Second Appeal No.780 of 2005

4th September, 2008

Petitioner Counsel: Mr. S. M. VIBHUTE,Mr. V. C. SOLSHE

Cases Cited:
State Bank of India Vs. S. N. Goyal, 2008 ALL SCR 2139 : 2008 AIR SCW 4355 [Para 2]
State of Himachal Pradesh Vs. Keshav, AIR 1997 SC 2181 [Para 8]

JUDGMENT

JUDGMENT:- Heard learned counsel Mr. S. M. Vibhute Advocate, h/f. Mr. V. C. Solshe, Advocate for the appellant. Also heard learned A.G.P. Mr. J. S. Gavhane. The State of Maharashtra or its officers are not party to this second appeal. This matter was listed before this court for hearing on 6th of August, 2008. That day I heard learned counsel for the appellant wherein the learned counsel for appellant had invited my attention to Exh.5 i.e. Hissa form No.4 (Copy of Gunakar Book). On my query, the learned counsel for appellant informed me on that day that survey manual is not available with the High Court Bar Association, Aurangabad, Bench at Aurangabad. In this premise help of learned A.G.P. Mr. J. S. Gavhane was sought. He was requested to produce on record the format of Hissa Form No.12, Hissa Form No.11 and Circular issued by the Settlement Commissioner, Pune on 24th of June, 1940. Hearing of the appeal was adjourned. That is why this second appeal is today listed for admission The learned A.G.P. Mr. J. S. Gavhani has made available circular issued by the Settlement Commissioner on 24th June, 1940 and format of Hissa form No.4, Hissa form No.11 and Hissa form No.12. All these documents are marked by letter Exh.X collectively for the purpose of identification and taken on record. Mr. Gavhane has made available this circular and formats with the assistance of Mr. Balwant Warkad, Shirastedar from the office of T.I.L.R. The learned A.G.P. and Mr. Warkad, Shirastedar from the office of T.I.L.R. are relieved.

2. The appellant in this second appeal was original plaintiff in Regular Civil Suit No.351/1990 and the respondents in this appeal are the defendants in the suit. Parties, hereinafter, are referred to their status as plaintiff and defendants for convenience. The plaintiff had sought declaration that plaintiff is owner of the suit property and it also sought a decree for perpetual injunction against the defendants. This suit, after hearing the parties, came to be dismissed by the Trial Court. The judgment and decree passed by the Trial Court in Regular Civil Suit No.351/1990, was challenged by the aggrieved plaintiff. It was Regular Civil Appeal No.68/2003. This appeal, after hearing the parties, came to be dismissed by the learned Additional District Judge, Nilanga (First Appellate Court). It is this judgment and decree passed by the First Appellate Court is the subject matter of the present second appeal. The agricultural land survey No.23/1, admeasuring 32 R. situated at village Koyajiwadi, Tal. Nilanga, District Latur is the subject matter of the suit. The parties in Civil Suit are expected to plead material facts in their pleading. The pleading is defined under of Order 6, Rule 1 of Civil Procedure, plaint is pleading of plaintiff and written statement is pleading of defendant. The parties, after pleading the material facts, have to substantiate those material facts by evidence either documentary or oral. While leading oral evidence, parties have to lead evidence in consonance of the pleadings. Evidence besides the pleading cannot be led by the parties in view of the provisions laid down under Order 6, Rule 2 of the Civil Procedure Code. Parties are not permitted to travel beyond the pleadings. Oral evidence, if besides, his pleading lead by the parties, needs to be excluded by the Court while considering and appreciating the evidence of the party in a suit. Thus, the pleading is foundation of the stance taken by the party in civil suit. Such an importance of the pleadings has been laid down by the Supreme Court in the matter of State Bank of India Vs. S. N. Goyal, reported in 2008 AIR SCW 4355 : [2008 ALL SCR 2139]. Keeping in mind the importance of the pleadings, now I turn to examine the pleading in the case on hand since entire record and proceeding is available before this Court.

3. The plaintiff has stated in the plaint that suit is for the declaration of ownership with perpetual injunction regarding the agricultural land bearing survey No.23, Hissa No.1, area to the extent of 0 H. 32 R. Boundaries of this suit property have been given by the plaintiff in para 1. It is pleaded by the plaintiff that husband of defendant No. 1 and father of the plaintiff namely Shankarrao were real brothers along with third brother Vyankat. The father of the plaintiff was residing separately since 1959. Husband of defendant No.1 died somewhere 1970, leaving behind his widow and two sons i.e. defendants Nos.2 and 3. In para 2, statement is made that at the time of partition between the father of plaintiff and his two other brothers namely Vithal and Vyankat, suit land was allotted to the share of the plaintiffs father i.e. Shankar. Since 1959 till the date of filing of the suit, plaintiff and his father are in actual possession of the suit land. The partition of 1959 was oral made by the panchas in the year 1959. It was a day of Gudi Padwa. In para No. 3, it is pleaded that suit property is in actual possession of the plaintiff, but the revenue record does not show the name of plaintiff or his father. The plaintiff and defendants were under the wrong impression that suit land i.e. admeasuring 0 H. 32 R, is part and parcel of land bearing Survey No. 22, since said land survey No.22 is owned and possessed by the plaintiff and his family members. It is also pleaded that the defendants have full knowledge about the actual possession of the plaintiffs over the suit land. In para 4, it is stated that at the time of measurement of Sub-Division (Pot Hissa) of survey No.23, it was revealed that plaintiff is in actual possession as owner of the land survey No. 23 to the extent of 0 H. 32 R. i.e. suit land. This measurement had taken place in the year 1971. Boundaries of this suit land have been given in para 5. In para 6, it is stated that the date of adverse possession of the plaintiff over the suit property started from the date of measurement of the Pot Hissa by concern department and possession of the plaintiff over the suit land is since from the measurement of the Sub-Division (Pot Hissa) in the year 1971. From that date possession of the plaintiff is continuous and hostile to the true owner and this fact is known to the all defendants. On the basis of this adverse possession, plaintiff has acquired ownership of the suit property. It is pleaded in para 6 that on southern side of the suit land there is fencing by shrubs and beyond that, property allotted to the share of defendant is situate. Such fencing exists since about 40 years. Such fencing is east-west in direction. There is old Nala (stream) also. In para 7, it is pleaded that there is cattleshed in the suit land of the plaintiff and he used to keep his agricultural equipment in the said cattleshed. In para No.8, it has been stated that plaintiff has submitted the copy of Pot Hissa and map of the measurement along with survey No.22 and 23 of village Koyajiwadi and in para 9, alleged encroachment by the defendants is pleaded. However, Cause of action for filing of the suit, according to the plaintiff, arose on August 5, 1990.

Defendants after entering appearance filed written statement at exh.16/B. In para 1, it is stated that suit of the plaintiff is not true and denied by the defendants. However, the relationship of the plaintiff and defendants interse revealed from the para 1 of the plaint, is admitted. Specifically, it is further pleaded in para 1 of the written statement that father of the plaintiff was living separate since 1959 and Vithal the husband of defendant No.1 and father of defendants No.2 and 3 died in the year 1990. Para 2 of the written statement specifically denies the contentions raised by the plaintiff in para 2 of the plaint. According to the defendants, the pleading in para 2 is utterly false and baseless. It is further pleaded that entire land survey No.23 admeasuring 9 H., 61 R. (23 acres, 30 guntas) had been allotted to the share of the father of the defendants No.2 and 3 and husband of defendant No. 1. It is further stated that since then Vithal had been in actual possession of the same (suit land) exclusively as owner and after his demise, the defendant entered the possession since 1970. Since 7/8 years there have been separate shares of the defendants No.1 to 3. Defendant No.1 got share of 8 acres and 30 guntas, defendants Nos.2 and 3 received each 7 acres 20 guntas, in the revenue record. Earlier entries stated in the name of defendant No.1 after demise of Vithal. This partition amongst defendants interse also culminated in their actual possession of the respective area. Thus, they are owner of the respective area of the survey No.23 as a whole. It is also pleaded in para 2 that plaintiffs father or plaintiff had no concern with the title and possession of the survey No.23. It is stated in the para 3 that the averments of the plaint i.e. suit land is in actual possession of plaintiff and recorded in the name of defendants is wrong and that the father of the plaintiff and defendants were under impression that the suit land is portion of survey No.24 of village Koyajiwadi, survey No.23 is owned and possessed by the plaintiff and his family members (probably reference would have been to the survey No.22, however, I have taken this pleading from the end of para 3 of the written statement.) It is also pleaded further that plaintiff has put forth false contentions to suit his purpose. Revenue entries, according to the defendants, had been in the name of Vithal, so far as land survey No.23 as a whole is concerned. After the demise of Vithal, defendants have succeeded him and the name of the defendant No.1 initially was recorded and since partition names of all the defendants are recorded with respective area in the partition amongst themselves. Plaintiff or his father never objected such mutations. In para 4 a statement is made that alleged entries in the measurement record of PotHissa are recorded without notice, in collusion with the said authorities by the plaintiff. Defendant No.1 illiterate widow and defendants Nos.2 and 3 have been minors. They perceived the false entries. They are challenging the correctness of this sub-division or PotHissa/measurement. A question is posed in para 4 of this written statement, that as to why had plaintiff kept quiet for such a long period till August 20, 1990 for the institution of the suit and claimed alleged right in respect of suit land. According to them, omission of the plaintiff shows falsity of the plaint. In para 5 contention of the plaintiff that since 1971 suit land has been in actual possession as owner, is refuted. The boundaries of the suit land shown in para 5 of the plaint is denied. Claim of the plaintiff that he has been in actual possession of the suit land as per the boundaries, is also denied. Plea of adverse possession raised by the plaintiff has been specifically denied in para 6 of the written statement. In para 7 of the written statement, contention of the plaintiff regarding cattleshed and keeping agricultural equipments, is denied. In para 8 of the written statement, contention of measurement and Pot Hissa is refuted. In para 15 of the written statement, dismissal of the suit is prayed. This written statement is filed on 12/03/1991.

4. The Trial Court framed about 7 issues at Exh.2, considering the rival pleadings. Issue No.1 was in respect of alleged partition on the date of Gudi Padwa in the year 1959 and allotment of the suit property to the share of plaintiff's father. Finding is recorded against the plaintiff. Issue No.3 was in respect of plea of the plaintiff that he has acquired title to the suit property by principles of adverse possession. Finding is against him. Issue No.4 was in respect of obstruction by the defendant and finding is against the plaintiff. Issue No.5 framed by the Trial Court was in respect of plea of the defendant that entire survey No. 23 admeasuring 9 H. 61 R. was allotted to the share of Vithal and finding on this issue is in favour of the defendants. Issue No.6 framed by the Trial Court was in respect of contention of the defendants that they are in actual physical possession of the land since 1970, finding is in their favour.

5. On behalf of the plaintiff, his own oral evidence is adduced at Exh. 48. Three other witnesses have been examined on behalf of the plaintiff namely Vithal Yerale (Exh.65), Kishan Kadam (Exh.72), Ramkishan Sagare (Exh.73) and Shivani Sagare (Exh.74). The plaintiff has also placed on record Exh.5 with Hissa form No.4 and Exh.85 certified copy of tonch map, 7/12 extract is at Exh.6.

6. On behalf of the defendants, evidence of defendant himself i.e. defendant No.3 Ramling Reddy is at Exh. 86, Shankar Gaddime (Exh.88), Mr. Maruti Sadhu Kadam D.W.3 is examined at Exh. 96 and one more witness namely Dhondiba Nana Kadam is examined at Exh.97. 7/12 extracts, Pahani Patrak Exhs.51, 55 and certified copy of mutation entry No.90 is at Exh.89. Exh.82 is certified copy of the judgment of the Judicial Magistrate in Regular Criminal Case No.43/72. Exh.83 is judgment of the learned Judicial Magistrate in S.T.C. case No.214/1981. The Trial Court has appreciated the oral as well as documentary evidence placed on record. It is observed by the Trial Court that survey Nos.22, 23 and 24 were joint family properties of Shankar, Vithal and Vyankat. It is not in dispute that Shankar, Vithal and Vyankat are dead. The partition of 1959 and allotment of suit property to the share of Shankar i.e. father of plaintiff is not accepted by the Trial Court. The Trial Court was appreciating the oral evidence of the parties. In para No.12 it observed that witnesses on behalf of the plaintiff Exh.65, 72, 73 and 74 nowhere shows that partition of 1959 was in their presence. On perusal of the oral evidence, Trial Court do not find these witness trustworthy. No mutation entry even after this oral partition was recorded and/or placed on record by the plaintiff for substantiating his contention that suit land was allotted to the share of his father. The Trial Court opined that land survey No.23 i.e. 9 H. 61 R. in its entirety was allotted to the share of deceased Vithal. Oral evidence of plaintiff himself and his witnesses for allotment of the suit land to the father of plaintiff, according to the Trial Court, is hearsay evidence and not admissible. Admission of the plaintiff himself that land survey No.23 was allotted to the share of Vithal is also recorded by the Trial Court in para No.13. Trial Court found that Vithal Yerale witness on behalf of the plaintiff Exh.65 is close relative. I have also read all that part of evidence and relationship admitted by the witness with the plaintiff.

The Trial Court assigned reasons for not accepting witness of the plaintiff in para 15. The Trial Court, thereafter, in para 16 dealt with Hissa Form No.4 Exh.5. The evidence on behalf of the defendants and documentary evidence Exhs.82, 83 and 85 is also considered by the trial Court. Trial Court opined that documents Exhs.5 and 85 are contradictory. The Trial Court observed that Exhs.5 and 85 bears no probative value. Plea of adverse possession was considered by the Trial Court in para 19 and at the close of para 19, Trial Court held that the evidence of the plaintiff is scanty, vague and insufficient to arrive at the conclusion that plaintiff had acquired title by principle of adverse possession. In para 20 the Trial Court has considered the documents Exhs.88, 97, oral evidence on behalf of the defendants, mutation entries Nos.90 and 226.

7. The First Appellate Court framed about 6 issues for determination. Amongst the 6 points, point No.1 was in respect of title and possession of the plaintiff and point No.2 was in respect of plea of adverse possession raised by the plaintiff, findings on these issues is against the plaintiff. The First Appellate Court has undertaken the exercise of appreciation of the oral as well as the documentary evidence and the submissions advanced on behalf of the plaintiff. The plea of the plaintiff that measurement had taken place in the year 1970, PotHissa was created i.e. as land 23/1 admeasuring 0 H. 23 R. and was allotted to the share of plaintiffs father, is also accepted by the First Appellate Court. The First Appellate Court has considered the Commissioner's Report Exh.26 and noted the fact that the cattleshed referred to by the plaintiff was not in existence nor any place to keep any agricultural equipments. Documents Exhs.5, 80 and 90, have been referred to by the Court. On appreciation of the oral and documentary evidence, plea of the plaintiff that in the partition of 1959 suit land was allotted to the father of the plaintiff, is not accepted by both Courts. The First Appellate Court on appreciation of the evidence, has also recorded finding on the plea of adverse possession against the plaintiff.

8. On behalf of the plaintiff, the learned counsel has invited my attention to documentary as well as oral evidence of the parties. According to him, following substantial questions of law are involved; in this appeal.

(1). Both the lower courts erred in law in dismissing the claim of the appellant on the basis of 7/12 extracts entry. This is so because now it is well settled principle of law that mere entry in the 7/12 extract does not confer any ownership right. This is so held by the Apex court in case of State of Himachal Pradesh Vs. Keshav & Others reported in AIR 1997 Supreme Court page 2181.

(2). Both the lower courts erred in law in not giving proper value to Exhibit-5 (Hissa form No.4) and Exhibit-85 (Touch map of Pot Hissa Survey). Because the above documents were prepared in the presence of the witness of plaintiff and the above documents clearly revealed the possession of the plaintiff.

(3). Both the lower Courts erred in law in not allowing the plaintiffs suit on the plea of adverse possession.

(4). It may be seen that the appellant in his plaint in para no. 3 had contended that though the record of 7/12 extracts does not show the names of the appellant or his father, but they were in possession of the suit property. For that purpose oral evidence was lead. However, the trial Court as well as the appellate Court did not accept the said evidence on the ground that it was against documentary evidence.

9. The fact alleged by the plaintiff in the plaint that partition, did take place on the day of Gudi Padwa of 1959 between the father of plaintiff Shankar, deceased Vithal and Vyankat, according to the learned counsel, is substantiated by the oral evidence. He fairly conceded that said partition was not in writing and/or any other form except oral partition in the presence of panch witness. He also fairly conceded that on behalf of the plaintiff no such panch witness is examined. He referred to the oral evidence of one of the witness Vithal Yerwale. I have considered the evidence of said Vithal Yerwale. It is not in dispute that three lands were joint family properties of father of plaintiff, father of defendants Nos. 2 and 3 and Vyankat viz. survey Nos.22, 23 and 24. We have no concern with the acreage of the land survey Nos. 22 and 23. In the case on hand land survey No. 23 is only relevant. Said land is the suit property admeasures about 9 H. 61 R. (in terms of acre 23 acres and 30 guntas). Out of this lands survey No.23, according to the plaintiff, suit land is about 0 H. 23 R. He has given boundaries in the plaint as noted by me in forgoing paragraphs. For this partition, I have considered the evidence of plaintiff and his witness Vithal. Evidence of this witness has been recorded in the year 2000. Witnesses are talking about the partition in the year 1959. It is a matter of appreciation of the oral evidence by the Courts below. I have considered the evidence of these witnesses and appreciation thereof by the Trial Court as well as the First Appellate Court.

It is submitted by the learned counsel for the plaintiff that suit land was allotted to the share of father of plaintiff during this partition of 1959. I have also perused various 7/12 extract placed on record by defendant from the year 1953-54 onwards including Pahani Patrak. In my view question of partition is a question of fact. Courts below have appreciated the evidence on record and recorded finding on the question of fact against the plaintiff. The First Appellate Court is the last Court of law and fact. Plea of adverse possession, I have examined from the pleadings of the plaintiff. According to the plaintiff, commencement of adverse possession is the date of measurement of sub divisions (Pot Hissa). Learned Counsel for the appellant fairly conceded that the date of measurement is not on record i.e. it was somewhere in the year 1971. I have perused the documents Exhs.5 and 85 also. Though the date is not specifically on record, the year of 1971 can be considered. From this view point, I have examined the case of the plaintiff. The plea of adverse possession, in fact, is mixed question of law and fact. Party raising such plea has to plead specifically and substantiate such plea. Commencement date of such adverse possession is most important aspect of this plea of adverse possession. This is because the statutory period for such adverse possession is 12 years in view of Section 65 of the Indian Limitation Act. Question, therefore, is that this period of 12 years is to be reckoned from what date ? This date ordinarily always known to the party setting up such plea of adverse possession. In the case on hand, it is the plaintiff who has raised this plea. Plaintiff, therefore, ought to have pleaded this date. However, in the facts and circumstances of the case, I am considering such commencement of the adverse possession from the year 1971 i.e. the period of measurement of Pot Hissa. From this view point, I have examined the finding recorded by the Courts below, oral and documentary evidence adduced by the plaintiff. In my view, there is no scope in the case on hand to take different view than that of the both the Courts below.

10. There are two more documents placed on record by the plaintiff. Amongst these two documents first one is the document Exh. 5. It appears that measurement and survey is the usual phenomenon in the rural part of the State giving rise to disputes amongst the agriculturist. There is understanding, misunderstanding, conception and misconceptions in the minds of the farmers. This area is dealt with by two departments of the State. Such problems are infact age old problems amongst the agriculturists of the State.

11. Hissa form No.IV i.e. Exh.5 has genesis to survey. This Gunakar Book/Hissa Form No.4 makes reference of the name of the village, Tahsil of village and District of said Tahsil. There are about 13 columns in this Hissa form No.4. Nos.1 and 2 pertains to description of agricultural land in survey No., column No.3 is regarding it's area, column No.4 is regarding Hissa No., column No. 5 refers the area of the Hissa, Column No. 6 refers to area of all such Hissas, Column No. 10 is important wherein area of the Hissa is referred, column No.11 is more important because the name of the occupant is to be written or mentioned in this column No. 11, column No.12 of this Hissa form No. 4 is also important, not only from the view point of Survey and Settlement Manual, but from the principles of natural justice. This column No. 12 makes reference that if the occupant is present at the time of measurement, his signature or thumb impression to be taken, recorded. In the absence of such occupant the Sub-division or Hissa if has been created, and explained by any person, his name should be recorded. Last column No.13 is remarks column.

12. While carrying out measurements, either on behalf of the Department of State or on behalf of the Agriculturist the Survey and Settlement Manual contemplates issuance of notice to the interested persons considering the exigencies for carrying out the measurement. Measurement is important step and infact foundation of claims of the parties regarding ownership, partition, possession, etc. The manner and method of notice is also a matter of the Survey and Settlement Manual. After carrying out the measurement, this Hissa form No. 4 obligates the entries. These entries are regarding survey No., Hissa No., Pot Hissa No., area thereof, name of the occupant i.e. column No.12 which is noted in forgoing paragraph. After preparation of this form No.4, authority competent in relation to Sub-Division or Pot Hissa also has to prepare Hissa form No.11. The format has been originated from the Survey and Settlement Manual. This format of Hissa form No.11 is also part of the Exh. X, collectively. This form makes reference to sub-division of the agricultural land, name of the village, Tahsil, District etc. Apart from this there are about 27 columns in this Hissa form No.11. Column No.1 makes reference to survey No., Pot Hissa No., column No.2 refers to area, uncultivable land, if any refers by column No.3, cultivable portion of land refers by column No.4, revenue of assessment is column No.5, nature of the land is column No.6, area is column No.7, Hissa No.is column No.8 and the area thereof is column No.9, column No.9 to 12 are regarding the area of land regarding cultivable or uncultivable, column No.12 is about area, column No.14 is regarding non cultivable land, column No.17 makes reference to source of water for irrigation, column No.19 is regarding length of assessment, column No.20 is regarding assessment and column No.21 is official assessment of the land payable to the State Government, column No.22 is regarding revision, column No.23 is the possession obtaining at the time of revision, column No.24 makes reference to the final assessment, column No.25 pertains to addition or subtraction of the assessment of the agricultural land in question. Column No.26 is the final assessment of the Pot Hissa or Hissa concern. Last column No.27 is remarks column. Form No.4 is titled as Hissa form No.4 whereas hissa form No.11 is accordingly titled as Hissa form No.11.

13. Next question to be considered is what is the importance of Hissa form No.4 and what is significance of hissa form No.11. Can Hissa form No.4 or 11 be considered as source of title to the person whether these two forms are having any probative force and/or value, if they are really having such probative value under which provision ? To answer to these questions reference to the history of "survey and settlement" needs to be made.

14. India was considered purely agricultural country in ancient time. Revenue generation from the agricultural land, was forming larger source of the then British India. The systems of settlement were classified visionally. (1) Settlement of single estate under one Landlord, (2) Settlement for estates of propriety bodies usually village committees, (3) Settlement for individual occupancies called Rayatvari system.

Initial survey had been extended from Pune to Nasik. There were no guiding principles for taking such survey operations. Survey to the Konkan area and the State of Gujarat was to be undertaken. It was thought imperative with some authoritative statements of principles should be made as regards both the future conduct of the surveyor and also the revenue system to be based upon the foundation of the survey settlement. The then Government in 1847 directed the three Superintendents Mr. Goldsmith, Captain Wingate and Davidson to hold a conference at Pune for the purpose of taking into consideration the best means of brining diversified operations of the safe revenue surveys. "Joint report" is outcome of this conference. This joint report was source of plenary inspiration for the guidance of the survey operations. Of course, there are subsequent modifications to the principles laid down. However, they are with reference to the unit of assessment and question of tenure. Authors of the joint report have also stated in para 84 of the joint report that "they should be considered applicable only to the collectorates about Ghauts already surveyed." The joint report has been divided in three main heads. (A) The unit of assessment, (B) The assessment of unit, and (C) The revenue system to be based thereupon with special reference to the important question of tenure as laid down in the joint report.

After the joint report and thereafter 3 years, survey was taken to the State of Gujarat and Konkan area (now part of Maharashtra). The same year Settlement Commissioner was appointed who was in charge of the whole operations. He was Mr. Captain Wingate. Thereafter, District after District was taken in hand until the whole of the Britesh territories had been brought under the operation of survey. In the year 1891, the work of survey was taken to the last Taluka i.e. Devgad and Ratnagiri. Thus, "original settlement in whole was finally completed". Following are the important Acts passed by the then Government; (1) The Surveyor Settlement Act I of 1865, (2) The First Amending Act about I of 1868, (3) The Land Revenue Code, V of 1879, (4) The Amending Act to the above i.e. VI of 1913.

15. Section 3, sub-section 3 of Bombay Land Revenue Code, 1879 defines "survey settlement" as includes a settlement made under the provisions of Chapter VIIIA. Sub-section 6 of section 3 of Bombay Land Revenue Code 1879 defines "survey number" means a portion of land of which the area and assessment are separately entered, under an indicative number in the land records. Section 3, sub-section 7 of the Act of 1879 defines "sub-division of a survey number" as portion of survey, a survey number of which the area and assessment are separately entered in the land records under an indicative number subordinate to that of the survey number of which it is a portion. "Holder of land" means to be lawfully in possession of land, whether such possession is actual or not, as defined under sub-section 11 of section 3 of the Act of 1879. The term "occupant" is defined under section 3, sub-section 16, meaning thereby a holder in actual possession of unalienated land other than a tenant : provided that where the holder in actual possession is a tenant, the landlord or superior landlord, as the case may be, shall be deemed to be the occupant. "Occupancy" means a portion of land held by an occupant as contemplates under section 3, sub-section 17 of the Act of 1879. Under section 3, sub-section 19 of the Act of 1879, "occupation" means possession. The term "joint holder" or "joint occupant" are defined as holders or occupants who hold land as co-sharers, whether as co-sharers in a family undivided, according to Hindu Law or otherwise and whose shares are not divided by; metes and bounds; and where land is held by joint holders or joint occupants "holders" or "occupants", as the case may be, means all of the joint holders or joint occupants. Surveys, assessments and settlement of land revenue is listed under chapter VIII of the Act of 1879. The State Government is vested with the power to direct the survey of any land in any part or area to which the Act of 1879 extends. The object of such survey settlement provided thereunder, was to the settlement of the land revenue and to the record and preservation of rights connected therewith or for any other similar purposes and such survey has been provided that shall be called as revenue survey. The Government was empowered to issue notification in the official gazette prescribing the territories i.e. area to which the Act of 1879 extends and confirming of division is also power given to the Government under sub-section 2 of section 2 of the Act of 1879.

Date : 04.09.2008

16. The Courts, while considering the disputes amongst citizens, often are required to consider "occupation, survey number, pot survey number (sub-division of survey number), restricted tenure or new tenure, old tenure or unrestricted tenure, record and rights, etc." The origin of all these terms, may be traced from "the Bombay Survey and Settlement Manual (Please see: Volume 1, Part 1 - by R.G. Gorden second edition). Chapter 9 of the Survey Manual refers to "the land tenures". The tenures of the then Bombay Presidency may be divided into three classes (i) the survey tenure, (ii) Inam tenures and (iii) Miscellaneous tenures; which cannot be properly brought under either of the first two heads. The survey tenure consists in the occupancy or ordinary government land. There are two forms of survey tenure; the old and unrestricted or new or restricted form and the difference between these two tenures is clear and vital. Under the old form the occupant has, as part of the conditions upon which the land is held, the unrestricted right to alienate it by sale, mortgage or any other form of transfer, whereas under the new form that right is restricted and alienation is only allowed by permission of the Collector. The survey tenure again is sub divided in two parts, first relating to the history of the occupancy and second to a description of the rights and duties of the occupant. The work "Inam" means "gift" or "grant" and land held on an Inam tenure is technically called "alienated" i.e. "transferred in so far as rights of government are concerned, wholly or partially to the ownership of any person". Such was the definition of Inam tenures under Land Revenue Code section 3 (2)). Miscellaneous tenures covers those tenures which are not properly classifiable under either of the two preceding heads. Examples of such tenures are the Talukdari and Maleki in the State of Gujarat and the Khoti in the Konkan area of State of Maharashtra. Prime object of the land settlement, is to record the person upon whom primary liability for payment of the land revenue rests. The entire system of settlement, imposition and recovery of the land revenue really depends upon, the answer as to the person upon whom such liability of payment of land revenue rests. In the erstwhile State of Bengal such responsibility was upon the landlord and the unit of the assessment was the estates; in the erstwhile State of Punjab such responsibility was upon the co-parcenary body of village proprietors and the unit of the assessment was the village. In the erstwhile Bombay Presidency, the village lands in the vast majority of cases, were held in small parcels of individuals without any existing connection of interest, whatever their past history might have been. There were isolated cases also of landlord and village assets in the erstwhile Bombay Presidency. For example, the Talukadari and Narwadari tenures. However, in due course of time the system of settlement via. "Rayatvari" was adopted in Bombay Presidency. Main objective behind this Rayatvari system is that the payment of assessment was not placed upon large estate or the village, as a whole, however, upon the separate small holdings of individuals. Such individuals in other system of settlement would be ordinarily the tenants of the landlords/large proprietors. This principle was laid down first in point of time in the first Bombay ordinance dealing with the subject of land revenue. it was Bombay Regulation No. XVII of 1827. There the word "occupant" and "responsibility of payment of assessment of the land was saddled upon the occupant. Section 3 of Regulation No.XVIII of 1827 (Regulation of 1827, for short) had provided that the settlement of the assessment shall be made with the occupant of the land. If the cultivator held the land under his cultivation directly from the Government, was considered as the occupant and when such land was not held from the State Government, however, was so held from the person having the highest right or holding recognised by the custom of the country or on specific grant, which intervenes between Government and the cultivator is to be considered. The history of occupancy shows that in the Deccan unalienated land were divided into two classes (i) Mirasdar and (ii) Uparis. All these two classes Mirasdars held their land by a tenure under which these lands were heritable and, therefore, divisible, according to the ordinary Hindu law of succession as well as transferable, while they also possess a practically indefeasible right to recover even after long abandonment. The Uparis were mere tenants at will without rights of succession or transfer and thus without hereditary attachment to them. Thereafter, Mr. Pringle's settlement was holding the filed basing the assessment solely upon the value of the land and not upon the status of the cultivator. This Pringle's settlement did not make any change in the relative conditions of two tenures. Thereafter, came the joint report i.e. the system of the occupancy.

17. System of imposition and recovery of land revenue had been evolving even after the joint report system of occupancy. Such evolution forms large part of the correspondence between the administrators and the then government. Capt. Wingate's letter and letters of the then Government, have recorded part of such evolution of term "occupant". Apart from the administrator i.e. officers in the survey and settlement department and the then Government, Courts have also played their role. The courts enforced partitions without record to the Joint Rules. It was because Joint Rules were not the law and, therefore, had no binding effect whatsoever upon the decisions of the Courts prevailing, in the era. The officers working under the survey and settlement department, thus, were compelled by law to effect, to carry out the partitions, orders passed by the Courts, even though the Collector was not allowed by the Joint Rules to recognise such partitions and sub-divisions of the agricultural lands. In a given case, on account of partition, for example, between three sons of the deceased cultivator, the revenue officer was compelled to take them in possession of their several plots. As per the Joint Rules holding the field, in fact, Collector was to enter the name of the eldest son (Rule of primogeniture which was prevailing at the relevant time) only and accordingly eldest son was technically recorded as "occupant" and his name was recorded in the then Government records.

The history of occupancy further reveals that such diversions had established at that time, two kinds of title to agricultural land, one founded upon possession, recognition by the Courts, the second upon "registration" recognised by the revenue authorities. History of occupancy further shows for about sixty years, it was a struggle first to reconcile and second to combine the two into one sensible and logical system. Thereafter, the first Survey & Settlement Act in the year 1865 came to be passed. This Act has thus, for the first time, had given legislative sanction to the survey/settlement operations and measures. This first Act of 1865 superseded the Joint Rules. Changes thought necessary were also incorporated in the provisions of the Act. Considerable changes relating to "occupancy" were made. Their, in the Act of 1865, section II(J) was incorporated, providing that the person whose name is entered authorisedly in the survey papers, for other public accounts, is responsible to Government for payment of the assessment due upon any field or recognised share of a field. Concept of sole holder was not favoured and Rule 27 had recognised co-ownership of the occupancy. Principles of liability of payment of land revenue, however, was saddled upon the occupant proper regarding whole survey number. The joint occupant merely was conferred with right to have his/ their names entered and his/their shares shown fractional parts of the rupee i.e. in terms of Annas and Pai; for their share of the assessment to the occupant. Fact of sub divisions was recognised by the Act of 1865, however, said Act revised the sub division of original survey numbers. By the Act no.IV of 1868 permission was granted to survey officers to sub-divide by survey number or share, subject to the limitations of area imposed. The law of occupancy stand revised by the Land Revenue Code (Act V of 1879) (hereinafter referred to as the Act of 1879, for short). This Act of 1879 recognised two classes of rights under two heads of "occupancy" and "registered occupancy", Word "occupant" came to be defined by section 3 (16) of Act of 1879 meaning thereby as holder of unalienated land, or where there are more holders then one, the holder having the highest right in respect of any such land, or where such highest right vests equally in more holders than one, any one of such holders. The other category i.e. registered occupancy was defined under section 3 (17) as a sole occupant or the eldest or principal of several joint occupants whose name is authorisedly entered in the Government records as holding unalienated land whether in person or by his co-occupant, tenant, agent, servant or other legal representatives. This double system of occupancy i.e. occupants under section 3 (16) and registered occupant under section 3 (17) of Act V of 1879 lasted for about 25 years. The confusion all along in these two terms that "occupant" and "registered occupant" was faced by the agrarians. The then Government faced the serious defects inherent in the survey settlement system. Famine Commission expressed an opinion for preparation of "record of right" for property administration. For some time "Khatedar system" was also resorted to. For manifold reasons such Khatedar system was found unuseful and was actually abolished.

Thus, "Famine Commission", in the year 1901, was of the opinion of preparation of record of rights. Study was carried out by two officers and report was submitted to the then Government. Outcome of the report was, an "Act to provide for the preparation and maintenance of record of rights in the lands of the Bombay Presidency". Record of rights, thus, was brought into operation by Act No.V of 1913. Changes proposed were considered and embodied in the Land Revenue Code Act No.IV of 1913. Under section 6(h) "occupant" was defined. Section 6(c) had provided sub division of a number. Authorisation was given under section 117-A for splitting up the survey number into such sub divisions. Thus, foundation was laid of whole new system of record of rights Act V of 1913 which was repealed and amalgamated with the Land Revenue Code.

18. It is also necessary to refer to few enactments since I am dealing with the question of agricultural land from Latur district of the State of Maharashtra, which was earlier Part of Nizam's State of Hyderabad. The Hyderabad Land Revenue Act [No.VIII of 1317 F. (1927 A.D.)] was applicable to the present Marathwada region of the State of Maharashtra. The Bombay Land Revenue Code, 1879 is a repealed enactment i.e. repeal of Bombay V of 1913. Application of the Bombay Land Revenue Code, 1879 is given under sub-section (2) of section 1. It is provided that it extends to the pre-reorganization State of Bombay, excluding the transferred territories. In the foregoing paragraphs of this judgment, I have referred to few definitions and important is the definition of term "occupant" under section 3(16) of the Bombay Land Revenue Code, 1879. It has been provided that the survey officer had occasion of making or revising a settlement of land revenue, to prepare a register to be called "the Settlement Register" showing the area and assessment of each survey number with any other particulars that may be prescribed and other records in accordance with such orders as may from time to time be made on this behalf by the State Government. Section 135(d) of the Bombay Land Revenue Code, 1879 is important for our purpose. It provides register of mutations and register of disputed cases. A duty is cast upon the village Accountant (the then Kulkarni) to maintain such register of mutations and register of disputed cases. Under sub-section (6) of section 135(d) it has been provided that the entries in the register of mutations shall be tested and if found correct, or after correction, as the case may be, shall be certified by a revenue officer of the rank not lower than the Mamlatdars First Karkoon (Subsequently recognised as Taluka Awwal Karkoon, in the State of Maharashtra). Presumption of correctness of the entries in the record of rights and register of mutation is laid down under section 135(j) of Bombay Land Revenue Code, 1879 which reads en entry in the record of rights, and the certified entry in the register of mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted thereof. One more enactment i.e. the Hyderabad Record of Rights in Land Regulation 1358 Fasli (1968 A.D.) needs to be referred to. This regulation is after the promulgation of Maharashtra Land Revenue Code, 1966. This Regulation of 1968, has been made enforceable to the area of whole of the Hyderabad State which is laid down under section 1(2). Section 1(3) is also relevant from the view point of the date on which this Regulation of 1968 can be considered to be in force. In this regulation, preparation and maintenance of record of rights is provided under section 4. Section 6, under this regulation, is regarding register of mutations and register of disputed cases. Presumption of correctness of entries in record of rights and register of mutations is made available under section 13 of this Regulation of 1968. There are two more sections i.e. section 17 regarding modification of law inconsistent with this Regulation and section 19 repealed and savings clause.

19. Thus, terms "occupant", "survey number", "restricted or new tenure", "old tenure" have their genesis in the Survey and Settlement Manual and various enactments referred to in the foregoing paragraphs of this judgment. The preparation and maintenance of record of rights, has been evolved in due course of time. The presumption attached to said record of rights is similarly worded in all the relevant sections of the earlier enactments. By and large, it can be said that the Bombay Survey and Settlement Manual and various enactments, which are referred to herein above, were brought in force for the fiscal purpose by the Government holding the field of governance. All along these enactments were brought in force for the purpose of imposition and recovery of the land revenue by the then Government. While imposition and recovery of the land revenue, the then Government felt the necessity of preparation of record of rights regarding, agricultural land. Recording the names of the occupant, recording the names of the cultivators, tenants etc. was all for the prime object of imposition and recovery of the land revenue by the Government. In this view of the matter, presumption has been conferred upon the mutation entries, entry taken in the record of rights by these enactments. Such presumption always is rebuttable presumption. Apart from these enactments, presumption under section 114 of the Indian Evidence Act, 1872 regarding entries in the record of rights is also available; in favour of such entries.

In the case on hand, learned counsel for the Appellant has placed reliance on two documents i.e. Exhibit-5 Hissa Form No.4, and Tonch Map Exhibit-85. Extensive survey of Survey and Settlement Manual, various enactments pertaining to agricultural lands have been considered by me. In my view, Hissa form No.4 (origination is from Gunakar Book) cannot be said to be a document creating or conferring the title over the person whose name is mentioned as occupant in this Hissa form no.4. This Hissa Form No.4 also cannot be equated with a document creating title in favour of the person whose name is mentioned in the column No.11 of Hissa form No. 4. In the case on hand, Govind Shankar is the name mentioned i.e. of the plaintiff. In other words, this Hissa Form No.4, in the case on hand, cannot be said to be a piece of evidence or document creating or conferring title over the plaintiff regarding land Survey No.23 (1), admeasuring 00 Hectare 32 Ares. It is clarified that Pot Hissa No.1 or sub division No.1 of land Survey No.23, admeasuring 00 Hectare 32 Acres, cannot be said to be owned by the plaintiff Govind because of this document Hissa Form No.4 Exhibit-5.

The communication Exhibit-X dated 24th June, 1940 addressed by the Settlement Commissioner and Director of Land Record Pune to Mr. M. J. Desai, Settlement Commissioner and Director of Land Records, Pune indicates that caution to be exercised by the officers concerned of land record department as well as revenue department. In my considered view, after preparation of Hissa Form No.4 and Touch map Exhibit-85, the revenue officers have to prepare Hissa Form No.12 Exhibit-X which consists of about twenty columns. After preparation of this Hissa Form No.12, said Hissa Form No.12 has to be effected into a record of rights by the officers of the revenue department in accordance with the provisions of law. Since this communication Exh.X is addressed by Settlement Commissioner and Deputy Director of Land Record, Pune, to Mr. M. J. Desai, Director of Land Record, Pune on 24th June, 1940. Specific reference is made to section 135(d)(6) of the then Land Revenue Code i.e. 1879. Thus, the procedure had to be gone into before effecting into the record of rights, the effect of Hissa Form No.12. In other words, it is a combination of act and actions of the survey and revenue department officials which culminates in finalisation of Hissa Form No.12 and its actual effect in to the record of rights i.e. 7/12 extract, showing the name of the holder, details of the survey number/Pot Hissa Number/area of the survey number/pot hissa number, etc. The learned counsel for the Appellant fairly concedes that Exhibit-5 i.e. Hissa Form No.4 and Touch map Exh. 85 have not culminated in preparation of Hissa form No.12 and consequently have not been given effect to, in the 7/12 extract i.e. the record of rights. Thus, fact remains that, despite the measurements of Pot Hissa Survey No.23 (1), showing area 00 Hectare 32 Ares, and showing plaintiff Govind as a holder thereof, such entries have not been effected into the record of rights. Even if they were effected into the record of rights, as observed in the foregoing paragraphs, it has got presumptive value which is rebuttable.

Considering from any angle to the grounds, which are relied upon by the learned counsel for the Appellant, to be the grounds involving substantial question of law, in my view, it is not possible to accede to the submissions of learned counsel for the Appellant.

In this view of the matter, in my view, the second appeal is devoid of substantial question of law. Second appeal stands dismissed. No order as to costs.

Second appeal dismissed.