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Ramijyabi Maktumsaheb Vs. Gudusaheb - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 39 of 1950
Judge
Reported inAIR1952Bom387; (1952)54BOMLR405; ILR1952Bom1019
ActsBombay Hereditary Offices Act, 1874 - Sections 4 and 12; Bombay Rent-free Estates Act, 1852 - Sections 10; Bombay Revenue Jurisdiction Act, 1876 - Sections 4; Code of Civil Procedure (CPC), 1908 - Sections 9; Phadnis's Watan Act, 1936 - Sections 4; Bombay Land Revenue Code - Sections 3(16); Phadnis Hereditary Offices Act
AppellantRamijyabi Maktumsaheb
RespondentGudusaheb
Appellant AdvocateG.R. Madbhavi, Adv.
Respondent AdvocateV.N. Lokur, Adv.
Excerpt:
hereditary offices act (bom. iii of 1874), section 4 - bombay rent-free estates act (xi of 1852), exemptions from land-revenue acts (nos. i and ii) (bom. ii and vii of 1863), rules framed under, --watan property continued with holder without services and with full levy of assessment-- effect of such continuance--whether property ceases to be watan property--rules framed under act of 1852 whether abrogated by rules framed under acts of 1863 regarding resumption.;if property which was originally watan property is continued with the holder thereof, but without the holder having to render services and with the full levy of assessment from him, the effect of such continuance is that the property ceases to be watan property and is converted into a ryotwari holding in which the holder is.....vyas, j.(1) this letters patent appeal arises cut of a suit no. 166 of 1945 which was filed by the plaintiff for recovering possession of survey no. 51/1 of the village saptasagar in athni taluka and of 2 1/2 'gunthas' of land out of survey no. 157/2 of the same village, mr. justice bavdekar having reversed in second appeal the decisions of the two courts below and having ordered the dismissal of the plaintiff's suit with costs throughout.(2) the relevant pedigree is to be found at typed page 4 of the paper book. one jhambhai had two sons, rajesaheb and farid. rajesaheb died on august 1, 1943. his son bapusaheb had predeceased him in the year 1913. the present plaintiff ramijabi is the daughter of bapusaheb, in other words, the grand-daughter of rajesaheb. farid's son is ghudu who is the.....
Judgment:

Vyas, J.

(1) This Letters Patent appeal arises cut of a suit No. 166 of 1945 which was filed by the plaintiff for recovering possession of Survey No. 51/1 of the village Saptasagar in Athni Taluka and of 2 1/2 'gunthas' of land out of Survey No. 157/2 of the same village, Mr. Justice Bavdekar having reversed in second appeal the decisions of the two Courts below and having ordered the dismissal of the plaintiff's suit with costs throughout.

(2) The relevant pedigree is to be found at typed page 4 of the paper book. One Jhambhai had two sons, Rajesaheb and Farid. Rajesaheb died on August 1, 1943. His son Bapusaheb had predeceased him in the year 1913. The present plaintiff Ramijabi is the daughter of Bapusaheb, in other words, the grand-daughter of Rajesaheb. Farid's son is Ghudu who is the present defendant.

(3) The suit lands, out of which Survey, No. 51/1 was originally a 'shetsanadi inam', were at one time the joint family properties of Rajesaheb and Farid. At a partition which took place between them the suit lands fell to the share of Rajesaheb. On May 28, 1943, Rajesaheb executed a gift-deed of the present suit properties in favour of his grand-daughter, the present plaintiff. He died nearly two months later on August 1, 1943. On November 24, 1943, the present defendant Ghudusaheb, who is the son of Rajesaheb's brother Farid, applied to the revenue authorities to restore Survey No. 51/1 to him on the ground that it was 'japti sanadi' land and therefore inalienable under the provisions of the Bombay Hereditary Offices Act, 1874 (Bom. Act No. III (3) of 1874). On August 28, 1945,the Prant, Officer ordered the land to be restored to the defendant. At that time the possession of the land, be it noted, was with the donee, namely, the present plaintiff, who had obtained it by virtue of the gift-deed passed in her favour by her grandfather Rajesaheb.

The defendant got possession of the land in pursuance of the above mentioned order of the Prant Officer on August 30, 1945, and that led to the institution of the present suit on October 2, 1945, by the plaintiff. The plaintiff brought the suit contending that the land Survey No. 51/1, which was originally 'shetsanadi inam' land, was converted into a 'rayatwari' holding in course of time by the commutation of service and by the levy of full assessment, in other words, by the withdrawal of the remuneration which at one time had attached to the performance of the service, the remuneration being the freedom from payment of assessment. It was contended by the plaintiff that after the service had ceased to be taken from the holder of the land and after the full assessment had started to be levied from the holder of the land, the original 'watan' character of the land was lost and the land became a 'rayatwari' holding, and that after that, the provisions of Act III (3) of 1874 had ceased to be applicable to this land. In other words, the contention of the plaintiff was that the land had become the private property of her grandfather after its conversion into a 'rayatwari' holding and had been gifted to her by him and therefore she was entitled to recover back possession thereof from the defendant to whom the possession had been ordered to be given by the Prant Officer by his order dated August 28, 1945.

(4) Both the trial Court and the lower appellate Court accepted the case of the plaintiff that by reason of the commutation of service and the levy of full assessment the original 'watan' character of the property was lost and that the land had been converted into a 'rayatwari' holding, in other words, had become the private property of Rajesaheb and had become the property of the plaintiff by virtue of the gift-deed executed by Rajesaheb in her favour. Accordingly the suit was decreed in favour of the plaintiff by the trial Court and that decree was confirmed in appeal by the learned Judge of the lower appellate Court.

(5) The learned Judge of the lower appellate Court in his judgment pointed out that it was undisputed in this case that since long the performance of sanadi services had been dispensed with and the full assessment was levied in respect of the suit lands, and he came to the conclusion that the suit lands had become 'rayatwari' lands by reason of the above mentioned facts, namely, (1) commutation of services and (2) levy of full assessment which meant the withdrawal of remuneration for services which were once being rendered. He relied on 'LIMBAJI v. RAMA'. 1898 Bom P J 127, in which it has been held that shetsanadi inam is 'watan' property and that the remuneration which the holder of a shetsanadi inam receives from Government is the exemption from payment of a fraction of the assessment and the said feature of remuneration is an essential feature of the property being 'watan' property. He referred to the two sets of rules, one framed under Act XI (11) of 1852 and the other framed under the above mentioned Act and Act VII (7) of 1863 and also referred to the cases of 'YELLAPPA v. MARLINGAPPA'. 12 Bom L R 577 and VISHNU v. SHANKAR', 35 Bom L R 114. He then pointed out that the former was a case in which the facts were governed by the old set of rules' and the latter was a case in which the new rules were considered and then expressed his view in the following words:

'To my mind, however, it is really immaterial for the purposes of deciding the point in issue whether it is the old rules of 1865 or the new rules of 1908 apply. The result would be the same. In view of the fact that the services have been dispensed with and full assessment is levied on the lands, the only effect in law, according to the ratio decidendi' in the two rulings would be to make the holders occupants and convert the holdings into ordinary 'rayatwari' holdings.'

That was the view which was taken in 'YELLAPPA v. MARLINGAPPA', where the rules [hat governed the case were the rules framed under Act XI (11) of 1852, in other words the old set of rules, and it was also the view which was taken in 'VISHNU v. SHANKAR', where the rules which were considered were both the sets of rules, namely, the set of rules which were framed under Act XI (11) of 1852 and the set of rules which were framed under Act VII (7) of 1863.

(6) In second appeal Mr. Justice Bavdekar also referred to the two sets of rules just referred to and said that the learned Judge of the lower appellate Court was wrong when he observed that it did not make any difference whether the action which was taken, namely, the commutation of services and the withdrawal of remuneration, was taken under one or the other set of rules and went on to observe:-

'The property may continue to be 'watan' property, notwithstanding the fact that full assessment has been levied and services have been dispensed with,'

and eventually concluded:--

'If action has been shown to have been taken under the old rules, then, the ruling in 'YELLAPPA v. MARLINGAPPA', 12 Bom L R 577 will apply. If, however, action has not been shown to have been taken under those rules, then, if at all, action must be shown to have been taken under the rules quoted at page 248 of Phadnis's Watan Act, 1936 edition, and there must be produced an order from a Collector which purports to be under the rules at page 248 of the Phadnis's Watan Act. Inasmuch as the plaintiff is not in a position to say under which rules, as a matter of fact, action was taken & she is not in a position to produce any order from the Collector showing that action was taken under the present rules, it is obvious that it cannot be said that an order has been passed by a competent authority which would change the character of the property as 'watan' property.'

It is this conclusion which Mr. Madbhavi for the original plaintiff is challenging in this Letters Patent appeal before us.

(7) Now, the point for our decision in this case is this: If the property which was originally watan property is continued with the holder thereof, but without the holder having to render services and with the full levy of assessment from him, what is the effect of such continuance on the nature of the property, i.e., whether the property still continues to be watan property or whether it is converted into a rayatwari holding in which the holder is invested with the rights of an ordinary occupant.

(8) This question has come up before this Court on occasions more than one. In 'YELLAPPA v. MARLINGAPPA' 12 Bom L R 577, the case was one in which the plaintiff had brought a suit to obtain a declaration of his title to, and to recover possession of, certain lands. The lands in dispute were originally held by one Bashya, a registered Shetsanadi, who died on November 10, 1865. Under the rules regarding resumption &c.; framed under Bombay Act XI (11) of 1852, Schedule B, Section 10, the Government continued the lands to the family of Bashya on condition of their paying full survey assessment upon them. The order that was passed by the Collector in that case on February 28, 1866, was in the following words:

'Your proposal is approved. But the vahivat of the lands should be with the heirs of the deceased. The assessment to be paid to make up the deficiency should be Paid and the excess amount should be credited to Government.' '

A new Shetsanadi (defendant No. 2 in that suit) was appointed by Government and he was remunerated from out of the extra assessment levied upon the lands in the hands of the heirs of the preceding Shetsahadi. The rules under which the above arrangements were made, which were rules framed under Act XI (11) of 1852, -- in the present judgment we may refer to them as 'the old set of rules' -- provided as follows:

'1. The Honourable the Governor in Council affirms the principle that the lands of a Shetsanadi are liable to be resumed and given to another if the holder misconducts himself. In reserving this right, however, the Governor in Council rules that it shall be exercised only in cases of extreme misconduct.

3. In ordinary cases of misconduct, the dismissed Shetsanadi will be allowed to remain in possession of the land, but the lands will be subjected to full assessment and to a further payment if necessary, to make up the remuneration of the person employed to perform service.

5. Whenever a Shetsanadi is discharged without fault because the service is no longer required the land will remain in his possession subject to the survey assessment and no further demand can be made.'

It is to be noted that under the above mentioned rules the Government had no power to resume the lands except in cases of extreme misconduct. Where the misconduct committed by the holder of the lands was an ordinary misconduct, it was not competent to the Government to resume the lands, but what the Government could do was to allow the holder to remain in possession of the lands and subject the lands to full assessment and to a further payment, if necessary, in the circumstances of the case, to make up the remuneration of the person who might be appointed to perform the service. Where, however, there was no misconduct on the part of a 'Shetsanadi' and where he was discharged without fault because the service was no longer required, it was not competent again to the Government to resume the lands, but the lands had to be allowed to remain in possession of the holder subject to the survey assessment and no further demand was to be made from the holder. It is to be remembered that it was in pursuance of the above mentioned Rule 3 of the old set of rules that the Collector passed the order on February 28, 1866, saying:

'Your proposal is approved. But the vahivat of the lands should be with the heirs of the deceased. The assessment to be paid to make up the deficiency should be paid and the excess amount should he credited to Government.'

On that order being passed, the lands in dispute went into possession of Yellava, the mother of Bashya, the original holder. On February 16, 1876. Yellava sold the lands to the plaintiff and put him in possession. Defendant No. 2, the newly appointed Shetsanadi, instituted in 1883 certain proceedings in the Revenue Department, alleging that the lands should be taken from the plaintiff and given over to him. The revenue authorities decided the matter against defendant No. 2. In 1905 he again agitated the same question and this time he was successful. In those proceedings it was finally decided by the Commissioner on February 6, 1906, that the lands should be resumed from the plaintiff and made over to defendant No. 2. The plaintiff filed a suit on June 9, 1906, joining the Secretary of State for India as defendant No. 1 and the newly appointed Shetsanadi as defendant No. 2. The District Judge decreed the suit of the plaintiff observing in the course of his judgment as follows (12 Bom L R 579):--

'The heirs of the deceased had to pay full assessment to Government and had no further obligation of any sort. It need hardly be added that they were in no way concerned with the manner in which Government might deal with the assessment levied. They ceased to be Shetsanadis and no longer enjoyed the exemption which had been allowed to them while they were still Shetsanadis. From the date of the Collector's order they became ordinary occupants as defined in Section 3 (16) of the Land Revenue Code and it will hardly be suggested that, holding as they did in that capacity, their aliened would legally be Subjected to the treatment meted out to him in this case.'

In other words, the learned District Judge came to the conclusion that in pursuance of the Collector's order dated February 28, 186'6, the lands had ceased to be 'watan' lands and the heir of the original holder had become an ordinary occupant as defined in Section 3, Sub-section (16), of the Bombay Land Revenue Code, and the provisions of the Watan Act had ceased to have any application. Defendant No. 2 went in appeal to the High Court and it was held by Chandavarkar, J. as follows (p. 580):--

'It has not been contended before us, nor does it appear to have been contended in the Court below by either of the defendants, that the orders passed and the action taken by the Collector in consequence of those orders in 1865 were illegal. One of the rules then in force and having the force of law under Act XI (11) of 1852 provided that, in case of the discharge of a Shetsanadi without fault, but because his service was no longer required, his shetsanadi land should be allowed to remain in his possession, subject to the survey assessment, and that no further demand could be made........The shetsanadi service required of Bashya's branch of the family was dispensed with upon the ground that there was no necessity for it; full survey assessment was imposed upon the land; and Bashya's heir was allowed to remain in possession, subject to the survey assessment. After that, no further demand could be made from the person let into possession on that condition. Both the order passed and the action taken under the rule had in law the effect of converting the land from a shetsanadi watan into a ryotwari holding and investing the holder of the land with the rights of an ordinary occupant, entitled to it so long as he paid the survey assessment.'

(9) In 'VISHNU v. SHANKAR', 35 Bom L R 114, it was the contention of the appellant's advocate that the 'shetsanadi' lands were no longer such, as the full assessment had been levied upon them and the services had been dispensed with and therefore they were no longer 'watan' properly, even supposing they were so originally. In the course of his judgment Baker, J. went on to point out (p. 116):--

'......Therefore, when full assessment on these lands is levied, the remuneration for the officiator goes, and the property is no longer assigned for remuneration for the performance of the duty appertaining to a hereditary office.'

He went on to observe (p. 116):--

'......The powers of the Collector or rather of Government to deal with the watan under the rules made under Act XI (11) of 1852 or Bombay Acts Nos. II (2) and VII (7) of 1863 ......are expressly reserved under Section 1 of the Hereditary Offices Act. There could be no doubt, therefore, as to the power of the Government to convert the lands into an ordinary 'ryotwari' tenure by dispensing with the services and withdrawing the remuneration, and although it has been argued by the learned advocate for the respondent that a hereditary office may continue even when the services originally appertaining to it have ceased to be demanded. I do not think, in view of the ruling in 'YELLAPPA v. MARLINGAPPA', 12 Bom L R 577/nfcitation>, and the definition of watan in Section 4 of the Watan Act, that where not only the services have been dispensed with, but also the remuneration for those services has been withdrawn, any question of the property still remaining watan property can arise.'

It is to be noted with particular emphasis that Baker, J. in that case had both the sets of rules before him, in other words the rules framed under Act XI (11) of 1852 and also the rules under Acts II (2) and VII (7) of 1863. It is also to be remembered that a contention was raised before him also, as it is raised before us, that a hereditary office might continue even when the services originally appertaining to it had ceased to be performed. His attention was particularly invited to Bombay Act III (3) of 1874, and, after a full consideration of both the sets of rules which were before him and the definition contained in Section 4 of Bombay Act III (3) of 1874 and after an examination of the arguments which were advanced before him that an hereditary office might continue even when the services originally appertaining to it had ceased to be demanded and performed, he came to the conclusion that where not only the services had been dispensed with, but also the remuneration for those services had been dispensed with, no question of the property still remaining watan property could arise.

(10) With the above conclusion of Baker, J., Broomfield. J. fully agreed. He also in a short concurring judgment said (p. 117):--

'......The effect of the rules is that lands which were originally watan may be converted into ordinary ryotwari lands by the levy of the full assessment. On the pleadings and the admitted facts in this case, I agree with my learned brother that it is permissible to assume that that has been done in this case, as it was held to have been done in 'YELLAPPA v. MARLINGAPPA', 12 Bom L R 577.'

Mr. Justice Broomfield also referred to both sets of rules when he said (p. 117):--

'These rules have been referred to in Phadnis' Hereditary Offices Act, 4th Edition, at p. 277 and also in 'YELLAPPA v. MARLINGAPPA.'

Presumably, the rules which were then to be found in the 4th edition of Phadnis's Hereditary Offices Act at page 277 are now to be found at page 243 in the fifth edition of Phadnis's Watan Act, published in 1936. The rules which were referred to in 'YELLAPPA ., MARLINGAPPA', were of course the old set of rules. Naturally, therefore, Mr. Justice Broomfield also considered both the sets of rules and came to the conclusion that the land which was originally a 'watan' land could be converted into ordinary 'ryotwari' land by the levy of the full assessment and by the commutation of the service.

(11) The ratio of the above mentioned two decisions in 'YELLAPPA v. MARLINGAPPA', 12 Bom LR 577 and 'VISHNU v. SHANKAR' 35 Bom LR 114 is that if an action is taken either under one set of rules or the other, which has resulted in the continuance of the land, which was originally 'watan' land, with the holder, but without the holder having to render services and with the levy of the full assessment on the land from the holder, the original 'watan' character of the land is lost and the land is converted into ordinary 'ryotwari' holding in which the holder is invested with the rights of an ordinary occupant under the Land Revenue Code.

(12) In his judgment in second appeal Bavdekar J. also referred to the two sets of rules and said that the applicability of a particular set of rules would depend on when the action was taken, i.e., when the commutation of service and the levy of full assessment had occurred. His actual observations are: 'One set of the rules or the other will apply in accordance with the period at which action was taken.' Bavdekar J. then went on to say:

'The property may continue to be 'watan' property, notwithstanding the fact that full assessment has been levied and services have been dispensed with,'

and observed that,

'It is only when action is taken under the rules which are framed under one or the other of the Acts that property may cease to have the character of 'watan' property......'

Then he went on to say that if action had been shown to have been taken under the old rules, then the ruling in 'YELLAPPA v. MARLINGAPPA' 12 Bom LR 577, would apply. In his opinion, however, the plaintiff was not in a position to show under which rules, as a matter of fact, the action was taken, and was not in a position to produce any order from the Collector showing that the action was taken under the present rules. Therefore, Bavdekar J. came to the conclusion that it could not be said that an order was passed in this case by a competent authority which would change the character of the property as 'watan' property.

(13) Now, it is true that in this case there are two sets of rules, as we have pointed out already in this judgment, namely, one set framed under Act XI (11) of 1852 and the other set framed under Act VII (7) of 1863. The difference between the two sets of rules does not mean that the first set of rules was abrogated by the second set of rules. In our opinion, there was no such abrogation, but the difference lies in this that whereas under the former, namely, the old set of rules, it was not competent to Government to order the resumption of land except in the case of extreme misconduct and all that the Government could do was to continue the land with the original holder thereof without taking any service from the holder but charging the full assessment from him, under the later rules which were framed under Act XI (11) of 1852 and Act VII (7) of 1863, it was competent to the Government to do any one of the three things which are mentioned at page 249 of Phadnis's Watan Act, 5th edition, 1936.

If the Collector was at any time satisfied that the service, in respect of which lands were originally granted as watan lands, was no longer performed or that the performance of the service was no longer necessary, etc., the Collector may in his discretion direct either (1) the resumption of such lands, or (2) the continuance of the same, subject to such new conditions as he shall deem fit to impose, or (3) the resumption of a portion of such lands and the continuance of the rest thereof, subject to such conditions as aforesaid. In other words, the Collector could do any one of the three things. He could either resume the lands, which were originally granted as watan lands, to Government, or he could continue the lands with the holder subject to such conditions as he may think fit to impose, e.g., he could continue the lands in possession of the original holder on payment of full assessment, as was done in our present case, or he may resume a portion of the lands and allow the remaining portion to continue in the possession of the original holder subject to such conditions as he may deem fit to impose.

The point to be noted with particular emphasis in this connection is that the old rule which provided for the continuance of the land with the original holder on the commutation of the service and on the levy of the full assessment from him was not abrogated by the new set of rules. Even under the new set of rules, if the Collector came to the conclusion that the performance of the service was no longer necessary or that the service was no longer performed, he could, amongst other things, continue the land with the original holder subject to such conditions as he might think fit to impose, and he might impose a condition of levying the full assessment, as he did in this case.

If the Collector, however, does not wish to continue the land in possession of the original holder, which power he had even under the old rules but only in case of extreme misconduct on the part of the holder, he may resume the land wholly to Government or may resume it partially to Government and may allow the remaining portion of it to continue in possession of the holder. Therefore, the position which emerges from, a consideration of both the sets of rules is that once there is taken an action, no matter whether that action is taken under the one set of rules or the other, of continuing the land in the possession of the original holder, without the holder having to render service and on his paying the full assessment, the effect of the said continuance is the conversion of the original 'watan' land into a 'ryotwari' holding. This is the 'ratio' of the decisions in 'YELLAPPA v. MARLINGAPPA', and 'VISHNU v. SHANKAR'.

(14) It is clear from the judgment of Bavdekar J. recorded by him in second appeal that he seems to have taken the view that as soon as the new set of rules was framed under Act XI (II) of 1852 and Act VII (7) of 1363 the former set of rules was abrogated. With respect, we are unable to agree with that view. Apart from the fact that there is nothing in the Act of 1863 and the new set of rules to suggest that the old set of rules was superseded or abrogated thereby, it is to be remembered that in 'VISHNU v. SHANKAR', although this Court had both the sets of rules-before it, it was held that the decision in 'YELLAPPA v. MARLINGAPPA', which was a case under the old set of rules, was good law, which would not have been the conclusion of this Court had it been of the view that the old set of rules was abrogated by the new set of rules. In our opinion, the old set of rules was not abrogated by the new set of rules and the continuance of the land, which was originally watan land, with the holder thereof on the commutation of service and on the levy of full assessment could be ordered both under the old rules as well as under the new rules, as we have seen that one of the courses which could be taken by the Collector under the new rules would be to order the continuance of the land on such conditions as are deemed fit by him.

(15) Mr. Lokur for the respondent, while commenting on the decisions in 'YELLAPPA v. MARLINGAPPA', and 'VISHNU v. SHANKAR', has contended before us that those were cases in which only the old rules were considered and the new rules were not before the Court and that therefore, to the present case which is governed by the new rules, those decisions would not apply. The argument is also apparently based on the contention that the old set of rules had stood abrogated when the new set of rules was framed. In the first place, as we have just pointed out, there was no abrogation of the old rules by the framing of the new rules and, in the second place, it is not correct to say that in 'VISHNU v. SHANKAR', what was before the Court was only the old set of rules. Baker J. in his judgment in terms has referred to the fact that both the sets of rules were before him. To use his words (p. 116):

'The powers of the Collector or rather of Government to deal with the 'watan' under the rules made under Act XI (11) of 1852 or Bombay Acts Nos. 11(2) and VII (7) of 1863......... are expressly reserved under Section 1 of the Hereditary Offices Act.'

It is, therefore, clear that not only the rules framed under Act XI (11) of 1852 were before him, but also the rules framed under Acts II (2) and VII(7) of 1863 were before him. In other words both the sets of rules were before him in 'VISHNU v. SHANKAR', and both the sets of rules were considered by him along with the definition of watan property contained in Section 4 of Bombay Act III(3) of 1874. Broom-field J. has also made it clear in his judgment that both the sets of rules were considered by him. When he referred to the rules at p. 277 of Phadnis's Hereditary Offices Act, 4th edition, he obviously referred to the new set of rules which are now to be found in the fifth edition of the same book at p. 248, and of course of the older rules he referred by saying that they were to be found in the case of 'YELLAPPA v. MARLINGAPPA'. It is not therefore correct to say that the decision in 'VISHNU v. SHANKAR', would not apply to the facts of the present case because the new set of rules was not considered in that case.

(16) The next argument of Mr. Lokur, which is adopted from the judgment of Bavdekar J. for the reasons stated by him, is that the property may continue to be watan property, notwithstanding the fact that full assessment has been levied and services have been dispensed with. Bavdekar J. has referred to the definition of watan property which is to be found in Section 4 of Bombay Act III(3) of 1874 in support of his view that the property may continue to be 'watan' property, notwithstanding the fact that full assessment has been levied and services have been dispensed with. His observations on this point are:

'......watan property has been defined in the Watan Act, as I had occasion to point out in an earlier judgment in 'IBRAHIM NANUSAHEB v. ABDUL RAHIMAN', as property not only held but acquired for providing remuneration for the performance of the duty appertaining to an hereditary office. It is true that the whole definition of watan property is 'movable or immovable property, held, acquired, or assigned for providing remuneration for the performance of the duty appertaining to an hereditary office,' but the word 'or' makes it quite clear that property may be 'watan' property even though it is no longer held or assigned for providing remuneration for the performance of the duty appertaining to an hereditary office.'

With great respect, we are unable to follow the reasoning contained in the above mentioned quotation from the learned Judge's judgment. When we consider the fact that watan property is property held, acquired or assigned for providing remuneration for the performance of the duty appertaining to an hereditary office, it is difficult indeed to understand how the property can continue to retain the nature of 'watan' property even after the cessation of the performance of the duty. Moreover, this very point had come up for consideration and this very argument was raised and examined in 'VISHNU v. SHAN-KAR'. 35 Bom LR 114. There also it was contended before the learned Judges that a hereditary office might continue even when the services originally appertaining to it had ceased to be demanded and their view was that

'where not only the services have been dispensed with, but also the remuneration for those services has been withdrawn, any question of the property still remaining 'watan' property'

cannot arise. Broomfield J. also in his concurring judgment in that case agreed with the above mentioned view of Baker J. and said:

'The effect of the rules is that lands which were originally 'watan' may be converted into ordinary 'ryotwari' lands by the levy of the full assessment.'

It is therefore clear that Mr. Baker J. & Broom-field J. who carefully examined the definition of 'watan' property as embodied in Section 4 of the Watan Act & who also considered the argument advanced before them that the property might continue to retain the character of 'watan' property even after the services originally appertaining to the property had ceased to be performed, came to the conclusion that the property could not continue to remain as 'watan' property after the services had ceased to be performed and after the full assessment had started to be levied from the original holder thereof. In these circumstances, Mr. Lokur's argument based on the judgment of Bavdekar J. namely, that the property may continue to be watan property, notwithstanding the fact that full assessment has been levied and services have been dispensed with, must be rejected.

(17) Proceeding further, Mr. Lokur drew our attention to the fact that in exh. 5 which was attached to the plaint the property was mentioned as japti inam and he also referred us to exh. 6 in which too the property has been mentioned as japti sanadi. In our opinion, the expression 'japti sanadi' only means that the 'watan' character of the property was divested and lost by the discontinuance of service, and the withdrawal of remuneration which, had attached to the performance of the service. After all, the two essential features of the watan property are: (1) the performance of service and (2) the grant of remuneration in that connection; and when both the features ceased to exist, namely, when the services had ceased to be performed by the original holder of these properties and when the remuneration which was granted to him was also withdrawn in so far as full assessment had started to be levied from him, it is clear that the original character of the property as 'watan' property was lost and the property was converted into 'ryotwari' holding and that, in our opinion, was meant when the expression 'japti sanadi' was used in exhs. 5 and 6.

Mr. Lokur has sought to argue that 'japti sanadi' meant that the property had only temporarily ceased to bear the character of watan property. In support of this contention, Mr. Lokur has not been able to cite any authority before us, and that being so, we must put a reasonable construction, namely, that when the features which are invariably associated with watan property were withdrawn from this property by the commutation of the service and the levy of the full assessment from the holder, the property ceased to possess the character of watan property and acquired the character of ryotwari holding, and, in our opinion, in that loose sense the expression 'japti sanadi' was used in exhs. 5 and 6. Our attention was also invited by Mr. Lokur to exh. 58, which is a copy of the Inam Register, in which we find:

^^lnj nqljk gqdqe gksbZ rks i;ZrtIrh eSr okjl eqyxk ?kwMw ;kps ukaos nk[ky dj.ksa**

From this a contention was made by Mr. Lokur that the continuance of the land with the original holder on conditions that the services were not to be performed and that the full assessment was to be paid by him was only ordered temporarily and that it did not amount to a permanent conversion of the land into ryotwari holding. This argument also failed to impress us. In the first place, merely the words 'subject to further orders' are not, in our opinion, sufficient to show that the action which was taken by the Collector was intended to hold good only temporarily. Besides, if we turn to the rules, the old rules or the new rules, we do not find anything therein to show that a conversion of the original watan property into ryotwari holding can be ordered only for temporary purposes. That being so, the argument that the continuance of the land with the original holder on the above mentioned two conditions was ordered only temporarily must also be rejected.

(18) The principal difficulty which Bavdekar J. felt was that the plaintiff had not been able to produce any order passed by the Collector in pursuance of the new rules. But, in this connection, in the words of Broomfield J. 'on the admitted facts in this case it is permissible to assume that' the property which was originally watan property was converted into ryotwari land by the levy of full assessment and the commutation of service. It is true that the plaintiff' has not been able to produce any order to that effect in black and white from the Collector. But the admitted facts of the case justify the inference that such an order must have been passed.

Those facts are: (1) that for a long time the original holder continued in possession of this property without rendering the service for which the property was originally granted to him, and (2) that the said holder became subject to the levy of full assessment after the commutation of the service. It is impossible to conceive of a state of affairs in which the revenue authorities without any order from the Collector would have ventured to discontinue the taking of service from the original holder of the property and would have ventured to start levying full assessment from the holder. If we turn to rule 6 of the new rules which is to be found at page 250 of Phadnis's Watan Act, 5th edition, 1936, we find this:

'It shall be lawful for the Collector, whenever it may be necessary, in carrying out any of the provisions of No. 4 or 5 of these rules -

(a) to summarily evict any person wrongfully in possession of any land........'

If, in this particular case the original holder had been found to be in possession of this land even after ceasing to perform the services which were originally required to be performed by him and if the Collector had not intended to continue him in possession of this land as an ordinary occupant under the Land Revenue Code, we have no doubt that action would have been taken by the revenue authorities to evict him, since in that sense his possession would have been deemed to be wrongful. Under these circumstances, although the actual order of the Collector is hot on the record to show that he had converted the original watan property into ryotwari land, there is no doubt that the circumstances strongly suggest that the continuance of the possession of the original holder and, after him, his granddaughter in respect of the suit properly must have been in pursuance of the direction of the Collector.

It really would not matter at all, as the learned Judge of the lower appellate Court pointed out, whether the continuance was ordered by the Collector under the old rules or the new rules, since under the new rules also it could be ordered by the Collector. As we have pointed out above, it could be ordered as one of the three courses open to him under Rule 4 of the new rules. Therefore, with great respect, we are not able to agree with Mr. Justice Bavdekar that as there has been no order of the Collector produced by the plaintiff, this is a case in which 'it cannot be said that an order has been passed by a competent authority which would change the character of the property as 'watan' property.'

(19) While on this point we may refer to the decision of this Court in 'VISHVANATH APPAJI PATEL, v. BACCHHARAM DATTU PATIL', F. A. No. 23 of 1947, D/- 1-9-1949, (Bom), in which it was observed by Mr. Justice Shah who delivered the judgment of the division bench:

'Now it is conceded before us that there is no evidence to support the observation made by the learned trial Judge, that the services 'were temporarily dispensed with' by the Government. If, therefore, the Record of Rights show that the full assessment is being levied in respect of these lands, and that services are not required to be performed and they are described as 'Japti Sanadi' Inam lands, meaning thereby that they were once Sanadi lands but in respect of which there has been resumption by the Government, the conclusion must inevitably follow that these lands have ceased to be lands held on Sanadi tenure and are held in ordinary occupancy rights.'

It is of course quite clear that neither the first set of rules nor the second set of rules was brought to the notice of the Court in that matter, but there is no doubt that the ratio of the decision was in consonance with either set of rules, namely, that where there has been a continuance of the land with the original holder without the holder having to perform services and where full assessment has been levied from him, the watan character of the property is lost and the land is converted into 'ryotwari' holding, under the Land Revenue Code.

(20) Mr. Lokur has referred us to the case of 'SHIVRAM v. MAHADEV 14 Bom LR 797 in. which the facts were that in execution of a decree against the plaintiff's father, the land in dispute which was 'patilki-watan' was sold at a Court-sale to the defendant in 1872. The defendant took possession and paid full assessment which was given to the officiator as his remuneration for service. The plaintiff's father died in 1905 and the plaintiff brought the suit in 1909) to recover possession of the land from, the defendant. The lower Court held that the land had ceased to be watan on account of the levy of full assessment and that the suit was barred by limitation. It was held on second appeal that the land did not lose its watan character merely because the Collector levied full assessment or altered the mode of remuneration. It is quite clear that the facts of that case were totally different from the facts of the case before us here. In that case the services wore continued to be performed and only the mode of remuneration was altered, whereas in the case before us one of the most important facts is that the services had ceased to be performed by the original holder and the full assessment had started to be levied from him.

(21) Mr. Lokur also relied on 'BHIMA v. RAGHAVENDRACHARYA', 24 Bom LR 482. The facts in that case were that the plaintiff was the holder of certain 'inam' lands which were exempted from payment of assessment in consideration of his rendering certain service to Government. In 1873, the lands were mortgaged to defendant, on condition that he was to enjoy the usufruct in lieu of interest In the famine of 1876, the plaintiff left the village and as no service was rendered, Government appointed another person to perform the service and demanded payment of the full assessment from the defendant. The defendant paid the assessment and continued in possession. But Government did not forfeit the holding and the lands continued, as before, in the plaintiff's name in the watan register. It was held that, in the absence of a declaration of forfeiture of the holding, the steps which Government took to recover the assessment in lieu of service had not the effect of creating any change of title and that the plaintiff was, therefore, entitled to redeem. It is to be remembered, however, that that was a case of default on the part of the plaintiff. The plaintiff had left the village and so defaulted so far as the performance of the service was concerned. The present case, however, is the case of discharge of a 'shetsanadi' without fault. That being so, this decision also would not help Mr. Lokur.

(22) Mr. Lokur next drew our attention to the case of 'APPAJI BAPUJI v. KESHAV SHAMRAV AND KESHAV SHAMRAV v. APPAJI BAPUJI', 15 Bom 13. It was a case in which one Rudro & his sons were members of an undivided family. In execution of certain money decrees passed against Rudro the lands in dispute were sold to various persons, from whom they were afterwards bought by the defendant. After Rudro's death, his sons and grandson filed a suit against the defendant to recover the lands alleging that the lands were service watan lands and inalienable and that the execution sales affected nothing except Rudro's life-interest in them and that on Rudro's death they (the sons and grandson) became entitled to the lands. They also contended that, even if the Court should find that the lands were not service watan lands, they were, at all events, ancestral property and that the plaintiff's interests therein were not affected by execution sates under decrees to which they were not parties.

It was held in that case that the two fields, which had been the subject of a Gordon Settlement in 1864, had remained inalienable watan lands although the services in respect of them had been dispensed with. Mr. Lokur has relied on this authority to contend that the property may continue to be watan property notwithstanding the cessation of the performance of the service. He seems to forget, however, that that was a case under the Gordon Settlement of 1804 and what the Gordon Settlement was is found explained at page 23 of the reports. These are the observations of Chief Justice Sir Charles Sargent C. J. in that context:

'What is termed a Gordon Settlement was an arrangement -- entered into in 1864 by a Committee, of which Mr. Gordon, as Collector, was chairman, acting on behalf of Government with the watandars in the Southern Maratha Country, by which the Government relieved certain watandars in perpetuity from liability to perform the services attached to their offices in consideration of a 'judi' or quit-rent charged upon the watan lands.'

It is therefore clear that although in that case the services, had ceased to be performed the watan character of the property was retained in consideration of a judi or quit-rent which was charged upon the watan lands. No such thing happened in the present case and therefore that decision also would not apply to this case.

(23) The next case on which Mr. Lokur relied was the case of 'BHAU v. RAMCHANDRARAO' 20 Bom 423 (FB). It was also a case under the Gordon Settlement and therefore precisely for the same reasons as stated above while commenting on 'APPAJI BAPUJI v. KESHAV SHAMRAV AND KESHAV SHAMRAV v. APPAJI BAPUJI' 15 Bom 13, this case also would be of no assistance to Mr. Lokur.

(24) Mr. Lokur next drew our attention to the judgment of Bavdekar J. in 'IBRAHIM NHANUSAHEB v. ABDUL RAHIMAN', S. A. No. 990 of 1945, D/- 4-4-1949, (Bom). In that case a contention was advanced by Mr. Coyajee before the Court on behalf of the plaintiff that in the year 1911 the services which were required to be performed by the sanadis were dispensed with and the lands were allowed to emain in the possession of the then sanadi as japti sanadi in lieu of the services which were required to be performed. The plaintiff was also called upon to pay the full assessment of the land. Mr. Coyajee had argued in that case that the result of doing this was that from the moment that action was taken the lands had ceased to be watan lands. In dealing with that argument of Mr. Coyajee, Mr. Justice Bavdekar observed:

'It is true that in the case of 'YELLAPPA v. MARLINGAPPA' 12 Bom LR 577, it was held that where the Shetsanadi services required from the 'Shetsanadi' family were dispensed with as there was no necessity for it, full survey assessment was imposed upon the land and the heir of the person with whom settlement was effected was allowed to remain in possession subject to the survey assessment, no further demand being permissible the order passed and the action taken under the rule had in law the effect of converting the land from a shetsanadi watan into a ryotwari holding and investing the holder of the land with the rights of an ordinary occupant entitled to remain in possession so long as he paid the survey assessment. The case was, however, a case in which the resumption had been effected under the rules in force at the time. They were the rules framed under Act No. XI (11) of 1852 and would be found printed in 12 Bom; L. R. 578.'

Obviously Bavdekar J. seems to have thought also that the old set of rules which were framed under Act XI (11) of 1852 had stood abrogated when the new set of rules was framed. With that view, for the reasons which we have already mentioned, we are with respect not prepared to agree. Proceeding further with his judgment Mr. Justice Bavdekar said:

'......the difficulty in the way of Mr. Coyajee is that he cannot point to any rules under which the action of Government in 1911 could be said to have been taken. It appears that these rules which are printed at page 578 in the 12th volume of the Bom L R were not in force in 1911.'

With respect we are unable to share Bavdekar, J's view embodied in the above mentioned observations. As a matter of fact, the action taken by Government in this particular case could be said to have been taken even under the new rules, because as we have pointed out one of the courses of action which could be taken by the Collector under the new rules was to order the continuance of the land with the original holder, levying the full assessment from that person. It is not correct to say that the rules which are found printed at page 578 in 'YELLAPPA v. MARILINGAPPA', were not in force in the year 1911. We do not wish to repeat what we have stated above, namely, that the old set of rules was not abrogated by the new rules and it holds good even now in spite of the fact that the new set of rules was framed in 1908. Therefore reliance on this judgment of Bavdekar, J. in 'IBRAHIM NHANUSAHEB'S', case would not help the case of the respondent.

(25) The last point which Mr. Lokur has sought to make before us is that the revenue authorities, namely, the Prant Officer, having ordered the restoration of the suit property to the defendant, it is not competent to a civil Court to entertain the suit of the plaintiff. Although it does not appear from the judgment of Bavdekar, J. that this contention was advanced before him in second appeal, there is no doubt that such a contention was taken in the trial Court and also before the learned Judge of the lower appellate Court, and while dealing with that contention the lower appellate Court has said this:

'It is true that the Prant Officer has ordered resumption of one of the lands. That order, however, is clearly illegal and, therefore, void. The plaintiff can safely ignore it. It is not necessary to get it set aside. Since the order is illegal and void, it is not incumbent on the plaintiff to join the Province of Bombay as a party.'

Obviously Mr. Lokur is seeking to rely on the provisions of Section 4, Bombay Revenue Jurisdiction Act, 1876 (Act X (10) of 1876) when he is advancing this contention. Now, Section 4 of the Act lays down:

'Subject to the exceptions hereinafter appearing, no civil Court shall exercise jurisdiction as to any of the following matters:

(a)......

suits to set aside or avoid any order under the same Act or any other law relating to the same subject for the time being in force passed by the Provincial Government or any officer duly authorised in that behalf.........'

Clearly these provisions cannot apply to the facts of the present case for the simple reason that the original watan character of the property was lost by the action taken, namely, the action of continuing the land with the original holder thereof without requiring the performance of service from the holder and subjecting the holder to the levy of full assessment. After the watan character of the property was lost, the provisions of the Watan Act became inapplicable to the property and, that being so, the Prant Officer had no jurisdiction at all to pass the order under the Watan Act in reference to this property. Obviously therefore the order of the Prant Officer was void. That being so, this particular contention is not available to Mr. Lokur.

(26) In view of the above mentioned reasons,the Letters Patent appeal must be allowed, thesecond appeal will stand dismissed, the decreesof the lower appellate Court and the trial Courtwill be confirmed and the plaintiff's suit will bedecreed with costs throughout.

(27) Appeal allowed.


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