LexKRISHNABAI ANAJI GHULE AND OTHERS versus NIVRUTTI RAMCHANDRA RAYKAR AND ANOTHER
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B c D E F G H KRISHNABAI ANAil GHlJLE AND OTHERS ' v. NIVRUTTI RAMCHANDRA RAYKAR AND ANOTHER • September 5, 1983 (D. A. DESAI AND R.B. MISRA, JJ.] Bombay Tenancy and Agricultural Land, Act, 1948_;.S, 33-B-Certificated landlord's right to obtain posseJsion of exempted land from excluded tenarrt- Requirements to be satisfied by·land/ord-Scop.e of proceedings under s. 33-B. Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 provides that every tenant of agricultural land shall be deemed to have pur- chased from his landlord as on April I, 1957 (Tiller'• Day) the land held by him as tenant free.from all encumbrances. However to protect petty or small landlords against statutory compulsory purchase, provision w.as made in Part II-A of Chapter III read with· s. 88-C of the Act enablin& them to obtain exemption certificate under s. 88-C. Whiles. 33-A designates· such petty land- _lords as 'certificated landlords' and the 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 bonajides of the partition was the main issue in the prOceedings held undet s. 88-C for grant of an exe?lption certi- ficate 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 a,t the finding that tbe respondent .required the land bona fide 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. Th~ tenants filed revision appli- cations before the Revenue Tribunal which allowed them on the .grotind that the Sub-Divisional Officer had wrongly declined to admit an important piece of evidence having a direct beil.ring on the question ·of bona/ides of the parti· tion. The r(:spondent moved the. Hig'h Court under Art. 227 and the High Court set aside the Tribunal's judgment holding that the bona fides of the partition which had already been agitated inter par/es in proceedings under · · s. 88·C could nol 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 tact that the respondent had sold a. piece of land l 1/2 years before filing the present application for possession and also that he owned hou·se property in Poona City, came to the conclusion that the respon· dent did not bona fide require .the land in question for personal cultivation and • t • It.A. OHULE V; N.R. RAYKAR 823 dismissed the application-for possession of ,land. The respondent once aaain 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 tCnant' 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 r~spondent prior to the commencement of the present proceedin&s which was -for a small price did not have an adverse impact ?D his bona fides. · Counsel for appetlant~tenants submitted that even assuming that the High Court was right in holding th~t the bon~ fides or the partition could not "be the subject matter of a collateral attack in the present proceedings as the same had been considered and decided iri proceedini:s he1d 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 cllltivation. Dismissing the appeal, HELD : It is true that a certificated landlord is not entitled to recover possessio~ from the excluded tenant merely for asking. He can only obtain the direction for possession if he bona fide requires the exempted land for cultivati;g it personally. When it" is said· that the landlord bona fide requires possession of the land, it would be neceSsary for
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