Shri Ajival Gracious vs Smt. Dominica Charles Gracious, ...
2004 Latest Caselaw 872 Bom

ORDER

A.M. Khanwilkar, J.

1. The land in question is agricultural land bearing survey No.72 of Village Malwani in Taluka Borivali (Bombay Suburban District). Mrs. Dominica Charles Gracious was the said landlady in respect of the said land. It appears that in proceedings under Section 32G of the Bombay Tenancy And Agricultural Lands Act (hereinafter referred to as 'the Act'), the original Respondent/landlady conceded the claim of the petitioner, on the basis of which, purchase price in respect of suit land was determined. Two years later, she preferred appeal before the Appellate Authority, questioning the correctness of order passed under Section 32G proceedings. The appeal was dismissed on the ground of delay as well as on merits that since the landlady consented and invited the order, it was not open to her to file appeal. The Revisional Court, however, at the instance of the original Respondent/landlady reversed that decision and was pleased to set-aside the order passed by the Authority below.

2. Before this Court, several contentions have been raised on behalf of the Petitioner to assail the correctness of the approach as well as the conclusion of the Revisional Court. For the time being, suffice it to observe that in the Writ Petition, it is stated on affidavit that the original Respondent/landlady was not widow on the Tillers day i.e. 1st April 1957, and if it is so, the Petitioner, being in lawful cultivation of the suit land on the Tillers day, has become deemed purchaser by operation of law. In other words, if this contention of the Petitioner is to be accepted, then no other argument need to be examined in detail.

3. To get over this position, Mr.Hombalkar for the Respondent contends that this is a question of fact and has been raised for the first time before this Court, which ought not to be permitted. The fact remains that the Respondents has not filed any reply controverting the assertion made in the Writ Petition and if that fact is correct, then it goes to the root of the matter. To support the stand taken in the Writ Petition, Mr.Karandikar for Petitioner has pressed into service copy of the Death Certificate in respect of the husband of the original Respondent, who died on 22nd December 1964.

4. Instead of going into this aspect for the first time, the appropriate course, to my mind, is to invite finding of the Appellate Authority on the question as to whether the original Respondent was widow on 1st April 1957. Both the parties shall appear before the Appellate Authority and produce evidence in support of the said position. The Appellate Authority, after giving opportunity to both the sides, shall return a clear finding about the said fact. This course I am persuaded to adopt, as the litigation has been pending since 1982 when the Application for fixation of purchase price was made by the Petitioner. The Appellate Authority to forward the finding to this Court within six weeks from today.

5. Both the parties to appear before the Appellate Authority on 23rd August 2004, on which date, they shall produce necessary evidence to support their respective case, on the basis of which, the Appellate Authority shall record a finding on the issue as referred to above and forward the same to this Court within the specified time. Since this is the only question to be decided before the Appellate Authority, the Appellate Authority may proceed with the enquiry on the aforesaid fact, without waiting for the original record and proceedings which are pending in this court.

6. Stand over eight weeks.

7. All concerned to act on the zerox copy of this order, duly authenticated by the Sheristedar of this Court.