BABUBHAI MARGHABHAI GOHEL v. CHANDUBHAI CHHOTABHAI PATEL SINCE DECEASED THRO' HEIRS

The said lands thereafter were disposed of in accordance with Section 32-P of the Act and were given to the father of the said Chandubhai Chhotabhai for personal cultivation. Pursuant to the said order, possession of the said lands was handed over to the said Chhotabhai by the Mamlatdar & ALT in presence of the panchas. In course of the proceedings before the Mamlatdar & ALT, the said Marghabhai Becharbhai and Chandubhai Chhotabhai gave their evidence and supported the pleadings. In the cross examination by the said Chandubhai, Marghabhai Becharbhai admitted that proceedings under section 32-G had been conducted. The possession of the lands was ordered to be handed over to the landlord. The parties were informed about the said order. Pursuant to the said order, the possession of the land, Survey No. 783 was handed over to the landlord. However, he was not aware that the possession of the land bearing Survey no. 783 was handed over in presence of the panchas, but admitted the panchnama produced by the said Chandubhai. The Mamlatdar & ALT under his order dated 27th September, 1976 was pleased to hold that the said lands were given to the land lord for personal cultivation. The possession was handed over to the landlord in presence of panchas. That in the proceeding under section 32-G of the Act, the sale had been declared ineffective. He, therefore, held that the possession of the lands was handed over to the landlord lawfully under section 32-P of the Act. It was also recorded that the landlord had not retained survey no. 791 for personal cultivation and had instead sold it off to one Budhabhai Khodabhai in breach of Section 32-P (7) and 32-P (8) of the Act. Feeling aggrieved by the said order, the petitioner Marghabhai Becharbhai preferred Tenancy Appeal No. 344 of 1976-77 before the Deputy Collector, Kheda. The Deputy Collector was, under his order dated 28th January, 1979, pleased to partially allow the appeal and to remand the matter to the Mamlatdar & ALT for examining the panch witnesses and for allowing opportunity to the tenant to cross-examine such panch witnesses. After the remand, the Mamlatdar & ALT examined the panch witness and the Talati. The Mamlatdar & ALT examined the Talati who produced the relevant records and also examined one of the panch witnesses-one Ambalal Dadbhai. The other panch Maganbhai Bhailalbhai could not be examined since he had already passed away. In view of the evidence of the Talati and the panch witness Ambalal Dadbhai and the records, the Mamlatdar & ALT, under his order dated 29th January, 1980, was pleased to hold that the possession of the said lands was handed over to the landlord lawfully for personal cultivation. Feeling aggrieved, the petitioner preferred Tenancy Appeal No.125 of 1980 before the Deputy Collector, Petlad which was dismissed on 29th January,

1980. The Revision Application No. TEN.B.A 109 of 1980 preferred before the Tribunal was dismissed on 2nd August, 1985. Therefore, the present petition. (cid:9)The only question that arises for my consideration is whether the petitioner is entitled to the possession of the said lands under Section 32 (1B) of the Act. That necessarily raises the question whether the possession of the said lands was lawfully handed over to the landlord Chhotabhai Karsandas in exercise of power under Section 32-P of the Act, after sale having been declared ineffective under Section 32-G of the Act. (cid:9)It is an admitted fact that the petitioner's father Becharbhai Nathabhai was the tenant of the said lands since the year 1951-52. They were in possession of the lands on the specified date i.e., 15th June, 1955 and were `protected tenants' as on the tiller's day ie., 1st April, 1957. The Tribunal and both the authorities below have recorded a categorical finding that the sale had been declared ineffective in the proceeding under Section 32-G of the Act. The said finding does not deserve to be interfered with in the present proceeding. As recorded hereinabove, the panchnama under which the possession was handed over to the landlord Chhotabhai Karsandas has been proved by the evidence of the panch-witness and also the records. Even the extracts of the village Form 7/12 show that the petitioner and the said Becharbhai Nathabhai were in possession of the lands till the year 1961-62 and since then, the landlord Chhotabhai Karsandas had cultivated the land personally. Handing over of the possession has also been admitted by the petitioner Marghabhai Becharbhai in his evidence before the Mamlatdar & ALT. Panchnama drawn on 8th March, 1962 has also been proved. Also produced on the records is the order dated 4th February, 1962 made by the Mamlatdar & ALT, Khambhat under Section 32-P of the Act, allowing the landlord to retain the said lands for personal cultivation. The order made as far back as in the year 1962 is presumed to have been made in accordance with law, unless the contrary is proved. (cid:9)In above view of the matter, it is not believable that the possession of the said lands continued to be with the petitioner until 1975-76, as alleged or that the same was forcibly taken over by the respondent no. 1 in the year 1976, as alleged. In view of the concurrent findings recorded by the Tribunal and both the authorities below, undoubtedly, the landlord Chotabhai Karsandas, the father of the respondent no. 1 was lawfully handed over the possession of the said lands as far back as in the year 1962, in exercise of power conferred under Section 32-P of the Act. Hence, the petitioner's claim for restoration of possession under section 32(1B) of the Act is not sustainable. (cid:9)In view of the above discussion, the petition is dismissed. Rule is discharged. The parties shall bear their own costs. R&P to be returned to the Tribunal and the concerned authorities. (cid:9) (cid:9) [Miss R.M Doshit, J.] Prakash* (cid:9) (cid:9)