http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

PETITIONER: KRISHNABAI ANAJI GHULE AND OTHERS.

       Vs.

RESPONDENT: NIVRUTTI RAMCHANDRA RAYKAR AND ANOTHER

DATE OF JUDGMENT05/09/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA, R.B. (J)

CITATION:  1983 AIR 1213            1983 SCR  (3) 822  1984 SCC  (1) 179        1983 SCALE  (2)258

ACT:      Bombay Tenancy and Agricultural Lands Act, 1948-S. 33-B - Certificated  landlord’s right  to  obtain  possession  of exempted land  from  excluded  tenant-  Requirements  to  be satisfied by landlord-Scope of proceedings under s. 33-B.

HEADNOTE:      Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948  provides that  every tenant  of agricultural land shall be  deemed to  have purchased  from his landlord as on April 1,  1957 (Tiller’s Day) the land held by him as tenant free from  all encumbrances.  However to  protect  petty  or small  landlords   against  statutory  compulsory  purchase, provision was  made in Part lI-A of Chapter lII read with s. 88-C  of   the  Act   enabling  them   to  obtain  exemption certificate under  s. 88-C.  While s.  33-A designates  such petty land lords as ’certificated landlords’ and tho tenants of such  exempted  lands  as  ‘excluded  tenants’,  s.  33-B confers a  special  right  on  a  certificated  landlord  to terminate the  tenancy of  the excluded tenant in respect of the exempted  land and  obtain possession of such land if he bona fide requires the same for cultivating it personally.      The land  in question  in this appeal had fallen to the share of  the respondent  in a  family partition.  The  bona fides of the partition was the main issue in the proceedings held under  s. 88-C for grant of an exemption certificate in favour of  the respondent.  However, the  order granting the certificate withstood  all challenge  from the  tenants  and became final.  In the  subsequent proceedings  instituted by the respondent  under S. 33-B for possession of the land the Tehsildar  arrived   at  the  finding  that  the  respondent required the  land bonafide for his personal cultivation and this finding  was confirmed by the Sub-Divisional officer in appeal and the tenants were directed to hand over possession of the  land to  the respondent.  The tenants filed revision applications before  the Revenue Tribunal which allowed them on the  ground that  the Sub-Divisional  officer had wrongly declined to  admit an  important piece  of evidence having a direct  bearing  on  the  question  of  bona  fides  of  the partition. The  respondent moved  the High  Court under Art. 227 and  the High  Court set  aside the  Tribunal’s judgment holding that  the bona  fides of  the  partition  which  had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

already been  agitated inter  partes in proceedings under s. 88-C could  not be  reconsidered in a subsequent proceedings under s.  33-B and  directed  the  Tribunal  to  decide  the revision in  accordance with  law. The Tribunal, taking note of the  fact that  the respondent had sold a piece of land 1 112  years   before  filing   the  present  application  for possession and  also that  he owned  house property in Poona City, came  to the  conclusion that  the respondent  did not bona  fide   require  the  land  in  question  for  personal cultivation and 823 dismissed  the  application  for  possession  of  land.  The respondent once  again moved  the High Court under Art. 227. The High  Court restored  the decision of the Sub-Divisional officer, holding  that the  Tribunal was in error in holding that in  order to obtain possession of land from an excluded tenant under  s. 33-B, it was obligatory upon a certificated landlord to  prove the compelling necessity to cultivate the land, and  that the  sale of land by the respondent prior to the commencement  of the present proceedings which was for a small price  did not  have an  adverse impact  on  his  bona fides.      Counsel  for   appellant-tenants  submitted  that  even assuming that  the High  Court was right in holding that the bona fides  of the partition could not be the subject matter of a  collateral attack  in the  present proceedings  as the same had  been considered  and decided  in proceedings  held under s.  88-C, still  the question  could be  gone into  to ascertain the  bona fides  of the  landlord when he moved an application under  s. 33-B  seeking  eviction  for  personal cultivation.      Dismissing the appeal, ^      HELD: It  is true  that a  certificated landlord is not entitled to  recover possession  from  the  excluded  tenant merely for  asking. He  can only  obtain the  direction  for possession if  he bona  fide requires  the exempted land for cultivating it personally. When it is said that the landlord bonafide requires  possession  of  the  land,  it  would  be necessary for  him to  prove that  he is acting honestly and that the  application for  possession is  not  a  device  to dispossess the  tenant and  that he  requires, in  the sense needs possession  of, the  land for personal cultivation. In other words, personal cultivation is necessary to obtain the yield of  the land  for himself. Some element of requirement could inhere  the requirement for maintenance by undertaking the avocation  of personal  cultivation. lt  is not that the landlord even  if he  has sufficient  source of maintenance, can seek  possession merely  because he  wants to pursue the avocation of cultivating the land personally but this aspect hardly ever  arises in  an application under s. 33-B because such an  application can  only be  made  by  a  certificated landlord and  none else and the certificated landlord is one whose holding  does not  exceed an economic holding. As long as the  certificate of exemption under s. 88-C subsists, two inferences flow  therefrom: that  the landlord is a petty or small land  holder and  that  his  annual  income  from  all sources including rent of land does not exceed Rs. 1,500. lt is the  bonafide requirement  of  such  a  small  and  petty landlord for  personal cultivation  that has  to be examined under s. 33-B. It may be that while examining the bona fides of the  requirement of  the certificated landlord, the court may take  into account  how the landlord became the owner of the land  and, if  it is by partition, the bona fides of the partition may be examined. [830 G-H; 831 A-D]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

    Arvind Lal  Bhukanda v.  Khandu, 63 B.L.R. 929 approved and distinguished.      In the  instant case,  the appellant-tenants  contested the proceedings initiated by the landlord for certificate of exemption under  s. 88-C  at all levels and on all available contentions, the principal one being the nature and 824 character of  the partition.  That  contention  having  been concurrently negatived  cannot be  re-opened. The  Tehsildar arrived at the finding that the respondent required the land bonafide for  his personal  cultivation and it was confirmed by the first appellate court which was the last fact-finding court. The  Tribunal interfered  with this  finding  on  the ground that  some important piece of evidence had been over- looked. The  finding cannot  be reopened  this state  on the short submission  that the  Court declined  to  examine  the genuineness or  validity or  bona  fides  of  the  partition particularly when  this very  question was  considered in an earlier round  of proceedings  and decided  in favour of the landlord. [832 E-F; 833 E-H]

JUDGMENT:      C[VIL APPELLATE  JURISDICTION: Civil Appeal No. 2896 of 1977.      Appeal by  Special leave  from the  Judgment and  order dated the  4th November,  1977 of  the Bombay  High Court in Special Civil Appln. No. 107 of 1977.      Y.  M.   Tarkunde,  P.   N.  Parekh   and  Mrs.   Manik Karanajuwala for the Appellants.      U. R. Lalit, V. N. Ganpule, Mrs. V. D. Khanna and Altaf Ahmad for the Respondents. ;      The Judgment of the Court was delivered by      DESAI,  J.   Two  decades   have  elapsed   since   the commencement of  the proceedings  involving a  simple  issue whether the  first  respondent  designated  as  certificated landlord is  entitled to  recover possession of land bearing Survey No.  14/A/2  admeasuring.  7  acres  and  13  gunthas situated at  Village Manjari  Badruk  Taluka  Haveli  Distt. Poona in  Maharashtra State  from the  appellants 1 to 3 who are heirs  of excluded tenant Shri Ghule and appellant No. 4 who is also an excluded tenant.      A brief  resume of  the various  proceedings leading to the present  appeal may  shed some  light on  a simple issue involved in this appeal.      One  Ramchandra  Gopal  Raykar,  father  of  the  first respondent landlord  leased  land  included  in  Survey  No. 14/A/2 to  two different  persons. Land  admeasuring 4 acres out of  total area  of 7 acres and 13 gunthas; was leased to Shri Anaji  Maruti Ghule.  Appellants No.  1 to  3 a,re  the heirs and legal representatives of Sh. Ghule. The 825 remaining 3  acres and  13 gunthas  of land  was  leased  to Vishnu Maruti Tilekar Appellant No. 4 in this appeal.      After a  partition in  the family  of the landlord, the Land involved  in this appeal fell to the share of the first respondent landlord. He moved an application under sec. 88-C of the  Bombay Tenancy  and  Agricultural  Lands  Act,  1948 (’Tenancy Act,  for short) praying for a certificate therein envisaged on the allegation that his holding does not exceed the economic holding and total annual income of the landlord including the  rent of  such land does not exceed Rs. 1,500. After an  enquiry made  by the  Mamlatdar as contemplated by sec. 88-C  (iii)  and  (iv)  an  exemption  certificate  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

granted to  the landlord.  The order  of the  Mamlatdar  was challenged by  the tenants upto the High Court of Judicature at Bombay, but the order of the Mamlatdar granting exemption certificate withstood  the challenge.  And  that  order  has become final.  The effect  of the  granting of  an exemption certificate is that, amongst others, provisions contained in secs. 32  to 32R  shall not apply to the land leased by such certificated landlord.  In other words, the excluded tenants of such certificated landlord shall not become the owners of the land on tho Tillers’ day i.e. Ist April, 1957.      Sec. 33-B  confers a right on the certificated landlord to terminate  the tenancy  of the  land in  respect of which exemption certificate is granted, and to make an application to  the   Mamlatdar  for   obtaining  possession   if   such certificated  landlord   bonafide  requires  such  Land  for cultivating  it   personally.  Accordingly   the  respondent landlord made  an application  on  March  29,  1962  to  the Mamlatdar having  jurisdiction in  the area  praying for  an order for  possession  of  the  land  in  respect  of  which certificate was  granted. This  application was  resisted by both the tenants raising various contentions, one such worth noticing being  that appellants  No. 1  to 3 were not served with the  statutory notice  as required by Sec. 33-B. In the meantime it, appears that the land bearing Survey No. 14/A/2 was put to auction to recover arrears of irrigation dues and the same  was purchased  for a consideration of Re. 1 by the Government. Taking note of this fact, the Mamlatdar rejected the application  of the  landlord observing  that he  had no title to  the land.  In an appeal by the landlord, the order of the  Mamlatdar was  set aside and the matter was remanded to the  Mamlatdar for  disposal according to law. A revision petition by  the appellants was dismissed by the Maharashtra Revenue Tribunal. Mamlatdar designated as Tehsildar, 826 on remand  held an  enquiry, recorded  a finding that notice terminating the  tenancy was served on present appellant No. 4, but it was not served on Appellants No. 1 to 3, the heirs of Anaji  Ghule. He  accordingly allowed  the application of the landlord  for possession against Appellant No. 4 Tilekar but dismissed  the same  against Appellants  No. 1 to 3, the heirs of Ghule.      For separate  appeals came  to  be  filed  against  the decision of  the  Tehsildar,  two  by  two  sons  of  Anaji, Appellants No.  2 and  3 herein, one by the landlord against the dismissal  of his  application against the heirs of Shri Ghule and one by Shri Tilekar against that part of the order by which he was directed to hand over possession of the land to the  landlord. All  the four  appeals were disposed of by the Sub Divisional officer with appellate powers by a common judgment. He held that there was effective service of notice on the  heirs of  Shri Anaji Ghule. All other contentions of tenants were  rejected with  the result  that appeal  by the respondent landlord was allowed and appeal by tenant Tilekar was dismissed. As a result, an order was made directing both the tenants  to hand  over possession  of land  comprised in Survey No, 14/A/2.      Four separate  revision applications were filed against the  order   of  the   Sub  Divisional  officer  before  the Maharashtra  Revenue  Tribunal.  By  a  common  judgment,  a learned member  of the Tribunal held that the Sub Divisional officer, while  disposing of the appeals wrongly declined to admit an  important piece of evidence which was sought to be produced before  him  by  the  tenants  and  that  piece  of evidence has  a direct  bearing on  the bona  fides  of  the landlord  and   therefore,  the   appellate  court  was  not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

justified in  shutting out  the evidence. In accordance with this finding,  the Maharashtra  Revenue Tribunal allowed the two revision applications filed by the tenants and set aside the order  of the  Sub Divisional  officer as well as of the Tehsildar and  remanded the  matter  to  the  Tehsildar  for decision afresh.  The judgment  of the  Maharashtra  Revenue Tribunal was  challenged by the landlord in a petition under Art. 227 of the Constitution being Special Civil Application No. 1794 of 1975.      A learned  Single Judge  of the  Bombay High Court, who heard the  petition was of the opinion that the partition in the joint family of the landlord had taken place before 30th March, 1960  and the  bonafides of the partition having been agitated inter-partes in the 827 proceedings under  sec. 88-C  initiated by  the landlord for obtaining the  exemption certificate upto the High Court and decided in  favour A of the landlord, the same cannot be re- opened and  re-considered in  a subsequent  proceeding under Sec. 33-B  under which  a certificated  landlord may sue for obtaining possession  from the  excluded tenant, the land in respect of which certificate is granted. Having reached this conclusion and  after examining  other contentions,  it  was held that  the Maharashtra  Revenue Tribunal was in error in holding that  the Sub  Divisional officer hearing the appeal committed error  in not allowing fresh evidence to be led at the appellate  stage because  a party has no right to adduce additional evidence in an appeal and there was no discretion in the  appellate authority  either to  accept or reject the additional evidence.  The learned  judge also  observed that the Sub  Divisional officer  has given  reason for rejecting the evidence.  Approaching the  matter from  this angle, the learned judge held that the Maharashtra Revenue Tribunal had no justification  to remand  the matter  for a further fresh enquiry when  the parties  had already  taken opportunity to make out their respective cases. Accordingly, the High Court set aside  the decision  of the Maharashtra Revenue Tribunal remanding the  matter to  the  Tehsildar  and  directed  the Tribunal to  decide the  revision applications  filed by the tenants in accordance with law.      Pursuant to this direction, the matter went back to the Maharashtra Revenue  Tribunal. It  was heard  by  a  learned member  of   the  Revenue   Tribunal.  The   learned  member formulated  the   point  for  decision  as  to  whether  the certificated landlord  has been  able to  establish that  he bonafide requires  the land  for personal cultivation. While examining  this   contention,  the  Tribunal  observed  that bonafide   requirement    for   personal    cultivation   as contemplated by Sec. 33-B envisages both the compelling need to cultivate  personally as  well as genuine intention to do so. The  learned member  took note  of  the  fact  that  the certificated landlord had told the land under sugarcane crop admeasuring 20  gunthas on  August 11,  1960 to  Bhiru  Bahu Ghule and  that the sale was effected 1-1/2 years before the certificated landlord approached the Tehsildar for obtaining possession of  the land from the excluded tenant. This sale, according to  the learned  member, raised considerable doubt about the  bonafides of  the landlord  because if  he had  a compelling  necessity   or  need   to  cultivate   the  land personally, he  atleast would  not have  sold the land which was in  his actual  possession. The learned member took note of the  fact that  landlord owns  a house  property in Poona City and that 828 once upon a time, the family was the owner of extensive land

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

holding. For  these reasons, the learned member held that he was not  satisfied that  the certificated  landlord bonafide required the  land involved  in  the  dispute  for  personal cultivation.   He    accordingly   allowed    the   revision applications of the tenants and dismissed the application of the landlord for obtaining possession of the land.      The   certificated   landlord   moved   Special   Civil Application No.  107 of  1977 in the Bombay High Court under Art. 227  of the Constitution questioning the correctness of the decision  of the  Maharashtra Revene Tribunal. A learned single judge  of the High Court, who heard the petition held that there  was an  error apparent on the face of the record when the  learned member  of the Tribunal held that in order to obtain possession of land by a certificated landlord from an excluded  tenant under  Sec. 33-B  it is  obligatory upon such landlord to prove the compelling necessity to cultivate the land. It was  observed that that element may be relevant and valid  in an  application under  Sec. 31  of the Tenancy Act, wherein  the landlord  has to  prove that  the land  of which he  seeks possession is the principal source of income for his  maintenance. The learned judge was of the view that the sale  of the  land admeasuring  20 gunthas  prior to the commencement of  the present  proceedings was  for  a  small price and  cannot have an adverse impact on the bonafides of the landlord.  Accordingly the  learned  judge  allowed  the application of  the landlord  and set  aside the decision of the Maharashtra  Revenue Tribunal  and restored the decision of the  Sub Divisional  officer directing  handing  over  of possession of  the land to the landlord. It is this decision of the High Court which is questioned in this appeal.      Sec. 32  of the  Tenancy  Act  ushered  in  an  era  of revolutionary change  in the life of the tiller of the soil. It provided  that every tenant of agricultural land shall be deemed to  have purchased  from his landlord on the Tiller’s day,  the   land  held  by  him  as  tenant  free  from  all encumbrances subsisting  on the  said  day  subject  to  the various  conditions   therein  provided  which  we  consider unnecessary  to   refer  here.   The   far-reaching   change introduced by Sec. 32 was noticed by a Constitution Bench of this Court in Sri Ram Ram Narain Medhi v. State of Bombay(1) wherein it was held that the 829 title of  the landlord to the land passes immediately to the tenant on  the Tiller’s day and there is a complete purchase or sale  thereby as between the landlord and the tenant. But the  Legislature  was  aware  that  there  was  a  class  of landlords who  if, by the operation of law, were deprived of the ownership of land would be worse of than the tillers for whose benefit  the provision was made. With a view to saving such petty landlords Part II-A was introduced in Chapter III of the  Tenancy Act  in 1961.  Simultaneously, Sec. 88-C was amended by  introducing a  non-obstante clause  which  would have  the  effect  of  excluding  the  land  of  such  petty landlords who  would  be  covered  by  Part  II-A  from  the operation of  Sec. 32  providing for  compulsory purchase of land by the tenant. Sec. 88-C provides that save as provided by Sec.  33-A. 33-B and 33-C nothing in Sec. 32 to 32R (both inclusive) shall apply to lands leased by any person if such land does  not exceed  an economic  holding  and  the  total annual income of such person including the rent of such land does not  exceed Rs.  1,500. In  other words, petty or small landlords wose  holding does  not exceed an economic holding as specified  in Sec.  6 and  whose total annual income does not exceed  Rs. 1,500  where sought  to be exempted from the operation of Sec. 32. Such petty or small landlords in order

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

to  save   their  land   from  becoming  subject  matter  of compulsory sale  by the  operation of  law were  required to obtain a certificate from the Mamlatdar as envisaged in Sec. 88-C. In  order to  obtain  the  exemption  certificate  the landlord had to make an application to the Mamlatdar and the Mamlatdar after  holding an  enquiry after  giving notice to the tenant  had to  decide whether  (1) the  holding of such landlord did  not exceed economic holding; and (2) his total annual income including the rent of such land did not exceed Rs.  1,500.   If  both   the  conditions  were  cumulatively satisfied, the  Mamlatdar had  to give  a certificate in the prescribed form  showing that  the land  of such landlord is exempt from  the operation  of Sec.  32. The effect would be that a  tenant of  such landlord  would not  become a deemed purchaser on  the Tiller’s day. Sec. 33-B provides that such landlord is  to be  designated as  certificated landlord and the tenant  of such land exempted from the operation of Sec. 32 was  to be  designated  as  excluded  tenant.  Sec.  33-B conferred a  special right  on the  certificated landlord to terminate the  tenancy of  the excluded tenant in respect of the exempted land and obtain possession if landlord bonafide required the  possession of  such land  for  cultivating  it personally. 830      Respondent landlord  is a  certificated  landlord.  The tenants-appellants had  challenged the proceedings initiated by  the   respondent  landlord   for   obtaining   exemption certificate under  Sec. 88-C  inter-alia contending that the partition in the family of the landlord was not bonafide and that it  was so  contrieved that  the  landlord  may  obtain advantage of sec. 88-C. This contention was negatived by the Mamlatdar hearing  the application  u/s 88-C  and the appeal against the  decision by  the tenants to the Collector and a revision petition  to the Maharashtra Revenue Tribunal and a petition under  Art. 227  of the  Constitution to the Bombay High Court  at the  instance of  tenants successively filed, all failed.  The net  outcome is that the partition was held to be  bonafide and  genuine. The  proceedings  between  the landlord and the tenant for exemption certificate under Sec. 88-C came  to an end with the decision of the High Court and the  grant   of  the   certificate  became   final  and  not questionable in  the present  proceedings which  could  have been commenced  only  by  a  landlord  who  has  obtained  a certificate of exemption.      The  first   contention  raised   on  behalf   of   the appellants-tenants was  that the  partition in the family of the landlord was neither honest nor bonafide nor genuine but it  was  contrived  with  a  view  to  obtaining  an  unfair advantage by  the respondent-landlord  by so  allocating the share that h can get benefit of the provision of Sec. 88-C.      The High  Court declined  to entertain  this contention presumably on  the ground that this very contention has been negatived by  all courts in the earlier round of proceedings u/s 88-C and it cannot be the subject-matter of a collateral attack  in   the  present  proceedings  which  can  only  be commenced after  proceedings under  Sec.  88-C  are  finally concluded between  the parties.  No serious exception can be taken to  this view of the High Court. But it was urged that even if  the  Court  may  not  re-examine  the  validity  or bonafides of  the partition,  the question can still be gone into to  ascertain the  bonafides of  the landlord  when  he moves an  application under  Sec. 33-B  seeking eviction for personal  cultivation.   It  is   undoubtedly  true  that  a certificated landlord  is not entitled to recover possession from the  excluded tenant  merely for  asking. He  can  only

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

obtained  the   direction  for  possession  if  he  bonafide requires such  land meaning  thereby the  land exempted from the operation of Sec. 32 for cultivating it personally. When it is said that the landlord bonafide requires possession of the land, it would be necessary for him to prove that 831 he  is   acting  honestly   and  that  the  application  for possession is not a device to dispossess the tenant and that he requires  in the  sense needs  possession of the land for personal cultivation.  In other  words, personal cultivation is necessary  to obtain  the yield  of the land for himself. Some element of requirement would inhere the requirement for maintenance  by   undertaking  the   avocation  of  personal cultivation. It  is not  for a  moment  suggested  that  the landlord even  if he  has sufficient source, of maintenance, he can seek possession merely because he wants to pursue the avocation of cultivating the land personally but this aspect hardly ever arises in an application under Sec. 33-B because such an  application can  only be  made  by  a  certificated landlord and  none else and the certificated landlord is one whose holding  does not exceed an economic holding and whose income from  all sources including the rent of the land does not exceed Rs. 1, 500 per annum. It is such a small or petty landlord whose  requirement for  personal cultivation has to be examined  under Sec. 33-B. It may be that while examining the  bonafides   of  the  requirement  of  the  certificated landlord, the  Court may  take into account how the landlord became the  owner of the land and if it is by partition, the bonafide of the partition may be examined. The view taken by the Bombay  High Court  in Arvindlal  Bhukanda v.  Khandu(1) that if  a partition is made in an unusual manner it may ave a bearing  on the  question of bonafides commends to us with this specific  reservation that the proceedings in that case arose under  Sec. 32  and not  under Sec.  33-B  as  in  the present case.  Having said  this, let  it be remembered that the appellants  tenants contested  the proceedings initiated by the landlord for certificate of exemption under Sec. 88-C at all levels and on all available contentions the principal being the nature and character of the partition. That having been concurrently  negatived, we are not disposed to re-open that question which even the High Court declined to examine. Till the  certificate of exemption under Sec. 88-C subsists, two inferences  now therefrom,  that the landlord is a petty or small  land holder and his annual income from all sources including rent of land does not exceed Rs. 1, 500. It is the bonafide  requirement   for  personal  cultivation  of  such landlord that the Court is called upon to examine.      After the  remand, the  Tehsildar on  the  question  of bonafide requirement recorded a finding as under: 832           "In  my   opinion  the   deposition  of   the      applicant in  regard to his requirement and income      is substantially  correct and  the opponents  have      not led  sufficient and  satisfactory evidence  to      displace the  conclusions arising from the reading      of his deposition as a whole .....................      Having given  anxious thoughts  to the evidence on      record, I am satisfied that the applicant requires      the land bonafide for personal cultivation".      This finding was confirmed by the first appellate court which  is  the  last  fact-finding  court.  The  Maharashtra Revenue Tribunal  interfered with  this finding and remanded the case  to the Tehsildar on the ground that some important piece of  evidence was  overlooked. This order of remand has been set  aside by the High Court on an earlier occasion. In

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

this background,  it would be too late in the day to re open this finding, at this stage on the short submission that the Court declined  to examine  the genuineness  or validity  or bonafides of  the partition,  and we are not disposed to re- open this  question more  particularly for  the reason  that this very  question in the earlier round of proceedings upto the High  Court was  concurrently  held  in  favour  of  the landlord  and   by  authorities  in  the  present  round  of proceedings.      It was  next contended that the High Court was in error in  interfering  with  the  order  of  remand  made  by  the Maharashtra Revenue  Tribunal. The  Tribunal set  aside  the concurrent findings  on the question of bonafide requirement of the  landlord  by  observing  that  the  appellate  court erroneously rejected  a piece  of evidence which the tenants sought to  produce at  the  appellate  stage.  The  Tribunal observed that  the delay  in producing  this evidence having been satisfactorily  explained, the  tenants ought  to  have been allowed  to produce the evidence which has some bearing in the  issues arising  in the matter. The piece of evidence sought to  be produced at the appellate stage by the tenants was bearing on the question of bonafide of the partition. It is  the   same  contention   differently  clothed.  In  this connection,  the   Tribunal  observed   that   despite   the proceedings under Sec. 88-C having finally concluded between the parties:  "It was still open to the tenants to show that the manner  in which the partition was effected and the time chosen therefore  and particularly  the fact that the entire tenanted land was allotted to the share of one copar- 833 cener to the exclusion of others has an important bearing on the question  of bonafides."  This view  was  sought  to  be supported by relying upon Arvindlal Bhukhanda v. Khandu. The High Court  in a petition under Art. 227 while setting aside the order  of remand  observed that  the delay  in producing additional  evidence   was  unexplained   looking   to   the protracted proceedings commencing from 1962 and the bonafide of  the   partition  was   not  questioned,  except  at  the revisional stage.      Mr. Tarkunde,  learned  counsel  for  respondents  took serious exception  to the second observation and pointed out that it  is contrary  to record. In this connection, he drew our attention  to Point  No. 5 framed by the Tehsildar while holding the enquiry after the remand which was as under:      "5.  Whether the partition made by the landlord is           valid. And  whether it  can be  challenged in           these proceedings?" He recorded  a finding  that there  was a  partition in  the landlord’s family  in 1959 and the same cannot be challenged in the  present proceedings,  In the  appeal by the tenants, the Appellate  Court  disposed  of  the  contention  on  the bonafide of  the partition  by  observing  that  he  was  in agreement  with   the  reasoning   of  the   Tehsildar.  The Maharashtra Revenue Tribunal in the revision petition by the tenants held  that  once  a  certificate  is  granted  to  a landlord under  Sec. 88-C  on  the  basis  that  he  is  the exclusive owner  of the land it is not open to the tenant in an enquiry  under Sec. 33-B to challenge the partition under it. In  support of  this view,  the Tribunal relied upon two un-reported decisions  of the  Bombay High Court and finally observed that  it is futile to challenge the validity of the partition. It  thus appears  that High  Court  committed  an error apparent  on record  while observing that the validity of partition  was questioned  for  the  first  time  at  the revisional stage.  But having  said this  it  must  also  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

pointed out  that the  contention raised by the tenant about the bonafides  of partition  in the  proceedings under  Sec. 33-B has been rightly negatived on the short ground that the bona fides,  genuineness and  validity of  the partition was directly and substantially in issue in the proceedings under Sec. 88-C  and concurrently  held in  favour of the landlord upto the  High Court  and  the  same  must  be  held  to  be concluded between the parties and on 834 this short  ground, the  decision of  the High Court setting aside the order of remand can be confirmed.      In the  view that  we take  in the circumstances herein discussed, the  bonafides of  the partition cannot be put in issue, the  contention raised by Mr. Tarkunde becomes a non- issue  and   it  will  also  dispose  of  his  supplementary contention that  the  Sub  Divisional  officer  hearing  the appeal was  in error  in declining to give an opportunity to the  tenants   to  produce  additional  evidence  which  was primarily for  the purpose of showing that the partition was neither genuine  nor bonafide.  And in  our opinion  in  the facts of this case it is no more relevant.      Incidentally it  was urged that the landlord is staying at Poona  and that  he is  florist and  the land involved in dispute is  at Village  Manjari  and  therefore  it  is  not possible to  believe that  the landlord  would  be  able  to personally cultivate  the land  or that he can undertake the avocation of cultivation of land by investing funds when the area available  is less  than an economic holding. These are pure questions  of facts  concurrently held in favour of the landlord and  we are not disposed to re-examine them at this stage and at this distance of time.      One aspect which, frankly has dominated out thinking is the relative  economic position  of tenants  and landlord in this case.  Anaji Ghule  was a  tenant of  4 acres  out of 7 acres and  13 gunthas  of  land  comprising  in  Survey  No. 14/A/2. Tilekar was a tenant of the remaining 3 acres and 13 gunthas. Anaji  Ghule died leaving behind him two sons and a widow, who are appellants No. 1 to 3. Appellant " Krishnabai the widow  holds excluding  the leased  land 16 acres and 17 gunthas of  land; first  son Shivaji  8 acres and 9 gunthas, and Bala  the second  son 8  acres and  10 gunthas  of land. Presumably all  the three inherited the land from Shri Ghule and therefore  the total  holding would  be 32  acres and 36 gunthas of land. And it is interesting to note some features of  the   partition  effected   by  tenants’  heirs  amongst themselves. The  widow is  allotted double the share of each son. There  is nothing  to show that the mother and two sons have separated.  And their  total holding is 32 acres and 36 gunthas. As  against the  holding of first set of tenants of 32 acres  and 36 gunthas, the landlord seeks possession of 4 acres of land. In the case of Tilekar he holds 8 acres and 4 gunthas and  the landlords  3 acres and 13 gundhas. Would it be fair to deny this very reasonable request in 835 appeal under  Art. 136  when all  authorities including High Court have  held in  favour of this petty small landlord. We decline to interfere.      Accordingly this  appeal fails and is dismissed with no order as to costs. H.L.C.                                    Appeals dismissed. 836