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B.M. Kharwar Vs. Ramanlal Motiram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1964)5GLR701
AppellantB.M. Kharwar
RespondentRamanlal Motiram
Excerpt:
- - 1. this is a revision application by the original plaintiff who bad filed a suit for permanent injunction and who also prayed for an interim injunction to restrain the defendant from interfering with the plaintiffs possession of the suit land and restraining him from entering into the suit land and from cultivating the same or doing any act on the same land. these entries are therefore relevant under section 35 of the evidence act and they have evidentiary value it was therefore open to the courts below to consider such entries along with the affidavits and to hold that the plaintiff has failed prima facie to prove his possession......for the petitioner that the district court was wrong in holding that under section 135b of the land revenue code there is a presumption in favour of correctness of entries relating to the tenancy in the record of rights. section 135b of the land revenue code reads as follows:(1) a record of rights shall be maintained in every village and such record shall include the following particulars:(a) the names of all persons (other than tenants) who are holders occupants owners or mortgagees of the land or assignees of the rent or revenue thereof;(b) the nature and extent of the respective interests of such persons and the conditions or liabilities (if any) attaching thereto;(c) the rent or revenue (if any) payable by or to any of such persons;(d) such other particulars as the provincial.....
Judgment:

V.B. Raju, J.

1. This is a revision application by the original plaintiff who bad filed a suit for permanent injunction and who also prayed for an interim injunction to restrain the defendant from interfering with the plaintiffs possession of the suit land and restraining him from entering into the suit land and from cultivating the same or doing any act on the same land. The trial Court granted an interim injunction but later vacated it holding that it is not proved that the plaintiff was prima facie in possession of the land. Regarding the injunction which was prayed to restrain the defendant converting the suit land from grass land to agricultural land the injunction was refused on the ground that no damage is to occur to the plaintiff as the plaintiffs case is that the defendant is a trespasser and that in fact the conversion of such a land would be to the plaintiffs advantage. The trial Court held that there is no question of applying the Bombay Tenancy and Agricultural Lands Act of 1947 when the plaintiff's case is that the defendant is merely a trespasser. For these reasons the trial Court vacated the ad interim order granted by it. In appeal the District Court confirmed this order and hence this present revision application.

2. There is a finding of both the Courts below that prima facie the plaintiff is not in possession of the land. This is purely a question of fact and ordinarily a revision would not lie. But it is contended by the Learned Counsel for the petitioner that the District Court was wrong in holding that under Section 135B of the Land Revenue Code there is a presumption in favour of correctness of entries relating to the tenancy in the record of rights. Section 135B of the Land Revenue Code reads as follows:

(1) A record of rights shall be maintained in every village and such record shall include the following particulars:

(a) the names of all persons (other than tenants) who are holders occupants owners or mortgagees of the land or assignees of the rent or revenue thereof;

(b) the nature and extent of the respective interests of such persons and the conditions or liabilities (if any) attaching thereto;

(c) the rent or revenue (if any) payable by or to any of such persons;

(d) such other particulars as the Provincial Government may prescribe by rules made in this behalf;

(2) Provided that the said particulars shall be entered in the record of rights with respect to perpetual tenancies and also with respect to tenancies of any other classes to which the Provincial Government may by notification in the Official Gazette direct that the provisions of this section shall apply in any local area or generally.

Under this section therefore in the absence of a notification of Government the record of rights would not include a register of tenancies in respect of lands. But there is a notification No. 2252/49 dated 27-2-1950 published at page 425 of the Bombay Government Gazette Part IV-B by which the Government of Bombay directed that the provisions of Section 135 of the Land Revenue Code shall apply to all tenancies in respect of lands within the meaning of the Bombay Tenancy and Agricultural Lands Act 1948 Under Section 135J of the Land Revenue Code an entry in the record of rights and a certified entry in the register of mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.

3. The Learned Counsel for the petitioner however relies on a judgment of the Bombay High Court in Special Civil Application No. 522 of 1956 and contends that the notification of the Government of Bombay is ultra vires.

4. The word - tenant is defined in the Land Revenue Code. The word - tenant is also defined in the Bombay Tenancy and Agricultural Lands Act 1948 The word tenant is defined in Section 3(14) of the Land Revenue Code as under:

Tenant means a lessee whether holding under an instrument or under an oral agreement and includes a mortgagee of a tenants rights with possession; but does not include a lessee holding directly under the Crown.

The word - tenancy - is defined in the Bombay Tenancy and Agricultural Lands Act 1948 in Section 2(17) as under:

Tenancy means the relationship of landlord and tenant.

The word - tenant - is thus defined Section 2(18) of the said Act.

Tenant means a person who holds land on lease and includes

(a) a person who is deemed to be a tenant under Section 4;

(b) a person who is a protected tenant; and

(c) a person who is a permanent tenant.

Section 4 of the same Act reads as follows:

A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not-

(a) a member of the owners family or

(b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owners family or (d) a mortgagee in possession.

Explanation I.-A person shall not be deemed to be a tenant under this section if such person has been on an application made by the owner of the land as provided under Section 2A of the Bombay Tenancy Act 1939 declared by a competent authority not to be a tenant.

Explanation II.-Where any land is cultivated by a widow or a minor or person who is subject to physical or mental disability or a serving member of the armed forces through a tenant then notwithstanding anything contained in Explanation I to Clause (6) of Section 2 such tenant shall be deemed to be a tenant Within the meaning of this section. It is therefore clear that the word tenant defined in the Bombay Tenancy and Agricultural Lands Act 1948 is fundamentally different from the word tenant as defined in the Land Revenue Code.

5. Under Section 135B of the Land Revenue Code power is given to the State Government to issue a notification with regard to tenancies of any other classes other than perpetual tenancies. Upon the issue of such 8 notification the particulars referred to in Section 135B of the Land Revenue Code will have to be entered in the record or rights with respect to tenancies of any other classes. The State Government has therefore the power to require the particulars with regard to other tenancies also to from part of the record of rights If such particulars are part of the record of rights then the presumption contained in Section 135J of the Land Revenue Code would apply to such particulars regarding the class of tenancies in the notification of the Government. But it is not open to the State Government to create a new class of tenancy not contemplated by the Land Revenue Code and to order that particulars of tenancy should form part of the record of rights. The notification issued therefore does not come within the scope of Section 135B of the Land Revenue Code. But we cannot hold on that ground that the notification is ultra vires. It is open to the Government to issue a notification requiring any public servant to maintain any official book register or record and to further direct that in such a book register or record certain facts shall be recorded. The notification cannot therefore be said to be ultra vires as held in Special Civil Application No. 522 of 1956 of the High Court of Bombay. But at the same time such a notification is outside the scope of Section 135 of the Land Revenue Code. The presumption contained in Section 135J of the Land Revenue Code would not apply to entries made in accordance with the said Government Notification.

6. The Courts below were therefore wrong in holding that the presumption arises from the entries in regard to the tenancy particulars of which have been entered in accordance with the above mentioned notification.

7. But at the same time the Courts below did not merely rely on the presumption. They relied on the presumption and also on the affidavits produced by the parties. It is true that they attached great value to the affidavits of the parties in view of the presumption in accordance with the record of rights.

8. But such entries would be relevant and they would have evidentiary value under Section 35 of the Evidence Act which reads as follows:

An entry in any public or other official book register or record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such book register or record is kept is itself a relevant fact.

These entries are therefore relevant under Section 35 of the Evidence Act and they have evidentiary value It was therefore open to the Courts below to consider such entries along with the affidavits and to hold that the plaintiff has failed prima facie to prove his possession. Such a finding cannot be interfered with in revision.

9. The next contention is that the Courts below refused to issue an injunction restraining the defendant from converting the grass land to agricultural land. It is contended that if such an injunction is not issued irreparable damage will be done to the plaintiff in view of the provisions of the Bombay Tenancy and Agricultural Lands Act 1941 whereby tenants of agricultural lands have special privileges. This point was considered by the Courts below and they have held that even if it be held that the defendant is converting the suit land from grass land to agricultural land no damage is to occur to the plaintiff as the plaintiff's case is that the defendant is a trespasser. According to the plaintiff himself therefore no damage would be done to him if the land is converted into an agricultural land. The matter of a temporary injunction is a matter of discretion and I see no reason to interfere in a civil revision application with the order of the lower Court declining to issue temporary injunction sought for by the plaintiff. The revision application is therefore dismissed. No order as to costs.


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