Document Fragment View

Matching Fragments

In paragraph 10 I observed that the petitioners' names having not been shown as tenantsand mention to have 'koti' right that too in the Other Rights column in the survey record prima facie 'khoti' cannot be equated to tenancy rights going by the work 'khoti' as mentioned in the dictionary. The fact remains that the tenants column is blank in Forms 1 & ZIV vide the property surveyed under No. 100/1.

2. Shri Rebello, learned counsel for the applicants now says that my observation that 'khoti' cannot be equated with enancy rights is erroneous as it goes against a judgment delivered by this very Court earlier in Civil Revn. Appin. NO. 163 of 1984 decided on 11th April, 1985 and further having regard to a decision of the Division Bench of this Court reported in AIR 1934 Bom 434. He now urges that 'khoti' must be equated with lease and if the applicants are held to be the lessees in respect of the property surveyed under No. 100/1 the whole perspective would change in the matter of appreciation of the applicant's case and therefore the impugned judgment will have to be reviewed.

3. It is true that in Civil Revision Application No. 163/84 observations were made that 'khoti' is to be equated with lease but however it must be seen that the two survey numbers involved in that case were survey Nos. 399/6 and 397/2. The survey authorities themselves had recorded that there was 'rakhan' in respect of property bearing survey No. 399/6 and 'khoti' in respect of property bearing survey NO. 397/2. Since the authorities themselves had made a distinction to day that 'rakhan' would amount to watch and ward duties and 'khoti' would amount to something alike a lease. But this was again a decision rendered at interlocutory stage and the matter as to the character of the transaction between the parties had to be decided finally in the suit on merits.

4. So far as the decision of the Division Bench reported in Secy, of State v. Faredoon Jijibhai Diecha reported in AIR 1934 Bom 434 it is observed at p. 437 thus:-

"If the grant was a rent free grant in perpetuity with the right of transfer, it was known as inam; if it was a grant either for a fixed term or in perpetuity with the condition to pay a fixed amount as rent to the Government it was called khoti or a lease and the leaseholder was called a khoti".

Having regard to these observations it is urged by Shri F. Rebello that it is clear that khoti is a lea se and hence the review must be allowed for the observations in para 10 of the impugned judgment are against these two decision and in any event the decision of the Division Bench being binding on this Court sitting singly there is no escape and in that view of the matter the judgment is liable to be reviewed.

5. This review application is opposed by the respondent through their counsel Shri Usgaoncar. The first of the objections is that this Court ought to be doubly careful in the matter of the review. In that it is argued that the impugned judgment was made disposing of an interlocutory application taken in the suit and the rights of the parties having not been decided finally the observation in para 10 of the judgment that Khoti cannot be a lease will not amount to determination of rights finally between the parties and therefore in this type of matters no question of review arises. Mr. Usgaoncar then points out that even while holding that 'khoti' does not amount to a lease, the Court put itself sufficiently on guard by saying "prima facie it must be held that khoti cannot be equated to tenancy rights...........". mr.. Usgaoncar therefore urges that so long as it has been duly qualified by the words "prima facie" even on this score review is not permissible.