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Kazi Gulam Mahamad Kazi ShahabuddIn Chilmai Vs. Keru Mahadu Shirka - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number Civil Revision Application No. 1186 of 1960
Judge
Reported in(1961)63BOMLR860
AppellantKazi Gulam Mahamad Kazi ShahabuddIn Chilmai
RespondentKeru Mahadu Shirka
DispositionAppeal Dismissed
Excerpt:
.....to land claimed by khot by adverse possession--whether such land would fall within category of khoti khasgi land.;under section 2(1)(vi) (b) (ii) of the bombay khoti abolition act, 1949, the khot cannot establish that the land of which he claims to be the khot is khoti khasgi land by claiming or establishing title to it by adverse possession.;ganpati v. secretary of state (1924) 26 bom. l.r. 754, referred to. - - the point involved in the four appeals in the district court as well as in these four revision applications is common, viz. under section 2(1) (ix) (b) of the act, khoti nisbat land in the district of kolaba means (i) land in a khoti village which may have come into the possession of the khot by lapse or failure of heirs of a tenant, or by forfeiture on the tenant's..........mangaon, filed by the petitioner for recovery of arrears of rent for three years in respect of the suit lands from the opponent. the lands in these suits are portions of s. no. 29 and these lands are being claimed by the petitioner-plaintiff as his khoti khasgi lands. the defendant in each of these suits denied that these lands were khoti khasgi lands of the plaintiff and contended that he had become the owner of these lands under the bombay khoti abolition act, 1949 (vi of 1950), which will hereafter be referred to as the act. it was their contention that the lands in their possession were khoti nisbat lands. the learned trial judge held some of these lands to be khoti nisbat, while some of the lands in the possession of the tenants were held to be khoti khasgi. plaintiff was.....
Judgment:

Gokhale, J.

1. These four revision applications arise out of four suits in the Court of the Civil Judge, Junior Division, at Mangaon, filed by the petitioner for recovery of arrears of rent for three years in respect of the suit lands from the opponent. The lands in these suits are portions of S. No. 29 and these lands are being claimed by the petitioner-plaintiff as his Khoti Khasgi lands. The defendant in each of these suits denied that these lands were Khoti Khasgi lands of the plaintiff and contended that he had become the owner of these lands under the Bombay Khoti Abolition Act, 1949 (VI of 1950), which will hereafter be referred to as the Act. It was their contention that the lands in their possession were Khoti Nisbat lands. The learned trial Judge held some of these lands to be Khoti Nisbat, while some of the lands in the possession of the tenants were held to be Khoti Khasgi. Plaintiff was accordingly given decree in respect of lands which were held to be Khoti Khasgi and his claims were proportionately reduced. It may be mentioned that there was a fifth suit filed along with these four suits, viz., Suit No. 40 of 1957, In that suit, the lands were held to be Khoti Khasgi and plaintiff got a decree for the full amount of rent, while in Suits Nos. 35, 37, 38 and 39 of 1957 plaintiff only partially succeeded and he got, as already stated, a decree in respect of a part of his claim. The plaintiff, therefore, filed four appeals and these were heard by the District Court at Alibag. The learned District Judge confirmed the finding of the trial Court in all these four appeals that the lands in the possession of the tenants involved in the said appeals were not Khoti Khasgi lands. That is how the petitioner-plaintiff has filed these four revision applications. Civil Revision Application No. 1186 of 1960 arises out of Suit No. 37 of 1957, Civil Revision Application No. 1187 of 1960 arises out of Suit No. 35 of 1957 and Civil Revision Application No. 1188 of 1960 arises out Suit No. 38 of 1957 and Civil Revision Application No. 1189 of 1960 arises out of Suit No. 39 of 1957, All the five suits were heard together in the trial Court and evidence was recorded in one suit. The point involved in the four appeals in the District Court as well as in these four revision applications is common, viz., whether the lands in possession of the defendants involved in these revision applications are Khoti Khasgi lands, as alleged by the plaintiff, or they are Khoti Nisbat lands. That is why this judgment will govern all the four revision applications.

2. Now, there is no dispute that the Act came into force on May 15, 1950, in the Kolaba District and the present suits are filed by the plaintiff after the coming into force of the Act. It is the contention of the plaintiff that these lands are his Khoti Khasgi lands by virtue of his possession and ownership for a long period of years. The defendants denied that these lands are Khoti Khasgi lands, but they contended that they are Khoti Nisbat lands and that they have become owners of the lands under the Act. The leading case with regard to Khoti tenure in the Kolaba District is Ganpati v. Secretary of State : AIR1925Bom44 , where it was held that the Khots in the District of Kolaba were hereditary farmers of the revenues and were entitled to hold their villages as Khoti on their entering every year into the customary Kabulayats. The Kabulayat which the Khot can be asked to sign is bound to conform to custom except as altered by Section 38 of Bombay Act I of 1865. A Khot's interest in the Khoti village is limited and not absolute; but he possesses in some measure a proprietary right. This case defines Khoti Nisbat lands as lands which are either in the hands of permanent occupancy tenants or tenants with less permanent right paying Fayda to the Khot and the Government assessment; while Khoti Khasgi lands are defined as private lands in the possession of the Khot of which he can make such use as he pleases. Since the suits are filed after the coming into force of the Act, it can not be disputed that in order to prove that the lands involved in these revision applications are Khoti Khasgi lands, they must fall within the definition of 'Khoti Khasgi lands' under Section 2(1) (vii)(b) of the Act, which defines Khoti Khasgi lands in the Kolaba District as meaning (i) land which is entered in the Khot's own name as Khoti Khasgi or in that of a co-sharer in a Khoti in the records of the original survey; and (ii) land acquired since the original survey by the Khot by purchase or other lawful transfer otherwise than in his capacity as a Khot. It is necessary to refer to the definition of 'Khoti Nisbat land' also as given in the Act. Under Section 2(1) (ix) (b) of the Act, Khoti Nisbat land in the District of Kolaba means (i) land in a Khoti village which may have come into the possession of the Khot by lapse or failure of heirs of a tenant, or by forfeiture on the tenant's failure to pay rent, or by resignation of the tenant; and (ii) land which may have been entered at the original survey in the Khoti Nisbat Padit Khata and since brought into cultivation otherwise than at the Khot's own expense. The Akar Phod Patrak, which is produced in this case, would show that formerly there were Pot Hissa Numbers 1, 2 and 3 in S. No. 29, but it appears that they were amalgamated into the existing S. No. 29 and the Hissa ceased to exist. The record of rights entries which are on the record show that these lands which are the subject-matter of dispute in the present revision applications, are described as Khoti Nisbat, but these entries appear to be after 1950-51. Plaintiff's claim to establish that these lands are Khoti Khasgi lands does not rest on any entry of the lands in his name as Khoti Khasgi or in that of a co-sharer in a Khoti in the records of the original survey. Plaintiff has not produced the entries from the records of the original survey. Plaintiff's case is that he acquired these lands since the original survey by purchase or other lawful transfer otherwise than in his capacity as a Khot. Unfortunately, plaintiff has not been able to produce any documentary evidence in support of his case, except one judgment in Regular Civil Suit No. 70 of 1917 of the Court of the Second Class sub-Judge, Roha. That suit was filed by the present petitioner in all these revision applications against two tenants, who are not parties to the present suits; and in that suit he had contended that lands in S. No. 29 in the possession of these tenants were of his ancestral ownership and vahivat and defendants were in possession thereof as yearly tenants. That was denied by the defendants in that suit. The trial Court found in that suit that plaintiff was the owner of the lands held by these tenants and that, they were in S. No. 29. In that suit, plaintiff had produced record of rights entries, a sale deed and Kabulayats all ranging from 1884 till 1914, and he had also produced several decrees and the Court found on this evidence that plaintiff was the owner of these lands since the time of his father who became presumably owner by long adverse possession, as there was no direct title deed regarding the suit lands produced by the plaintiff. In that case even, it appears that plaintiff was not able to rely upon any title deed evidencing either a purchase or other lawful transfer otherwise than in his capacity as a Khot. Undoubtedly lands in those suits were lands in S. No. 29, but the decision of that suit cannot operate as res judicata in the present suits, though undoubtedly the lands involved in that suit of 1917 were lands situated in S. No. 29, as are the lands in the present case. Secondly, plaintiff's ownership was recognised in that suit on the basis of the title obtained by his ancestor by adverse possession. The lower Courts have held that the title held by plaintiff by adverse possession cannot be regarded as purchase or other lawful transfer otherwise than in his capacity as a Khot, as required under Section 2(1) (vii) (b) of the Act. Mr. Navangule contends that adverse possession for the statutory period must be taken to have conferred title on the plaintiff and that mode of acquisition of title being recognized by law, it must be regarded as in the nature of a lawful transfer in favour of plaintiff's ancestor. This argument cannot be accepted. What is required under the Act is the acquisition of title to the land since the original survey by the Khot either by purchase or other lawful transfer otherwise than in his capacity as a Khot. Admittedly there is no evidence of purchase by plaintiff or his ancestors. Even, therefore, if the title to the lands involved in these revision applications was acquired by adverse possession by the ancestor of the plaintiff, it cannot be said to be by way of any lawful transfer. Title obtained by adverse possession arises owing to the extinguishment of the title of the original owner. Title obtained by the person claiming adverse possession cannot, therefore, be by any lawful transfer at all. Under the Act, in the Kolaba District, the Khot can establish that the land of which he claims to be the Khot, is Khoti Khasgi land if it is entered in his own name as a Khoti or in that of a co-sharer in a Khotki in the records of the original survey. He can also establish that it is Khoti Khasgi land if it is acquired by him or his ancestor since the original survey either by purchase or other lawful transfer otherwise than in his capacity as a Khot. But if the acquisition of title is claimed, or established to be, by adverse possession, the land cannot fall within the category of Khoti Khasgi land. In my view, therefore, the finding of both the lower Courts that the lands involved in these matters are not Khoti Khasgi lands is correct.

3. The result is that all the four revision applications fail and the rule in all of them will have to be discharged, but, in the circumstances of the case, there will be no order as to costs.


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