1) Since both the petitions raise common question of facts and law, both are decided by this common judgment.
2) It is the case of the original petitioner Shri Udesingh Budhabhai Parmar, who died pending the petitions, that he was cultivating land bearing block No.668 admeasuring 0 hectare, 07 are and 24 square meters, situated at village Devki Vansol, Taluka: Mahemdabad, Dist: Kheda and the lands bearing survey Nos.340 and 341 admeasuring 0 hectare, 68 are and 80 square meters and 0 hectare 20 aare and 23 square meters, situated at village Kachchai, Ta: Mahemdabad, Dist: Kheda. As per his claim, he had been cultivating the said lands for so many years. He had preferred Ganot Case Nos.128 of 1997 and 129 of 1997 before the Mamlatdar & Krushi Panch at Mahemdabad under Section 70-B of the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter referred to as "the Act") to declare him the tenant of the above said lands. The Mamlatdar & Krushipanch, came to the conclusion that the lands in question were in possession of the petitioner since long and the revenue of the lands was also being paid by the petitioner. The Mamlatdar & Krushipanch therefore declared the petitioner to be the tenant of the lands in question under Section 70-B of the Act. The respondent Nos.2 and 3 challenged the above said order by preferring two different appeals being Appeal Nos.27 and 28 of 1998 before the Deputy Collector at Nadiad under Section 74 of the Act. The Deputy Collector, Nadiad allowed both the appeals filed by the respondent Nos.2 and 3 and quashed and set aside the two orders dated 13.5.1998 in respect of aforesaid two different lands. The Deputy Collector held that the Panchnama was not drawn in the presence of the respondents. The respondents were never informed about drawing of the Panchnama and the Panchnama could not be accepted as the evidence in support of the claim of the petitioner.
3) Being aggrieved and dissatisfied with the order passed by the Deputy Collector in the appeals, the petitioner preferred two different revision applications being Revision Application No.492 of 1998 and 193 of 1998 before the Gujarat Revenue Tribunal at Ahmedabad under section 76 of the Act. The Gujarat Revenue Tribunal came to the conclusion that the petitioner has not produced any evidence as to in what manner the petitioner acquired tenancy rights in respect of the land in question, that there is no evidence about giving of lands to the petitioner by the respondent Nos.2 and 3 for cultivation nor there is any evidence to establish giving of any share from the crop by the petitioner to the respondent Nos.2 and 3-original owners. The Tribunal also did not accept the request of the petitioner to remand the case to the Mamalatdar & Krushi Panch on the ground that the remand of the case cannot be made just to fill in lacuna as regard the facts which were not there before the Mamlatdar. The Tribunal, thus, rejected both the revision applications by its judgment and order dated 28.8.2000 and confirmed the orders passed by the Deputy Collector in the appeals filed by the respondent Nos.2 and 3. These two orders passed by the Gujarat Revenue Tribunal are under challenged before this Court by way of these two petitions filed under Article 226 and 227 of the Constitution of India.
I have heard learned advocates for the parties.
4) Mr.
D.P. Kinariwala, learned advocate for Mr. Rajesh R. Dewal, learned advocate for the petitioner in both the petitions has submitted that the possession of the petitioner as tenant in both the lands is well established for last more than 20 years as per the Panchnama drawn in respect of both the lands. He submitted that the petitioner has been lawfully cultivating the lands in question and was also giving shares in the crop to the landlords. The landlords are staying at far away place and since actual cultivation has been carried on by the petitioner, the petitioner is to be treated as a deemed tenant and, therefore, the Tribunal was not justified in rejecting the revision applications preferred by the petitioner. In support of his submissions, the learned advocate for the petitioner has placed reliance on two decisions. One is of Hon'ble Supreme Court in the case of Dahya Lala & Ors. Vs. Rasul Mahomed Abdul Rahim & Ors., AIR 1964 SC 1320. Another is of this Court in the case of Thakor Kesaji Ranaji (Decd.) by his heirs & Lrs. Thakor Lilaji Kesaji Vs. Vallabhdas Parshottamdas Parikh, 1996 (3) GLR 849. On the basis of these two decisions, the learned advocate for the petitioner has submitted that a person claiming the status of a deemed tenant need not have been cultivating the lands with the consent or under the authority of the owner. The relevant aspect to be considered is whether such person has been actually cultivating the lands or not. Learned advocate for the petitioner has also drawn the attention of the Court to the Banakhat executed by the land owners to point out that the petitioner has been in possession of the lands and even there is admission of tenancy in the said document and for payment of the rent. He thus, submitted that the Mamlatdar & Krushipanch had rightly held and declared the petitioner to be the tenant of the lands in question under Section 70-B of the Act. He submitted that there was no illegality in drawing of the Panchnama by the Talati of the respective villages for both the lands. The Panchnama clearly records the possession of the petitioner and also records the long duration of the possession of the petitioner. The contents of the Panchnama also got support from the affidavits of the owners of adjoining lands and it was clearly proved that the petitioner has been cultivating the lands in question for last more than 20 years and there was no reason to doubt the veracity of the Panchnama. He, therefore, submitted that the Tribunal as also the Deputy Collector were not justified in doubting the genuineness of the Panchnama and in discarding the valuable evidence of the Panchnama which was in favour of the petitioner. He ultimately urged to allow the petitions and quashed and set aside the orders passed by the Tribunal and the Deputy Collector and to restore the order passed by the Mamlatdar.
5) Mr.
P.M. Bhatt, learned advocate with Ms. Vasudatta Bhatt, learned advocate for the respondent Nos.2 and 3-landlords has submitted that there is no evidence produced before any of the authorities to establish that the petitioner was, at any point of time, cultivating the lands in question. There is also no evidence on record to establish that the petitioner was ever inducted as a tenant on the lands in question by the landlords. The petitioner has also not produced any evidence about giving of shares of the crop taken from the lands in question to the landlords. Mr. Bhatt further submitted that the Panchnama drawn by the Talati of the respective villages speaks volumes about the act and conduct on the part of the petitioner in collusion with the Talati to grab the lands of the landlords by putting forth the claim as a tenant of the lands in question. He submitted that there was no notice issued to the landlords before drawing of the Panchnama, nor was Panchnama drawn in presence of the landlords. He seriously urged that taking benefit of the absence of the respondents-landlords from the respective villages, the petitioner managed to get the Panchnama drawn and to get his alleged possession on the lands recorded for more than 20 years. He would submit that the purpose of Panchnama is to record the present situation and position of the land or any other property and not to record the evidence in connection with such land or property. As per his submissions, it was not the business of the Talati to state in the Panchnama that the petitioner has been in possession of the lands in question for more than 20 years nor was Talati authorized to record such fact in the Panchnama, that too in absence of the landlords. He submitted that it is not open to collect evidence in support of the petitioner's claim through Panchnama and, therefore, the Panchnama cannot be read as evidence to establish that the petitioner has been in possession and cultivating the lands for last more than 20 years. He further submitted that except the document of Panchnama, there is no other evidence on record to establish that the petitioner was in fact in possession of the lands at any point of time and at any point of time cultivating the lands in question. He also submitted that the so called Banakhat produced on record, cannot be relied on by the petitioner to establish his claim of tenancy on the lands in question. He has pointed out that the landlords have categorically denied the execution of such Banakhat and, therefore, the Banakhas as also the contents of such Banakhat cannot be relied by the petitioners in the present petitions. The Banakhat, being not part of the record before the lower authorities, no reliance can be placed on the Banakhat by the petitioner. He, therefore, submitted that the petitioner, having failed to establish his claim before the authorities by way of any evidence as regards his tenancy rights on the lands in question, the Tribunal and the Deputy Collector had rightly interfered with the order passed by the Mamlatdar, Krushipanch and no errors have been committed by the Tribunal as also by the Deputy Collector. He, thus, urged to dismiss both the petitions. Ms. V.S. Pathak, learned Asst. Government Pleader for the State in both the petitions has submitted that since the petitioner had not produced any legal evidence to establish his claim of tenancy, the Tribunal as also the Deputy Collector have not committed any error in setting aside the order passed by the Mamlatdar & Krushipanch. She, thus, supported the arguments canvassed by the learned advocate for the landlords.
6) Having heard the learned advocates for the parties and having perused the orders passed by the authorities below as well as the Panchnama, it appears that the petitioner had not led any evidence to establish that the petitioner had been, at any point of time, cultivating the lands in question. The petitioner, in fact, had failed to establish his possession on the lands in question. There is also no evidence produced by the petitioner to establish sharing of crop with the landlords. The Mamlatdar & Krushipanch declared the petitioner to be the tenant of the lands under Section 70-B of the Act on the basis of Panchnama produced before him. The Mamlatdar & Krushipanch read statements in the Panchnama about the possession of more than 20 years of the petitioner as if it is legal and valid evidence. The Mamlatdar also took the affidavits filed by three other persons stated therein about the long possession of more than 20 years of the petitioner as legal evidence. The Mamlatdar, thus, went beyond all canon of law for the purpose of recording the finding about the tenancy rights. In doing so, the Mamlatdar has conveniently forgotten basic principles of the Evidence Act as also the principles of natural justice. It is required to be noted that before drawing the Panchnama, no notice was issued to the landlords nor even the landlords were kept present at the time of drawing of the Panchnama. The Talati who drew the Panchnama was also not authorized to record statement of any of the Panchas or any person showing the possession of the petitioners for more than 20 years in the Panchnama. Therefore, it prima facie appears to this Court that since there was no other evidence with the petitioner and since the landlords had been staying at another town at far away place, taking benefit of their absence, the petitioner decided to create his tenancy rights, which was in fact done on the lands in question, by taking the Talati in his confidence with the help of other persons who stood as Panchas and who filed affidavits in his support. Therefore, the Deputy Collector as also the Tribunal has not committed any error in setting aside the order passed by the Mamlatdar & Krushipanch. So far as the contention advanced by the learned advocate for the petitioner as regards the proof of possession and tenancy rights flowing from the Banakhat, such contention is made under misconception of facts and law. The execution of the Banakhat and the contents thereof are denied by the landlords, therefore, the Banakhat cannot be considered and read as evidence unless the same is proved before the Competent Court. Not only this, the Banakhat was never produced on the record before the authorities below and, therefore, it is not open to the petitioner to place the Banakhat on the record of these petitions and to rely upon the same. The petitioner cannot get any benefit out of the Banakhat to establish his tenancy rights on the lands in question. The judgments relied upon by the petitioners in the case of Dahya Lala & Ors. Vs. Rasul Mahomed Abdul Rahim & Ors (Supra) and in the case of Thakor Kesaji Ranaji (Decd.) by his heirs & Lrs. Thakor Lilaji Kesaji (Supra) cannot be of any help to the petitioner because as discussed above, the petitioner has failed to establish by way of any evidence that the petitioner was ever in possession of the lands in question or the petitioner ever cultivated the lands in question. Since there is no legal evidence available on record to prove that the petitioner had at any point of time, cultivated the lands or in possession of the lands, the above said judgments will have no applicability to the facts of the present case.
7) For the reasons stated above, both the petitions are required to be dismissed and are accordingly dismissed. Rule is discharged in both the petitions.
(C.L.SONI, J.) Vahid FURTHER ORDER After the judgment and order was pronounced, learned advocate Mr.Rajesh Deval for the petitioner has requested to continue interim order of status-quo for a period of six weeks. Learned advocate on the other side has opposed this request. However, considering the fact that pending both the petitions, since the interim order of status-quo has remained in operation, status-quo shall continue for a further period of four weeks.
(C.L.SONI,J.) Vahid Top