c 'H SHYAMSUNDER TIKAM SUET & ANR. v. STATE OF MAHARASHTRA & ANR. October 15, 1969 [V. RAMASWAMI AND I. D. DUA, JJ,J Bombay Khoti Abolition Act (6 of 1950), s. 12-Khoti-Rights in forest and waste lands.
A Khoti in the district of Kolaba is only a hereditary farmer of land revenue and is entitled to hold a village as Khoti on his entering every year into the customary Kabulavat. The presumption is 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.
Therefore, in the absence of a sanad or a deed or a grant grant- ing proprietary rights over the soil a Klioti is not a proprietor of the lands constituted as reserved 1forest in the Khoti village and is not entitled to any proprietary rights in the uncultivated or forest land.
In the present case the Special Deputy Collector (Khoti) Kolaba, directed certain, amounts to be paid to the appellants for their share of ·compensation for Khoti rights in respect o.f reserved forest and unassessed land in a village under s. 12 of the Bombay Khoti Abolition Act, 1949.
'fhe Maharashtra Revenue Tribunal, in appeal, set aside the order and remanded the case for retrial stating the various points for decision, one elf which was, 'whether the appellants prove that they are the proprietors of the lands in the viliage or in the lands attached as a reserved forest to the said village'.
In appeal to this Court, HELD : The appellants should be given sufficient opportunity by the Spe<:ial Deputy Collector for provi· ,g by oral and documentary evidence that they had proprietary rights in the status of Khoti and then dispose of the matter according to the law relating to the rights of a Khoti. '(808 G-H]
Tajubai v. Sub-Collector of Kulaba, 5 Born. High Court Reports 132, Ganpati Gopa/ Risbud v. The Secretary of Stale for India, 26 Born. LR. 754, Kodoth Ambu Nair v, Secretary 'of State for India, SI I.A. 257 and Sadashiv Parshram Risbud v. Secretary of State for India, 20 Born. LR. 141, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 744 of 1966. Appeal by special leave from the judgment and order dated February 25, 1965 of the Maharashtra Revenue Tribunal, Bom- bay in No. Rev. A. 40 of l962.
S. T. Desai and Naunit Lal, for the appellant. G. L. Sanghi and S. P. Nayar, for the respondents. 8U2 The Judgment of the Court was delivered by· Ramaswami, J. This appeal is brought by special leave from
the judgment of the Maharashtra Revenue Tribunal, Bombay in Revenue Appeal No. 40 of 1962 whereby the Tribunal set aside the award of the Special Deputy Collector, (Khoti), Kolaba under s. 12 of the Bombay Khoti Abolition Act, 1949 directing the amount of Rs. 837.94 to be p~id to the appellants for their share of Rs. 0-12-1 1/3 share in village Kotheri, Taluka Mahal, District Kolaba and remanded the case for retrial stating the points for decision by the Special Deputy Collector.
On October 9, 1950 the appellants made an application before the Collector of Kolaba for obtaining compensation for Khoti rights in respect of reserved forest and unassessed lands in accordance with the provisions of the Bombay Khoti Abolition Act,
(Act No. VI of 1950) (hereinafter referred to as the Act). In the application, the appellants stated that the village Kotheri in Taluka Mahal was a Khoti village of Pat (leasehold) and that the appel!ants had a Khoti share of Rs. 0-12-H in the village. The
appellants said that the total compensation which they claimed for the entire village came to Rs. 17,615/- and that the share of Rs. 0-12-1 1/3 came to Rs. 13,333-9-0. The appellants further
claimed a sum of Rs. 7,480/- in respect of 'loss under the reserved forest (74 acres 32 gunthas)' and a sum of Rs. 6,850/- being the one-third share of "the price at the present market rate of the trees etc., that at present stand in the reserved forest". On Janu-
ary 31, 1962 the appellants filed before the Special Deputy Collec- tor, Kolaba a preliminary statement. In that statement the appel- lants contended that the Khots used to guard the forest in their proprietary rights in about the year 1860 A.D. and that the said land had been taken to the reserved forest.
The appellants further contended that they had a partnership with the State. in respect of forest income, that is, in the division of agricultural produce and that the "partnership in the forest income has not been abo- lished under the Khoti Abolition Act and the partnership is still subsisting." The appellants said that "the question of determin- ing compensation for the forest partnership
~annot, therefore, arise." On May 15, 1962 the Special Deputy Collector (Khoti) Kolaba made his award granting a sum of Rs. 837.94 as compen- sation. Aggrieved by the award the appellants preferred an
appeal before the Maharashtra Revenue Tribunal being Revenue Appeal No. REV. A. 40 of 1962. On September 16, 1963 the appellants submitted before the Tribunal their written arguments. On September 18, 1964, November 21, 1964 and February 1,
1965 the appellants filed before the Tribunal further supplemen- tary arguments in writing. On February 21, 1965 the Tribunal delivered its judgment holding that the Khoti in the Kolaba cannot c
c SHYAMSUNDER v. MAHARASHTRA (Ramaswami, J.) tary rights in the village or in the reserved forest unless he proves that he has separate sanad or grant conveying to him these proprie- tary rights.
The Tribunal, however, took the view that the appel- lants were not bound by any compromise decree and the Special Deputy Col!f'.ctor has dealt with the matter in '.l perfunctory manner. The Tribunal therefore, set aside the award and remanded the case for retrial setting out the points to be decided by the Special Deputy Collector.
The Bombay Khoti Abolition Act, 1949 came into force with effect from April 12, 1959. Section 2(1) (iv) of the Act defines the word "Khot" as including a mortgagee lawfully in poss~sion of a Khotki.
Section 2 (1) (vii) of the Act defines the words "Khoti Khasgi land" as follows : " (a) in the Ratnagiri District Khoti land held by and in pessession of a Khot other than Khoti nisbat land and
land held by a privileged occupant as defined in the Khoti Act; (b) in the Kolaba District- ( i) land which is entered in the Khot's own name as Khoti or in that of a co-sharer in a khotki in the
records of the original survey; and (ii) land acquired since the original survey by the Khot by purchase or other lawful transfer other- wise than in his capacity as a Khot;" Section 2(1) (viii) df'.ines the words "Khoti land" as follows: " 'Khoti land' means land in respect of which a Khot
had, as such, any right or interest in the district of Ratna- giri according to the provisions of the Khoti Act and in the district of Kolaba according to the custom of the tenure;''
Section 3 of the Act provides for the abolition of the Khoti tenure anti states : "3. With effect from and on the date on which this Act comes into force,- ( 1) the Khoti tenure shall, wherever it prevails in the
districts of Ratnagiri and Kolaba, be deemed to have been abolished; and LlSupCl(NPJ/70-6 _.804 (2) save as expressly provided by this Act, all the incidents of the said tenure shall be deemed to have been
extinguished, notwithstanding any Jaw, custom, or usage or· anything contained in any sanad, grant, kabulayat, lease, decree or order of any court or any other instru- ment." Section 10 deals with the right to trees and states :
"The rights to trees specfally reserved under the Ind:an Forest Act, 1927, or any other law for the time being in force except those the ownership of which has been transferred by Government under any contract,
grant or law for the time being in force shall vest in Gov- ernment." Section 12 of the Act before its amendment by the Maharashtra Act 43 of 1963 stood as under : "(1) If a khot or llilly other person is aggrieved by
c any ol the provisions of this Act as extinguishing or modifying any of his rights in land and if such person proves that such extinguishment or modification amounts to transference to public o\Wlership of any land or any
right in or over such land, such person may apply to the Collector for compensation. (2) Such application shall be made in the form pres- cribed by rules made under this Act on or before the 31st
day of March, 1952. ( 3) The Collector shall after holding a formal inquiry in the manner provided by the Code award such compM- sation as he deems reasonable and adequate; Provided that-
(a) the amount of compensation for the extinguish- ment of the right of reversion in lands in a Khoti village in the district of Ratnagiri sha)J not exceed the amount calculated at the rate of Rs. 2 per 100 acres of such land; (b) the amount of compensation for the extinguish-
ment of any right to appropriate any uncultivated and wa8te lands not appropriated by any khot and not en- tered in the revenue or survey records as khoti khasgi immediately before the 1st day of August, 1949, shall
not exceed the amount calculated at the rate of Rs. 5 per 1 (10 acres of such land : Provided further that in the case of the extinguish- ment or modification of any other right of a khot or any
c SHYAMSUNDER v. MAHARASHTRA (Ramaswami, J.) pght of 3illy other person the Collector shall be guided by the provisions of sub-section ( 1) of section 23 and section 24 of the Land Acquisition Act, 1894 :
Provided also that if any question arises whether any land is dhara, khoti khasgi or khoti nisbat or is held by a permanent tenant or other tenant, the Collector shall after holding a formal inquiry in the manner provided
by the Code decide the question. ( 4) Subject to the provisions of sub-section ( 5), the award or decision of the Collector shall be final. ( 5) Any person aggrieved by the award or decision
of the Collector may appeal to the Bombay Revenue Tribunal constituted under the Bombay Revenue Tribu· nal Act, 1939." The Act was amended by the Maharashtra Act 43 o.f 1963 by which payment of compensation was provided to any foss of share in the forest revenue and the Amending Act came into force on October 6, 1963 and it was provided that the claim for compensation can be entertained upto March 31, 1964.
On behalf of the appellants Mr. S. T. Desai did not press the argument that the Act is ultra vires of the Constitution of India OI· that the Act did not apply to the village of Kotheri or to the surve} plots in dispute.
Learned counsel said that the appellant shou!C be given sufficient opportunity of proving by oral and documenta!). evidence that they had proprietary rights in survey plots 130 ant 132 of Mauja Kotheri in the status of kothi.
The legal position is well-established that khotis in the distric of Kolaba are hereditary farmers of l3illd revenue and are entitlet to hold villages as khoti on their entering every year into th< customary kabu/ayat.
According to Molesworth's Dictiona!Ji 'khot' meaJ)S : "a. renter of a village, a farmer of land or revenue, a farmer of the. customs, a contractor or monopolist; an hereditary officer whose duty it is to collect the revenue of the village for Government, also an officer appointed
for this office; a tribe of Brahmins in the Southern Konkan." In Tajubai v. Sub-Collector of Kulaba(') it was held by th1 majority of the Full Bench that the khotis have no proprietary righ• in the soil of their village but only hereditary right to farm· th (I) S Bom. High court Reports 132.
revenue and that if the "khot's right is the· hereditary fanning of the revenue, the living principle of that right would not be property inherent in the khot, but a perpetually running contract with the State." At p. 149 Newton J., ot>served in the course of his judgment:
"Do these facts establish more than is admitted, namely, that the plaintiff, had an hereditary right of farm- ing the half oi the villa~e of Pegode, as Jong as she cootinued annually to enter into the customary agree-
ment ? Do they prove that she as khot had any such proprietary interest in the village, as would authorise her to claim restitution of the half-share unconditionaily, after failure during several years to discharge the office of khot?
We think not. We think, further. that some of the above facts militate against the title alleged by the plaintiff." In Ganpati Gopal Risbud v. The Secretary of State for India(') the Bombay High Court reiterated that khots in the dis- trict of Kolaba are h~reditary farmers of the revenue and are entitled to hold their villages as Khoti on their entering every year into the customary Kabulayats.
At p. 768 Macleod C.J. stated : "The relationship between the Khot and the Govern- ment, to my mind, is perfectly clear. As stated in Mr. Candy's report it is indubitably established that a
Khot's interest iiil his village is limited, not absolute; he possesses in some measure a proprietary right; in fact he is an occupant with all the rights and liabi'ities affecting such a status.
The Khot has to secure to Gov- ernment 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) Khotnisbat lands which are either in the hands of pem1anent occu-
pancy tenants or tenants with less peflllanent right payi Fayda to the Khot and the Government assessment; and {3) Khoti Khasgi lands, private lands, in the possession of the Khot oJ' which he can make such use as he
pleases." It was contended on behalf of the app~llants that the Sud of 1869 at p. 124-A of the paper book was an important documemt 3nd the Tribunal has not correctly appreciated the meaning of the (lJ 26 Bom. L.R. 754.
c j. c SH1AMSUNDER v. MAHARASHTRA (Ramaswami, J.) words Khalsa and Varkas. We do not wish to express at 1:.is 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 Deputy Collector how far this document has a bearing on their claim to proprietary right of survey plot nos. 130 a,nd 132.
It is clear that in the absence of a sanad or a deed or a grant granting proprietary rights over the soil a Khoti is not the proprie- tor ol. the lands constituted as reserveq forest in the khoti village and is not e~titled to any proprietary right in the uncultivated or forest land. The legal position is correctly summarised in Dande- kar's Law of Land Tenures, Vol. !, pp. 287-288 as under:
"S~ction 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 individuals capable of
holdi·ng 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 proprie-
tary or any other limited right to the trees standing or growing on lands in his khoti village depends ( 1) upon the khot's inte'est in the soil (2) upon any express grant or concession, and (3) upon the customary user.
if any. If the first case, if the khot is the proprietor o.f the soil, which is very hardly ilie case, he is the proprie- tor 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 those trees is incident to proprietor- ship of the land. Jn such a case the principle h quicquid plantatus solo solo cedi~. 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 reserve 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 tbe pre- sumption is displaced by Positive evidence that Governm•nt has granted rights in any particular tract or piece of land or has consciously allowed adverse rights to grow therein.
(see Kodoth Ambu Nair v. Secretary of State for India.(') In Sadashiv Parshram Risbud v. The Secretary of Sl.ite for India( 2 ) the question arose whether the khots were entitled to (I) 51 I.A. 257.
(2) 20 !lorn. L.R. 141. recover the sale proceeds of certain teak trees sold by Govern- ment grown on Varkas lands. In the alternative the khots claim- ed one-third share of the sale proceeds relying upon the clause in the kabulayat. It was held by the Bombay High Court that as between the khots and the Government the matter in dispute was concluded by the kabulayat 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 Dunlop's Proclamation could apply to Varkas lands in a 1.'..'loti 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 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 s. 40 of the Land Revenue Code and they had failed to prove that they were entitled to the benefit of Dunlop's Procla- mation in respect of the Varkas lands in question.
tn 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 viHage 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 nallas. 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 cus-
tomary incident of the Khoti, to a share in the forest revenues of the village; ( 4) What is the market value of the loss of sudl share or 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 ch0ose on these points.
After taking such evidence the Special Deputy Collector \viii pronounce the award in the light of the law laid down in this judgment. Subject to these observations we affirm the order of
the Maharashtra Revenue Tribunal dated February 25, 1965 and dismiss the appeal. There will be no order as to costs. V.P.S. Appeal dismissed. c