, 'the Tenancy Act'). The tenant who is found to be cultivating the land on the relevant day becomes deemed purchaser and by provisions of the Act, he is entitled to purchase the land as per the scheme of the Tenancy Act. In the present case, the concerned tenant was a protected tenant. The original owners donated the said land to the State Government on 19.6.1961 for the purpose of running Government Basic Primary Training College. In the revenue record, entry to that effect is also made in July, 1961.
3. It is the case of the petitioners that they are the heirs of original owners and since college is not functioning since June, 1971 and since the purpose of gift is not achieved, the State Government should now give the land back to the heirs of the original owners i.e. the petitioners.
4. The petitioners approached the Mamlatdar in this behalf. It was found that the petitioners have in-fact failed to prove that they are the heirs of original owners. It is also found that since the original document of gift deed has not been produced by the petitioners, the land in question cannot be given back to the petitioners. Since the petitioners lost upto the Secretary (Appeals), Revenue Department, for getting the land back, the appellants, thereafter, filed writ petition before the learned Single Judge being Special Civil Application No.24060 of 2007. The learned Single Judge by the impugned order dismissed the said writ petition by holding that the petition involves disputed questions of fact. The learned Single Judge also found that original gift deed by which the donation was made, is not produced on record in order to find out exact nature of donation. Against the order of the learned Single Judge, the present Letters Patent Appeal has been filed by the so called heirs of original donors.
5. We have heard learned counsel for the appellants and we do not find any substance in the appeal.
6. It is required to be noted that even if, the gift is revoked, then also, the land in question will go back to the original tenant and to his heirs and not to the heirs of original donor. In the instant case, the concerned tenant was a protected tenant and according to the learned counsel appearing for the appellants, he had agreed to surrender his tenancy rights as he was not willing to purchase the land as per the scheme of the Tenancy Act.
7. At this stage, reference is required to be made to the order passed by Mamlatdar & ALT, Prantij dated 29.7.1993. By the aforesaid order, the land was given back to the original tenant as per the provisions of Section 32-P of the Tenancy Act. The aforesaid provision is applicable in case where the tenant has shown unwillingness to purchase the land and in such an eventuality, the Government is entitled to dispose the land as per the priority list. In this case, as the tenant had subsequently shown willingness to take back the land as per the priority list, the heirs of the original tenant i.e. respondent Nos. 6 and 7 herein applied to the Mamlatdar to allot the said land back to them. A public notice was given inviting the applications from the interested persons as per the scheme of Section 32-P(5) of the Tenancy Act read with Section 84-C of the Tenancy Act. On the basis of the same, land was alloted to respondent Nos. 6 and 7 as they are the heirs of original deceased-tenant. They also paid the purchase price as per the document at page No.109. In view of the same, the appellants have absolute no right to get back the land on the ground that since the purpose of donation was not achieved, the land should be reverted back to the original owners. At this stage, reference is required to be made to Section 126 of the Transfer of Property Act, which reads as under:
“126. When gift may be suspended or revoked: The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.
Illustrations
(a) A gives a field to B, reserving to himself, with B's assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A's lifetime. A may take back the field.
(b) A gives a lakh of rupees to B, reserving to himself, with B's assent, the right to take back at pleasure Rs.10,000 out of the lakh. The gift holds goods as to Rs.90,000, but is void as to Rs.10,000, which continue to belong to A”.
8. Considering the same, the gift can be suspended or revoked only when there is a clause about revocation in an agreement between the parties to revoke such gift wholly or in part. In the instant case, original document of gift deed is not on record and therefore, the say of the appellant that gift should be treated as revoked and possession of the land should be given back to the appellants, cannot be accepted.
9. Considering the aforesaid aspect, there is no substance in the appeal. Accordingly, the appeal is dismissed. There shall be no order as to costs.
(P.B.MAJMUDAR, J.) (PARESH UPADHYAY, J.) (ashish)