9911796707
TMI Blog1941 (10) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... khad ward of Ahmedabad city. Its area is 642 square yards. The plaintiffs' case in substance was that this land was taken possession of by their ancestor Jethabhai, who was the head of the family, since the time of the Company's Government more than seventy-five years before the date of the suit, that he erected buildings thereon, and their family had remained in continuous possession and enjoyment of the same. It is stated that the land was open fallow land, that it was not of anyone's ownership or in anyone's possession, that therefore, Jethabhai took it into his possession more than seventy-five years ago and having built houses thereon made it habitable, that the possession of the land and the buildings remained with the family, and that the buildings were let to several persons from time to time. The Government, however, contended some time before the present suit was filed that the land was not of the absolute ownership of the plaintiffs but that it was granted to two persons on a lease for ninety-nine years which lease had expired by the end of March, 1930. A notice was given to remove the buildings erected on the land and to put the Government in vacant poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, bound to vacate it as the Government did not desire to renew it. It was lastly contended that the plaintiffs had not paid the proper court-fees and they were not, therefore, entitled to the reliefs claimed. 4. Defendant No. 2 is a member of the same family as the plaintiffs and he supports the plaintiffs' case. I will, therefore, include him in the category of the plaintiffs and henceforth describe the Government as the defendant in the case. 5. On these pleadings the learned trial Judge framed several issues. Issues Nos. 1, 2 and 3 were preliminary issues under Section Revenue Jurisdiction Act of the Civil Procedure Code as well as Section 11 of the Revenue Jurisdiction Act and Articles 14 and 120 of the Indian Limitation Act. Issues Nos. 4 and 5 dealt with the merits of the case. They were whether the plaintiffs had proved their alleged ownership of the suit land either by title or by adverse possession, and whether the suit land was held from Government under a lease for ninety-nine years, whether the lease had expired and whether the lease was or was not binding on the plaintiffs. The findings on these issues were that the notice given by the plaintiffs under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to a declaration that the plaintiffs were entitled to continue in possession and enjoyment of the land without the liability to make any payment. The plaintiffs have not filed cross-objections or appeal on the ground that the relief of a declaration about their absolute ownership of the land should have been granted to them, or that the lower Court ought to have held that they had acquired title by adverse possession. 7. It will appear that the dispute in this case relates only to the land and not to the buildings. It is the case of the Government that the land was given on lease free of rent and that the lessees were entitled to erect buildings thereon. It is conceded by the Government that the plaintiffs' ancestors have built superstructures on the suit land and that the notice was given to recover vacant possession of the land after removal of the superstructures. 8. I may first deal with the question of the plaintiffs' title to the land. The learned Judge has come to the conclusion both on the admission made by the plaintiffs in their plaint as well as on the evidence that they have not succeeded in proving their title to the land. Their own, allegation in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment, that most of those lands were unoccupied at that time, and in order to encourage the development of this prominent site, situated near the main, citadel called Bhadra in the city of Ahmedabad, the Collector gave the lands in this area on leases for, different periods, that the suit land had been given on lease in the year 1831 to two persons, Fardunji Santokji and Fardunji Nowroji, that it was given rent-free and that although superstructures were allowed to be constructed on the same, the land was resumable at the end of that period. The case of the Government further was that two copies of the leases were made, one copy was given to the lessees and the other copy was kept in the Government, record, that a book was maintained containing copies of leases granted to various persons from time to time, and a Patta Register, i.e. a register containing a general description of all leasehold lands, including the names of the persons to whom they were leased, the description of the persons and the time when the leases were to expire, was also maintained in the Government record. From the leases and the other papers a general index of all the lands situated in the different wards of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector's record (exhibit 105) contains an endorsement in his handwriting about receipt of its copy. The sanad was valid only up to March 31, 1930, and thereafter the Government did not wish to continue the lease in the plaintiffs' favour. They gave a notice on October 3, 1931, for eviction of the plaintiffs from the land and for rent in the nature of damages from the period of the expiry of the lease up to the date of handing over its possession to the Government. The plaintiffs did not comply with the notice and filed the present suit on March 31, 1932, for the reliefs mentioned above. 10. On the first issue with regard to the notice under Section 80 of the Civil Procedure Code it is held that the suit is not defective, and I think the learned Judge was right in holding that the notice is not defective under that section. It is contended on behalf of the defendant that the notice, exhibit 29, must state the names, the description as well as the places of residence of the plaintiffs, but it does not give the description of the plaintiffs inasmuch as the surnames, the caste and the occupation of the plaintiffs are not given. Reliance is placed on the decision of their L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Act, or of any law for the time being in force to the contrary, an appeal shall lie! from any decision or order passed by a revenue officer under this Act, or any other law for the time being in force, to that officer's immediate superior,... 13. If the notice, exhibit 28, given by the Government to the plaintiffs is a decision or order coming within this section, it is clear that the plaintiffs ought to have appealed against that decision or order, and if they did not so appeal, the suit would come within the provisions of Section 11 of the Revenue Jurisdiction Act. It is, therefore, to be seen whether the notice, exhibit 28, is a decision or order within the meaning of that expression in Section 203. That notice, which is given on October 3, 1931, begins by stating that the land was of the ownership of the Government, that it had been leased to the plaintiffs' predecessor in March, 1831, for a period of ninety-nine years which expired in March, 1930, that on the expiry of that period the Government were entitled to its vacant possession and that the plaintiffs were called upon to give such possession but under some pretext or another they had failed in doing so, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue Code that before the notice under Section 202 is given, the Government should actually pass an order and communicate that order to the party concerned before giving such notice. It is open to the Government to pass an order in the form of a notice, and as provided by this section to serve it on the party concerned, and if that is done, the Government must be deemed to have complied with the provisions of the Land Revenue Code. It is true that the notice, exhibit 28, does not mention that it is given under Section 202 of the Land Revenue Code, but, in my opinion, it is quite clear on its wording that it could not have been given under any other provision of law except Section 202. The wording is very much similar to the provisions of that section. There is no doubt that the Government possess larger powers than those of a private landlord. A private landlord has no power to summarily evict a tenant who is holding over. The Government have, however, the power to do so under various sections of the Land Revenue Code, such as Sections 61, 66 and 79A of the Land Revenue Code, and at the termination of the period for which a particular land might have been granted by the Government t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake it, or shall be deemed ever to have made it, unlawful for the Collector at any time to grant permission to any person to occupy any unalienated unoccupied land, for such period and on such conditions as he may, subject to rules made by the Provincial Government in this behalf, prescribe, and in any such case the occupancy shall, whether a survey settlement has been extended to the land or not, be held only for the period and subject to the conditions so prescribed. 21. The combined effect of Sections 61, 68 and 202, therefore, is that the Government have the power before as well as after the enactment of the Land Revenue Code to grant lands to occupants on certain terms and conditions, that if a grant was made for a certain period, the Government would be entitled to resume the land at the expiration of that period, that any occupation of the land thereafter would be a wrongful occupation for which the holder would be liable to summary eviction, and if the Government decide to evict such person they can do so by giving him a notice under Section 202. That notice, therefore, amounts to a decision or order of the Government to evict the person who is in occupation of the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Act in which it is held that no suit was required to be brought to set aside an order which was illegal or ultra vires. There are various answers to this contention. If the lease relied upon by the Government is proved, there is no doubt that the order is not only intra vires but good on the merits. Even assuming that the lease be not held as proved, the plaintiffs had no title to the land as rightly held by the lower Court and as nobody else was its owner at the time when it was occupied by the plaintiffs' ancestor, the presumption under Section 37 of the Land Revenue Code which was also applicable before its enactment was that Government were its owner at that date. If the plaintiffs claim to remain in possession merely on the strength of their long possession in the past, though without any rightful title in them, Government had the right to assert their ownership which had not been divested by the act of the plaintiffs' ancestor, and they had a right of resumption so long as the plaintiffs had not proved any acquisition of right in them by adverse possession against the Government. The giving of the notice, therefore, cannot be regarded as invalid or ultra vires. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. In my opinion, therefore, the decision or order in exhibit 28 required to be appealed against under Section 203 of the Land Revenue Code, and the non-prosecution of the appeals is a bar to the maintainability of the present suit under Section 11 of the Revenue Jurisdiction Act. 24. I have observed above that if the Government had prima facie materials for the case of the lease, then the act of the Government officers would not be ultra vires. It is, therefore, necessary to deal with those materials at the present stage to examine whether those documents establish the Government's case of the land having been given on lease for a period of ninety-nine years. The earliest document relied upon by the Government is exhibit 136 including exhibit 136A, both of which are the upper and lower parts of a page in a bound book containing copies of leases given to various persons from time to time. This document purports to be a copy of the lease of the land in suit and it is produced with the list exhibit 113 along with the bound book. The lower Court has held that although this is a leather-bound book and is undoubtedly very old and coming from Government custody, it is not admissib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atta Registers were prepared and these books constituted the City Survey record. From these books the general index registers, which were known as atlases, were also prepared evidently for the purpose of ready reference. These registers contained maps or atlases of the various wards of the city together with the index of the lands which had been given on lease to different persons. The Patta Register, which was separately maintained, contained the description of the persons to whom the lands were given, the area of the lands and also the period when the leases would terminate. But that was different from the book containing copies of leases from which exhibits 136 and 136A were taken. The latter contained copies of leases up to about 1849 only while the Patta Register was maintained for the subsequent period also. The general index register contained indexes of lands and it is different from the Patta Register. This general index was continued up to about 1890. Thereafter it was printed and several printed copies with plans or atlases as they are called were distributed to the different Government departments and one such copy was supplied to the Ahmedabad Municipality. At the end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... index is a public record and admissible in evidence, he relies upon the decision of this Court in Hiralal v. Secretary of State (1930) 33 Bom. L.R. 828 where the dispute was about another land in a different area in the same city of Ahmedabad, and in which one of the printed copies like those which we have here, viz. exhibits 123 and 144, was produced and an extract from that book was admitted in evidence by the trial Court and relied upon by it as well as by this Court for holding that the land in dispute there was of leasehold tenure. The learned Judge, however, is under a misapprehension in thinking that what was produced in that case was the original index register itself and not a printed copy of the same. He says so because he thinks that the judgments of this Court contain no discussion as to whether the printed copy was admissible. That, however, is not the case when the judgments are properly read. Patkar J. observes (p. 830) :- It appears that the original survey records having been destroyed by fire at Ahmedabad, there are no satisfactory official records of title to the property. The general index, Exhibit 64, which has been saved from fire, shows that the land surv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 31. In my opinion, the printed copy of the index register is itself a public document. These printed copies are not merely kept for the private use of Government officers, but they are open to inspection by the public and certified copies are also supplied from them. Witness Chaturbhai, exhibit 154, who is a surveyor, says in his evidence that certified copies of the record of old and new city surveys are given to those who apply for them, that the whole combined sheet map is sold for ₹ 5 for the new city survey, that copies of the index register and maps of the old city survey are also supplied, that inspection is also allowed of the record and the maps, and that this is done according to rules Nos. 135 and 136 made under the Land Revenue Code. Witness Chunilal also says that certified copies of the maps on the record are given to any one who applies for the same. So also witness Krishnalal. There is no reason at all to doubt the testimony of these witnesses who were all Government servants and depose from their personal knowledge. In my opinion, the printed books must themselves be regarded as public documents and as such admissible in evidence. They are coming from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That register or takta was not in original but a copy of the original takta was produced. It was contended that it was not a public document and could not be proved by a certified copy. But that contention was negatived and it was held that the copy came within the definition of a public document in Section 74 as it was a record of the acts of a public officer, and it was relevant under Section 35 or at any rate Section 13 of the Indian Evidence Act. In my opinion, the same could be said of exhibits 123 and 144. They are relevant under Section 13 as well as Section 35 of the Indian Evidence Act, and I think therefore, that they are admissible in evidence. 33. The lower Court rejects these documents, firstly, on the ground that exhibit 144 was a copy of a copy in print and it is not certified to be correct by a Government officer, that it bore no seal and that it was incomplete. In my opinion, this exhibit cannot be rejected on that ground. It is a printed book from the original general index, and if the original index was relevant and admissible in evidence as the learned Judge himself takes it to be, I do not see why the printed copy, which has been maintained and acted upon f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n evidence under Section 83 of the Indian Evidence Act, and there is no doubt that they are so admissible not only under Section 83 but also under Sections 36 and 87 of the Indian Evidence Act as well as Section 213 of the Land Revenue Code. The learned Judge, however, says that although the maps are admissible in evidence, the colouring of the maps is not so admissible because it had not been satisfactorily proved as to why the maps were coloured, by whom they were coloured and for what purpose they were coloured. The learned Judge does refer to the evidence of witness Chunilal on that point who says that he himself did the colouring under the orders of the then Collector Mr. H. L. Painter. The learned Judge says that this witness Chunilal was in the City Survey Office for a long time, but that it is difficult to believe that he had seen the original index himself and that the maps were coloured by him under the directions of the Collector. One ground for disbelieving this witness is that whereas in his examination-in-chief this witness says that he coloured the original map, in cross-examination he turns round and says that he coloured the printed copies of the original after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit land must have been given on lease and the period of the lease was ninety-nine years expiring in about March, 1930. 39. [After further discussion of evidence, the judgment went on :] On this evidence, it is, in my opinion, satisfactorily proved by the defendant on the materials which the Government possessed after the fire of 1919 that the suit land was of leasehold tenure and that the lease was to expire in March, 1930. That conclusion, to my mind, is corroborated by the other circumstances in the case. Those circumstances are that the plaintiff himself, as I stated before, has not been able to prove his title at all with regard to the suit land, and the conduct of Gajanan from the time he came into possession of this land till now would clearly show that he has not challenged the character of the land being leasehold land. I might say further in this connection that not only did Gajanan not protest after he received the notice of the City Enquiry Officer's decision and got a certified copy of his order, but in 1930 when Government offered him a sanad confirming his possession up to March 31, 1930, the date of the expiry of the lease, with the condition to resume the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in March, 1930. It is not the case that a lease for ninety-nine years could not have been granted by the Government at all. There is in evidence one document, exhibit 185, which is a counter-part of an original lease granted to another person, and that is a rent-free lease for ninety-nine years such as the lease in the present case is and the map also shows that the lands in the locality had also been given on leasehold tenure. There was nothing extraordinary, therefore, if this land had been granted on lease for a period of ninety-nine years. There is nothing to show that the Collector had not the power to make grants for a definite period in favour of private persons. On the other hand, there are various provisions of law from time to time which would show that the Government had got the power to make dispositions of unoccupied unalienated land to different persons. Section 7 of Bombay Regulation XVII of 1827 gives power to the Government to dispose of unalienated land. This power has been exercised by the Government since then from time to time and the subsequent revenue enactments also have recognised the power of the Government to make grants to various persons. An instance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiffs' ancestor took possession of it, but that possession must not be deemed to be as owner when there is nothing to show that the Government had at any time recognized the possession of the plaintiffs' family as owner of this land. Mr. Thakor on behalf of the plaintiffs has contended that the alleged admission of the plaintiffs in paragraph 3 of the plaint that their ancestor took possession of the land which was of nobody's ownership when it was lying open and fallow cannot be taken as admission in view of the evidence which would show that the land must have been granted to the plaintiffs as absolute owners. Mr. Thakor had to contend that the admission of the plaintiffs in paragraph 3 ought to be ignored because it went against the plaintiffs. But the evidence to my mind, instead of establishing the private ownership of the plaintiffs' family, is corroborative of the admission in the plaint and points to the conclusion that the land originally did not belong to them, that it belonged to the Government at that time, that for sortie reason or other the original lessees had relinquished possession of the land and that the plaintiffs' ancestor had come into o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1916) Mad. 617 P.C. It is not necessary, in my opinion, to discuss these cases separately. The effect of the principal decisions has been considered by this Court in a recent ruling in Suraji Fulaji v. Secretary of State (1936) 39 Bom. L.R. 216 and the principle as summarized by Broomfield J. is that the possession under Section 110 must be of such a character as would lead to a presumption of title, and it is on that ground that the decision in Hanmantrav v. Secretary of State for India is distinguished. It is necessary, in my opinion, therefore, for the plaintiffs to prove that their possession was of such a character as would lead to the presumption of title, and not such a sort of possession as would be regarded as wrongful in its origin. In my opinion, it could not be the law that a! man might usurp somebody else's land and without completing the period of adverse possession say that I am in long possession of this land, I have erected buildings on it, and although I have no title in my favour and even though I have got possession of the land by usurpation or encroachment, I am entitled to remain in possession under Section 110 and that nobody can oust me . The presump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the suit land at the time when the plaintiffs' ancestor took, it into his possession, viz., (1) its acquisition by grant or title (2) that the land was of the ownership of some other individuals, and (3) that it belonged to Government. As regards the first alternative, the plaintiffs have not even alleged that their ancestor acquired it by grant or purchase, and it is not also proved that their occupation of the land at its inception was based on such acquisition of title. The second alternative is also precluded because the plaintiffs' case is that the land was not of any one's ownership or possession at that time and that therefore their ancestor took it into his possession. There is nothing also on the evidence to show that it belonged to any one private proprietor. Therefore there remains only the third alternative that it was of the ownership of Government at that time. There is therefore no scope, in my opinion, for the application of the presumption under Section 110 of the Indian Evidence Act. It is this circumstance which distinguishes the present case from all decisions relied upon on behalf of the plaintiffs. It is on this presumption only that the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document is within sixty years before the date of the suit. It is true that there are a number of rent-notes and other documents by which the plaintiffs have rented this property to several persons, and in one case even Government became a tenant of the building. But that does not take the case of the plaintiffs any further. I think that the learned Judge did feel this difficulty and therefore did not make any finding with regard to adverse possession. The learned Government Pleader contends that adverse possession in any case ceased to run from the decision of the City Survey Inquiry Officer in 1923. It was contended by him that when the plaintiffs accepted that decision and did not protest against it, their adverse possession came to an end because in any case the character of this possession must be deemed to have been changed, and reliance was placed for that argument on Muthirulandi Poosari v. Sethu-ran Aiyar I.L.R. (1919) Mad. 425 and Ramamurthi v. Gajapatiraju I.L.R. (1932) Mad. 366. The case of Muthirulandi v. Sethuram was a case of boundary dispute, and under the law such a decision became conclusive between the parties. The case of Ramannurthi v. GaJapatiraju follows the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n one year from the date of the notice (exhibit 28) in October, 1930. The lower Court has held that Article 14 would not apply as that order was ultra vires and that therefore the plaintiffs were not bound to file the suit. It has been conceded by the learned Government Pleader that if that order be treated as ultra vires, then according to the authorities Article 14 would not apply. As I have stated above, the decision recorded in exhibit 28 cannot be said to be ultra vires of the Government and there would therefore be no bar as to the applicability of Article 14 on that ground. However it would be a question as to whether the plaintiffs were bound to bring the suit within one year of the date of the order. On that point Article 14 does not seem to have been relied upon by the Government in the case decided in Secretary of State v. Husenabu (1930) 33 Bom. L.R. 361, and the question whether the present suit is really a suit to set aside that order is not entirely free from difficulty. But it is not necessary to express any decided opinion on this point inasmuch as in my opinion the suit is barred1 under Section 11 of the Bombay Revenue-Jurisdiction Act, and it also fails on the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a permanent lease is on the lessee and not on the Government. Moreover the evidence in the present cast;, just as in that case, also points to the conclusion that it must have been a grant for a period' of ninety-nine years and not permanent. In that case there is no presumption that it was necessarily a grant for building purposes. Even in a case of lease for ninety-nine years, it would be open to the lessee to construct a superstructure with the hope of its renewal; I do not think therefore that the fact that the plaintiffs have erected superstructures from time to time over this land would necessarily create a presumption in their favour with regard to their being permanent lessees of the land. This finishes the principal relief sought by the plaintiffs with regard to the land. 46. The alternative relief sought by them is an injunction that the Government should not take possession of the property without fixing a reasonable sum for payment in lieu of the plaintiffs' right of possession. This alternative relief is sought on the basis that the leasehold for ninety-nine years was proved and that it was under such a lease that the plaintiffs came into possession of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be entitled to any relief. But Government have in my opinion satisfactorily proved that the land was of a leasehold nature, that the plaintiffs occupied the land as lessees for a period of ninety-nine years which expired in March, 1930, and that Government were therefore entitled to resume possession of the land if they liked. The appeal is therefore allowed, the decree of the lower Court is set aside, and the plaintiffs' suit is dismissed with costs in this Court as well as in the lower Court. 48. C. R. A. 260 OF 1935 : This is an application by Government against an order of the learned Judge in this case allowing the plaintiffs to amend their plaint by which the value of the relief was changed from ₹ 5,000 to 5,005. 49. It is contended that the amendment was not necessary for determining the real question in controversy between the parties and therefore it did not come under Order VI, Rule 17, of the Civil Procedure Code. It was however conceded by the Government Pleader that there is no authority to show that a valuation of a relief cannot be allowed to be amended under Order VI, Rule 16. In my opinion the amendment of this relief does not change the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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