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Bhikaji Yeshwant Vs. Secretary of State - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 49 of 1936
Judge
Reported inAIR1946Bom203; (1945)47BOMLR843
AppellantBhikaji Yeshwant
RespondentSecretary of State
Excerpt:
.....entries are final and conclusive-whether civil court has jurisdiction to question such entries-decision affections numerous people-desirability of resorting to provision of order 1, rule 8, civil procedure code (act v of 1908).;entries made in a botkhat or settlement register in accordance with a government resolution are final and conclusive under section 20 of the khoti settlement act, 1880, and the civil court has no jurisdiction to inquire into the question whether the amount of rent so recorded is correct or not.;where the decision in a suit is likely to affect a large number of people, in order to avoid delay it is desirable to resort to the provisions of order i, rule 8, of the civil procedure code, 1908. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu,..........he, therefore, held that by virtue of the provisions of sections 17 and 20 read together, the entry was conclusive and the suit was barred on that ground. that decision is sought to be challenged in this appeal on the ground that there are extracts in the botkhat containing the orders passed by mr. madan as well as mr. willis. but the answer to that contention is that these extracts are not entries in the botkhat. they are part of what might be called a roznama or the diary of the case, but the actual entries are contained in exhibit 40(3) and they contain the entries made in 1929. it is these entries that are conclusive and not any prior decision, which might not have been put into effect. in my opinion, therefore, the appellant has failed to show that the decision of mr. willis is.....
Judgment:

Divatia, J.

1. This is an appeal by the plaintiff, who is one of the knots of the village of Salaste in the Ratnagiri District. He sought for a declaration that the Government Resolution No. 1394|24 of November 29, 1929, and the entries made in the botkhat in accordance with that Resolution are illegal and unjust. He prayed for the cancellation of the entries and a declaration that the occupancy tenants are liable to pay rent at two and a quarter times the assessment. The contending defendants were the occupancy tenants of the village and the remaining defendants sided with the plaintiff as they were all khots having a common interest.

2. The main point in the case was whether the entry in the botkhat made in accordance with the Government Resolution of 1929 can be challenged by the plaintiff in this suit. Both the lower Courts have held that under Section 20 of the Khoti Settlement Act, 1918, such entries are final and conclusive and that the civil Court has, therefore, no jurisdiction to inquire into the question as to whether the amount of rent was correctly recorded or not. The lower Courts have found upon the evidence that Mr. Madan the Assistant Collector in 1927 had fixed the rent of the occupancy tenants at two and a quarter times the assessment. No entry was made in the settlement register in terms of the order. Later on the Assistant Collector Mr. Willis also passed a decision by which the rent was to be increased at three times the assessment. But the finding of the lower appellate Court on that point is that that order of Mr. Willis was never carried into effect and that it was conceded on behalf of the plaintiff-appellant that Mr. Willis disposed of the tenants' petition for commutation for failure to reach a satisfactory conclusion. The learned appellate Judge further found that no entries were made in the settlement register or botkhat, as it is called, in accordance with the decision of Mr. Willis. He, therefore, held that by virtue of the provisions of Sections 17 and 20 read together, the entry was conclusive and the suit was barred on that ground. That decision is sought to be challenged in this appeal on the ground that there are extracts in the botkhat containing the orders passed by Mr. Madan as well as Mr. Willis. But the answer to that contention is that these extracts are not entries in the botkhat. They are part of what might be called a roznama or the diary of the case, but the actual entries are contained in exhibit 40(3) and they contain the entries made in 1929. It is these entries that are conclusive and not any prior decision, which might not have been put into effect. In my opinion, therefore, the appellant has failed to show that the decision of Mr. Willis is an entry by itself. Even assuming that an entry might have been made at one time in accordance with that decision, if it is subsequently changed, then the changed entry becomes final and conclusive under Section 20 of the Act. The decision of the lower Court that the entries cannot be challenged in a civil Court is correct. The appeal is dismissed with costs.

Stone, C.J.

3. I agree.

4. I desire to observe that in this case the judgment in the appellate Court below was given as long ago as September 9, 1935, so that for over nine years and five months that decision, which affects a large number of people and their tenancies, could not be treated as conclusive. That is a very shocking state of affairs. It is a hardship on the public which this Court will do its best to alleviate. Now the reason for it is that over fifty persons were made defendants to this suit and the result of deaths and difficulties of service have in fact accounted in a large measure to the delay. This case, in my opinion, was clearly one in which the provisions of Order I, Rule 8, ought to have been resorted to. That rule says as follows:

Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested.

5. Now the dispute in this case was as to whether Government were right in altering an assessment or whether what Government did was in effect ultra vires. It is quite clear in my opinion that the khots on the one hand and the tenants on the other could have been represented in these proceedings by a single representative and that application to the Court under Order I, Rule 8, ought to have been made.

Divatia, J.

6. I express my concurrence with the view of the learned Chief Justice about the desirability of resorting to the provisions of Order I, Rule 8, of the Civil Procedure Code, in cases of this type.


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