Gujarat High Court
Lh Of Bismillabibi D/O Musamiya ... vs Lhs Of Basirali Pannumiya on 20 June, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/574/2024 ORDER DATED: 20/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 574 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 4201 of 2015
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2024
In
R/LETTERS PATENT APPEAL NO. 574 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2024
In
R/LETTERS PATENT APPEAL NO. 574 of 2024
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LH OF BISMILLABIBI D/O MUSAMIYA JIVANMIYA THROUGH KHATIJABIBI
RAJAKMIYA SAIYED D/O BISMILLABIBI
Versus
LHS OF BASIRALI PANNUMIYA & ORS.
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Appearance:
MR VIVEK V BHAMARE(6710) for the Appellant(s) No. 1
for the Respondent(s) No. 1,1.1,1.2,1.3,1.4,2,3,4
MS HETAL PATEL ASSISTANT GOVERNMENT PLEADER for the Respondent(s)
No. 2,3,4
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 20/06/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Heard Mr. Vivek Bhamare, learned advocate appearing for the appellant and perused the record.
2. The appellant herein is aggrieved by the judgment and order dated 11.12.2023 passed by the learned Single Judge in allowing the writ petition, setting aside the order dated 03.02.2015 passed by the Gujarat Revenue Tribunal in Review Application No. TEN/CA/1/14 as Page 1 of 8 Downloaded on : Fri Jul 05 21:43:08 IST 2024 NEUTRAL CITATION C/LPA/574/2024 ORDER DATED: 20/06/2024 undefined well as order dated 05.12.2013 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN/BA/199/2005. It may be noted that the proceedings before the Gujarat Revenue Tribunal had travelled in Revision Application No. Ganot/6/2003 pursuant to the order dated 20.11.2004 passed by the Deputy Collector (Land Reforms), Mehsana in Appeal No. 11/12/03 under Section 74 of the the Gujarat Tenancy and Agricultural Land Act, 1948, filed by Bismillabibi daughter of Musamiya Jivanmiya, the predecessor-in- interest of the appellant herein. The challenge before the Deputy Collector (Land Reforms), Mehsana was to the order dated 07.10.1977 passed by the Mamlatdar & ALT in the proceedings under Section 32PP of the Gujarat Tenancy and Agricultural Lands Act, 1948 (in short referred to as the "Act 1948"). 2.1. By means of the order dated 07.10.1977, the original petitioner was declared as tenant of the lands in Survey No.824/2 admeasuring Acres 0.30 Guntha, situated in the sim of Village Nagalpur, Taluka and District Mehsana and on determination of purchase price of the land in question, it was sold to the original petitioner with restriction under Section 43 of Act, 1948. It is recorded in the judgment impugned that an amount of Rs.316.25 paise was directed to be paid in two equal installments and that the order dated 07.10.1977 was Page 2 of 8 Downloaded on : Fri Jul 05 21:43:08 IST 2024 NEUTRAL CITATION C/LPA/574/2024 ORDER DATED: 20/06/2024 undefined challenged by the appellant herein/original respondent no. 4.1. in the year 2003. We may record from the affidavit filed on behalf of the appellant before the writ Court namely Khatijabibi Rajakmiya Saiyed, daughter of Bismillabibi that the appeal before the Deputy Collector was filed by Bismillabibi stating that she was not put to notice of the proceedings initiated by the original petitioner under Section 32PP in the year 1977. No copies of the application was provided to the mother of the appellant herein. It is stated herein that the mother of the appellant had never signed the statement nor any statement was given by her before the Mamlatdar to the effect that the original petitioner was in possession of the land in question and that the said statement recorded in the order was obtained by fraud. It is further stated that the mother of the appellant namely Bismillabibi was a 'pardanashin' widow of old age. However the age of Bismillabibi on the date of the order, i.e. 07.10.1977 has not been disclosed. There are allegations of fraud against the original petitioner in obtaining the order dated 07.10.1977 from the Mamlatdar, but no material has been brought on record to substantiate the same. 2.2. Another ground for challenge taken before the Deputy Collector, in the appeal filed in the year 2003, was that the original petitioner was a member of owner's family and as such he was Page 3 of 8 Downloaded on : Fri Jul 05 21:43:08 IST 2024 NEUTRAL CITATION C/LPA/574/2024 ORDER DATED: 20/06/2024 undefined excluded from being brought in the category of a deemed tenant in view of Section 4(a) of the Tenancy Act, 1948. In order to substantiate the submission, a copy of the pedigree appended at page '56A' of the paper book also has been placed before us by the learned counsel for the appellant. In essence, all arguments on merits of the order dated 17.10.1977 are directed on the plea of fraud and ineligibility of the original petitioner to be declared as a tenant.
2.3. A bald statement of denial has been made in paragraph '8.17'of the affidavit of respondent no. 4/1 that the petitioners are in possession of the property in question and it is respondent no. 4/1 and his family members who are in possession of the property and they are cultivating the land for the last many years. Few bills of a private bore company, namely 'Shri Nilkanth Bore Company' have been appended along with the bills of cultivating the land in question.
2.4. However, there is no record of the revenue entries in the name of Bismillabibi or the appellant herein, after the order dated 07.10.1977 had been passed by the Mamlatdar and ALT declaring the original petitioner as tenant of the land in question. The submissions made by the learned counsel for the appellant on merits Page 4 of 8 Downloaded on : Fri Jul 05 21:43:08 IST 2024 NEUTRAL CITATION C/LPA/574/2024 ORDER DATED: 20/06/2024 undefined of the claim of the appellant about the appellant being in possession of the land in question therefore, cannot be accepted. 2.5. As regards the contention of the original petitioner being a member of family, relevant is to record that as per the pedigree, Bassirali is stated to be son of Inayatbibi who happened to be daughter of Amirmiya, son of Saiyed Jivanmiya Musamiya, who was the original owner of the land in question. Looking to the pedigree relied by the learned counsel for the appellant, Bassirali (the original petitioner) becomes a member of the fourth generation of the owner's family, that too the son of the grand daughter of Saiyed Jivanmiya Musamiya, the original owner. It is, thus, difficult to bring Bassirali within clause (a) of Section 4, categorizing him as a member of the owner's family.
2.6. There is a categorical statement on behalf of the original petitioner that his father, namely the husband of Inayatbibi daughter of Amirmiya was irrigating the land in question being Survey No. 824/2, the land in question in the capacity of a tenant. The order dated 07.10.1977 passed by the Mamlatdar and Krishi Panch, Mehsana records the admission of the statement of Bismillabibi daughter of Musamiya to the effect that the original petitioner was cultivating the land in question as a tenant since the time he has Page 5 of 8 Downloaded on : Fri Jul 05 21:43:08 IST 2024 NEUTRAL CITATION C/LPA/574/2024 ORDER DATED: 20/06/2024 undefined inherited the tenancy from his father.
2.7. After a gap of 26 years, it was not open for the Tribunal to re- open the controversy with regard to the fact that whether the predecessor-in-interest of the original petitioner was cultivating the land in the year 1977 in the capacity of a tenant, that too on the premise that Bismillabibi whose admission was recorded in the order dated 07.10.1977 was not served with the notice of the proceedings. As noted herein-above, fraud though alleged before us, but there is no finding of fraud on the alleged submission made on behalf of the appellant in the order dated 05.12.2013 passed by the Gujarat Revenue Tribunal. The contentions of the learned counsel for the appellant that the original petitioner had obtained the order dated 07.10.1977 by practicing fraud, therefore, cannot be entertained.
3. In addition to what has been noted herein-above, we find that the learned Single Judge has rightly recorded that after a period of 26 years, the plea of extraneous considerations which were never canvassed by the appellant before the Deputy Collector in the year 2004 cannot be looked into.
4. To substantiate the contentions, learned advocate for the appellant has relied on the following decisions : Page 6 of 8 Downloaded on : Fri Jul 05 21:43:08 IST 2024
NEUTRAL CITATION C/LPA/574/2024 ORDER DATED: 20/06/2024 undefined
(a) In the case of A.V. Papayya Sastry & Anrs., v. State of A.P. & Anrs., reported in (2007) 4 SCC 221.
(b) In the case of Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar & Anrs., reported in (2008) 9 SCC 54.
(c) In the case of M/s. Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur & Anrs., reported in (1992) 2 SCC 598.
(d) In the case of Krishnabai & Anrs. v. Raghunath Nemichand Nagar & Anrs., reported in 1994 Supp (2) SCC 566.
(e) In the case of Ramchandra Hasha Dalvi (Deceased) through LRs v. Patwardhan (Deceased) through LRs., reported in (1998) 8 SCC 82.
(f) In the case of Kalpeshbhai Natwarlal Patel v. State of Gujarat reported in 2009 SCC Online Guj 5264 = [(2009) 3 GLH 372].
(g) In the case of Amthibai Wd/o Jesangbhai Nathubhai v.
Patel Shankarbhai Purshottamdas reported in 1982 SCC Online Guj 85 = [1982 GLH 1046].
(h) In the case of Saiyad Nasiruddin Saiyadali v. Kubrabegum Wd/o Siyad Ajimuddin Kamaluddin reported in 1999 SCC Online Guj 350 = [2000 (2) GLH 132].
5. We do not find any infirmity in the opinion drawn by the learned Single Judge that the Tribunal has committed an error in completely ignoring the aspect of delay of 26 years and proceeding simply on the merits to set aside the order dated 20.11.2004 passed by the Deputy Collector in rejecting the appeal filed by Bismillabibi daughter of Musamiya, the predecessor-in-interest of the appellant herein.
6. For the above, the law laid down in the decisions relied by the learned counsel for the appellant would be of no help.
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7. The Letters Patent Appeal is dismissed, being devoid of merits.
Consequently, the connected Civil Applications for stay and additional evidence also stand disposed of.
(SUNITA AGARWAL, CJ ) (PRANAV TRIVEDI,J) phalguni Page 8 of 8 Downloaded on : Fri Jul 05 21:43:08 IST 2024