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Ulawappa Basawaneppa Hugar Vs. Gadigewa Hugar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 159 of 1924
Judge
Reported inAIR1925Bom477; (1925)27BOMLR948
AppellantUlawappa Basawaneppa Hugar
RespondentGadigewa Hugar
DispositionAppeal allowed
Excerpt:
.....to pay revenue does not afford much evidence of title.;a sanad given under section 133 of the land revenue code 1879, after due enquiry, in the form in schedule h, is itself a document of title.;there was a survey number for which the plaintiffs were granted a sanad in 1912 by the collector under section 133 of the land revenue code 1879. on a portion of the survey number, the plaintiffs' house was situated; and on another portion stood a house belonging to defendants. the remainder of the survey number which was an open site was in plaintiffs' possession, but the defendant dispossessed them in 1920. the plaintiffs having sued to recover possession in 1921 :-;(1) that the court would be justified in holding that there was a presumption in favour of the plaintiffs that they were in..........judge referred to the sanad issued to the plaintiffs in 1902 under section 183 of the bombay land revenue code. the judge said :-the sanad means that the plaintiffs' father was at that time registered in the collector's books as the occupant of no 274, the collector's books are kept for the purposes of revenue. they indicate the person who is or would be liable for the payment of land assessment. they do not indicate any title as between a subject and a subject they do not oven afford a certain index of actual possession. it is clear that in the present case the plaintiffs' father, although he was the registered occupant of no. '274, was nevertheless not in actual possession of the whole of that number.4. now it is quite true that an entry in the collector's books that a certain.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiffs sued to recover possession of the site described in the plaint The defendants replied that the site did not belong to plaintiffs; that it belonged to the defendants; that the plaintiffs were never in possession; and that as they were not in possession within twelve years next before suit, the suit was time-barred.

2. The trial Court held that the suit site belonged to the plaintiffs; that it was in their possession within twelve years next before suit, and that the suit was not barred by limitation.

3. In appeal the District Judge referred to the sanad issued to the plaintiffs in 1902 under Section 183 of the Bombay Land Revenue Code. The Judge said :-

The sanad means that the plaintiffs' father was at that time registered in the Collector's books as the occupant of No 274, The Collector's books are kept for the purposes of revenue. They indicate the person who is or would be liable for the payment of land assessment. They do not indicate any title as between a subject and a subject They do not oven afford a certain index of actual possession. It is clear that in the present case the plaintiffs' father, although he was the registered occupant of No. '274, was nevertheless not in actual possession of the whole of that number.

4. Now it is quite true that an entry in the Collector's books that a certain person is the occupant and liable to pay revenue, does not afford much evidence of title. But when a sanad is given under Section 133, after due injury, in the form in Schedule H, the sanad itself is a document of title. It contains these words 'you are hereby confirmed in the said occupancy exempt from all land revenue, (or subject to the payment of KM... per annum to land revenue). The terms of your tenure are such that your occupancy is both transferable and heritable, and will be continued by the British Government.'

5. On the survey number was a house belonging to the plaintiffs and also a similar house which apparently has been in the possession of the defendants and their predecessors. With regard to the portion of the survey number covered by that house, the defendants will have acquired a title by adverse possession. But with regard to the remainder of the survey number, we think the Court would be justified in holding that there was a presumption in favour of the plaintiffs that they were in possession, considering the nature of the land, under the title given to them by the sanad, and it would lie upon Anybody disputing the plaintiffs' title to show that they had acquired a title by adverse possession. The defendants, therefore, were bound, if they wished to dispute the plaintiffs' claim, to prove that they had been in adverse possession of the suit land for more than twelve years before the date of the suit. We do not see that they have proved anything of the sort. No doubt they were in possession of certain portions of the land which they were cultivating, but to what extent and for how long, they have not led any evidence. We do not think then it was incumbent upon the plaintiffs, once they proved the sanad, to show that they were in possession within twelve years of the date of the suit. We cannot agree, therefore, with the District Judge when he says that the plaintiffs have not proved their title to the plot in suit, and title having been proved, it seeing to us that possession can be presumed. Otherwise any trespasser might enter upon the laud, and when the plaintiffs sought to eject him, he might answer that the plaintiffs would have to show that they were in possession within twelve years of the suit. That, considering the nature of the land, although adjacent to the plaintiffs' house, might be an extremely difficult matter for the plaintiffs to prove, and considering the circumstances of the case, we think they ought not to be called upon to prove it against a trespasser.

6. We think, then, the decision of the District Judge cannot be supported; the appeal must be allowed and the decree of the trial Court restored with costs throughout.


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