(1) FA. 1161.2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1161 OF 2007 Somnathappa S/o Nagnathappa Halge, Age : 46 years, Occu.: Business, R/o Parali Vaijanath, Taluka : Parali Vaijanath, District : Beed .. Appellant VERSUS 1] The Municipal Council, Parali Vaijnath, through it’s Chief Executive Officer, Taluka : Parali Vaijanath, District : Beed 2] The State of Maharashtra, through the Collector, Beed .. Respondent Mr. R.S. Deshmukh, Advocate for the appellant Mr. Sanjay Mundhe, Advocate for the respondent no.1 Mr. J.S. Gavane, AGP for the respondent no.2­State CORAM : A.V. NIRGUDE, J. DATED : 6TH AUGUST, 2009 ORAL ORDER:­ 1] This appeal is filed against the judgment and decree passed by the Civil Judge Senior Division, Ambajogai, Dist. Beed in Special Civil Suit no. 134 of 1997, dismissing the appellant’s suit. The cause of action for the suit for possession etc. can be narrated as under:­ . Suit land admeasuring 17A 2G was admittedly a "service inam land" and was in possession of Narayan (2) FA. 1161.2007 and Devidas r/o Parali Vaijanath. They executed a registered lease deed of this land to the appellant’s father for a period of 99 years some years prior to 1960. The Hyderabad Abolition of Inams and Cash Grants Act, 1954 came in force and it abolished the "inam" of the lessors. Since, the father of the appellant was in possession of the land as a tenant, on the crucial date namely 1.7.1960, it is the case of the appellant, that he was duly declared occupant of the land. His name was also recorded as such in the revenue record. Part of this land (suit piece of land) admeasuring 1A 15G was admittedly not in possession of the appellant’s father since prior to 1952. It was in possession of the respondent Municipal Council, Parali Vaijanath. It is the case of the appellant that the father of the appellant as well as the lessor inamdar had allowed the respondent to occupy the suit piece of land. It is their case besides being in permissive possession, the respondent did not lawfully acquire it by adopting proceedings under the provisions of the Land Acquisition Act. The appellant’s father executed a will in 1976 and bequeathed the entire suit land including the suit piece of land occupied and possessed by the respondent to him. After his death, the appellant said, he became the owner of the suit piece of land. In 1997, the appellant served a legal notice demanding possession of the suit piece of land and (3) FA. 1161.2007 when the respondent refused to yield, the appellant filed this suit for recovery of possession and mesne profits. The respondent took a defence that the suit piece of land was not given to the appellant’s father on lease basis and so, the respondent’s father could not have been declared a restricted owner/occupier of the same. They also suggested that since prior to the independence, this piece of land was in their possession. The then Government had acquired it for their purpose and had handed it over to them. They also suggested that they deposited the amount of compensation to the State Government. They, thus claimed lawful ownership. The learned Judge of the lower Court, held that the appellant’s father could not have been declared as restricted owner/occupier of the suit piece of land. He also held that the respondent No. 2 ­State­ had acquired the suit piece of land for the purpose of respondent no.1­ Municipal Council. 2] The learned Advocate appearing for the appellant assailed the findings, mainly placing reliance on the provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954 (henceforth be referred to as “the Act”). It is common ground that the suit lands admeasuring 19A 23G was an inam land and the inam was abolished by the operation of the Act. It is also not in dispute (4) FA. 1161.2007 that the appellant’s father was tenant in respect of this land, except the suit piece of land. It is also common ground that by operation of section 3 of the Act, the inam was abolished and the land stood vested in the State. It is also common ground that section 5 of the Act would apply to the suit land for grant of occupancy rights. Section 5 of the Act, reads as under: “5] Occupancy rights in respect of lands comprised in an inam held in perpetuity and which was alienable: [1] In the case of an occupied land comprised in an inam including a community service, inam or watan, which under the terms of the grant of commutation settlement was to continue in perpetuity and was alienable without the permission of any competent authority- [i] if it is in the possession of a kabiz-e-kadim, or of a permanent tenant or tenant holding from the inamdar, such kabiz-e-kadim, permanent tenant or tenant, and [ii] in other cases, the inamdar, shall be primarily liable to the State Government for the payment of land revenue due in respect of the land held by him and shall, subject to the provisions of sub-sections (2), (3), (4) and (5), be entitled to all the rights and be liable to all the obligations in respect of such land as an occupant under the Land Revenue Act, 1317 Fasli and the rules made thereunder. [2] In the case of land referred to in clause (i) of sub-section (1)-- [a] the permanent tenant shall be liable to pay occupancy price equal to twice the amount of the full assessment of the land in his possession, and [b] the tenant shall be liable to pay occupancy price equal to (5) FA. 1161.2007 six times the amount of the full assessment of the land in his possession, to the inamdar within the prescribed period and in the manner provided in sub-section (3): Provided that in the case of a tenant, the occupancy price may be paid in three equal installments at such intervals as may be prescribed. [3] The permanent tenant or, as the case may be, the tenant shall deposit the amount of the occupancy price payable by him under sub-section (2), with the Collector within the period prescribed under that sub-section. [4] If the permanent tenant or the tenant fails to deposit the amount of the occupancy price under sub-section (3), it shall be recoverable as an arrear of land revenue and if it is not so recovered within a period of one year from the expiry of the period prescribed under sub-section (2), the permanent tenant, or as the case may be, the tenant shall be deemed to be unlawfully occupying Government land and shall be liable to be summarily evicted therefrom in accordance with the provisions of the Land Revenue Act, 1317 Fasli. [5] On the deposit under sub-section (3) or recovery under sub-section (4), of the entire amount of the occupancy price payable by a permanent tenant or tenant it shall be paid to the inamdar in the prescribed manner. [6] Where under sub-section (4), a permanent tenant or tenant is deemed to be unlawfully occupying any land, such land shall be deemed to be vested in the inamdar as the occupant thereof free from encumbrances, if any created thereon by the permanent tenant or, as the case may be, the tenant and the inamdar shall be primarily liable to the State Government for the payment of the land revenue in respect of such land in the accordance with the provisions of the Land Revenue Act, 1317 Fasli and the rules made thereunder.” 3] The present case admittedly, falls within sub­section [1] clause [i] of section [5]. The (6) FA. 1161.2007 appellant’s father was admittedly a tenant of the inamdar and was in possession of the suit land. So, he was primarily liable to the State Government for payment of the land revenue due in respect of the land held by him and would be entitled to all the rights and was liable to all the obligations in respect of the same as an occupant. The question only is whether the appellant’s father could have claimed similar right in respect of the suit piece of land which he admittedly did not possess on the day of reckoning. The answer is in the negative. 4] The appellant in the plaint has categorically admitted that his father was not in possession of the suit piece of land. He admitted further that it was the respondent no.1, who was in possession of the same since long prior to the date of reckoning. The appellant tried to assert that the respondent no.1 held possession on the basis of permission granted to them by his father as well as the original inamdar. However, there is nothing on record to support this claim. No oral or documentary evidence is brought on record in support of this assertion. So, the appellant could not prove that his father was in possession of the suit piece of land through the Municipal Council. The learned Judge of the lower Court in view of this, held that the appellant’s father was not in possession of the suit piece of land and so, he (7) FA. 1161.2007 could not have secured the occupancy right of the same. 5] The learned Advocate appearing for the appellant asserted that the learned Judge of the lower Court had no jurisdiction to decide the question of "occupancy rights" in respect of the suit piece of land. He referred to sub­ section 2­A of the Act. Sub­section 2­A of the Act reads as under: “2-A Power of State Government or authorised Officer to decide certain questions relating to inams and appeals: (1) If any question arises,-- [i] whether any land is an inam, [ii] whether any inam is held with or without conditions of service and whether or not coupled with the remission of the whole or part of the land revenue, [iii] whether any inam is a community service inam or watan, [iv] whether a commutation settlement in respect of any watan has or has not been effected, [v] whether any land held is inam is or is not alienable without the permission of the competent authority, or [vi] whether any person is a kabiz-e-kadim, permanent tenant or tenant, the State Government or an officer authorised by that Government shall decide the question. [2] Whether any question is decided by an officer so authorised by the State Government, any person aggrieved by such decision may file an appeal to the State Government within ninety days from the date of such decision.” (8) FA. 1161.2007 . He suggested that in view of clause [vi] of section 2­A, in this suit, there arose a question whether the appellant’s father was or was not a tenant in respect of the suit piece of land. He asserted that the learned Judge of the lower Court should have referred this question to the State Government or the Authorized Officer appointed by the State Government to decide such question. I am afraid this argument is not acceptable because the appellant came with a case that his father was tenant in respect of the suit land which included the suit piece of land. Assuming, that this assertion is accepted and if it is held to be correct proposition, the only question that was left to be decided was whether the appellant’s father was in possession of the suit piece of land despite being a tenant in respect of the same. Such question was not in dispute at all. As said above, the appellant admitted that his father was not in possession of the suit piece of land. So, the learned Judge of the lower Court had not committed any error when he held that since the appellant’s father was not in possession of the suit piece of land, he could not have claimed the occupancy right to the extent of the suit piece of land. In other words, the disputed question before the parties, before the Civil Court was not falling within the four corners of section 2­A of the Act and so, there (9) FA. 1161.2007 was no question of referring such question to the State Government etc. 6] I am aware that the respondents disputed the appellant’s claim that the suit piece of land was included when the suit land was given to the appellant’s father on lease. They tried to contend that the suit piece of land was excluded when the lease was created. Both the ld. counsels on this question placed reliance on the writing on the stamp paper under heading “Kararnama” (agreement). This agreement was executed by the original inamdar in favour of the appellant’s father. In this agreement, the inamdar admitted the fact that he had leased the suit land which according to him, admeasured 19A 23G. He said further, that in the registered lease deed, he had committed error in describing it and he said through the present document he was correcting the error. He further said that out of the land leased out, the piece of 2 Acre was utilised for Rest House constructed by the respondent no.1(He was obviously referring to the suit piece of land). He then stated that he had received certain amount from the appellant’s father towards compensation of the piece of land, which would be eventually acquired for the construction of Rest House. He then authorised the appellant’s father to recover the compensation from the acquiring body. The respondent no.1 interpreted (10) FA. 1161.2007 this document and asserted that the Inamdar had excluded the suit piece of land from the demised land. On the other hand, the appellant suggested, that the suit piece of land was included in the demised land. The fact that the Inamdar accepted the compensation from the appellant’s father and then authorised him to recover the compensation from the authorities, clearly establishes that he had not transferred his rights in respect of the suit piece of land in favour of the appellant’s father. I am not inclined to place undeserving reliance on this document. The original lease deed or it certified copy has not been brought on record. The subsequent correction deed ­Kararnama­ which is not even registered one would not be admissible on record. So its contents should not be discussed to find out as how much area of the suit land was actually given on lease. The Kararnama hardly makes any difference to the feeble case of the appellant. 7] In view of this, as said above, there is no difficulty in upholding the findings of the lower Court that the appellant’s father could not have claimed the occupancy rights in respect of the suit piece of land. 8] The dispute between the parties, as to whether the respondent no.1 or for that matter the respondent no.2­State Government had in fact (11) FA. 1161.2007 lawfully acquired the suit piece of land, is also discussed during arguments at length. The learned Judge, of the lower Court held that the respondents had proved that the suit piece of land was acquired lawfully. I am not inclined to hold so mainly because, the respondents have failed to bring on record the land acquisition award, showing the acquisition of suit piece of land. There are some documents on record, which suggest that as early as in 1959, the respondent no.1 Municipal Council deposited certain amount towards compensation for the acquisition of the suit piece of land. The documents also show that the State Government accepted this compensation. The documents further show that in 1960 or so, the Officers of both the respondents tried to locate the whereabouts of the inamdar. They ultimately established contact with him and requested him to receive the amount of compensation. It is on record that during those days, the inamdar Narayanrao was residing at Hyderabad. He responded to the Collector’s request to receive the compensation, saying that the amount of compensation was too meager and that he should be awarded more compensation etc. The record however, falls short to prove that the compensation was ultimately paid to the inamdar. As said above, the record also does not contain the land acquisition award, which could not have been passed prior to 1959. (12) FA. 1161.2007 In the absence of the award on record, I am not inclined to hold that the land was lawfully acquired by the respondent no.2 or their predecessor, the erstwhile Hyderabad State of Nizam. 9] The next question would be, whether the suit was filed within limitation? The learned Judge of the lower Court did not discuss this issue satisfactorily. He simply brushed aside the case of the appellant, saying that since the suit piece of land was handed over to the respondent no.1, sometime in the year 1945, the suit filed in the year 1997, would be beyond limitation. I am afraid, this simplistic view is incorrect. The case of the appellant on this issue, is rather elaborate and must be stated clearly. . The appellant came with a case that since his father was in possession of the suit land on 1.7.1960, his name was mutated as occupier of the land in 1970. He was shown to be occupant, as contemplated under section 5 of the Act only in 1970. Mutation to that effect was effected. The appellant also mentioned that prior thereto, the appellant’s father took steps contemplated under sub­section (2) of section 5 of the Act and had paid the occupancy price etc. with the concerned authorities. It is the case of the appellant that the suit piece of land was in permissive possession with the respondent no.1 and had became hostile only (13) FA. 1161.2007 when they refused to hand over the same to the appellant in 1997. The narration of the appellant in this regard has almost gone unchallenged. The appellant stated that during the lifetime of his father, the respondent no.1’s Office bearers kept on promising him that he would be compensated for the suit piece of land. After the death of the appellant’s father, the appellant­plaintiff succeeded in getting his name entered in the revenue record as an occupier of the suit land as late as in 1992. The appellant then stated that he too started demanding compensation/possession of the suit piece of the land from the authorities of the respondent no.1 and he said that they kept giving assurances to him. This narration of the appellant deserves to be believed and in view of the finding recorded above that the respondent no.1 and respondent no.2 failed to prove that they had acquired the suit piece of land through the land acquisition proceedings, the suit filed by the appellant should be held to be within limitation. In view of the discussion above, I have no hesitation to hold that the suit was not barred by limitation. 10] A rather minor controversy between the parties as to whether the respondent no.1 perfected their title of the suit piece of land by adverse possession, is not required to be discussed. The learned Judge of the lower Court rightly held that (14) FA. 1161.2007 the respondent no.1 had failed to prove their title by adverse possession. This plea of the respondent no.1 is grossly weak in the light of their case that they own the land because, it was acquired for them following the proceedings under the Land Acquisition Act. Assuming that the respondent no.1’s possession of the suit piece of land was adverse to the Inamdar and the appellant’s father, there is nothing on record to show that the owners tried to take it over, and the respondent no.1 resisted such attempt etc. The plea of adverse possession raised by the respondent no.1, has thus failed. 11] In view of this discussion, the First Appeal should fail. The First Appeal stands dismissed. Sd/­ (A.V. NIRGUDE, J.) arp