Bombay High Court
Karu Chindu Ramteke (Since Deceased) & 4 ... vs Nirmala Wd/O Ragho Bhivagade & Anor on 17 July, 2017
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.161 OF 2007
APPELLANT: 1. Shri Karu S/o Chindu Ramteke, (since
deceased)
1(i) Shri Bhaurao S/o Karu Ramteke, Aged
42 years, Occ: Service,
1(ii) Shri Dyaneshwar S/o Karu Ramteke,
Aged 39 years, Occ: Service,
1(iii) Shri Siddarth S/o Karu Ramteke, Aged
32 years, Occ: Service,
1(iv) Jaimala W/o Ramesh Patil, Aged 44
years, Occ: Household,
All above R/o Sai Baba Nagar "Prem
Nagar" Post Itwari, Dist. Nagpur.
-VERSUS-
RESPONDENTS: 1. Smt. Nirmala Wd/o Ragho Bhivagade,
Aged 54 years, Occ: Household, R/o
Bela, Tahsil - Bhandara, District
Bhandara.
2. Smt. Panchafula W/o Maroti Meshram,
Aged 47 years, Occu: Household, R/o
Uppalwadi, Bhimnagar (In between
Kamgar Nagar and Kapil Nagar) Near
the house of Lanjewar, Nari Road,
Nagpur.
Shri S. L. Kotwal, Advocate for the appellant
Shri R. L. Khapre, Advocate for the respondent.
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CORAM: A.S. CHANDURKAR, J.
DATED: 17 th JULY, 2017.
ORAL JUDGMENT :
1. This appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the legal heirs of the original defendant who are aggrieved by the judgment dated 19-10-2006 passed by the learned District Judge-II, Nagpur in Regular Civil Appeal No.944 of 2000 whereby the suit filed by the respondents for declaration that they were entitled to the suit land coupled with possession has been decreed.
2. Facts relevant are that one Baliram was appointed as Kotwar of village Bhivkund. He was granted land admeasuring 7 acres 10 Gunthas as Kotwar Dungi land under provisions of the Madhya Pradesh Land Revenue Code, 1954 (for short, the Code). Said Baliram expired on 21-9-1957 and was survived by is widow Saraswatibai, minor son Janardhan and the plaintiffs who were his daughters. Saraswatibai expired on 31-1-1997. The defendant was the brother of Baliram and as he sought to assert his rights as Kotwar on the suit land, the aforesaid suit for declaration that the plaintiffs were successors of their father to the land in question along with prayer for possession came to be filed.
3. The defendant filed his written statement and took the stand that after the death of Baliram in the year 1957, he had started functioning as the Kotwar. By an order dated 1-6-1964, the suit land ::: Uploaded on - 20/07/2017 ::: Downloaded on - 22/07/2017 00:02:45 ::: sa161.07.odt 3/8 was allotted to him by the Naib Tahasildar. Since that date, he was in possession and occupation of the suit field as owner of the same.
4. After the parties led evidence, the trial Court held that the plaintiffs had failed to prove that they are the absolute owners of the suit field. On the basis of order dated 1-6-1964 passed by the Naib Tahasildar, it was held that the defendant was owner of the suit field. The suit was accordingly dismissed. In the appeal filed by the plaintiffs, the appellate Court held that the order dated 1-6-1964 did not confer any legal right on the defendant. There was no order re-granting said land to the defendant under Section 150-B of the Code and, therefore, occupation of the land by the defendant was illegal. On that basis the judgment of the trial Court was set aside and the suit was decreed. Being aggrieved the legal heirs of the defendant have filed this appeal.
5. The following substantial question of law was framed when the appeal was admitted:
Whether the first appellate Court could have reversed the findings recorded by the trial Court on the issue of ownership without considering some of the material pieces of evidence on record ?
6. Shri S. L. Kotwal, learned Counsel for the appellant submitted that after the death of Baliram on 21-9-1957, the suit land passed on to his successor-in-office as per provisions of Section 165(3) of the Code. The defendant had been appointed as Kotwar after the death ::: Uploaded on - 20/07/2017 ::: Downloaded on - 22/07/2017 00:02:45 ::: sa161.07.odt 4/8 of Baliram and, therefore, the defendant was entitled to hold the suit land. Referring to the certificate dated 1-6-1964 at Exhibit-36, it was submitted that the defendant had been appointed as Kotwar and had been allotted the suit land. It was then submitted that the provisions of Section 150-A and 150-B of the Code were inserted in view of amendment to the Code in the year 1962 and, therefore, the appellate Court could not have relied upon those provisions for holding against the appellant. He submitted that the provisions of Section 165(3) of the Code would apply and not Section 150B. It was then submitted that the appellate Court was not justified in drawing adverse inference against the defendant for non-production of order dated 1-6-1964. The certificate at Exhibit-36 having been so produced, the same indicated allotment of the suit land to the defendant. Thus, by not considering the evidence placed on record, the appellate Court committed an error by decreeing the suit. The plaintiffs had in fact not discharged the burden that was placed on them. He, therefore, submitted that the appeal was liable to be allowed.
7. Per contra, Shri R. L. Khapre, learned Counsel for the respondents supported the impugned judgment. According to him, after the death of Baliram in the year 1957, the name of his minor son Janardhan was entered in the records as substitute Kotwar. Said Janardhan expired some time in the year 1967-68 and till his death, he continued as the substitute Kotwar. There was no document on record to ::: Uploaded on - 20/07/2017 ::: Downloaded on - 22/07/2017 00:02:45 ::: sa161.07.odt 5/8 indicate cancellation of the hereditary office of Janardhan nor was any order appointing the defendant as Kotwar produced on record. As such order was not produced by the defendant despite being given a notice to produce the same, the appellate Court rightly drew adverse inference against him. Referring to the provisions of Section 150-A of the Code as amended, it was submitted that an order of re-grant of land and conferment of Bhumidari rights was required to be made by the Collector and no such order of re-grant was shown to have been issued. Relying upon the judgment of the Hon'ble Supreme Court in Rama v . State of Maharashtra and others AIR 1999 SC 842, it was submitted that the appellate Court was justified in decreeing the suit. It was further submitted that as the certificate at Exhibit-36 was void having been issued by Naib Tahasildar and not by the Collector, there was no need to seek a declaration about its invalidity. He relied on the decision in State of Maharashtra v. Pravin Jethalal Kamdar AIR 2000 SC 1099 in that regard. Thus, in absence of either an application for re-grant of land and a consequent order of re-grant, the rights of the plaintiffs could not be defeated. He, therefore, submitted that the appeal was liable to be dismissed.
8. I have heard the learned Counsel for the parties at length and I have also gone through the records of the case. Before considering the substantial law, it would be necessary to refer to the relevant ::: Uploaded on - 20/07/2017 ::: Downloaded on - 22/07/2017 00:02:45 ::: sa161.07.odt 6/8 evidence on record. Baliram had been initially appointed as Kotwar. His son Janardhan was born in the year 1950 as noted in Exhibit-26 which is an extract of record of rights. Baliram expired in the year 1957. As per the document at Exhibit-27, the name of Janardhan as minor with the name of his mother Saraswati as his guardian came to be entered in the records of Survey No.115 that was admeasuring 7 acres 10 Gunthas. Said Janardhan expired some time in the year 1967-68 as deposed by defendant - Karu at Exhibit-35 in his cross-examination. As per the document at Exhibit-36, a certificate was issued to the defendant by the Naib Tahasildar on 1-6-1964 granting him Bhumidari rights. By the document at Exhibit-37 dated 23-9-1964 he came to be removed from the post of Kotwar on 1-11-1964. As per document at Article 'D' produced by the defendant he moved an application dated 21-8-1963 for allotment of service land.
9. In Rama (supra) the Hon'ble Supreme Court was seized with a case based on somewhat similar facts arising under the provisions of the Code. Therein, after the death of the erstwhile Kotwar his nephew who was his only heir was appointed as a Gumasta/Deputy Kotwar as he was a minor. In the meanwhile, the rights of Kotwar came to be abolished in the year 1962 and the appellant therein made an application for re-grant of the land under provisions of Section 150B of the Code. It was held that on the death of Kotwar his legal heir was appointed as a ::: Uploaded on - 20/07/2017 ::: Downloaded on - 22/07/2017 00:02:45 ::: sa161.07.odt 7/8 substitute Kotwar as he was a minor. Till abolition of such right in the year 1962, no other person had been appointed and the first application was made in the year 1964. It was therefore held that as on 31-5-1962, the appellant therein was not a Kotwar. His application for re-grant under Section 150B of the Code was held to be rightly rejected.
10. The facts of the present case indicate that after the death of Baliram on 21-9-1957, the name of his son Janardhan who was a minor was entered in the record of rights as the post was hereditary in nature. On the day when the provisions of Section 150A and 150B of the Code were inserted, defendant Karu had not been issued any order of appointment as Kotwar. Even the certificate at Exhibit-36 is dated 1-6- 1964 which is after abolition of these Bhumidari rights. According to the defendant himself, the application for re-grant as per Article 'D' under provisions of Section 150B of the Code was made on 21-8-1963. It is thus clear that on 31-5-1962 which was the relevant date when the existing grants were cancelled, there is nothing on record to indicate appointment of Karu as a Kotwar. It has to be noted that on said date son of Baliram - Janardhan was alive.
11. Though it was sought to be urged that the defendant was cultivating the land by giving crop share to the heirs of Baliram, that by itself cannot convert his possession as one of a Kotwar. In fact, as per provisions of Section 165(3) of the Code, after the death of Baliram, the ::: Uploaded on - 20/07/2017 ::: Downloaded on - 22/07/2017 00:02:45 ::: sa161.07.odt 8/8 name of his minor son was entered in the records being his heir.
Even otherwise, despite notice being given to the defendant to produce the order by which he was appointed as Kotwar, the defendant failed to produce the same. The certificate at Exhibit-36 is issued by the Naib Tahasildar while an order of re-grant of land is required to be made under Section 150B of the Code by the Collector. Hence, even said document does not further the case of the defendant. Thus, in absence of any document indicating appointment of defendant as Kotwar, he had no legal right to continue in possession of the suit field. The appellate Court has rightly considered the relevant provisions of the Code and has thus, concluded that the defendant could not prove the cancellation of any grant in favour of the legal heirs of Baliram and subsequent re-grant in favour of the defendant.
12. The substantial question of law is answered by holding that the first appellate Court has rightly reversed the findings recorded by the trial Court on the issue of ownership after considering the entire evidence on record. As a result, the appeal is liable to be dismissed. Same is accordingly dismissed with no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 20/07/2017 ::: Downloaded on - 22/07/2017 00:02:45 :::