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Learned advocate for the petitioner relied upon a decision of the Hon'ble the Apex Court in the case of Patel Sureshbhai Jashbhai V/s. Patel Satabhai Mathurbhai reported in AIR 1983 SC 648. he invited attention of the Court to paragraph No. 7 of the judgment, which reads as under:
"7.
In such a situation an unadjudicated inferential determination of status cannot preclude an enquiry into the status which is a sine qua non for claiming the right in a subsequent proceeding between the parties. Therefore the failure of the landlord to question the sale being declared ineffective on account of the absence of the person to whom notice was sent and who defaulted would not either on the general principle of res judicata or principle analogous to constructive res judicata. preclude the landlord from challenging the status in the subsequent enquiry. There is only one situation which may preclude the enquiry is that if on receipt of notice the tenant did not appear and the landlord appeared and unequivocally admitted that the defaulting person was a tenant on the relevant date and on his failure to appear the sale should be declared ineffective, the landlord in subsequent proceeding under Section 32PP would be estopped from challenging the status of the applicant tenant. Such is not the case. Otherwise on a challenge by the landlord in a proceeding under Section 32PP the Tribunal will have to determine the jurisdictional facts that (i) the applicant was a tenant on April 1, 1957 and (ii) that the sale was declared ineffective under Section 32G. Therefore. the view of the Tribunal that in a proceeding under Section 32PP, the status of the applicant as a tenant is incontrovertible does not commend to us and is not correct".
This is only to show that the Tribunal has rightly appreciated the contents of these letters and the contentions of the present petitioner in light of the said contents.
11.1 It will be appropriate to reproduce entire para-6 of the judgment and order so that it may not be said that Court has appreciated the judgment and order in piecemeal and has not taken into consideration the judgment and order as a whole.
"This tribunal would have remanded the matter back to lower Court by quashing and setting aside the impugned orders but looking to the facts and history of this case it can be a futile exercise in coming to this conclusion one has to go to the entire case history initiated in the year 1983 initially the proceedings started in the year 1983 by tenancy case No.50/83. Therein by order dated 27.1.84 Mamlatdar & ALT was pleased to hold that the case is required to be conducted under the provisions of the Bombay Talukdari Abolition Act and not under the Tenancy Act. The present applicant himself was aggrieved by this and he preferred appeal No.397/84 it was dismissed and the same was remanded back to learned Dy. Collector by this tribunal as stated earlier. I have called for the record of revision application No.TEN.B.A.190/87 from the record wherein looking to the memo of revision it is a specific case of the present applicant before this tribunal that the limitation to proceed under section 5(1) of the Talukdari Tenure Abolition Act has expired and therefore when the Mamlatdar & ALT conducted the tenancy case No.50/83, it was required to proceed with under section 32G of the Act. Inference can safely be drawn that under the provisions of Talukdari Tenure Abolition Act the Talukdar is entitled to get the compensation at the rate of five times of the assessment whereas under section 32G of the Act the price of the land can be determined up to 200 times revenue assessment and that is what the applicant has insisted in memo of revision No.190/87 that Mamlatdar & ALT ought to have proceeded under Section 32G of the Act. Now, it may be noted again that when Mamlatdar & ALT proceeded under Section 32G of the Act there appear to be one letter dated 13.7.88 written by Administrator and power of attorney of present applicant namely; J.S.Vaghela stating that Gandabhai Ishwarbhai i.e. present opponent No.2 is to be considered as ordinary tenant and therefore the price should be fixed under Section 32G of the Act i.e. two hundred times of assessment. Another letter in the said proceedings by the same Power of Attorney holder dated 13.7.88 at p.35 is on record in the case filed of Mamlatdar & ALT agitating the same contentions. Now if we peruse the provisions of Section 32P and 32PP of the Act, the tenant is given option of re-purchase and purchase price is to be fixed keeping in view the provisions of Section 32H read with section 63A of the Act and therefore the purchase price is fixed at Rs.2112. The assessment of both suit lands is totally Rs.11-10 paise and therefore undisputedly it transpires that purchase price is fixed two hundred times of the assessment of land revenue and therefore now grievance of the applicant does not survive".