Holding

The bonafides of the partition cannot be reopened in s.33‑B proceedings; the certificated landlord need only prove honest personal cultivation need, and the earlier findings in his favour stand.

Summary

The case concerned a certificated landlord who, after obtaining an exemption certificate under s.88-C of the Bombay Tenancy and Agricultural Lands Act, 1948, sought possession of land from excluded tenants under s.33-B, claiming he needed it for personal cultivation. The tenants challenged the landlord's claim, arguing that the partition which gave him the land was not bona‑fide and that his sale of part of the land and ownership of a house indicated a lack of genuine need. The Supreme Court held that the bonafides of the partition, already decided in the earlier s.88‑C proceedings, could not be reopened in the s.33‑B action, and that the landlord need only demonstrate honest, personal cultivation need, not a compelling necessity. The Court affirmed the earlier findings that the landlord acted bona‑fide and dismissed the appeal.

Issues considered

Whether a certificated landlord must prove compelling necessity or merely bona‑fide personal cultivation to obtain possession under s.33‑B.
Whether the bonafides of the partition that resulted in the exemption certificate can be re‑examined in s.33‑B proceedings.
Whether appellate authorities may admit fresh evidence at the revision stage in a s.33‑B dispute.
Whether the prior sale of a portion of the land and ownership of other property affect the landlord's bona‑fide claim.

Legislation cited

Bombay Tenancy and Agricultural Lands Act, 1948s. 32, s. 33-A, s. 33-B, s. 33-C, s. 88-C
Constitution of Indias. Art. 227

Subjects

Bombay Tenancy and Agricultural Lands Actcertificated landlordexcluded tenantsection 33-Bbona fide personal cultivationpartitionexemption certificateArt. 227possessionlandlord‑tenant law

Judgment

KRISHNABAI ANAil GHlJLE AND OTHERS
'
v.

NIVRUTTI RAMCHANDRA RAYKAR AND ANOTHER •

September 5, 1983
B •
(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.
c
Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948
provides that every tenant of agricultural land shall be deemed to have pur-
t
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
D 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.
E
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
F 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
G 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
H 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
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 A
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. ·
• B
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.
c
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 D
cultivati;g it personally. When it" is said· that the landlord bona fide requires
possession of the land, it would be neceSsary for him to prove that he i.s acting
\,.. honestly and that the application for possession is not a device to dispossess
4- 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 requirenient could
inhere the requirement for maintenance by undert::iking the avocation of
personal cultivation. It is not that the landlord e\en if he has sufficient source
of maintenance, can seek posse:;sion 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 t_e 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 certi-
ficate of exemption under s. 88-C subsists, two inferences flow therefrom : that
the landlord is a petty or small land holder arid that his annual income from
all sources including rent of land does not exceed R5, 1,500. lt is the bona fide
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 bana
/ides of the requirCment of the certificated lalldlord, the court may take into
account how the landlord became the owner of the land and, if it is by G
pa~ition, the. bona/ides of the partition may be examined. [830 G-H; 831. A-D]

Arvind Lal Bhukanda v. Khandu, 63 B.L.R. 929 approved and
distinguish~d.

B
In the ~nstant cas~. the appellant-tenants contested the proceedings
initiated by the landlord for certificate of exemption under s. 88-C at all levels
and on all availab]e contentions, the principal one being the natur_e and
824 ' SUPREME COURT'llEPORTS (!983) 3 s.c.R.
character of the partition. That contention having been concurrently nega-
A tived cannot be re-opened. The Tehsildar arr.ived at the finding that the
respondent required the land bona fide for his personal cultivation and it was
confirmed by the first appellate court which was the last fact-findiug court.
The· Triborial interfered with this finding on the ground that some important
piece of evidence had been over-looked. The finding cannOt be re-opened at
this stage on the short submission that .the Court declined to eX.amine·· thC
genuiqeness or validity or bona fides of the partition particularly when this
B very question was considered in an earlier round of proceedings and decided
in favour of the landlord. [832 E-F; 833 E-HI _

CIVIL APPELLATf JURISDICTION : Civil Appeal No. 2896 of
1977.
•
c Appeal by Special leave from the Judgment and Order dated·
the 4th November, 1977 o.fthe Bombay High Court in Special Civil
Appln. No. 107 of 1977.

V. M. Tarku11de, P. JJ. Parekh and Mrs. Manik Karanajawala
D for the Appellants.

U. R. La/it, V. N. Ganpule, _Mrs. V. D. Khanna and Alta/
Ahmad for the Respondents. )
-+
The Judgment of the Court was delivered by
E
DESAI, J. Two decades have elapsed since the commencement
of the proceedings involving a simple issue whether the first respon-
dent designated as certificated landlord is entitled to recover possession
of land bearing Su~vey No. 14/A/2 admeasuring 7 acres and.
F 13 gunthas situated at Village Manjari Badruk Tahika Haveli Distt.
Poona in Maharashtra State from the appellants I 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
G, appeal may .shed some light on a simple issue involved in this
appeal.

One Ramchandra Gopal Raykar, father of the first re~p6ndcnt
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. I
to 3 are the heirs and legal representatives ·Of Sh. Gh.ule. The
I
it.A. GllULE V. N.R. RAYKAR (Desai, J.) 82$

remaining 3 acres and 13 gunthas of land was leased to Vishnu
Maruti Tilekar Appellant No. 4 in this appeal. . A

After a partition in the family of the landlord, the land
involved in this appeal fell to the share of the first respondent.land-
lord. He moved an application under sec. 88-C of the Bombay
Tenancy and Agricultural Lands Act, 1948 ('Tenancy Act, for short) B
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 Jarid 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
granted to the landlord. The order of the Mamlatdar was challenged
c
by the tenants upto the High Court of Judicature at Bombay, but
the order of the Mamlatdar granting exemption certificate wit~stood
the challenge. And that order has become final. The effect of the
granting of an exemption certificate is that, amongst others, provi-
sions contained in secs. 32 to 32R shall not apply to the land leased D
by such certificated .landlord. In other words, the excluded tenants
of such certificated landlord shall not become the owners of the
land on the Tillers' day i.e. 1st April, 1957.

Sec. 33-B confers a right on the· certificated landlord to termi- E
nate the tenancy of the land in respect of which exemption certificate
is granted, and to make an application to the Mamlatdar for obtain-
ing possession if such certificated landlord bonafide requires such
land for cultivating it personally. Accordingly the 'fespc.ndent land-
lord made an application on March 29, 1962 to the Mamlatdar
having jurisdiction in the area praying for an order for possession F
of the land in respect of which certificate was granted. This appli-
cation was resisted by both the tenants raising , various contentions,
one such worth noticing being that appellants No. I 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
G
was purchased for a consideration of Re: I by the Government;
Taking note of this fact, the Mal)llatdar rejected the application of
thelandlord 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 H
matter was remanded to the Mal)llatdar for disposal according to
law. A revision petition by the appellants was dismissed by the
Maharashtra-Revenue Tribunal. Mamlatdar designated asTel)-sildar,

•
. , slii>RBME co\JRt R.Etioirrs [i983) 3 s.c.R..

GU remand held an enquiry, recorded a finding that notice termi-
A nating the tenancy was served on present appellant No. 4, but it was
not served on Appellants No. I 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. I to 3, the heirs of Ghule.
B
For separate appeals came to be filed against the decision of
tl;le Tehsildar, two by two sons of Anaji, Appellants. No. 2 and 3
Herein, one by the landlor<! against the dismissal of his application
against the heirs of Shri Ghule and one by Shri Tilekar against that
gart of the order by which he was directed to hand over possession
c o:fl: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 Gliule. All other contentions of tenants were
rejected with the result that appe~l by the respondent landlord was
D 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 Divi;ional Officer before the Maharashtra Revenue
E Tribunal. By a common judgment, a learned member of the Tribu-
nal 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 pwduced before him by the tenants and
that'.piece of evidence has a direct bearing on the bonafides of the
F landlord and therefore; the appellate court was not 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 ti)e order of the Sub Divisional
Officer as well as' of the Tehsildar and remanded the matter to the
Tchsildar for decision ~fresh. The judgment of the Maharashtra
G -Revenue Tribunal was challenged by the landlord in a petition under
Art. 227 ·of the Constitution
of1975.
.
. being Special Civil Application No. 1794

· . A learned Single Judge of the Bombay High Court, who heard
H ttie petition was of the opinion that the partition in the joint family
of.the landlord had taken place before 30th March,. 1,960 and the
bonafides of the partition having been agitated inter-partes in the

•
K.A. GHULE v. N.R. RAYKAR (Desai, J.) 827

proceedings under sec. 88-C initiated by the· landlord for obtaining
the exemption certificate upto the High Court and decided iu 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
B
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 thitt
the Sub Divisional Officer has given reason for rejecting the evidence.
Approaching the matter from this angle, the !ear_ned judge held that
th~ '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 D
Tribunal remanding the matier to the Tehsildar and directed the
Tribunal to decide the revision applications filed by the teµailts in
+- accordance with law.

Pursuant to this direction, .the matter went back to the
E
Maharashtra Revene Tribunal. It was heard by a learned member
of the Revenue Tribunal. The learned member formulated the point
for decision.: as to wheiher the certificated landlord has been able \o
establish that he bonafide requires the land for personal cultivation:
While examining this contention, the Tribunal observed that bonafide F
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 sold the land under sugarcane
crop admeasuring 20 gunthas on August 11, '1960 to Bhiru Bahn
Ghule and that the sale was effected Ii years before the certificated G
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 land-
lord because if he had a compelling necessity or need to cultivate
the land personally, he atleast would not have sold the land which
H
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 SUPREME COURT REPORTS . (1983) 3 s.c.R.

once upon a time, the fafuily was the owner of extensive land· holdin~.
A For these reasons, the learned. member held that he was not satisfied
that the certificated landlord bonafide required the land invplved 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.
B
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 o~he
Maharashtra Revene Tribunal. A learned single judge of the High
c 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 land·
lord 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
D application under Sec. ·31 of the Tenancy Act, wherein the landlord
has to prove that the· 1and· 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
E 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 fa
this appeal.
'F
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·
G 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 f~r-rcaching change introduced by Sec. 32 was
. noticed by a Constitution Bench of this Court in Sri Ram Ram
H Narain Med/ii v. State of Bombay(1) wherein it was held that the -~

(1) {1959j Suppl. I S.C.R.489 at SIS.
K.A. GHULE v. N R. RAYKAR (Desai, J.) • 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 A
. as between the landlord and the tenant. But the Legi.slature 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 lal)dlords Part II-A was introduced in B
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 pro·
viding for compulsory purchase of land by the tenant. Sec. 88-C
provides that save as provided by Sec. 33-A. 33-B and 33·Cnothing c
in Sec. 32 to 32R (both inclusive) shall apply to lands leased by any
1
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. ] ,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 D
where sought to be exempted from the operation of Sec. 32. Such
·petty or small landlords in orde~ 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 E
. had to make an applicati<in 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. l ,500. If both the condi·
tions were cumulatively satisfied, the Mamlatdar had to give a certi- F
ficate in the prescribed form showing -ihat 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-A provides that such landlord is to be
designated as certificated landlord and the tenant· of such land G
exempted from the operation of Sec. 32 was to be designated as
excluded tenant. Sec. 33-B conferred a special right on the certi-
ficated landlord to terminate the tenancy of the excluded tenant in
respect of the exempted land and obtain possession if landlord
bonafide required the posseesion of such land for cultivating it H
· personally.
830 SUPREME COURT REPORTS (1983) 3 s.c.R.

Respondent landlord is a certificated landlord. The tenants•
A appellants had challenged the proceedings initiated by the respondent·
landlord fer obtaining exemption certificate under Sec. 88-C inter-
a/ia 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
B the Mamlatdar hearini:. 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 pro-
c ceedings between the landlord and the tenant for exemption certi.
ficate 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 question·
able in the present proceedings which could have been commenced
only by a landlord who has obtained a certificate of exemption.
D
The first contention rais·ed on behalf of the appellants-tenants
was that the partition in the fainily of the landlord was neither honest
nor bonafide nor genuine but it was contrived with a view to obtain-
ing an unfair advantage by the respondent-landlord by so allocating
E the share that he can get ben.efit of the provision of Sec. 88-C.

The High Court declined to entertain this contention presumably
on the ground that this very conten.tion has been negatived by all
courts in the earlier r.ound of proceedings u/s 88-C and it cannot be
F the subject-11\atter 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 bonafidcs of the parti·
_tion, the question can· still be gone iuto to ascertain the bonafides
G 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 ob:ained the direction
for possession if he bonofide requires such land meaning thereby the -+
H la~d exempted from the operation of Sec. 32 for cultivating it·
personally. When/ it is said that the landlord bonojide requires
possession of the land, it wo,uld be necessary for him to prove that
K.A. GHULE v. N.R. R"YK,\R (Desai, J.) 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 A
possession of the land for personal cultivation. In oiher words,
personal cultivation is necessary to obtain 1he 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
B
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 certi-
ficated landlord .and none else and the certificated landlord is one.
whose holding does not exceed an economic holding and whose ·c
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
repuirement of the certificated landlord, the Court may take into
account how the landlord became the owner of the land and if it is D
by partition, the bonafide of the partition may be examined. The
view taken by the· Bombay High Court in Arvindlal Bhukanda v.
Khaitdu(') that if a partition is made in an unusual manner -it may
have a bearing on the question of bonafides commends to us with
this specific reservation that the proceedings in that case arose under E
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 flow
a
therefrom, that the landlord is petty or· small land holder and his
annual income from all sources including rent of land does not
exceed RS. l, 500. It is the bonafide requirement for personal culti- G
vation 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 :
ll
(I) 63 B.L.R. 929.
. '

832 SUPREME COURT REPORTS (1983) 3 S.C.R.

"In my opinion the deposition of the applicant in
A 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 (he reading of.his deposition as a whole .............. ..
... ...... ... .. Having given anxious thoughts to the evidence
B on record, I am satisfied that the applicant requires .the
land bonafide for. personal cultivation".

'l'his finding was confirmed by the fint appellate court which is the
last fact-finding court. The Maharashtra Revenue Tribunal interfered
c 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 ha.s been set aside by the High Court on an earlier
.occasion. In 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
D the partition, and w~ are not disposed to re-open this question more
particularly for the reason that this very question in the .earlier rciund
of proceedings upto the High Court was concurrently held in
favour of the landlord and by authorities in the presen1 round of
proceedings.
E
· 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
F 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 satis·
factorily 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
G
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
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was effected and the time chosen therefore and particularly the fact
that the entire tenanted land was allotted to the share of one copar·
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K.A. GHULE '· N.R. RAYKAR (Desai, J.) 833.

cener to the exclusion of others has an important bearing on the

r question of bonafides_.'' This view was sought to be supported by.
relying upon Arvindla/ 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 un·
explained looking to the protracted proceedings commencing from ..
1962 and the bonafide of the partition was not questioned, except at
A

B
the revisional stage.

Mr. Tarkunde, learned counsel for respondents took serious
exception to the second observation and pointed out that it is con·
trary to record. In this connection, he drew our attention to Point C
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 D
proceedini:s?"

He recorded a finding that there was a partitfon iq 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 E
disposed of the contention on the bonafide of the partition by observ·
ing 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 be is the exclusive owner of the land it is
not open to the tenant in an enquiry under Sec. 33-B to challenge F
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 rccoro while observing that the validity of partition was
G
questioned for the first time at the revisional stage. But having said
this it must also he pointed out that the contention raised by the
tenant about the bonafide!i. of partition in the proceedings under Sec.
33·B has been rightly negatived on the short ground that the bona·
t fides, .genuineness and validity of the partition was directly and H
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
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834 SUPREME COURT. REPORTS [!983) 3 b,C,R.

this short ground, the decision of the High Court setting aside the
A 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. Tarktind~'becomes a non-issue and it will also dispose
B of his supplementary contention that the Stib Divisional Officer
hearing the appeal was in error in declining to give a1i -opportunity
to the tenants to produce additional eyidence which was primarily for
the purpose of showil\g that the partition was neither genuine nor
bonafide. And in our opinion in the facts of this case it is no more
relevant.
c
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 under-
D take 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 n.ot disposed to re-examine them at this stage and at this distance
of time.
E
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 guntbas of land
comprising· in .Survey No. 14/A/2. Tilekar was a tenant of the
F remaining 3 acres and 13 gunthas. Anaji Gbule 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 Janel ; first son Sbivaji 8 acres .and 9 gunthas, and Bala
the second son 8 acres and I 0 guntbas of land. Presum.ably all the
three inherited the land from Shri Ghule.and therefore the total hold-
G ing would be 32 acr~s 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 lll.Other and two sons have,
separated. And their total ·holding is .32 acres and 36 gunthas. -As·
against ihe holding of first set of tenants of 32 .acres and 36 gunthas,
H
the landlord seeks possession of 4 acres of land. In the case of
Tilekar be holds· 8 acres and 4 gunthas and the landlords 3 acres and
13 gunthas. Would it l:>e fair to deny this very reasonable request in
K.A. GHULE v. N.R. RAYKAR (Desai, J.) 835

appeal under Art. 136 when all authorities including High ·Court
have held in favour of this petty small landlord. We decline to A
interfere.
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Accordingly this appeal fails and is dismissed with no order as
to costs.

H.L.C . Appeals dismisseii.
B

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