Order
1. In view of the group of respondents claiming their joint Hindu family being the tenant over the disputed land, death of one of its members would not have the effect of abating the appeal. Thus, we condone the delay and allow substitution of the LRs of deceased Respondent 1. The LRs have already engaged their lawyer and are represented by Mr Vimal Dave.
2. This appeal is directed against the judgment and order of a learned Single Judge of the Gujarat High Court, whereby remand has been effected to the Mamlatdar concerned for fixation of price of the disputed area; claim of the tenant being accepted thereto in proceedings relevant to the Bombay Tenancy and Agricultural Lands Act, 1948 (the Act) as applicable to the State of Gujarat.
3. The broad facts giving rise to this litigation are these: Survey Nos. 245 and 246/2 in Village Dumas were owned by the appellant-landowner. The respondents (which expression includes their successors-in-interest) claimed to be the tenants thereon. So far as Survey No. 245 is concerned, there is no dispute that it was cultivated and that there was a relationship of landlord and tenant between the parties. Staking claim under Section 32 of the Act, the tenants asserted that they were tenants over both the survey numbers on the tillers' day even though Survey No. 246 was uncultivated. Apparently, a collusive order was obtained by the parties from the Mamlatdar insofar as Survey No. 246/2 was concerned, as otherwise the claim was valid with regard to Survey No. 245. A part of the area thereof was conceded in favour of the tenants and the other part was retained by the landowners. Years went by. The tenants attempted to commit trespass over the left-out area at a point of time. The appellant thus had to resort to a suit. Then the tenants woke up and made an application under Section 70(b) of the Act, claiming that the landowners had wrongfully retained a portion of Survey No. 246/2 when concededly they were the tenants over the area. Their claim was negatived by the Mamlatdar. It is to note that the earlier proceedings before the Mamlatdar under Section 32 of the Act were collusive and the status conferred on the tenants qua part of Survey Nos. 245 and 246/2 was by itself shaky. Their appeal thus failed before the Collector and so did their revision before the Gujarat Revenue Tribunal. This led them to the High Court in proceedings under Article 227 of the Constitution. The High Court interfered and granted them the status of being tenants over the disputed area on the tillers' day, resulting in an order of remand for fixation of price. This has given rise to the appeal.
4. In order to stake the claim of becoming the owner of a tenanted land, a tenant is required to prove that he was in cultivating possession of the tenanted area on the tillers' day. Cultivation has been defined in the Act to mean personal cultivation or cultivation through others. Cultivated but fallow lands are within the scope of such tenanted lands but lands which were not put to actual tilling for growing crops were specifically excluded. The provisions of the Act are clear in that regard and there is an ambiguity. Survey No. 246/2 has throughout been regarded as “grass lands” which means lands never put to plough or cultivation or for sowing any crops. No revenue record has ever been produced before any authority showing that the tenant was in cultivating possession of Survey No. 246/2 despite the fact that the land was recorded as “grass land”. No evidence was ever produced before any authority that the land was otherwise leased out to the tenant or that he paid any rent to the landlords. The claim of the tenant is solely based on the factum that since they had been conceded to that status by virtue of the earlier order of the Mamlatdar whereby they were successful in becoming owners of part of Survey No. 246/2, it follows as a necessary corollary that the rest of the area too was tenanted by them and that the landlords wrongfully retained that area in proceedings under Section 32 of the Act. This seemingly has appealed to the High Court in upsetting the well-considered orders of the three officers in the hierarchy of the Act so as to effect a remand. In our view, the High Court committed a grave error in interfering in findings of fact recorded by the officers in the hierarchy, the latter holding that the land was not agricultural land for the purposes known under the Act because it had never been put to plough or cultivation for sowing crops and were “grass lands” to which those provisions of the Act relating to tenancy rights would not apply. We have specifically put to the learned counsel for the respondents if there is any revenue entry to show that the respondents were in cultivating possession of the land reflective of the user thereof other than “grass lands”. He expressed his inability to do so. Thus in the situation, we feel that the High Court unnecessarily assumed to itself the task to prove to the contrary when facts were ex facie clear as is asserted before the three authorities under the Act. We therefore unhesitatingly allow the appeal, upset the impugned order of the High Court, restoring that of the Gujarat Revenue Land Tribunal and of the other officers below. There shall be no order as to costs.