Bombay High Court
Laxmanrao Vishwanath Kulkarni vs Chandrabhan Mahadu Bidve And Anr. on 8 April, 1981
JUDGMENT P.S. Shah, J.
1. This is plaintiff's appeal who has failed in both the courts below in establishing his right to 1/2 share in the suit land, Survey No. 12, situate in village Masla in Latur District. The few material facts are these. Masla village was a part of the erstwhile Hyderabad State. One Sakharam Appaji who was the Pattedar of the suit land executed a sale deed in respect of the suit land in the year 1918. A.D. (1328 Falsi) in favour of defendant No. 1. The recitals of the sale deed showed that the suit land was in possession of the vender as a mortgaged which possession was confirmed as that of an owner under the sale deed. The sale deed further recites that the land was of the ownership of the vendor and the Patta also stood in his name in the village records. The sale deed is attested by the Wamanrao Kulkarni the grant father of the plaintiff. Wamanrao Kulkarni had also identified the vendor before the sub-registrate. The plaintiff filed the suit contending that the said Wamanrao had 1/2 share in the shit land and he is entitled to the same was as successor in title of Wamanrao. The suit land was admittedly in possession of defendant No. 2 as a tenant since the time of his ancestors. Both the defendants denied the plaintiff alatm. Defendant No. 1 contended that the suit land exclusively belonged to the Pattendar Sakharam Appaji who transferred the same in his favour under the sale deed. In other words, he claimed that he became the exclusive owner of the suit land under the sale deed. The defendant No. 2 also supported the defendant No. 1 contending inter alia that he never paid any rent to the plaintiff, but that the rent was paid all along to defendant No. 1 as his landlord. The short question that arose for consideration in the suit was whether the plaintiff proved that Wamanrao had 1/2 share in the suit land and that the plaintiff was entitle thereto as his successor in title. Both the courts below have concurrently held that the plaintiff had failed to prove the title to the suit land.
2. Mr. Deshpande, the learned Counsel appearing for the plaintiff appellant relied on the entry in the village records showing the name of Wamanrao Kulkarni as the 'Shikmidar' to the extent of 1/2 share in the suit land. He submitted that the sale deed in favour of the defendant cannot effect the rights of the plaintiff as 'Shikmidar' to the extent of 1/2 share in the suit land. He also contended that this entry in the village record was not challenged by defendant No. 1 at any time. According to the learned Counsel, if regard the be had to the provisions of the Hyderabad Land Revenue Code Shikmidar means a sharer in the land and as the entry clearly shows that Wamanrao Kulkarni was 'Shikmidar' to the extent of eight annas share, his title to the extent of 1/2 share in the suit land devolved on the plaintiff as the successor in title of Wamanrao Kulkarni.
3. Hyderabad Land Revenue Code which was in force till 1966 was replaced by Maharashtra Land Revenue Code. I shall hereafter refer to the relevant provisions of the Hyderabad Land Revenue Code which were referred to by the learned Counsel during the course of his argument. Under section 2(12) a 'Shikmidar' signifies the person who like a "Pattedar" possesses a right to the land or who from the beginning has been jointly in possession with the Pattedar or who before the promulgation of the Act, by virtue of any rule in force, has acquired the right of a 'Shikmidar' or shall hereafter acquire such right under the provisions of this Act. Although, this definition lends assistance to the argument of the learned Counsel, there are certain other provisions in the Act of the Code which must be considered for the proper construction of the words 'Shikmidar'. Section 2(16) defines that 'rent' means any consideration in money or kind or both, paid or payable by a 'Shikmidar' to his Patedar or by on Assami Shikmi to the holder of the land on account of the use or occupation of the land held by him, but shall not include the rebounding of any personal service. This definition would show that Shikmidar is not necessarily a person who owns a share in the land because the definition of rent referred to above also indicate that a 'Shikmidar' may be in the position of a tenant. Then a reference also was made to section 67 which runs as under :
"If, in the absence of an agreement between the 'Pattedar' and 'Assami Shikmi' pertaining to the period of possession, the Asami Shikmi has been in possession for a continuous period of twelve years, he shall be deemed to be a 'Shikmidar', and he shall acquire a right to hold the land permanently as against the 'Pattedar'. If any person has, from the commencement of cultivation or from the time the patta was granted, jointly with the 'Pattedar' cultivated the land he shall be deemed to be a 'Shikmidar' until a decision of a Court of Law to the contrary is obtained".
4. It is not the case of the plaintiff that he or his predecessors claimed the right of a 'Shikmidar' on account of their being in possession for a period of 12 years as 'Asami Shikmidar'. Thus the mere fact that a person has been referred to as a 'Shikmidar' in the village records is not conclusive of his having a share in the ownership of the lands.
5. It is further important to notice that the plaintiff has not cared to produce any evidence a date prior to 1328 Fasli to explain as to the circumstances in which the name of his grand father was entered as a Shikmidar. This matter was adjourned at the request at Mr. Deshpande as he wanted to produced the relevant records prior to 1328 Fasli. However, he was unable to produce any such records. The plaintiff has not produced any document of title and the sole reliance was placed on he aforesaid entry. It is not possible to accept this entry to support the plaintiff's claim of ownership in the suit land. It is pertinent to note that the Pattedar Sakharad Appaji had claimed full ownership in the suit land while transferring the same in favour of defendant No. 1 as long back as in the year 1928. The document is attested by Wamanrao Kulkarni and he has also identified the vendor at the time of the sale-deed. It is true that in law mere attention of document is not enough to fasten knowledge of the contents of the document on the person attesting the document, but in this case we must bear in mind the fact that the document is challenged for the first time after 50 years. The Defendant No. 1 has stated in his cross-examination that the attesting witness Kulkarni, told him that the land belonged to his vendor, Sakharam, and that there was no haste in purchasing it. There is no other evidence on record because possibly none except the purchase connected with the document is alive. It is well settled that the burden of proving a title rests on the plaintiff and he cannot rely on the weakness in the case of the defendant. The plaintiff has not produced any document of title in this case. Sole reliance is placed on the solitary entry in the village records mentioned above. This entry as discussed above, does not necessarily prove the plaintiff's ownership to the suit land. There is also no evidence to show that the defendant No. 2 or his predecessors had paid any rent of the suit land to the plaintiff or his predecessors after the sale-deed. Both the courts below have on a careful appreciation of evidence concurrently held that the plaintiff has failed to prove his title. I see no reason to interfere with the finding of the fact.
In the result, the appeal fails and is dismissed with no order as to costs.