Bombay High Court
Karu Chindu Ramteke (Since ... vs Nirmala Wd/O Ragho Bhivagade & ... on 17 July, 2017
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
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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
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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
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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
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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
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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
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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/
