Case: Shyamsunder Tikam Shet &amp; Anr Vs. State Of Maharashtra &amp; Anr

the payment of the village revenue, while the village lands which he has to manage in accordance with the restrictions mentioned in the Kabulayat fall under three distinct classes. These are (1) Dharekari lands the tenants of which have a transferable and heritable right paying Dhara alone to the Khot; (2) Khot-nisbat lands which are either in the hands of permanent occupancy tenants or tenants with less permanent right paying Fayda to the Khot and the Government assessment; and (3) Khoti Khasgi lands, private lands, in the possession of the Khot of which he can make such use as he pleases."8. It was contended on behalf of the appellants that the Sud of 1869 at p. 124-A of the paper book was an important document and the Tribunal has not correctly appreciated the meaning of the words Khalsa and Varkas. We do not wish to express at this stage any concluded opinion on the construction of this document. We wish to make it clear that it will be open to the appellants to show before the Special Duty Collector how far this document has a bearing on their claim to proprietary right of Survey Plots Nos. 130 and 132.9. It is clear that in the absence of a sanad or a deed or a grant granting proprietary rights over the soil a Khot is not the proprietor of the lands constituted as reserved forests in the Khoti village and is not entitled to any proprietary right in the uncultivated or forest land.The legal position is correctly summarised in Dandekars Law of Land Tenures, Vol. 1, pp. 287-288 as under:"Section 41 of the Land Revenue Code declares that the right to all trees, bushwood, Jungle or other natural product, wherever growing, except in so far as the same may be the property of individual capable of holding property, vests in Government. Government proprietorship of all trees is the rule and private rights or proprietorship, if any, are merely exceptions to the rule.The question whether a Khot has got the proprietary or any other limited right to the trees standing or growing on lands in his Khoti village depends (1) upon the Khots interest in the soil (2) upon any express grant or concession, and (3) upon the customary user, if any. In the first case, if the Khot is the proprietor of the soil, which is very hardly the case, he is the proprietor of all the trees standing or growing on the lands in his Khoti village. The trees upon the land, and the right to cut down and sell the trees is incident to proprietorship of the land. In such a case the principle is quicquid plantatur solo solo cedit. Ordinarily the khot having no ownership over the soil, it has been held that he is not entitled to cut timber either on uncultivated or on forest lands. Government has the right to take such lands to make a forest revenue under the customary law as well as under positive enactments."It is necessary in this context to refer to the presumption that forest tracts and old waste belong to Government unless the presumption is displaced by positive evidence that Government has granted rights in any particular tract or piece of land or has consciously allowed adverse rights to grow therein. (See K. Ambu Nair v. Secretary of State for India, 51 Ind App 257 = (AIR 1924 PC 150)).10. In Sadashiv Parshram Risbud v. Secretary of State for India, 20 Bom LR 141 = (AIR 1917 Bom 38 ) the question arose whether the khots were entitled to recover the sale proceeds of certain teak trees sold by Government grown on Varkas lands. In the alternative the khots claimed one-third share of the sale proceeds relying upon the clause in the Kabulyat. It was held by the Bombay High Court that as between the khots and the Government the matter in dispute was concluded by the kabulyat and the khot could not obtain more than one-third of the proceeds of the sale of the trees. It was held by Shah, J., that the Dunlops Proclamation could apply to Varkas lands in a khoti village, but if any person claimed the benefit of the Proclamation he should prove that the land, on which the trees stood, was his in a popular sense, that is, it was sufficiently marked out as being in his permanent occupation in his permanent occupation in his own right so as to make it properly describable as his land. On the facts of that case it was held that the khots had no claim to the teak trees under Section 40 of the Land Revenue Code and they had failed to prove that they were entitled to the benefit of Dunlops Proclamation in respect of the Varkas lands in question.11. In the present case the Maharashtra Revenue Tribunal has remanded the case for retrial to the Special Deputy Collector, Kolaba for decision on the following points:(1) Whether the appellants prove that they are the proprietors of the lands in the village of Kotheri or in the lands attached as a reserved forest to the said village;(2) Whether the appellants are entitled to any compensation for the village gaothan lands or lands under the rivers and nalls. This claim is based on the allegation of the appellants that they are the proprietors of the village;(3) Whether the appellants are entitled, as a customary incident of the Khoti, to a share in the forest revenues of the village;(4) What is the market value of the loss or such share of right, if any, in the gaothan and river and nalla lands.12. We affirm the above order of remand and further direct that an opportunity should be given by the Special Deputy Collector to both sides to adduce such evidence as they choose on these points. After taking such evidence the Special Deputy Collector will pronounce the award in the light of the law laid down in this judgment.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. The legal position is well established that khotis in the district of Kolaba are hereditary farmers of land revenue and are entitled to hold villages as khotis on their entering every year into the customarywish to make it clear that it will be open to the appellants to show before the Special Duty Collector how far this document has a bearing on their claim to proprietary right of Survey Plots Nos. 130 and 132.9. It is clear that in the absence of a sanad or a deed or a grant granting proprietary rights over the soil a Khot is not the proprietor of the lands constituted as reserved forests in the Khoti village and is not entitled to any proprietary right in the uncultivated or forestis necessary in this context to refer to the presumption that forest tracts and old waste belong to Government unless the presumption is displaced by positive evidence that Government has granted rights in any particular tract or piece of land or has consciously allowed adverse rights to grow therein. (See K. Ambu Nair v. Secretary of State for India, 51 Ind App 257 = (AIR 1924 PC 150)).In the present case the Maharashtra Revenue Tribunal has remanded the case for retrial to the Special Deputy Collector, Kolaba for decision on the followingWhether the appellants prove that they are the proprietors of the lands in the village of Kotheri or in the lands attached as a reserved forest to the said village;(2) Whether the appellants are entitled to any compensation for the village gaothan lands or lands under the rivers and nalls. This claim is based on the allegation of the appellants that they are the proprietors of the village;(3) Whether the appellants are entitled, as a customary incident of the Khoti, to a share in the forest revenues of the village;(4) What is the market value of the loss or such share of right, if any, in the gaothan and river and nalla lands.We affirm the above order of remand and further direct that an opportunity should be given by the Special Deputy Collector to both sides to adduce such evidence as they choose on these points. After taking such evidence the Special Deputy Collector will pronounce the award in the light of the law laid down in this judgment.